# Prem Narain Singh v. State of U.P. & Anr

- **Citation:** (2023) 1 ILRA 477
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-13
- **Case number:** Writ-A No. 50939 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-narain-singh-v-state-of-u-p-anr-49650
- **Pages:** 7

## Headnote

A. Service Law - Dismissal - Major penalty
- Inquiry - Liability of inquiry officer
during the enquiry - Failure to discharge it
- Effect - Held, the Inquiry Officer,
entrusted with the task of holding inquiry,
has mandatorily to fix a date, time and
venue of the inquiry which he has to
intimate
to
the
delinquent
before
proceeding
further
-
It
is
the
establishment's
obligation
to
produce
witnesses and other evidence in support
of charges in an oral inquiry held by the
Inquiry Officer - High Court directed the
Corp. to treat the petitioner continuing in
service till the date of his superannuation
- However, High Court left it open to the
Corp. to examine as to whether after
retirement they can proceed against the
478 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner on the basis of the chargesheet. (Para 12, 13, 20 and 22)
B. Service Law - Dismissal - Inquiry -
Charge-sheet issued - No reply could be
filed - Effect - Assumption of admission of
charges, due to non-filing of the reply -
How far permissible
- Obligation of
establishment to prove the charges - Nonfulfillment - Effect - Held, obligation of the
establishment could not be wished away
because the petitioner was in default,
assuming that he was - The course of
action adopted by the Inquiry Officer is
absolutely contrary to law for the reason
that he did not require the establishment
to
prove
the
charges
by
examining
witnesses or producing other evidence in
support of the charge. (Para 14)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

1 All. Prem Narain Singh Vs. State of U.P. & Anr.
477
petitioner is working as Assistant Teacher
and therefore, he is not in harness and not
entitled for appointment under the Rules,
1974.

8. On the other hand, learned
Additional Chief Standing Counsel submits
that in view of Rule 7 of The Rules, 1974,
the
order
dated
20.06.2011
granting
compassionate appointment to the younger
brother of the petitioner has been passed on
the basis of the consent of other family
members, hence, the same cannot be
quashed.

9. I have considered the rival
submission and perused the record.

10. Rule 7 of the Rules, 1974 provides
that if more than one member of the family
of the deceased Government servant seeks
employment under these rules, the Head of
Office shall decide about the suitability of
the person for giving employment. The
decision will be taken keeping in view also
the overall interest of the welfare of the
entire family, particularly the widow and the
minor members thereof. Rule 7 of the Rules,
1974, is quoted as under:

"7. Procedure when more than
one
member
of
the
family
seeks
employment. - If more than one member of
the family of the deceased Government
servant seeks employment under these
rules, the Head of Office shall decide
about the suitability of the person for
giving employment. The decision will be
taken keeping in view also the overall
interest of the welfare of the entire family,
particularly the widow and the minor
members thereof."

11. I do not find any illegality or
infirmity in the impugned order dated
20.06.2011 passed by respondent no.2
granting compassionate appointment to
respondent-4 as the same has been passed
on the basis of consent of mother of the
petitioner and other family members.

12. The writ petition lacks merit and
is, accordingly, dismissed.
----------
(2023) 1 ILRA 477
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 50939 of 2017

Prem Narain Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Ashutosh Tripathi

Counsel for the Respondents:
C.S.C., Sri Om Prakash Singh, Sri Sushil
Kumar Rao

A. Service Law - Dismissal - Major penalty
- Inquiry - Liability of inquiry officer
during the enquiry - Failure to discharge it
- Effect - Held, the Inquiry Officer,
entrusted with the task of holding inquiry,
has mandatorily to fix a date, time and
venue of the inquiry which he has to
intimate
to
the
delinquent
before
proceeding
further
-
It
is
the
establishment's
obligation
to
produce
witnesses and other evidence in support
of charges in an oral inquiry held by the
Inquiry Officer - High Court directed the
Corp. to treat the petitioner continuing in
service till the date of his superannuation
- However, High Court left it open to the
Corp. to examine as to whether after
retirement they can proceed against the
478 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner on the basis of the chargesheet. (Para 12, 13, 20 and 22)
B. Service Law - Dismissal - Inquiry -
Charge-sheet issued - No reply could be
filed - Effect - Assumption of admission of
charges, due to non-filing of the reply -
How far permissible
- Obligation of
establishment to prove the charges - Nonfulfillment - Effect - Held, obligation of the
establishment could not be wished away
because the petitioner was in default,
assuming that he was - The course of
action adopted by the Inquiry Officer is
absolutely contrary to law for the reason
that he did not require the establishment
to
prove
the
charges
by
examining
witnesses or producing other evidence in
support of the charge. (Para 14)
Writ petition allowed. (E-1)
List of Cases cited:

1. St. of U.P. & ors. Vs Saroj Kumar Sinha;
(2010) 2 SCC 772
2. Smt. Karuna Jaiswal Vs St. of U.P. through
Secy Mahila Evam Bal Vikas; 2018 (9) ADJ 107
(DB) (LB)
(Delivered by Hon'ble J.J. Munir, J.)

1. This Writ Petition is directed
against an order dated 30.06.2015 passed
by the Managing Director, U.P. State
Warehousing
Corporation,
Lucknow
dismissing the petitioner from service and
directing recovery of a sum of Rs.
6,34,369.52. The said order has been
affirmed in Appeal by the Appellate
Authority vide order dated 12.01.2016. The
appellate order is also under challenge.

2. Parties have exchanged affidavits.

3. Admit.

4. Heard Mr. Ashutosh Tripathi,
learned counsel for the petitioner, Mr. O.P.
Singh, learned Senior Advocate assisted by
Mr. Sushil Kumar Rao, learned counsel
appearing on behalf of Respondent No. 2
and
the
learned
Standing
Counsel
appearing on behalf of Respondent No. 1.

5. The petitioner was a Technical
Officer
posted
at
the
U.P.
State
Warehousing Corporation Centre, District
Allahabad. He was a permanent employee
of the Corporation. The petitioner was to
superannuate
from
service
of
the
Corporation on 30.06.2015 upon attaining
the
age
of
60
years.
Disciplinary
proceedings were instituted against the
petitioner on 15.07.2014 on allegation of
causing loss of rice-stock at the Ghazipur
Centre of the U.P. State Warehousing
Corporation (for short 'the Corporation')
during the period of 2003-2004 and 20092010. An Inquiry Officer was appointed on
15.07.2014 and a letter was issued to the
petitioner on 26.05.2015 by the Inquiry
Officer, wherein the petitioner was directed
to submit a reply to a charge-sheet dated
01.09.2014 and attend before the Inquiry
Officer on 8.06.2015 at 3:00 p.m.

6. It is the petitioner's case that he was
not served with a copy of the charge-sheet
and, therefore, it was not possible for him
to submit a reply.

7. Attending at the inquiry would not,
according to the petitioner, serve any
purpose. The petitioner after receiving the
letter dated 26.05.2015 from the Inquiry
Officer informed the Deputy Manager,
Finance about the non-service of chargesheet dated 01.09.2014. The Deputy
Manager, Finance directed the Inquiry
Officer to ensure service of the chargesheet upon the petitioner. The petitioner
was served with the charge-sheet under a
letter
of
the
Inquiry
Officer
dated
1 All. Prem Narain Singh Vs. State of U.P. & Anr.
479
28.05.2015. It is the petitioner's case that
without a copy of the charge-sheet, the
petitioner submitted a reply of sorts dated
28.05.2015, where the stand taken was that
copies
of
the
charge-sheet
and
the
documents, that were proposed to be
produced against him in evidence, had not
been served. The petitioner asserts that he
was in a helpless position because he was
scheduled to retire on 30.06.2015 and the
charge-sheet was served upon him on
2.06.2015, along with the letter dated
28.05.2015.

8. The petitioner has come up with a
specific case in paragraph 13 of the Writ
Petition that the Inquiry Officer, without
fixing any date, time or place for holding the
inquiry, submitted his inquiry-report dated
15.06.2015 to the Disciplinary Authority,
holding the petitioner guilty. It is the
petitioner's case that the Inquiry Officer held
the charges proved without the establishment,
leading any evidence or examining witnesses
to prove them. The charges were held proved
by default because the petitioner did not
submit a reply to the charge-sheet or produce
evidence in defence. The petitioner was held
responsible for causing loss of the bulk of
rice i.e. subject matter of the charge by the
Inquiry Officer.

9. Based on the report of the Inquiry
Officer, the petitioner was dismissed from
service by the impugned order dated
30.06.2015. The petitioner carried an Appeal
from the order of dismissal under Regulation
21 of the Staff Service Regulation of the
Corporation to the Executive Committee. The
Appellate Authority by its order dated
12.01.2016
dismissed
the
appeal
and
affirmed the order of dismissal.

10. Aggrieved, this writ petition has
been instituted.

11. It is argued by the learned counsel
for the petitioner that the impugned orders
are manifestly illegal and vitiated because
it is imperative in a case involving the
imposition of a major penalty that a date,
time and place of inquiry be specified by
the Inquiry Officer and intimated to the
delinquent. In this case no date, time and
place of the inquiry was communicated to
the petitioner. It is next submitted that a
charge,
particularly
one
involving
imposition of a major penalty, cannot be
held proved by the Inquiry Officer unless
the establishment examine witnesses in
support of the charge at an oral inquiry and
establish the charge by their evidence. It is
urged by learned Counsel for the petitioner
that it is not the law that merely because the
delinquent does not appear or fails to
submit a reply to the charge-sheet or
produce evidence in his defence, the
charges stand proved by default. The
burden of the establishment to prove the
charges cannot be cast away. A perusal of
paragraph Nos. 16, 17 and 18 of the
counter-affidavit shows that the averments
in paragraph Nos. 13, 14, 15 and 16 of the
Writ Petition have not been denied. The
averments in paragraph Nos. 13 to 16 of the
Writ Petition carry specific allegation that
no date, time and place of the inquiry was
fixed by the Inquiry Officer and that no
witnesses were examined at an oral inquiry
held to establish the charges before the
Inquiry Officer. There is in point of fact,
therefore, no denial of this position by the
respondents.

12. Upon hearing learned Counsel for
the parties and perusal of records, this
Court finds that indeed no date, place and
venue of the inquiry was fixed by the
Inquiry
Officer,
before
holding
and
concluding
the
inquiry,
wherein
the
petitioner was judged guilty. Also, it is
480 INDIAN LAW REPORTS ALLAHABAD SERIES
evident that no witnesses were examined
before
the
Inquiry
Officer
by
the
establishment in support of the charge of
which the petitioner has been held guilty. It
is evident that the petitioner has been held
guilty, merely because he was ex-parte and
did not respond to the charge-sheet and did
not appear before the Inquiry Officer or
produce evidence. The legal position is too
well settled to brook doubt that in a case
involving the imposition of a major penalty
upon a public servant, or the servant of a
Corporation, whose terms and conditions of
service are governed by law, the Inquiry
Officer, entrusted with the task of holding
inquiry, has mandatorily to fix a date, time
and venue of the inquiry which he has to
intimate
to
the
delinquent
before
proceeding further. This requirement is
imperative in all those cases, where a major
penalty is proposed to be imposed.

13. Here, the admitted position is that
the aforesaid requirement of the law was
given a go-by. It is also trite law that in any
disciplinary proceedings, the outcome of
which leads to imposition of a major
penalty, it is the establishment's obligation
to produce witnesses and other evidence in
support of charges in an oral inquiry held
by the Inquiry Officer. Though the Inquiry
Officer may be an officer of the same
establishment, but he is not a party who
might
identify
himself
with
the
establishment. The Inquiry Officer has to
act as an impartial arbiter. It is the
establishment's obligation to prove, by
evidence, the charges against the employee
even if he remains ex-parte. It does not
absolve
the
establishment
of
their
obligation
to prove
the
charges
by
examining witnesses and leading evidence.
It is not that the employee's or the
delinquent's default in defending himself
would lead to the charges being established
ipso facto. It would be particularly relevant
to refer to the relevant finding of Inquiry
Officer figuring in his report on the basis of
which the orders impugned have been
passed. The finding reads:

"श्री प्रेम न र यण दसांि, प्र दिदधक
अदधक री, क्षेिीय क य गलय इल ि ब ि को
उपलब्ध कर ये र्ये आरोप पि के सन्दभग में
उनके ि र आरोप पि क प्रत्युत्तर आज दि०
15.06.2015 तक उपलब्ध निी कर य र्य िै।
श्री प्रेम न र यण दसांि ि र उि आरोप पि के
अनुप लन में पि सां० 523 दि० 28.05.15
अधोिस्त क्षरी को प्रेदित दकय र्य दजसमें
उनके ि र दबन्िु सां० 01 से 05 तक पर
ज नक री च िी र्ई। प्रध न क य गलय के पि सां०
4313 दिन ांक 28.05.2015 ि र दबन्िु सां० 01 से
04 के सम्बन्ध में सूचन उपलब्ध कर ई र्ई एिां
पि सां० 4653 दिन ांक 03.06.2015 ि र श्री प्रेम
न र यण दसांि, प्र दिदधक अदधक री, ि र दबन्िु
सां० 05 पर तत्समय र् जीपुर केन्द्र पर च जग के
आि न प्रि न िेतु र्दठत की र्ई कमेटी की
ररपोटग च िी र्ई दजसे प्र क्तप्त िेतु उन्हे क्षेिीय
क य गलय ि र णसी/र् जीपुर केन्द्र पर ज ने की
अनुमदत िी र्ई। प्रेदित अनुस्म रक पिोां पर
आरोप पि क उत्तर दिन ांक 06.06.2015 तक
अधोिस्त क्षरी को प्रेदित करने िेतु दनिेदर्त
दकय र्य परन्तु उनके ि र आरोप पि क
उत्तर दिन ांक 15.06.2015 तक अधोिस्त क्षरी
को उपलब्ध निी कर य र्य िै एिां ऐस प्रतीत
िोत िै दक उन्हें इस सम्बन्ध में कुछ निीां किन
िै तथ उनके दिरूद्ध लर् य र्य आरोप उन्हे
स्वीक र िै। इस प्रक र श्री प्रेम न र यण दसांि,
प्र दिदधक अदधक री, के र् जीपुर केन्द्र पर
तैन ती के िौर न ििग 2008-09 तथ 2009-10 में
ख द्य एिां रसि दिभ र् के भण्ड ररत च िल
स्ट क में प्रघदटत भण्ड ण क्षदत की म ि
382.89.543 कु० कुल कीमत रू० 6,34,369,52
(रूपये छः ल ख चौतीस िज र तीन सौ उनित्तर
पैसे ब िन) म ि िेतु उत्तरि यी प ये ज ते िैं।"
1 All. Prem Narain Singh Vs. State of U.P. & Anr.
481

[Emphasis provided]

14. A perusal of the aforesaid finding
by the Inquiry Officer places the matter
beyond cavil that the Inquiry Officer has
held the petitioner guilty by default on an
assumption that since the petitioner has not
filed a response to the charge-sheet, he
admits
the
charge.
This
finding
is
absolutely contrary to the law. The course
of action adopted by the Inquiry Officer,
evident from the inquiry report also, is
absolutely contrary to law for the reason
that he did not require the establishment to
prove the charges by examining witnesses
or producing other evidence in support of
the charge. It has already been said that this
obligation of the establishment could not be
wished away because the petitioner was in
default, assuming that he was. The legal
position adumbrated above is fortified by
the decision of the Supreme Court in State
of U.P. and others vs. Saroj Kumar Sinha,
(2010) 2 SCC 772, wherein it was
observed:

"27. A bare perusal of the
aforesaid sub-rule shows that when the
respondent had failed to submit the
explanation to the charge-sheet it was
incumbent upon the inquiry officer to fix a
date for his appearance in the inquiry. It is
only in a case when the government servant
despite notice of the date fixed failed to
appear that the inquiry officer can proceed
with the inquiry ex parte. Even in such
circumstances it is incumbent on the
inquiry officer to record the statement of
witnesses mentioned in the charge-sheet.
Since the government servant is absent, he
would clearly lose the benefit of crossexamination
of
the
witnesses.
But
nonetheless in order to establish the
charges the Department is required to
produce the necessary evidence before the
inquiry officer. This is so as to avoid the
charge that the inquiry officer has acted as
a prosecutor as well as a judge.

28. An inquiry officer acting in a
quasi-judicial authority is in the position of
an independent adjudicator. He is not
supposed to be a representative of the
department/
disciplinary
authority/
Government. His function is to examine the
evidence presented by the Department,
even in the absence of the delinquent
official to see as to whether the unrebutted
evidence is sufficient to hold that the
charges are proved. In the present case
the aforesaid procedure has not been
observed. Since no oral evidence has been
examined the documents have not been
proved, and could not have been taken
into consideration to conclude that the
charges have been proved against the
respondents."

15. Following the decision in Saroj
Kumar Sinha (supra), a Division Bench of
this Court, sitting at Lucknow, in Smt.
Karuna Jaiswal vs. State of U.P. Through
Secy Mahila Evam Bal Vikas, 2018 (9)
ADJ 107 (DB) (LB) has held:

"14. It is also equally relevant
and significant to notice in this case that
though the petitioner failed to submit her
reply to the charge-sheet, however, the
Enquiry Officer did not fix any date, time
and place for oral enquiry. It is settled
principle that even in a situation where the
delinquent
officer/employee
does
not
submit reply to the charge-sheet, the
Enquiry Officer still needs to prove the
charges on the basis of material and
evidence available on record and for the
said purpose he needs to fix and intimate to
the charged officer, the date, time and
place for oral enquiry.
482 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The law in this regard is very
well settled and does not need a reiteration,
however, we may refer to a judgment of
Hon'ble Supreme Court in the case of State
of Uttar Pradesh and others vs. Saroj
Kumar Sinha, reported in [(2010) 2 SCC
772], wherein it has clearly been held that
Enquiry Officer acts as a quasi judicial
authority and his position is that of an
independent adjudicator and further that he
cannot act as a representative of the
department or disciplinary authority and
further that he cannot act as a prosecutor
neither he should act as a judge; his
function is to examine the evidence
presented by the department and even in
the absence of the delinquent officer, has to
see as to whether the unrebutted evidence
is sufficient to bring home the charges.

16. Hon'ble Supreme Court has
further held in the said judgment of Saroj
Kumar Sinha (supra) that it is only in case
when the government servant, despite
notice, fails to appear during the course of
enquiry that Enquiry Officer can proceed
ex-parte and even in such circumstances it
is incumbent upon the Enquiry Officer to
record the statement of witness.

17. In the instant case, no oral
enquiry was held, neither the petitioner was
given any notice to participate in any oral
enquiry by fixing date, time and place for
oral enquiry. It is only that the Enquiry
Officer after noticing that despite sufficient
time having been given to the petitioner,
she did not furnish her reply to the chargesheet, he proceeded to submit ex-parte
report without conducting any oral enquiry
by fixing date, time and place for such an
oral enquiry. Accordingly, the Enquiry
Officer, in this case, has violated the
aforesaid principles, which clearly vitiates
the
enquiry
proceedings
and
any
punishment order based on such a vitiated
enquiry, is clearly not sustainable."

16. In view of settled position of the
law and what this Court has found, the
impugned orders cannot be sustained as
also the Inquiry Report on which these are
based.

17. The question that now arises for
consideration
is
whether
inquiry
proceedings can be resumed against the
petitioner from the stage of issue of chargesheet, the petitioner having retired on the
same day on which he was dismissed from
service i.e. 30.06.2015.

18. Learned counsel for the petitioner
here submits that the relationship of
employer and employee has ceased to exist
and there is nothing in the Rules of the
Corporation entitling them to continue
disciplinary proceedings against an exemployee.

19. Learned Counsel for the petitioner
has drawn the Court's attention to the Staff
Regulations of the Corporation annexed as
Annexure 9 to the Writ Petition to submit
that the Corporation has no jurisdiction to
continue with the inquiry against the
petitioner, post retirement. Upon a perusal
of the Rules, it cannot be said with
certainty that the Corporation would lack
jurisdiction
in
a
matter
where
the
disciplinary proceedings were initiated
while the employee was in service. There
are both possibilities, but for the purpose,
the relevant Rules would have to be
examined. It may require something
besides the Staff Regulations annexed to
the Writ Petition to be considered.

20. In the circumstances, this Court is
of opinion that the Corporation ought to be
1 All. Mohd. Haroon Vs. State of U.P. & Anr.
483
left free to examine the issue with reference
to the relevant Rules whether after
retirement they can proceed against the
petitioner on the basis of the charge-sheet,
already issued, from the stage of inquiry.

21. In the result, this Writ Petition
succeeds and is allowed. The impugned
orders dated 30.06.2015 and 12.01.2016
passed by the Disciplinary Authority and
the Appellate Authority respectively are
hereby quashed. The report of the Inquiry
Officer dated 15.06.2015 is also quashed.

22. The petitioner shall be treated to
have continued in service till the date of his
superannuation. He shall be paid his post
retiral benefits within two months next.
However, it will be open to the respondents
to
conclude
the
inquiry
proceedings
initiated against the petitioner from the
stage of seeking his reply to the chargesheet, provided it is permissible under the
law to continue disciplinary proceedings
against an ex-employee of the Corporation,
who superannuates pending proceedings. In
the eventuality, disciplinary proceedings
are taken afresh against the petitioner, post
retiral benefits shall not be paid until
conclusion
of
proceedings,
which
if
permissible
and
pursued
by
the
Corporation, shall be completed within a
period of not more than three months from
the date of receipt of a copy of this order.

23. Let this order be communicated to
the Managing Director, U.P. Ware Housing
Corporation, New Hyderabad, Lucknow by
the Registrar Compliance.

24. The original records produced
before the Court in sealed cover, which
have been opened and examined, are
directed to be placed in a sealed cover and
returned
to
the
employee
of
the
Corporation, who has produced them
before the Court.
----------
(2023) 1 ILRA 483
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.01.2023

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Application U/S 482. No. 1558 of 2023

Mohd. Haroon ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Deepak Pandey

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 293 - Sections 227
& 239 - Discharge - Scope - Rejection of
discharge application by the Trial Court -
Interference,
how
far
warranted
-
Applicant is named in the FIR as well as in
the St.ment u/s 161 Cr.P.C. and 164
Cr.P.C. - Effect - Sajjan Kumar's principle
relied upon - At the time of framing of
charge, the Court has to look at all the
material placed before it and determine
whether a prima facie case is made out or
not - The court is not required to consider
the evidentiary value of the evidence as
any question of admissibility or reliability
of evidence is a matter of trial - Held,
there is prima facie evidence against the
applicant which only is to be seen. The
truthfulness of the allegations cannot be
seen and adjudicated at this stage - At the
stage of discharge/framing of charge, the
Court is merely required to shift the
evidence in order to find out whether or
not
there
is
sufficient
ground
for
proceeding against the accused. (Para 13,
26 and 27)