# Mohd. Naseem Uddin v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1224
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-15
- **Case number:** Service Single No. 33755 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-naseem-uddin-v-state-of-u-p-ors-47371
- **Pages:** 6

## Headnote

A. Service Law - Departmental Enquiry -
The
departmental
enquiry
should
be
conducted and concluded within time
frame so provided by this Court vide
specific order and if such enquiry is not
concluded within time stipulated, the
disciplinary authority/inquiry officer may
file appropriate application before the
Court concerned seeking further time to
conclude the departmental enquiry. Even
this Court may suo moto extend the time
to conduct the departmental enquiry, if
the charges are so serious. (Para 10)

In the present case an application for grant of
time has been filed by the Standing Counsel on
25.1.2020, however, the time was expiring on
26.8.2019. Since this Court at Allahabad had
granted time to conclude the departmental
enquiry within time frame and the Division
Bench of this Court had not extended any
further time to conclude the departmental
enquiry, therefore, such application could have
been filed before this Court at Allahabad in the
same writ petition. Even if the opposite parties
were serious to conduct departmental enquiry
seeking further time the appropriate application
could have been filed here at Lucknow in the
month of August, 2019 itself. (Para 11)
Moreover, even the charge-sheet has been
issued after about two months from expiry of
the period so fixed by this Court inasmuch as
the period to conclude the departmental enquiry
was expiring on 26.8.2019 whereas the chargesheet has been prepared on 18.10.2019. (Para
11)

B. Suo-moto extension - The suo moto
extension can be granted if Court finds that the
disciplinary authority/inquiry officer was serious,
they responded promptly after the order of the
Court, issued the charge-sheet and started
departmental enquiry but anyhow the same
could not be concluded within time frame. In
present case exercise and intent to obey
the direction of this Court is absolutely
missing. Even the departmental enquiry did
not start within time frame so there is no
question to extend the time to conduct the
departmental enquiry against the petitioner.
(Para 13)

C.
Post-
retirement
enquiry
-
The
departmental
enquiry
against
the
petitioner after his retirement particularly
in
view
of
the
present
facts
and
circumstances,
cannot
be
permitted.
Petitioner has retired from service on 29.2.2020,
therefore, opposite party no. 1 is not permitted
to conduct the departmental enquiry against the
petitioner pursuant to the charge-sheet dated
18.10.2019 as the aforesaid charge-sheet has
been issued beyond the stipulated period so
fixed by this Court vide order dated 11.7.2019.
(Para 14, 15)

Writ petition allowed. (E-4)

Precedent followed:

## Text

1224 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)09ILR A1224
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 33755 of 2019

Mohd. Naseem Uddin ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shivam Sharma

Counsel for the Respondents:
C.S.C.

A. Service Law - Departmental Enquiry -
The
departmental
enquiry
should
be
conducted and concluded within time
frame so provided by this Court vide
specific order and if such enquiry is not
concluded within time stipulated, the
disciplinary authority/inquiry officer may
file appropriate application before the
Court concerned seeking further time to
conclude the departmental enquiry. Even
this Court may suo moto extend the time
to conduct the departmental enquiry, if
the charges are so serious. (Para 10)

In the present case an application for grant of
time has been filed by the Standing Counsel on
25.1.2020, however, the time was expiring on
26.8.2019. Since this Court at Allahabad had
granted time to conclude the departmental
enquiry within time frame and the Division
Bench of this Court had not extended any
further time to conclude the departmental
enquiry, therefore, such application could have
been filed before this Court at Allahabad in the
same writ petition. Even if the opposite parties
were serious to conduct departmental enquiry
seeking further time the appropriate application
could have been filed here at Lucknow in the
month of August, 2019 itself. (Para 11)
Moreover, even the charge-sheet has been
issued after about two months from expiry of
the period so fixed by this Court inasmuch as
the period to conclude the departmental enquiry
was expiring on 26.8.2019 whereas the chargesheet has been prepared on 18.10.2019. (Para
11)

B. Suo-moto extension - The suo moto
extension can be granted if Court finds that the
disciplinary authority/inquiry officer was serious,
they responded promptly after the order of the
Court, issued the charge-sheet and started
departmental enquiry but anyhow the same
could not be concluded within time frame. In
present case exercise and intent to obey
the direction of this Court is absolutely
missing. Even the departmental enquiry did
not start within time frame so there is no
question to extend the time to conduct the
departmental enquiry against the petitioner.
(Para 13)

C.
Post-
retirement
enquiry
-
The
departmental
enquiry
against
the
petitioner after his retirement particularly
in
view
of
the
present
facts
and
circumstances,
cannot
be
permitted.
Petitioner has retired from service on 29.2.2020,
therefore, opposite party no. 1 is not permitted
to conduct the departmental enquiry against the
petitioner pursuant to the charge-sheet dated
18.10.2019 as the aforesaid charge-sheet has
been issued beyond the stipulated period so
fixed by this Court vide order dated 11.7.2019.
(Para 14, 15)

Writ petition allowed. (E-4)

Precedent followed:

1. Abhishek Prabhakar Awasthi Vs New India
Assurance Company Ltd. passed in W.P. No.
(S/S) 7179 of 2009 (Para 7)

Present
petition
assails
charge-sheet
dated 18.10.2019, issued by Secretary
Vocational
Education
and
Skill
Development.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)
9 All Mohd. Naseem Uddin Vs. State of U.P. & Ors.
1225

1. Heard Sri Shivam Sharma, learned
counsel
for
the
petitioner
and
Sri
Shailendra
Kuamr
Singh,
C.S.C.-III
assisted by Sri Shashank Bhasin, learned
Standing Counsel for the State respondents.

2. By means of this petition the
petitioner has prayed following relief:

"(i) issue a writ, order or
direction in the nature of Certiorari
quashing
the
Charge-sheet
dated
18.10.2019, issued by opposite party No. 1,
contained in Annexure No.1 to this writ
petition.

(ii) issue a writ, order or
direction in the nature of Mandamus
commanding
the
respondents
not
to
proceed in furtherance of the Charge-sheet
dated 18.10.2019, issued by opposite party
No. 1, contained in Annexure No.1 to this
writ petition.

(iii) issue a writ, order or
direction in the nature of Mandamus
commanding the respondents to forthwith
grant all consequential benefits such as
release of salary, upon quashing of the
Charge-sheet
dated
18.10.2019,
and
completion
of
formalities
towards
settlement of the post-retiral dues of the
petitioner."

3. Learned Standing Counsel has
opposed the prayers made in the writ
petition by submitting that the charge-sheet
cannot be assailed before the writ Court
and the petitioner should participate in the
departmental enquiry.

4. On that Sri Shivam Sharma,
learned counsel for the petitioner has
submitted that he is assailing the chargesheet on the ground that no definite charges
have been leveled against the petitioner by
means of impugned charge sheet dated
18.10.2019 and the relied upon letter dated
16.10.2018
does
not
disclose
any
involvement of the petitioner in the issue in
question, if any. As a matter of fact, as per
Sri Shivam Sharma it cannot be understood
as to which exam the petitioner was
allegedly
involved
in
committing
irregularities, as to who are the persons
who were in collusion with the petitioner
and as to when the mass copying for
particular examination has been detected
and who were involved in mass copying at
that point of time. He has also drawn
attention of this Court towards charge no. 5
which says that after getting the stay order
from the Court the petitioner submitted his
joining at the place in contravention of the
guidelines of government orders.

5. Sri Shivam Sharma has further
drawn attention of this Court towards the
order dated 18.12.2019 which was passed
on the first date of admission which reads
as under :

"Heard learned counsel for the
parties.

By means of this petition, the
petitioner has assailed the charge sheet on
the ground that the charges levelled in the
charge sheet are vague and the authority
concerned has issued charge sheet just to
harass the petitioner.

Learned counsel for the petitioner
has submitted that the suspension order
dated 30.5.2019 was assailed before this
Court at Allahabad in Writ-A No.9584 of
2019 and the said writ petition was
disposed of on 11.7.2019 directing the
opposite parties to expedite the enquiry
proceedings and conclude the same within
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
a period of six weeks from 11.7.2019.
However, the suspension order was not
stayed. The petitioner filed Special Appeal
before this Court at Allahabad bearing
Special Appeal No.827 of 2019 and the
Division Bench of this Court was pleased to
admit the said special appeal staying the
operation of suspension order dated
30.5.2019 with the further direction that
the enguiry against the petitioner may go
on and the petitioner shall fully cooperate.
It has been clarified in the order dated
28.9.2019 passed by the Division Bench in
special appeal that the enquiry may be
concluded within the time allowed by the
learned Single Judge vide order dated
11.7.2019.

Submission of learned counsel for
the petitioner is that six weeks' period w.e.f.
11.7.2019, the date of order of the Single
Judge, has already been expired but the
departmental
enquiry
has
not
been
completed.
Sri
Shivam
Sharma
has
submitted
that
what
to
say
about
conclusion of departmental enquiry, even
the charge sheet has been served upon the
petitioner on 20.11.2019 much after expiry
of the stipulated time, therefore, in view of
the Full Bench judgment of this Court in
re; Abhishek Prabhakar Awasthi Vs. The
New India Assurance Company Limited
and others, Service Single No.7179 of
2009, the departmental enquiry may not go
on against an employee without seeking
leave from the court concerned to that
effect.

Sri Shivam Sharma has submitted
that till date, no such application has been
filed before the Single Judge or before the
Division Bench, therefore, departmental
enquiry against the petitioner may not be
conducted.
Sri
Sharma
has
further
submitted that as per the Full Bench of this
Court, this Court may suo moto grant
permission to conduct and conclude
departmental
enquiry
after
stipulated
period but no such order has yet been
passed by this Court.

Matter requires consideration.

Let counter affidavit be filed
within a period of two weeks. Rejoinder
affidavit, if any, may be filed within a
period of one week.

List this petition in the week
commencing 13th January, 2020.

If the enquiry officer/ disciplinary
authority has not sought leave from the
Court to conduct and conclude the
departmental enquiry beyond the stipulated
time stipulated by the Court vide order
dated
11.7.2019,
such
departmental
enquiry against the petitioner may not go
on till the next date of listing."

6. Sri Sharma has submitted that on
the first date of admission the relevant facts
of the issue in question and the law
supporting such averments has been
indicated in the said order.

7. For the repetition sake Sri Shivam
has submitted that this Court at Allahabad
in re: Writ A No. 9584 of 2019 while
disposing of the writ petition of petitioner
vide order dated 11.7.2019 granted six
weeks time to conclude the inquiry. The
period of six weeks was expiring on
26.8.2019.
Sri
Sharma
has
further
submitted that law is trite on the point that
the departmental inquiries started from the
date when the charge-sheet is served upon
the employee and in the present case the
charge-sheet was prepared on 18.10.2019
and served upon the petitioner later on.
9 All Mohd. Naseem Uddin Vs. State of U.P. & Ors.
1227
Therefore,
the
date
of
initiation
of
departmental enquiry would be treated on
or after 18.10.2019 when the charge-sheet
is served upon the petitioner. Before such
date no departmental enquiry can be said to
have
been
initiated.
Whereas
the
departmental enquiry should be concluded
within a period of six weeks w.e.f.
11.7.2019. Therefore, for all practical
purposes the authority concerned has not
initiated the departmental enquiry against
the petitioner within time so stipulated by
this Court vide order dated 11.7.2019.
Therefore, in view of the decision of Full
Bench of this Court in the case of Abhishek
Prabhakar
Awasthi
vs.
New
India
Assurance Company Ltd. passed in W.P.
No. (S/S) 7179 of 2009 after expiry of
stipulated period the departmental enquiry
may not be conducted and concluded
against the employee.

8. Two questions were referred before
the Full Bench of this Court in re:
Abhishek Prabhakar Awasthi (supra), reads
as under :

"(a)
Whether
it
an
inquiry
proceeding is not concluded within a time
frame fixed by a Court and concluded
thereafter, without seeking extension from
the Court then on the said ground the
entire inquiry proceeding as well as
punishment order passed, is vitiated in view
of the judgment in the case of P.N.
Srivastava; and

(b) Whether the law as laid down
by a Division Bench of this Court in the
case of P.N. Srivastava that if an inquiry
proceeding is not concluded within a time
frame as fixed by a Court, it stands vitiated
is still a good law in view of the judgment
rendered by the Supreme Court in the case
of Suresh Chandra as well as a judgment
dated 27.7.2009 of a Division Bench of this
Court in Writ Petition No. 1056(SB) of
2009 (Union of India and others v.
Satendra Kumar Sahal and another)."

9. The Full Bench has answered the
aforesaid question vide para 18 of the
judgment, which reads as under :

"18. In view of the above
discussion, we now proceed to answer the
questions which have been referred to the
Full Bench.

(A) Question No. (a): We hold
that if an enquiry is not concluded within
the time which has been fixed by the Court,
it is open to the employer to seek on
extension of time by making an appropriate
application to the Court setting out the
reasons for the delay in the conclusion of
the enquiry, in such an event, it is for the
Court to consider whether time should be
extended,
based
on
the
facts
and
circumstances of the case. However, where
there is a stipulation of time by the Court, it
will not be open to the employer to
disregard that stipulation and an extension
of time must be sought;

(B)
Question
No.
(b):
The
judgment of the Supreme Court in the case
of Suresh Chandra (supra) as well as the
judgment of the Division Bench of this
Court in the case of Satyendra Kumar
Sahai (supra) clearly indicate that a mere
delay on the part of the employer in
concluding a disciplinary inquiry will not
ipso facto nullify the entire proceedings in
every which has fixed a stipulation of time
has jurisdiction to extend the time and it is
open to the Court, while exercising that
jurisdiction, to that a enquiry Court the
time the delay has been satisfactorily
explained. The Court can suitably extend
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
time for conclusion of the enquiry either in
a proceeding instituted by the employee
challenging the enquiry on the ground that
it was not within the stipulated period or
even upon an independent application
moved by the employer. The Court has the
inherent jurisdiction to grant an extension
of time, the original stipulation of time
having been fixed by the Court itself. Such
an extension of time has to be considered in
the interests of justice balancing both the
need for expeditious conclusion of the
enquiry in the interests of fairness and an
honest administration. In an appropriate
case, it would be open to the Court to
extend time suo motu in order to ensure
that a serious charge of misconduct does
not go unpunished leading to a serious
detriment to the public interest. The Court
has sufficient powers to grant an extension
of time both before and after the period
stipulated by the Court has come to an end.

We, accordingly, dispose of the
reference in the aforesaid terms The
petition sh now be placed before the
regular Court for disposal in light of the
observations ma hereinabove."

10. In view of the decision of this Court in
Full Bench in Abhishek Prabhakar Awasthi
(supra) the departmental enquiry should be
conducted and concluded within time frame so
provided by this Court vide specific order and if
such enquiry is not concluded within time
stipulated, the disciplinary authority / inquiry
officer may file appropriate application before
the Court concerned seeking further time to
conclude the departmental enquriy. Even this
Court may suo moto extend the time to conduct
the departmental enquiry, if the charges are so
serious.

11. In the present case an application
for grant of time has been filed by the
Standing Counsel on 25.1.2020, however,
the time was expiring on 26.8.2019. Since
this Court at Allahabad had granted time to
conclude the departmental enquiry within
time frame and the Division Bench of this
Court had not extended any further time to
conclude
the
departmental
enquiry,
therefore, such application could have been
filed before this Court at Allahabad in the
same writ petition. Even if the opposite
parties
were
serious
to
conduct
departmental enquiry seeking further time
the appropriate application could have been
filed here at Lucknow in the month of
August, 2019 itself. Not only the above at
least some seriousness and carefulness
must have been shown by the disciplinary
authority / inquiry officer in compliance of
order dated 11.7.2019 issuing charge-sheet
against the petitioner with promptness and
the
departmental
enquiry
should
be
concluded within stipulated time. In the
present case even the charge-sheet has been
issued after about two months from expiry
of the period so fixed by this Court
inasmuch as the period to conclude the
departmental enquiry was expiring on
26.8.2019 whereas the charge-sheet has
been prepared on 18.10.2019.

12. Therefore, I do not find any good
ground to extend further time to conduct
the departmental enquiry against the
petitioner in view of the decision of Full
Bench of this Court in re: Abhishek
Prabhakar Awasthi (supra).

13. The suo moto extension can be
granted if this Court finds that the
disciplinary authority / inqiry officer was
so serious, they responded promptly after
the order of this Court, issued the chargesheet and started departmental enquiry but
anyhow the same could not be concluded
within time frame. I wonder the aforesaid
9 All Smt. Niramala Devi Vs. State of U.P. & Ors.
1229
exercise and intent to obey the direction of
this Court is absolutely missing in this case.
For the repetition sake I hereby observe
that even departmental enquiry against the
petitioner has not been started within time
frame so there is no question to extend the
time to conduct the departmental enquiry
against the petitioner.

14. I have also noted one fact that
petitioner has already retired from service
on 29.2.2020, therefore, the departmental
enquiry against the petitioner after his
retirement particularly in view of the facts
and circumstances of the issue in question
as considered above, cannot be permitted.

15. Considering the facts and
circumstances of the issue in question and
also considering the decision of Full Bench
in re: Abhishek Prabhakar Awasthi
(supra) I do not permit the opposite party
no. 1 to conduct the departmental enquiry
against the petitioner pursuant to the
charge-sheet dated 18.10.2019 as the
aforesaid charge-sheet has been issued
beyond the stipulated period so fixed by
this Court vide order dated 11.7.2019.

16. Accordingly the writ petition is
allowed.

17. A writ in the nature of certiorari is
issued quashing the charge-sheet dated
18.10.2019 issued by the opposite party no.
1, as contained in Annexure no. 1 to the
writ petition.

18. Consequences to follow.
----------
(2021)09ILR A1229
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2021

BEFORE
THE HON'BLE AJAY BHANOT, J.

Writ C No. 15231 of 2021

Smt. Nirmala Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamal Kumar Singh

Counsel for the Respondents:
C.S.C.

A. U.P. Zamindari Abolition and Land
Reforms Act, 1950 - Section 161 - U.P.
Revenue Code, 2006 - Section 101 -
Exchange - proceedings for exchange are
judicial proceeding - Assistant Collector
should pass complete and self contained
order u/s 161 approving the exchange of
land - such order must record compliance
of Rules 144 to 146 of the U.P.Z.A.&L.R.
Rules, 1952 - i.e. rental value of the
lands which are sought to be exchanged
and the basis of calculation of such rental
value has to be disclosed in the order
approving the exchange - without notice
to the Gaon Sabha and in absence of a
resolution recording consent of the Land
Management Committee the permission
to make an exchange suo moto by the
Assistant Collector on a mere report of
the Halka Lekhpal would be void - proper
resolution of the Gaon Sabha & not mere
personal consent of the Lekhpal or
Pradhan is required - report or consent of
the
Secretary
of
Land
Management
Committee /Lekhpal is not the consent of
the Gram Panchayat - Assistant Collector
cannot accord permission merely at the
instance
of
an
individual
seeking
exchange of his land - willingness of both
the parties, to exchange their respective
land is condition precedent - exchange of
land is not unilateral transaction of a
willing party to exchange, there must be
consent
of
the
person
with
whom
exchange has been sought - also order
u/s 161 must discuss the nature and
utility of lands to be exchanged (Para 5,
13, 14)