# Pramod Kumar Paswan v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 614
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-12
- **Case number:** Writ-A No. 61632 of 2013
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-paswan-v-state-of-u-p-ors-51448
- **Pages:** 5

## Headnote

Schools proceeded to pass order without
giving any show cause notice to the
petitioner and also without supplying the
enquiry report so as to enable him to
furnish his explanation against the Enquiry
Committee's findings;

(B)
The
entire
Enquiry
Committee was illegally constituted as the
son of the Manager of the Committee of
Management was made one of the
members of the Enquiry Committee and
other member was Clerk of the institution
himself who has leveled allegations upon
which charge no.4 was based.

## Text

614 INDIAN LAW REPORTS ALLAHABAD SERIES
not the case at hand. The requirement is
only when filing a suit under Section 20 of
the Act. In the absence of any proceedings
initiated by the landlady/respondent under
Section 21 (1) (a) prior to enforcement of
the U.P. Act No. 16 of 2021 or the U.P.
Ordinance No. 2 of 2021, the findings
recorded by the Appellate Authority cannot
be sustained. The Appellate Authority in
Rent Appeal committed manifest error of
law in setting aside the order of the
Prescribed Authority and directing fresh
consideration of the release application
under Section 21(1)(a).

12. For the reasons recorded above,
the writ petition is allowed. The impugned
order dated 23.05.2023 passed by the
learned District Judge, Saharanpur in Rent
Appeal No.125 of 2022 is set aside. The
order of the Prescribed Authority dated
5.3.2022 passed in PA Case No.6 of 2021
is sustained.

13. Parties to bear their own costs.
----------
(2024) 2 ILRA 614
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 61632 of 2013

Pramod Kumar Paswan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar, Sri Adya Prasad Tewari,
Sri Manish Kumar Nigam, Sri Munna Tiwari,
Sri Sheo Shankar Tripathi

Counsel for the Respondents:
C.S.C., Sri A.K. Tiwari, Sri Ashok Kumar
Tiwari

Service Law - Intermediate Education Act,
1921 - Regulation 31 - Disciplinary
Proceedings - Termination of Class IV
Employee - Petitioner challenged termination
order dated 23.10.2013 and enquiry report
dated
29.06.2013
-
Held,
disciplinary
proceedings flawed due to non-compliance with
principles of natural justice - No evidence of
oral enquiry conducted despite petitioner's
denial of charges, as required per Sahabuddin
Ansari Vs St. of U.P. and St. of U.P. Vs T.P. Lal
Srivastava - Enquiry report silent on fixing date,
time, or place for oral enquiry or petitioner's
participation, rendering it unsustainable - No
proof that enquiry report was supplied with
show-cause
notice,
denying
petitioner
opportunity to defend, violating Managing
Director, ECIL Vs B. Karunakar - Second showcause
notice
mandatory
in
disciplinary
proceedings - Allegation of biased Enquiry
Committee (inclusion of Manager's son and
complainant clerk) not sustainable, as petitioner
did not object during proceedings - Termination
order
by
Principal,
not
Committee
of
Management, upheld as per Regulation 31, but
procedural
lapses
invalidate
enquiry
and
termination - Enquiry report and termination
order
quashed,
respondents
permitted
to
proceed afresh in accordance with law. (Para
11-19)

Writ petition allowed.

List of Cases Cited:

1. Sahabuddin Ansari Vs St. of U.P.; 2008 (4)
ADJ 158

2. St. of U.P. Vs T.P. Lal Srivastava; 1997 (1)
LLJ 831

3. Managing Director, ECIL Vs B. Karunakar;
(1993) 4 SCC 727

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Adya Prasad Tewari,
learned counsel for the petitioner, Sri
2 All. Pramod Kumar Paswan Vs. State of U.P. & Ors.
615
Ashok Kumar Tiwari, learned counsel for
the respondent nos.2 and 3 and learned
Standing Counsel for the State-respondents.

2. Petitioner who was duly appointed
and working in institution as Class IV
employee was subjected to disciplinary
proceedings with the issuance of the
chargesheet dated 26.12.2012 leveling as
many as six charges to which petitioner did
submitted
reply
on
10.07.2013.
The
enquiry report was submitted by the
Enquiry Committee on 29.06.2013 and,
thereafter, it appears that Committee of
Management proceeded to adopt resolution
considering the enquiry report and possible
action on that basis. In its resolution
adopted by the Committee of Management
on 28.07.2013, it accepted the enquiry
report and on the basis of findings returned
by the Enquiry Committee, proceeded to
resolve to dispense with his services by
way
of
punishment
and
so
the
consequential order came to be issued by
the
Manager
of
the
Institution
on
21.07.2013. Papers were forwarded to the
District
Inspector
of
Schools
who
disapproved the action of Committee of
Management on the ground that the powers
to dispense with the services of the
petitioner as prescribed under Regulation
31 of chapter III of Intermediate Education
Act lay with the Principal of the institution,
petitioner being a Class IV employee and
only appeal could be preferred before the
Committee of Management and therefore,
Committee of Management acceded in its
authority
in
passing
the
order
of
termination of service of the petitioner.

3. The Committee of Management
challenged the order before this Court vide
Writ A No.54458 of 2013 which though
was entertained but it was directed that the
petitioner shall be paid salary, however left
it to the discretion of the Management to
take work from the present petitioner who
was respondent no.4 in that petition. This
petition subsequently came to be dismissed
for want of prosecution and so the
challenge to the order of District Inspector
of Schools dated 24.09.2013 came to an
end.

4. It is argued that while petitioner
was getting payment of salary in terms of
the order passed by this Court, the Principal
of the institution on his own proceeded
even during pendency of the said writ
petition to pass order on 21.10.2013
dismissing the petitioner from service on
the basis of the enquiry report. It is this
order which is under challenge before this
Court.

5. Assailing the order passed by the
District Inspector of Schools, learned
counsel for the petitioner has argued that:

(A) The District Inspector of
Schools proceeded to pass order without
giving any show cause notice to the
petitioner and also without supplying the
enquiry report so as to enable him to
furnish his explanation against the Enquiry
Committee's findings;

(B)
The
entire
Enquiry
Committee was illegally constituted as the
son of the Manager of the Committee of
Management was made one of the
members of the Enquiry Committee and
other member was Clerk of the institution
himself who has leveled allegations upon
which charge no.4 was based.

6. Thus in view of the above two
grounds, it is submitted by learned counsel
for the petitioner that the order passed by
the Principal of the Institution is clearly
unsustainable.
616 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Sri A.K. Tiwari, learned counsel
though has sought to defend the order on
the score of first argument regarding
opportunity by way of show cause notice
by taking the Court to Annexure CA-2 to
the counter affidavit which is a photocopy
of the envelope which bears the postman's
remarks that the recipient refused to accept
the registered letter. This registered letter is
addressed to Pramod Kumar Paswan who is
petitioner in the present case. It is stated to
have been sent by registered post on
11.10.2018 containing the show cause
notice. However, no copy of the show
cause notice has been annexed so as to
demonstrate that the letter did contain the
show cause notice and that copy thereof
came back to the Principal of the institution
upon being not delivered for refusal.

8. On the question of findings
returned by the Enquiry Committee and the
constitution of the Enquiry Committee,
learned counsel for the respondents submits
that there was no application ever moved
by
the
petitioner
to
question
the
constitution of the Enquiry Committee,
instead he submitted reply to the
chargesheet on 10.10.2013 (Annexure4).

9. Learned Standing Counsel
submits that the State-respondents are
not in picture for the simple reason that
neither there is any representation made
by
the
petitioner
to
the
District
Inspector of Schools, nor there is any
order by the Education Authorities
otherwise
adversely
affecting
the
interest of the petitioner and in so far as
the
District
Inspector
of
School
is
concerned, he had been paying salary to the
petitioner uninterruptedly pursuant to the
directions issued by this Court in the earlier
writ petition.

10. Having heard learned counsel for
the respective parties and their arguments
raised across the bar, the question that
arises for consideration before this Court is,
whether the petitioner was permitted to
participate in an enquiry if held in the face
of the fact that he had denied in reply to the
chargesheet and secondly, whether the
petitioner was supplied with the enquiry
report to offer his explanation to the
findings
returned
by
the
Enquiry
Committee.

11. The other argument regarding
constitution of the Committee does not
hold merit for simple reason that there was
no application filed by the petitioner raising
objection to the constitution of the Enquiry
Committee in as much as the reply to the
chargesheet also does not contain any such
recital.

12. Coming to the first argument
regarding the first point on the question of
participation of the petitioner in oral
enquiry, the law is well settled by this
Court as well as Supreme Court in the
judgments that where the charges are
denied by the delinquent employee, it is
incumbent and imperative for the enquiry
committee to
hold
an
oral enquiry
(Sahabuddin Ansari v. State of U.P. and
Ors, 2008(4) ADJ 158, State of U.P. and
Ors. vs. T.P. Lal Srivastava, 1997 (1) LLJ
831). The legal position to this effect being
sound enough and settled now it is to be
examined whether petitioner was ever
given any notice to participate in the oral
enquiry. For this purpose I have thoroughly
examined the enquiry report and find that
the enquiry committee has dealt with all the
charges in detail but there is no recital to
the effect or even otherwise any whisper
that any date, time or place was fixed by
the
Enquiry
Committee
asking
the
2 All. Pramod Kumar Paswan Vs. State of U.P. & Ors.
617
petitioner to remain present for oral enquiry
or asking the petitioner otherwise whether
he
wanted
to
cross
examine
any
departmental witness. The only paragraph
that starts, before the enquiry committee
examines the charges, only contains one
recital that during the course of enquiry, the
Committee had asked the concerned parties
to give their oral statements and written
replies and thereafter it proceeded to
examine the same. The Enquiry Committee
in its finding part or in its discussion part
qua each charge, does not refer to any oral
testimony
either
of
the
delinquent
employee or any departmental witness.

13. Learned counsel for the petitioner
has sought to support the procedure
adopted by the enquiry committee and its
report on the basis of the averments made
in paragraph 8 of the counter affidavit and
annexing also a notice of the Chairman of
the Enquiry Committee, Sri Avitendra Jain
dated 13.06.2023 and that petitioner did
appear on 30.06.2023 before the Principal
of the Institution. This document in the
form of notice is stated to have been sent
by registered post and plea taken is that on
the basis of reply of the petitioner, it would
be taken to have refused. In the Enquiry
report there is no reference to any such
letter being ever sent to the petitioner by
the Chairman of the Enquiry Committee
inasmuch as the Enquiry Committee does
not record in its final report that any such
date was fixed in the matter of holding oral
enquiry. It is also well settled law that no
amount of affidavit or a document filed
alongwith counter affidavit will approve
upon the order to fill up the lacuna. The
Enquiry Report is absolutely silent about
fixing date, time and place for holding the
enquiry and so it is liable to be taken and
also be presumed that no such oral enquiry
was ever held. Even in the discussion part
of the Enquiry Report, there is no recital to
the effect that at any point of time
petitioner
was
examined.
Thus
the
procedure in the matter of departmental
enquiry while the employer proceeded to
impose major punishment is de hors settled
procedure and principle of law qua oral
enquiry
of
the
delinquent
employee
permitting his due participation. The
Enquiry Report on this count is not
sustainable.

15. Coming to the second argument
regarding non supply of the enquiry report
alongwith the show cause notice, the
allegations are in the form of affidavit and
rebuttal of the same is also in the form of
affidavit. So it is an affidavit against the
affidavit.
But
looking
to
the
order
impugned dated 23.10.2013 passed by the
Principal of the Institution, I do not find
anything coming forth so as to hold that at
any point of time petitioner was supplied
with the enquiry report. It could have been
presumed that the ex officio Principal of
the
Institution
was
Member
of the
Committee of Management while earlier
decision was taken against the petitioner,
had report been supplied to the petitioner
and had it called the petitioner to appear
before it.

16. The resolution is absolutely silent
as I have already discussed above and,
therefore it was imperative for the Principal
of the Institution to have supplied Enquiry
Report to the petitioner seeking his
explanation. The delinquent employee has a
right to receive a copy of the enquiry
Officer's report before the disciplinary
authority arrives at its conclusions with
regard to the guilt or innocence of the
employee with regard to the charges
levelled against him. That right is a part of
the employee's right to defend himself
618 INDIAN LAW REPORTS ALLAHABAD SERIES
against the charges levelled against him. A
denial of the Inquiry Officer's report before
the disciplinary authority takes its decision
on the charges is a denial of reasonable
opportunity to the employee to prove his
innocence and is a breach of the principles
of natural justice. (Managing Director,
ECIL v. B. Karunakar and Ors. (1993) 4
SCC 727)

17. Learned counsel appearing for the
Principal of the Institution as well as
Committee of Management, Mr. Tiwari has
sought to refer the order by annexing the
photocopy of the envelope which showed
that it carried the show cause notice and the
enquiry report but neither the show cause
notice has been annexed alongwith counter
affidavit, nor the order impugned refers to
any such service of enquiry report seeking
explanation.

18. The law is also well settled that
the second show cause notice is a must in
the matter of disciplinary proceedings and
departmental enquiry in view of the
judgment of the constitution Bench of
Supreme Court in the case of Managing
Director, ECIL (Supra).

19. In view of the above exposition of
law and discussion held, the order passed
by
the
Principal
of
the
Institution
dispensing with the services of the
petitioner on the basis of the Enquiry
Report is held unsustainable. Since I
have already held the enquiry report
also to be unsustainable both the
enquiry report dated 29.06.2013 as well
as the order passed by the Principal of
the Institution dated 23.10.2013 are
hereby quashed.

20. Writ petition succeeds and is
allowed.

21. Consequences to follow.

22. Respondents will be at liberty to
proceed afresh in accordance with law.
----------
(2024) 2 ILRA 618
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.02.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE OM PRAKASH SHUKLA J.

Writ Tax No. 228 of 2023

Grs Hotel Pvt. Ltd. Lko. ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Manish Misra, Dileep Pandey, Gaurav
Upadhyay

Counsel for the Respondents:
A.S.G.I., Kushagra Dikshit

Income Tax - Income Tax Act, 1961 -
Sections 148A & 144B - Reassessment
Proceedings - Validity of Notice Service -
Petitioner challenged order dated 26.03.2023
under Section 148A(d) and notice dated
29.03.2023 under Section 148 for Assessment
Year 2019-20, alleging non-service of notice
under Section 148A(b) on registered email ID -
Held, notice sent to outdated email ID
(gmkca1993@gmail.com) instead of current
registered email ID (taxmohit56@gmail.com),
updated since 2020-21, invalidates service -
Section 144B mandates service on registered
email as per defined alternatives, with residual
clause (vi) applicable only if primary options fail
- Valid service of notice under Section 148A(b)
is a jurisdictional requirement, non-compliance
vitiates subsequent proceedings - Commissioner
of Income Tax Vs Chetan Gupta, Chitra Supekar
Vs Income Tax Officer, Lok Developers Vs
Deputy Commissioner of Income Tax, and Jyoti
Narang Vs Income Tax Officer followed -