# Nauratan Mal Daga and others v. State of U.P. and another

- **Citation:** (2002) 2 ILRA 343
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-01-23
- **Case number:** Civil Misc. Writ Petition No. 42108 of 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nauratan-mal-daga-and-others-v-state-of-u-p-and-another-39864
- **Pages:** 4

## Headnote

Constitution of India-Article 226- before
passing a dismissal order an enquiry
should be held intimating the accused
employee of the date, time and place of
enquiry.

(Held in para 7)

The accused employee does not reply to
the letter asking whether he wants to
give evidence or wants a hearing he
must be sent a letter informing the date,
time and place of the enquiry in which he
must be given opportunity to produce his
witnesses
and
cross-examine,
the
witnesses against him. It is only where
the employee specifically writes a letter
to the employer that he does not want to
lead evidence or does not want to
produce witnesses or cross examine that
these need not be provided. However,
even in such case the employer must
lead its own evidence otherwise the
charge will fail.
Case Law Preferred:
(I) 1999(4) A.W.C. 3227
(II) 2001 (3) AWC-2043
(III) 2002(1) UPLBEC 425
(IV) AIR 1962- SC 1348
(V) 1997(77) FLR 520
(VI) 1984 (49) FLR 38
(VII) 1981 (43) FLR 194

## Text

2 All] Nauratan Mal Daga and others Vs. State of U.P. and another
343
petitioners
does
not
know
the
complainant, never met him and the
complainant even could not identify them.
Not
only
this,
they
have
further
mentioned that this fact can be verified by
putting them for test identification from
the complainant. Therefore, the allegation
of the petitioners is that there has been
absolutely no transaction between them
nor there was any occasion for the
transaction as alleged as they never met
the complainant.

8. As against this, the complainant
has alleged that the petitioners were
known to him from before. However, it is
not shown that they have even purchased
any article from the complainant prior to
the articles in question.

9. The sole intention to file the
complaint is to black mail the petitioners
who are resident of West Bengal. The
learned Magistrate has not considered the
facts in the right prospective and passed
summoning order without application of
mind and ignoring the principles laid
down in the various case by the Apex
Court. The Apex Court in the case of M/s
Pepsi Foods Ltd. Versus Special Judicial
Magistrate reported in 1998(35) A.C.C.,
20(S.C.) has observed that "Summoning
of an accused in a criminal case is a
serious matter. Criminal Law cannot be
set into motion as a matter of course. It is
not that the complainant has to bring only
two witnesses to support his allegations in
the complaint to have the Criminal law set
into motion. The order of the Magistrate
summoning the accused must reflect that
he has applied his mind to the facts of the
case and the law applicable thereto. He
has to examine the nature of allegations
made in the complaint and the evidence
both oral and documentary in support
thereof and would that be sufficient for
the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before
summoning
of
the
accused.
Magistrate has to carefully scrutinize the
evidence brought on record and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
out the truthfulness of the allegations or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused".

10. The learned Magistrate has
passed the order without application of
mind and has not considered that no
criminal offence is made out. He should
remain very careful in summoning the
accused persons in future at least in cases
where the accused persons are resident of
far off places.

11. The petition is, accordingly,
allowed and the above complaint and all
the orders passed thereon are quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD:08.04.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 42108 of 2001

Shafat Ullah

...Petitioner
Versus
Commissioner,
Varanasi
Division,
Varanasi and others
 ...Respondents

Counsel for the Petitioner:
Sri Yogesh Agarwal
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
344
Counsel for the Respondents:
Sri C.K. Parekh
Sri B.N. Singh
Sri A.K. Singh
Sri Niraj Tiwari

Constitution of India-Article 226- before
passing a dismissal order an enquiry
should be held intimating the accused
employee of the date, time and place of
enquiry.

(Held in para 7)

The accused employee does not reply to
the letter asking whether he wants to
give evidence or wants a hearing he
must be sent a letter informing the date,
time and place of the enquiry in which he
must be given opportunity to produce his
witnesses
and
cross-examine,
the
witnesses against him. It is only where
the employee specifically writes a letter
to the employer that he does not want to
lead evidence or does not want to
produce witnesses or cross examine that
these need not be provided. However,
even in such case the employer must
lead its own evidence otherwise the
charge will fail.
Case Law Preferred:
(I) 1999(4) A.W.C. 3227
(II) 2001 (3) AWC-2043
(III) 2002(1) UPLBEC 425
(IV) AIR 1962- SC 1348
(V) 1997(77) FLR 520
(VI) 1984 (49) FLR 38
(VII) 1981 (43) FLR 194

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
petitioner and Sri C.K. Parekh learned
counsel for the respondent.

2. The petitioner has challenged the
impugned orders dated 21.9.2001 and
23.1.2001 (Annexure-1 and 2 to the
petition).

3. The petitioner was Law Officer in
the service of the Nagar Nigam, Varanasi.
He was chargesheeted vide Annexure-5 to
the petition and additional charge sheet
vide Annexure-8 to the petition. He gave
a reply to the same dated 29.11.96 and
2.12.96 vide Annexure-9 to the petition.

4. In paragraph 15 it is stated that
thereafter no enquiry took place and
petitioner was never informed any date of
the enquiry and no witness was examined
in his presence. No documents were
produced before the Enquiry Officer in
the presence of the appellant and he was
not given opportunity to rebut any
document against him. Instead suddenly a
letter dated 21.8.97 was sent by the
Enquiry Officer alongwith his report.
Copy of the same is Annexure-10 to the
petition. The petitioner gave reply to the
show cause notice vide Annexure-CA-7
to the counter affidavit. Thereafter the
impugned order dismissing the petitioner
dated 20.10.97 was passed. Against that
order the petitioner filed an appeal which
was allowed on 31.12.99 vide Anenxure-4
to the petition. In the appellate order it has
been stated that there was violation of
Rule 33 of U.P. Nagar Mahapalika Seva
Niyamavali since approval of the U.P.
Public Service Commission was not
taken. Thereafter the respondents took
approval from the Commission, and the
impugned
order
dated
23.1.2001
(Annexure-2 to the petition) was passed.
Thereafter the petitioner filed an Appeal,
which was dismissed, vide Anenxure-11
to the petition. Hence this writ petition.

5. In our opinion this petition can be
disposed of on a short point viz. that the
petitioner was not informed of the date,
time and place of the enquiry. This fact
has been stated in paragraph 15 of the writ
2 All] Shafat Ullah Vs. Commissioner, Varanasi Division, Varanasi and others
345
petition and has not been denied by the
respondents. It has been repeatedly held
by this Court in Subhas Chand Sharma v.
Managing Director, U.P.Co-op. Spg.
Mills Federation Ltd. Kanpur and another
1999(4) AWC 3227; Radhey Shyam
Pandey v. Chief Secretary, U.P. and
others 2001 (3) AWC 2043 and K.K.
Dutta v. Managing Director, U.P.Co-op.
Spg. Mills Federation Ltd. Kanpur and
another 2002 (1) UPLBEC 425 that
before passing a dismissal order an
enquiry should be held intimating the
accused employee of the date, time and
place of enquiry.

6. The facts of this case appear to be
squarely covered by the above decisions.
However,
learned
counsel
for
the
respondents has relied on Annexure-5 to
the petition which is a chargesheet, and in
it is mentioned in the last paragraph that if
the petitioner wishes to produce any
evidence or if he desires a hearing or
cross-examination he should inform the
Enquiry Officer. It was argued by the
learned counsel for the respondents that
since the petitioner did not inform the
Enquiry Officer that he wanted a hearing
or to produce witnesses a presumption
should be drawn that the petitioner never
wanted a hearing nor did he want to
examine witnesses or opportunity of
cross-examination. We do not agree with
this contention. Since the charge was
made by the employer against the
employee the burden was on the employer
to prove its case by leading evidence to
prove the charges. If no one produces
evidence then the charge will fail. It has
been held in the Imperial Tobacco
Company of India Ltd. v. Its Workmen
AIR 1962 SC 1348 that even if the
accused employee withdraws from the
enquiry the enquiry should have been
completed and all the evidence should
have been taken ex-parte and thereafter it
was the duty of the Branch Manager to
appraise that evidence and record his
conclusion as to what misconduct has
been proved and also to decide what
punishment should be given.

7. Hence in our opinion even if the
accused employee does not reply to the
letter asking whether he wants to give
evidence or wants a hearing he must be
sent a letter informing the date, time and
place of the enquiry in which he must be
given
opportunity
to
produce
his
witnesses
and
cross-examine
the
witnesses against him. It is only where the
employee specifically writes a letter to the
employer that he does not want to lead
evidence or does not want to produce
witnesses or cross examine that these
need not be provided. However, even in
such case the Employer must lead its own
evidence otherwise the charge will fail as
has been held in the cases of Messrs.
Delta Engineering Co. Pvt. Ltd. Meerut v.
The P.O. Industrial Tribunal V, Meerut
and others 1997(77) FLR 520, Airech
Private Ltd. v. State of U.P. and others,
1984 (49) FLR 38, and V.K. Raj
Industries v. Labour Court, 1981(43) FLR
194.

8. For the reasons given above the
writ petition is allowed. The impugned
order dated 21.9.2001 and 23.1.2001
(Annexure-1 and 2 to the petition) is
quashed.

9. However, it is open to the
respondent no.2 to hold an enquiry after
giving opportunity of hearing to the
petitioner and take appropriate action.
---------
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
346
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24 MAY, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 719 of 1997

Raghuvendra Babu Mishra
...Appellant
Versus
District Inspector of Schools, Etah and
others

 ...Respondents

Counsel for the Appellant:
Sri R.S. Dwivedi
Sri V.S. Dwivedi

Counsel for the Respondents:
Sri Sabhajit Yadav
S.C.

U.P.
Secondary
Education
Services
Selection Board Act, 1982- Section 33-B
(1)- the right of a teacher appointed in a
short term vacancy on or before the date
specified in section 33-B (1) accrues only
upon the short term vacancy being
converted into a substantive vacancy
and a teacher appointed in short terms
vacancy on or before the specified dates,
who is not found 'suitable' and 'eligible'
for substantive appointment shall cease
to hold the appointment on such date as
the State Government may by order
specify and not on the date the short
terms vacancy came to be converted into
substantive vacancy. (Held in para 14).

The special appeal succeeds and is
allowed. The respondent no. 1 is directed
to refer the matter relating to the grant
of
substantive
appointment
to
the
appellant-
writ
petitioner
to
the
Selection Committee constituted under
sub section (2) of Section 33-B of U.P.
Secondary Education Services Selection
Board Act, 1982 and till such time any
decision is taken by the said committee,
the
appellant-
writ
petitioner
be
permitted to continue on the post in
question and be paid salary.
Case Law Preferred:
(I) 1997 (2) UPLBEC 1329
(II) 1999 (2) UPLBEC 1420
(III) 2000 (3) ESC 1990
(IV) AIR 1997 SC-3071

(Delivered by Hon'ble R.K. Agarwal, J.)

1. The present special appeal has
been filed by Raghvendra Babu Mishra
against the judgment and order dated
3.9.1997 passed by the learned Single
Judge in Writ Petition No. 10210 of 1994,
wherein the learned Single Judge had held
that the petitioner is not entitled to
regularization/substantive appointment on
the post of lecturer and had dismissed the
writ petition.

2. Briefly stated the facts giving rise
to the present appeal are as follows:

3. The appellant-writ petitioner was
appointed as a lecturer in Physics in
Gandhi Vidya Mandir Inter College,
Fatehpur- Etah (hereinafter referred to as
the College,), on 15.7.1989 in a short term
vacancy caused by the existing lecturer
Rama Nand Misra proceeding on leave.
The
appellant-
writ
petitioner
was
appointed under the provisions of U.P.
Secondary
Education
Services
Commission (Removal of Difficulties)
(Second) Order 1981 (hereinafter referred
to as the Second Removal of Difficulties
Order). His appointment was approved by
the District Inspector of Schools on
16.9.1989. He continued to work and
received salary from the State exchequer.
On 17.1.1994 he received a letter from the
Manager of the college stating therein that
the leave of Ram Nand Misra was going
to be over on 31.1.1994 and, therefore, he
shall be relieved from the post in case