# Naimuddin Khan v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1220
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-24
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naimuddin-khan-v-state-of-u-p-and-ors-42661
- **Pages:** 4

## Headnote

Constitution of India, Art. 226- Major
punishment-on basis of reply after show
cause notice-without fixing date time and
place for enquiry-even in ex-parte enquiry
without
examing
the
witness-without
proving
the
documents-relying
for
punishment-held-not
sustainable-order
passed by both authorities-quashed.

Held: Para-8
It is not disputed at bar that department
has not examined any of the witness to
prove the charges levelled against the
petitioner and also the document relied
upon by the department were not proved
by adducing any witness. The inquiry
report reveals that no date, time and
place of conducting the inquiry was
mentioned in the report and the Enquiry
Officer straightway on the basis of the
reply of the petitioner submitted the
report before the competent authority.

Case Law discussed:
AIR 2010 (10) SCC 3131

## Text

1220 INDIAN LAW REPORTS ALLAHABAD SERIES
no legal impediment or any infringement of
the terms of the advertisement on the part of
U.P. Public Service Commission/O.P.No. 2
in conducting the written examination to be
held on 22.09.2013 for General Knowledge
and General Hindi, when admittedly all the
petitioners are allowed to appear in the said
examination and no prejudice is caused to the
petitioners on the part of O.P.No. 2 for
conducting the written examination on
22.09.2013.

26. For the foregoing reasons, writ
petition lacks merit and is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Service Single No. 6994 of 2009.

Naimuddin Khan

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Amit Chandra

Counsel for the Respondents:
C.S.C., Sri N.C. Mehrotra

Constitution of India, Art. 226- Major
punishment-on basis of reply after show
cause notice-without fixing date time and
place for enquiry-even in ex-parte enquiry
without
examing
the
witness-without
proving
the
documents-relying
for
punishment-held-not
sustainable-order
passed by both authorities-quashed.

Held: Para-8
It is not disputed at bar that department
has not examined any of the witness to
prove the charges levelled against the
petitioner and also the document relied
upon by the department were not proved
by adducing any witness. The inquiry
report reveals that no date, time and
place of conducting the inquiry was
mentioned in the report and the Enquiry
Officer straightway on the basis of the
reply of the petitioner submitted the
report before the competent authority.

Case Law discussed:
AIR 2010 (10) SCC 3131

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. Heard Sri Amit Chandra, learned
counsel for the petitioner, Sri N.C.
Mehrotra,
learned
counsel
for
the
respondents no.2 to 4 and Chaudhary
Shatrughan, learned Standing Counsel for
the State-respondent no.1.

2. By means of the present writ
petition, the petitioner has challenged the
order by which major punishment has
been awarded to him after conducting
inquiry for the charges levelled against
him.
The
punishment
awarded
are
mentioned in the order dated 12.02.2007
(Annexure 1 to the writ petition). The
appeal preferred against that order was
also dismissed by the State Government
vide its order dated 31.07.2009 (Annexure
2 to the writ petition) communicated to
the petitioner by letter dated 21.08.2009.
Both these orders are sought to be
quashed in this writ petition.

3. The relevant facts for deciding the
present writ petition are that petitionerNaimuddin
Khan
was
working
as
Secretary, Krishi Utpadan Mandi Parishad
at the relevant time. Certain irregularities
were found against him while working as
Secretary.
On
account
of
which
departmental proceedings were initiated.
The Regional Deputy Director, Rajya
Krishi Utpadan Mandi Parishad, U.P.,
3 All] Naimuddin Khan Vs. State of U.P. and Ors.
1221
Gorakhpur-Sri R.D. Pradad was appointed
as Enquiry Officer. The Enquiry Officer
before completing the inquiry served the
charge sheet to the petitioner on 9th
October, 2003. Against the charge sheet,
the petitioner submitted his reply on 15th
October, 2003. Thereafter, on 12th
November, 2003 a supplementary charge
sheet has been served to the petitioner and
the reply to the supplementary charge
sheet has been given by the petitioner on
21.01.2004.
Thereafter,
the
Enquiry
Officer submitted its report on 12.02.2004
and by the impugned order dated
12.02.2007, the appointing authority after
giving personal hearing to the petitioner
awarded major punishment of reversion in
the same pay scale at the lowest in which
the
petitioner
was
working.
Two
increments were also withheld with
cumulative effect and an adverse entry
was also recorded in his character roll and
directed that he shall not be posted in
Grade-A
Committee
in
future.
His
integrity was also withhold. Apart from it,
a recovery of Rs.4,17,202/- was also
ordered after making a provision that the
amount which was realized from the
traders be reduced from the aforesaid
amount. Aggrieved by the aforesaid
orders, the petitioner preferred appeal to
the State Government which has been
dismissed vide order dated 31.07.2009
communicated to the petitioner vide letter
dated 21.08.2009.

4. Learned counsel for the petitioner
has submitted that no date, time and place
was fixed for conducting the inquiry
proceedings and straightway after the
reply submitted by the petitioner against
the charge sheet, the Enquiry Officer
completed the inquiry and submitted his
report to the competent authority, who
passed
the
impugned
order
dated
12.02.2007. Hence the same is arbitrary in
nature, contrary to law as well as against
the principles of natural justice.

5. It has further submitted that no
opportunity to produce defence has been
given to the petitioner nor any opportunity
has been given by the Enquiry Officer to
controvert the evidence relied upon by the
department. It has also been submitted
that no witness has been examined from
the side of the department to prove the
record produced against the petitioner in
support of the charges levelled against
him. Therefore, the inquiry report cannot
be relied upon which is based on the
documents which are not admitted to the
petitioner.

6. However, learned counsel for the
opposite parties has submitted that
principles of natural justice has not been
violated as not only at the stage of inquiry
conducted by the Enquiry Officer, the
petitioner was given opportunity to
defend his case but also the competent
authority given an opportunity of personal
hearing to the petitioner and thereafter
passed the impugned order.

7. I have careful considered the
submissions of learned counsel for the
parties and gone through the record of the
case.

8. It is not disputed at bar that
department has not examined any of the
witness to prove the charges levelled
against the petitioner and also the
document relied upon by the department
were not proved by adducing any witness.
The inquiry report reveals that no date,
time and place of conducting the inquiry
was mentioned in the report and the
Enquiry Officer straightway on the basis
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
of the reply of the petitioner submitted the
report before the competent authority.

9. The Apex Court in State of U.P.
and others v. Saroj Kumar Sinha, AIR
2010 (10) SCC 3131 held that even if the
inquiry proceeded ex-parte against the
deliquescent, it was mandatory on the part
of the department to examine the
witnesses mentioned in the charge sheet.
The principles of natural justice must be
followed and should not be violated in a
departmental inquiry
and
reasonable
opportunity to defend must be provided to
delinquent because the inquiry conducted
against an employee is not a casual
exercise. The relevant portion of the
judgment is quoted hereinbelow:

"Where the charged government
servant does not appear on the date fixed
in the inquiry or at any stage of the
proceeding in spite of the service of the
notice on him or having knowledge of the
date, the inquiry officer shall proceed
with the inquiry ex parte. In such a case
the inquiry office shall record the
statement of witnesses mentioned in the
charge-sheet in absence of the charged
government servant.

Apart from the above , by virtue of
Article 31(2) of the Constitution of India
the departmental enquiry had to be
conducted in accordance with the rules of
natural justice. It is a basic requirement of
the rules of natural justice that an
employee
be
given
a
reasonable
opportunity of being heard in any
proceedings which may culminate the
punishment
being
imposed
on
the
employee.

When a departmental enquiry is
conducted against the government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with the closed mind. The
inquiry officer has to be wholly unbiased.
The rules of natural justice are required to
be observed to ensure not only that justice
is done but is manifestly seen to be done.
The object of rules of natural justice is to
ensure that a government servant is
treated fairly in proceedings which may
culminate in imposition of punishment
including dismissal / removal from
service."

10. A Division Bench of this Court
in the case of Lucknow Kshetriya Gramin
Bank and others Vs. Shri Devendra
Kumar Upadhyay, 2009 (27) LCD 990
has held:

"In case an employee is charged of
misconduct and charge-sheet is issued, it
is to contain precise and specific charges
along with the evidence which the
department wants to rely upon, in proving
the charge and the charges along with the
copy of document should be provided to
the delinquent. After asking the reply
from the delinquent , the enquiry is to
proceed where he charges are to be
proved by the department concerned, on
the basis of the evidence which the
department chooses to produce, oral as
well as documentary. The delinquent also
has to be provided, adequate and
reasonable opportunity to lead evidence in
rebuttal, may be oral or documentary or
both. It is on the basis of evidence so led
and the material available on record that
the Inquiry Officer has to apply his mind
to find out whether the charge levelled
against him stands proved or not."

11. The appellate court has also not
considered the aforesaid aspect while
3 All] Yagya Shanker Trivedi & Ors. Vs. State of U.P. and Ors.
1223
affirming the order of the competent
authority and, therefore, the appellate
order can also not be allowed to sustained.

12. In view of the aforesaid
discussion, the impugned orders cannot be
allowed to sustain and are liable to be set
aside and the writ petition deserves to be
allowed.

13. The writ petition is allowed and
the impugned order dated 12.02.2007 and
the order of the appellate authority dated
31.07.2009 along with inquiry report
dated 12.02.2004 submitted by the
Enquiry Officer are set aside.

14. The matter is remitted back to the
Director, Krishi Utpadan Mandi Parishad,
U.P. to proceed with inquiry afresh from the
stage of submission of the reply by the
petitioner after fixing date, time and place
and after giving adequate and reasonable
opportunity of being heard to the petitioner
to adduce his defence, proceed to conclude
the inquiry as expeditiously as possible
preferably within a period of three months
from the date of production of a certified
copy of this order.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.08.2013

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE VINAY KUMAR MATHUR, J.

Misc. Bench No.7041 of 2013

Yagya Shanker Trivedi & Ors. .Petitioners
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Surendra Kumar
Sri Nisha Srivastava

Counsel for the Respondents:
Govt. Advocate

Constitution of India, Art. 226- Quashing
FIR-stay of arrest-offence under Section
308, 504, 506 IPC-punishable with 7
years
R.I.-considering
amended
provision of Section 41(1)(b)-Police can
arrest
only
after
recording
reasons
subject
to
order
by
Court-with
contingencies contained
in
amended
provision
itself-interference
not
required-AGA to communicate this order
for strict compliance by S.S.P/S.P of
Distt. concerned-petition dismissed.

Held: Para-5
Also
under
the
newly
introduced
provision, section 41 A Cr.P.C. (which
has also been added by Act No. 5 of
2009, effective from 1.11.2010), in all
cases where the arrest of such an
accused is not needed in view of the
provisions of section 41 (1) Cr.P.C., the
police officer concerned is required to
issue a notice directing the accused to
appear before him at a specified place
and time. However if at any time the
accused fails to comply with the terms
of the notice, or fails to identify
himself, or the police officer is of the
opinion that the arrest is required, he
may arrest the said accused after
recording his reasons for the same. The
police powers of arrest will however be
subject to any orders that may have
been passed by the Competent Court.

(Delivered by Hon'ble Imtiyaz Murtaza, J.)

1. Heard learned counsel for the
petitioners
and
learned
Additional
Government Advocate.

2. This writ petition has been filed for
quashing an F.I.R and staying the arrest of the
petitioners in Case Crime No. 255 of 2013,
under Sections- 308,504,506 I.P.C. at P.S.-
Kotwali Haidergarh, District-Barabanki.