# party has also cited a recent case of Shubh Shanti Services Ltd v. Manjula S. Agarwalla 2005 SCC (Cri)

- **Citation:** (2006) 1 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-21
- **Case number:** Civil Misc. Writ Petition No. 71261 of 2005
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/party-has-also-cited-a-recent-case-of-shubh-shanti-services-ltd-v-manjula-s-40793
- **Pages:** 6

## Headnote

Appeal) Rules, 1999-rule 7 readwith
Constitution of India Art. 226-alternative
remedy-principle
of
natural
justice
violated-alternative
remedy
is
no
absolute bar.

Held: Para 13

Since this Court has come to the
conclusion that the impugned order has
been passed in manifest violation of
statutory
rules
and
in
violation
of
principles of natural justice as have been
stated by the Hon'ble Supreme Court in
the case of Ministry of Finance and
another (Supra), it would not be fair to
insist upon the petitioner to avail the
statutory alternative remedy.
AIR 1998 SC-853
1 All] Brijesh Kumar Tripathi V. State of U.P. and others
111
1998 (8) SCC-I

(B) U.P. Government Servant (Discipline
& Appeal) Rules 1999 Rule 9-after
submitting its conclusion-enquiry officerthe report completely silent about the
fixation of date regarding Oral evidenceenquiry being violation of statutory
rules-could not be the basis for issue of
show
cause
Notice-held-punishment
order illegal.

Held: Para 12

Since the averments made in Paragraph15 of the writ petition are collaborated
from facts recorded in the enquiry
report, which was brought on record,
this Court is satisfied that the procedure
prescribed under Rule-7 of the U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999, has not been
followed by the Inquiry Officer. Further
the enquiry is not in accordance with law
laid down by the Hon'ble Supreme Court
in the Case of Ministry of Finance and
another (Supra). In such circumstances
the enquiry being, itself in violation of
statutory rules could not form the basis
for issuance of the show-cause notice as
contemplated
by
U.P.
Government
Servant (Discipline and Appeal) Rules,

## Text

110 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

10. Learned counsel for the opposite
party has also cited the case of Sunita
Bhagat (Mrs.) and others 1995 SCC
(Crl) 591 where it has been held that once
the right of the employee or the officer to
retain the possession of the property,
either on account of termination of
services, retirement, resignation or death,
gets
extinguished, they (persons in
occupation) are under an obligation to
return the property back to the company
and on their failure to do so, they render
themselves liable to be deal with under
Section 630 of the Act for retrieval liable
to be deals with under Section 630 of the
Act for retrieval of the possession of the
property.

11. Learned counsel for the opposite
party has also cited a recent case of
Shubh
Shanti
Services
Ltd.
Vs.
Manjula S. Agarwalla 2005 SCC (Cri)
993. In that matter a civil suit was
pending between the employee and the
company and the High Court had directed
the company not to dispossess the legal
representative of the deceased employee,
of the flat, allotted to the deceased, except
by due process of law. It has been held by
the Hon'ble Apex Court that the remedy
available to the company under Section
630 was nonetheless a proceedings taken
in due process of law and it was further
held that the criminal proceedings were
not barred by interim order in civil
proceedings.

12. Therefore this legal position
shows that if the services of the employee
or the officer have been terminated he is
liable to vacate the premises of the
company and if he fails to do so he can be
prosecuted under Section 630 of the
Companies Act.

13. In the circumstances, I do not
find any illegality in the summoning order
and there is no legal ground to quash the
proceedings under Section 482 Cr.P.C.
Application is devoid of merits and is
liable to be dismissed.

14. Application is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 71261 of 2005

Brijesh Kumar Tripathi
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Shesh Kumar
Sri Ashok Gupta

Counsel for the Respondents:
S.C.

(A) U.P. Govt. Servant (Discipline &
Appeal) Rules, 1999-rule 7 readwith
Constitution of India Art. 226-alternative
remedy-principle
of
natural
justice
violated-alternative
remedy
is
no
absolute bar.

Held: Para 13

Since this Court has come to the
conclusion that the impugned order has
been passed in manifest violation of
statutory
rules
and
in
violation
of
principles of natural justice as have been
stated by the Hon'ble Supreme Court in
the case of Ministry of Finance and
another (Supra), it would not be fair to
insist upon the petitioner to avail the
statutory alternative remedy.
AIR 1998 SC-853
1 All] Brijesh Kumar Tripathi V. State of U.P. and others
111
1998 (8) SCC-I

(B) U.P. Government Servant (Discipline
& Appeal) Rules 1999 Rule 9-after
submitting its conclusion-enquiry officerthe report completely silent about the
fixation of date regarding Oral evidenceenquiry being violation of statutory
rules-could not be the basis for issue of
show
cause
Notice-held-punishment
order illegal.

Held: Para 12

Since the averments made in Paragraph15 of the writ petition are collaborated
from facts recorded in the enquiry
report, which was brought on record,
this Court is satisfied that the procedure
prescribed under Rule-7 of the U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999, has not been
followed by the Inquiry Officer. Further
the enquiry is not in accordance with law
laid down by the Hon'ble Supreme Court
in the Case of Ministry of Finance and
another (Supra). In such circumstances
the enquiry being, itself in violation of
statutory rules could not form the basis
for issuance of the show-cause notice as
contemplated
by
U.P.
Government
Servant (Discipline and Appeal) Rules,
1999.
As
a
result
whereof
the
consequential
order
of
punishment
passed by the District Magistrate is also
rendered illegal and in violation of
principles of natural justice.

(Delivered by Hon'ble Arun Tandon, J.)

1.

Heard
Sri
Shesh
Kumar,
Advocate on behalf of the petitioner and
learned Standing Counsel on behalf of the
respondents.

2. The petitioner, Brijesh Kumar
Tripathi, who is employed as collection
amin in District Banda, was served with a
charge-sheet dated 15th July, 2005. The
charge-sheet contained two charges and
the Tehsildar (Judicial), Banda was
appointed as the Enquiry Officer. The
petitioner submitted a reply to the said
charge-sheet vide his letter dated 11th
August, 2004 and denied the allegations
made against him in the said charge-sheet.
Thereafter
the
Tehsildar
submitted
enquiry report to the District Magistrate,
Banda vide order dated 9th June, 2005.
On the basis of the enquiry report so
submitted by the Tehsildar, a show-cause
notice has been issued by the District
Magistrate, Banda dated 22nd June, 2005,
calling upon the petitioner to show-cause
as to why orders for punishment may not
be passed against the petitioner.

3. From the records it is not clear as
to whether the petitioner has submitted
any reply to the show-cause notice dated
22nd June, 2005 or not. However, the
District Magistrate has proceeded to pass
an order dated 25th September, 2005,
whereby the petitioner has been reverted
to the initial of the pay-scale admissible to
the post of collection amin and an adverse
entry has also been directed to be
recorded. It is against this order of the
District Magistrate dated 25th September,
2005 that the present writ petition has
been filed. The said order has been
challenged basically on the ground that
the procedure prescribed for holding
disciplinary proceedings for imposition of
major penalty under Rules 7,8 and 9 of
the U.P. Government Servant (Discipline
and Appeal) Rules, 1999 has not been
followed and therefore, the impugned
order of punishment cannot be legally
sustained. In that regard reliance has been
placed upon Paragraph No. 15 of the writ
petition.

4. Learned Standing Counsel on the
other hand submits that the petitioner has
112 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
efficacious statutory alternative remedy
by way of appeal under Rule 11 of the
 U.P. Government Servant (Discipline and
Appeal) Rules, 1999 and thereof this
Court may not interfere in the present writ
proceedings and the petitioner may be
relegated to his statutory alternative
remedy.

5. I have heard learned counsel for
the parties and have gone through the
records of the present writ petition.

6. So far as the preliminary
objection raised by the learned Standing
Counsel is concerned, normally this Court
would insist upon the petitioner to avail
his statutory alternative remedy. It is also
settled law that availability of statutory
alternative remedy is not an absolute bar
in entertainment of a writ petition.
(Reference, Whirl Pool Corporation Vs.
Registrar of Trade Marks, Mumbai
and others; 1998 (8) SCC 1).

7. In the facts of the present case,
where the impugned order is alleged to
have been passed in manifest violation of
principles of natural justice as well as
statutory
rules
which
regulate
the
procedure prescribed for imposition of
major penalty, the Court is of the opinion
the allegations as to whether there has
been a manifest violation of rules
regulating the procedure prescribed for
conducting an enquiry in respect of
imposition of penalty or not, be examined
to decide the question as to whether the
petitioner should be delegated to his
alternative remedy or not.

8. In order to examine the issue as to
whether the procedure prescribed under
the Rules for holding departmental
enquiry in respect of imposition of major
penalty have been followed or not, it is
necessary to reproduce Rules 7,8 and 9 of
the U.P. Government Servant (Discipline
and Appeal) Rules, 1999, which read as
follows:

"7. Procedure for imposing major
penalties.--Before imposing any major
penalty on a Government Servant, an
inquiry shall be held in the following
manner:

(i) The Disciplinary Authority may
himself inquire into the charges or
appoint an Authority subordinate to him
as Inquiry Officer to inquire into the
charges.
(ii) ................................
(iii) ...............................
(iv) ................................
(v) ................................
(vi) ...............................
(vii) Where the charged Government
servant denies the charges the inquiry
officer shall proceed to call the witnesses
proposed in the charge-sheet and record
their oral evidence in presence of the
charged Government servant who shall be
given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidence, the Inquiry Officer shall call
and record the oral evidence which the
charged Government servant desired in
his written statement to be produced in
his defence:

Provided that the Inquiry Officer
may for reasons to be recorded in writing
refuse to call a witness.
(viii)
The
Inquiry
Officer
may
summon any witness to given evidence or
require any person to produce documents
before him in accordance with the
provisions
of
the
Uttar
Pradesh
Departmental Inquiries (Enforcement of
1 All] Brijesh Kumar Tripathi V. State of U.P. and others
113
Attendance of Witness and Production of
Documents) Act, 1976.
(ix) The Inquiry Officer may ask any
question he pleases, at any time of any
witness or from person charged with a
view to discover the truth or to obtain
proper proof of facts relevant to charges.
(x) 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 Officer shall record the
statement of witnesses mentioned in the
charge-sheet in absence of the charged
Government servant.
(xi) ..................
(xii) ..................
8. Submission of inquiry report.--
When the inquiry is complete, the Inquiry
Officer shall submit its inquiry report to
the Disciplinary Authority along with all
the record of the inquiry. The Inquiry
Report shall contain a sufficient record of
brief facts, the evidence and statement of
the findings on each charge and the
reasons thereof. The Inquiry Officer shall
not make any recommendation about the
penalty.
9. Action on Inquiry Report.-- (1)
The Disciplinary Authority may, for
reasons to be recorded in writing, remit
the case for re-inquiry to the same or any
other Inquiry Officer under intimation tot
he charged Government servant. The
Inquiry Officer shall thereupon proceed
to hold the inquiry from such stage as
directed by the Disciplinary Authority,
according to the provisions of Rule 7.
(2) ...........
(3) ..........
(4) If the Disciplinary Authority, having
regard to its findings on all or any of
charges is of the opinion that any penalty
specified in Rule 3 should be imposed on
the charged Government servant, he shall
give a copy of the inquiry report and his
findings recorded under sub-rule (2) to
the charged Government servant and
require him to submit his representation if
he so desires, within a reasonable
specified time. The Disciplinary Authority
shall, having regard to all the relevant
records relating to the inquiry and
representation
of
the
charged
Government servant, if any, and subject to
the provisions of Rule 16 of these rules,
pass a reasoned speaking order imposing
one or more penalties mentioned in Rule
3 of these rules and communicate the
same
to
the
charged
Government
servant."

9. From the aforesaid rules, it is
apparently clear that if the charged
employee denies the charges levelled
against him, the Inquiry Officer appointed
by the Disciplinary Authority, shall
proceed to call the witnesses proposed in
the charge-sheet and record their oral
evidence in presence of the charged
employee and shall give an opportunity to
the charged employee to cross-examine
such witnesses. After recording the
aforesaid evidence, the Inquiry Officer
shall call and record the oral evidence,
which the charged employee desired in
his written statement to be produced in
support of his case. Rule-7 further
contemplates that the Inquiry officer may
examine any witness to give evidence or
require any person to produce documents
before him in accordance with the U.P.
Government Servant (Discipline and
Appeal) Rules, 1999. The procedure as
detailed in the aforesaid Rules is in
conformity with the requirement of
principles of natural justice and is
114 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
therefore, necessary to be adhered to in
letter and in spirit.

10. The Hon'ble Supreme Court of
India in the case of Ministry of Finance
and another Vs. S.B. Ramesh reported in
AIR 1998 SC 853 has held that even in
ex-parte
disciplinary
proceedings,
wherein the employee is not participating
in the departmental inquiry, it is necessary
for the Inquiry Officer to fix a date for
recording evidence in support of the
charges and intimation of the date so
fixed must be communicated to the
employee concerned so that the employee
concerned
may
cross-examine
the
witnesses. It has further been clarified that
no documents can be received in evidence
unless proved by some competent person,
who has come-forward in evidence, unproved documents cannot be relied upon
for brining home the charges against the
said employee.

11. From the enquiry report dated
9th June, 2005, which has been enclosed
as Annexure-3 to the writ petition, it is
apparently clear that the Inquiry Officer
after recording a finding that a chargesheet and the reply has been submitted
thereto has proceeded to record his
conclusion
in
respect
of
individual
charges on the basis of record which was
available before him. The Inquiry Report
is completely silent about a date having
been fixed to record oral evidence or the
document which has been relied upon for
brining
home
charges
against
the
petitioner being proved as per the law
applicable. In paragraph no. 15 of the writ
petition it has been specifically submitted
as follows:

"15. That it is well settled law that
during enquiry proceeding the principle
of natural justice must be followed i.e. the
documents relied upon, provided to the
charge employee, opportunity to adduce
the evidence be provided, statement of
witnesses for establishing the charges be
recorded
and
opportunity
to
cross
examine the witnesses be provided,
whereas in the present case no such
procedure
has
been
followed.
The
petitioner has not been given opportunity
to adduce the evidence and cross
examined the witnesses has been provided
to the petitioner and no witnesses has
been examined by the enquiry officer in
support of the charges if any levelled
against the petitioner, thus the entire
enquiry proceedings are violated and
against the principle of natural justice
and consequential impugned order is
liable to be quashed by this Hon'ble
Court."

12. Since the averments made in
Paragraph-15 of the writ petition are
collaborated from facts recorded in the
enquiry report, which was brought on
record, this Court is satisfied that the
procedure prescribed under Rule-7 of the
U.P. Government Servant (Discipline and
Appeal) Rules, 1999, has not been
followed by the Inquiry Officer. Further
the enquiry is not in accordance with law
laid down by the Hon'ble Supreme Court
in the Case of Ministry of Finance and
another (Supra). In such circumstances
the enquiry being, itself in violation of
statutory rules could not form the basis
for issuance of the show-cause notice as
contemplated
by
U.P.
Government
Servant (Discipline and Appeal) Rules,
1999.
As
a
result
whereof
the
consequential order of punishment passed
by the District Magistrate is also rendered
illegal and in violation of principles of
natural justice.
1 All] Chandra Kant V. A.D.J., Court No.6, Jaunpur and others
115
13. Since this Court has come to the
conclusion that the impugned order has
been passed in manifest violation of
statutory rules and in violation of
principles of natural justice as have been
stated by the Hon'ble Supreme Court in
the case of Ministry of Finance and
another (Supra), it would not be fair to
insist upon the petitioner to avail the
statutory alternative remedy.

14. In view of the aforesaid findings,
the writ petition is allowed. The order
passed by the District Magistrate, Banda
(respondent no.2) dated 25th September,
2005 is hereby quashed. The enquiry
report submitted by the Inquiry Officer is
also rendered illegal. The Inquiry Officer,
namely, Tehsildar (Judicial) is directed to
proceed with the enquiry afresh from the
stage it has gone wrong in light of the
Rules applicable. The aforesaid enquiry
may be completed within three months
from the date a certified copy of this order
is filed before the District Magistrate
(respondent no.2). The District Magistrate
on receipt of the enquiry report shall take
final decision in accordance with law,
within a period of two months thereafter.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 4527 of 2006

Chandra Kant

...Petitioner
Versus
Addl. District Judge, Court No. 6, Jaunpur
and others

 ...Respondents

Counsel for the Petitioner:
Sri P.N. Tripathi

Counsel for the Respondents:
Sri Harish Chandra
S.C.

Indian
Limitation
Act-Section-5Condonation of delay-case dismissed in
default-restoration application alongwith
delay
condonation
application
duly
supported with affidavit filed-Trail Court
by exercising it discretion condone the
delay-allowed
the
restoration
application-held-Trail
Court
did
not
commit any factual or the legal mistakecan not be interfered.

Held: Para 6

In the present case also, the trial court in
the aforesaid facts and circumstances
had condoned the delay in filing the
restoration
application
and
had
exercised its discretion in favour of the
respondent plaintiff. There is nothing in
the
judgment
of
revisional
court
challenged in this petition, which would
indicate
that
the
trial
court
while
accepting
the
grounds,
had
acted
arbitrarily or in perverse manner. The
grounds for restoration and condonation
of delay as had been taken by the
respondent plaintiff and as discussed
above, could not be said to be wholly
untenable and thus, it is quite obvious
that the trial court has rightly allowed
the restoration application and did not
commit any factual or otherwise legal
mistake as to give justifiable occasion to
the revisional court to interfere in its
order.
Case law discussed:
J.T. 1998 (6) SC-242 relied on.

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. Heard the learned counsel for the
parties.