# Pal Mishra alias Raju v. Special

- **Citation:** (2013) 2 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-10
- **Case number:** Civil Misc. Writ Petition No.2553 of 2013
- **Bench:** Vineet Saran, B.Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pal-mishra-alias-raju-v-special-42605
- **Pages:** 4

## Headnote

Constitution of India-Art. 226- Punishmentallegation against petitioner not provedas per enquiry report-on similar charges
of 3 other, exonerated petitioner singled
out on ground of suspension without
indication of specific rule- mere saying "
Same where same mistake occurred" can
not
be
basis
for
punishment-order
quashed.

Held: Para-10
Thus, on a consideration of the report of
the Inquiry Officer and the order of the
disciplinary authority and the other
documents on record, we are of the
considered opinion that the petitioner
has
been
made
a
scapegoat
and
punished by the impugned penalty order
dated 26.11.2012 even though (as noted
above) the Inquiry Report at page 63 of
the writ petition records all the findings
in favour of the petitioner. We thus find
that there is no evidence on record to
point the finger of accusation at the
petitioner and that the punishment has
been awarded to the petitioner only on
the
ground
of
suspicion
because
'somewhere
some
mistakes
have
occurred.' Where the mistakes have
occurred and who is responsible for the
same has not been pin pointed.

## Text

2 All] L.K. Tripathi Vs. State of U.P. and Ors.
803
notice under section 29/30 of the Act on
the grounds mentioned in the said
provision. The condition as laid down
under section 29/30 of the Act of which
notice could have been issued to the
petitioner, if he has come to hold any land
under a decree or order of any court, or as
a result of succession or transfer or by
prescription in consequence of adverse
possession after 8.6.1973 and the land so
acquired by him together with the land
earlier held by him exceeds the ceiling
limit.

11. On the other hand, in the present
case subsequent notice issued under
section 10(2) of the Act dated 14.10.1996
i.e. after period of almost 20 years after
culmination of earlier proceedings itself is
bad as authorities below proceeded to
determine the land on 8.6.1973.

12. Moreover there is no finding in
the order passed by the prescribed
authority as also the appellate authority
with regard to any of ingredients and
circumstances enumerated under section
29 of the Act. Reference may be taken in
decision
in
2007
(4)
AWC
3789(Noorullah
Vs.
Additional
Commissioner, Meerut Division, Meerut
and others), 2005(3) AWC 2565 (Indra
Pal Mishra alias Raju Vs. Special
Judge(E.C. Act), Banda and others),
2003 (3) AWC 1876 (Udai Raj Vs. State
of U.P. and others) and 1979 ALL.L.J.
43 ( Bija Vs. State of U.P. and others )
wherein this court held that after previous
ceiling proceedings had culminated by the
order of the ceiling authority determining
the surplus areas of the petitioner, ceiling
authority cannot ignore the order passed
by them and proceed by giving second
notice under section 10(2) of the Act. The
bar against the res judicata as provided
under section 38 (B) of the Act will be
only after enforcement of the said section.
Section 38 (B) provides that any order
passed before the enforcement of said
section shall be ignored and shall have no
effect upon the rights of the parties.
Section 38-B has been inserted by the
U.P. Act No. 20 of 1976 with effect from
10th October, 1975. In the present case
order dated 18.6.1976 was passed by the
appellate authority. Thus the said order
operates as res-judicata between the
parties.

13. For the reasons given above, the
orders passed by the ceiling authorities
cannot be sustained on any count. The
entire proceedings reinitiated on the basis
of the second notice under section 10(2)
were, therefore, vitiated. The impugned
orders being illegal are hereby quashed.
The writ petition succeeds and is allowed.

14. It shall however be open for the
authorities to proceed in accordance with
the provisions of Act by issuing fresh
notice under section 29/30 of the Act, if
any of the conditions mentioned therein
exist.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2013

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE B.AMIT STHALEKAR, J.

Civil Misc. Writ Petition No.2553 of 2013

L.K. Tripathi

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

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
804 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Counsel for the Respondents:
C.S.C.
Sri V.P. Mathur

Constitution of India-Art. 226- Punishmentallegation against petitioner not provedas per enquiry report-on similar charges
of 3 other, exonerated petitioner singled
out on ground of suspension without
indication of specific rule- mere saying "
Same where same mistake occurred" can
not
be
basis
for
punishment-order
quashed.

Held: Para-10
Thus, on a consideration of the report of
the Inquiry Officer and the order of the
disciplinary authority and the other
documents on record, we are of the
considered opinion that the petitioner
has
been
made
a
scapegoat
and
punished by the impugned penalty order
dated 26.11.2012 even though (as noted
above) the Inquiry Report at page 63 of
the writ petition records all the findings
in favour of the petitioner. We thus find
that there is no evidence on record to
point the finger of accusation at the
petitioner and that the punishment has
been awarded to the petitioner only on
the
ground
of
suspicion
because
'somewhere
some
mistakes
have
occurred.' Where the mistakes have
occurred and who is responsible for the
same has not been pin pointed.

(Delivered by Hon'ble Vineet Saran, J.)

1. Heard Sri G.K. Singh, learned
counsel appearing for the petitioner as
well
as
learned
Standing
Counsel
appearing for the respondents and have
perused the record.

2. The petitioner in this writ petition
is challenging the order dated 26.11.2012
imposing the penalty of censure as well as
withholding of one increment with
cumulative effect.

3. The case of the petitioner is that
while he was working as District Excise
Officer, Mirzapur an incident occurred in
which 11 persons died between 17.9.2010
and 18.9.2010 and two more persons died
on 19.9.2010 as a result of consumption
of spurious liquor. Accordingly a charge
sheet was issued to the petitioner on
22.10.2010 by the State Government. The
Additional
Excise
Commissioner
(Administration) was appointed as Inquiry
Officer.
The
allegation
against
the
petitioner was that while functioning as
District Excise Officer, he did not take
effective steps to see that no spurious
liquor was sold in the District but the fact
that 13 persons had died between
17.9.2010 to 19.9.2010 as a result of
consumption of spurious liquor went to
show the incompetence and lack of
interest on the part of the petitioner in
performing his duties. It was also alleged
that no effective steps had been taken by
the petitioner for stopping the illegal sale
of countrymade spurious liquor in the
District. The charges against the petitioner
were supposed to be proved on the basis
of three documents, namely;

(i) Letter of the District Magistrate,
Mirzapur dated 17.9.2010.

(ii) Letter dated 21.9.2010 of the
Joint Excise Commissioner, Varanasi.

(iii) Letter dated 22.9.2010 written
by the Deputy Excise Commissioner,
Mirzapur.

4. The petitioner submitted his reply
to the charge sheet on 16.12.2010 stating
that he had taken all effective steps to
check the trade and sale of spurious liquor
in his area. It was also pointed out that he
had conducted a raid on the Farm House
of one Sri Jeet Singh alias Guddu Singh
on 26.6.2010 which had resulted in the
seizure of a huge quantity of spurious
2 All] L.K. Tripathi Vs. State of U.P. and Ors.
805
countrymade liquor. The petitioner had
also lodged an F.I.R. against the said Jeet
Singh and proceedings were initiated
against him for cancellation of his licence
for the sale of countrymade liquor. He
also referred to other raids carried out by
him and measures taken by him to check
the
trade
and
sale
of
spurious
countrymade liquor in his area.

5. According to the petitioner the
first date of enquiry was 20.1.2011, on
which date the petitioner appeared but
nothing happened and no one was present
on behalf of the prosecution to prove the
charges. On the other hand, the Inquiry
Officer enquired from the petitioner as to
what he wanted to say in his defence. The
petitioner stated all the steps and
measures were taken by him and the raids
carried out by him to check the sale of
spurious countrymade liquor in his area.

6. The case of the petitioner further
is that no other date was fixed for the
enquiry and thereafter simply relying
upon the reply submitted by him to the
charge sheet and the various queries of
the Inquiry Officer answered by the
petitioner on 20.1.2011, the Inquiry
Officer proceeded to submit his Inquiry
Report on 12.5.2011.

7. The case of the petitioner is that
in the Inquiry Report, the Inquiry Officer
has in fact recorded a finding that the
petitioner had not been negligent or
careless in the discharge of his official
duties in checking the sale of spurious liquor
and he had never shown unwillingness or
lack of desire in performing his official
duties. The Inquiry Officer has in fact held
that the petitioner has taken all necessary
steps to maintain a high standard of
efficiency in the discharge of the official
duties even of the staff working under him
and has not acted in a mere cursory manner
or by way of formality. It has however been
noted at page 63 of the writ petition (internal
page 6 of the Inquiry Report) that the reasons
given by the petitioner in his reply to the
charge sheet has force as despite the alertness
and utmost care taken by the petitioner, 11
persons have died as a result of consumption
of spurious liquor. In such a manner, the
Inquiry Officer has fastened the blame on the
petitioner
only
on
the
ground
that
'somewhere some mistakes have occurred.'

8. We have considered the report of
the Inquiry Officer and in our opinion,
having noted all the findings in favour of
the petitioner the Inquiry Officer has
proceeded to indict him on the charges
mentioned in the charge sheet simply
because 'somewhere some mistakes have
occurred' without pin pointing as to who
is responsible for this mistake. The
petitioner has not been held liable for
failure or negligence or devotion in the
discharge of his duties. It is also
interesting to note that along with
petitioner three other persons, namely, (i)
Sri Udai Pratap Verma, Excise Inspector
(Enforcement), (ii) Sri Anand Singh,
Head Constable (Enforcement), (iii) Sri
Ashish
Singh,
Head
Constable
(Enforcement) were also issued similar
charge
sheets
and
disciplinary
proceedings were also held against them
but they have been exonerated and Udai
Pratap Verma was let off with a warning.
Similarly
one
Sri
Shyam
Bihari,
Constable (Enforcement) has also been
exonerated by order dated 31.1.2011.
Thus, in spite of the report of the Inquiry
Officer being in his favour, the petitioner
has been held guilty of the charges only
on the ground of suspicion and because
the Department could not pin point as to
806 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
who was responsible for the trade and sale
of spurious countrymade liquor in the area
which resulted in the death of 11 persons.

9. In the counter affidavit filed by
the learned Standing Counsel the specific
averments made by the petitioner with
regard to Udai Pratap Verma, Anand
Singh, Ashish Singh and Shyam Bihari
Constable have not been denied and in
fact the averments with regard to Shaym
Bihari Constable made in para 20 of the
writ petition have been admitted in para
13 of the counter affidavit.

10. Thus, on a consideration of the
report of the Inquiry Officer and the order
of the disciplinary authority and the other
documents on record, we are of the
considered opinion that the petitioner has
been made a scapegoat and punished by
the
impugned
penalty
order
dated
26.11.2012 even though (as noted above)
the Inquiry Report at page 63 of the writ
petition records all the findings in favour
of the petitioner. We thus find that there is
no evidence on record to point the finger
of accusation at the petitioner and that the
punishment has been awarded to the
petitioner only on the ground of suspicion
because 'somewhere some mistakes have
occurred.' Where the mistakes have
occurred and who is responsible for the
same has not been pin pointed.

11. For reasons stated above, the
impugned order dated 26.11.2012 cannot
survive and is accordingly quashed.

12. Writ petition is allowed. There
shall be no order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.06.2013

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Writ Petition No. 3052(S/S) of 2004
alongwith
W.P. No.3244 (S/S) of 2004,
W.P.No.3246 (S/S) of 2004,
W.P. No.3261 (S/S) of 2004, W.P.
No.3271 (S/S) of 2004and
W.P.No.3149 (S/S) of 2004.

Brij Kumar and Ors.
 ...Petitioners
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioners:
Sri U.N Mishra , Sri Kshemendra Shukla
and Sri Sameer Kalia

Counsel for the Respondents:
C.S.C. , Sri Ms.Aprajita Bansal
Sri Raghvendra Singh , Sri Sanjay Saran
and Sri Ujjawal Singh

Constitution of India, Art. 226- Cancellation
of appointment-Petitioners working on daily
wages/contractual basis-on class 4th postas per govt. policy after facing selection
process-instead
of
regular-given
appointment on fresh contractual basisconsidering ban on regular appointmentwhen ban lifted-instead of giving regular
status-selection itself canceled-no allegation
of malpractices of irregularities in selectionappointing
raw
handed
persons-outing
experienced hand-held shocking-no reason
to divest them at this stage-petition allowed.

Held: Para-22
There is no case of malafide or any
bungling in the selection process and
there is no allegation of any corruption,
bribe or unfair selection. No candidate has
come forward with any case of malpractice
being adopted in the selection. The State
itself allowed these persons to continue for
more than three years. Naturally, the
experience of these people with the
passage of time must have enhanced. To
throw them out and bring in raw hand in