# Radhey Shyam v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 832
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-15
- **Case number:** Civil Misc. Writ Petition No. 2942 of 2007
- **Bench:** Sunil Hali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-v-state-of-u-p-and-others-42174
- **Pages:** 11

## Headnote

Constitution of India, Article 311 (2)-
readwith CCA Rules 1999-Rule 7 (iv)-
Dismissal-without giving the copy of
supported
documents-without
issuing
show
cause
notice
before
inflicting
punishment-utter disregard of Principle
of Natural Justice-held-illegal-dismissal
order quashed.

Held: Para 19 and 29

In the present case, this procedural safeguard
has
been
violated
by
the
respondents.
The
disclosure
of
the
proposed documents and the evidence to
be adduced in support of the charges,
are required to be disclosed to the
petitioner. Mere endorsement in the
charge sheet that it is accompanied by
47
leaves,
without
disclosing
the
particulars of such enclosures, would not
be sufficient compliance of the rules.

In view of this, I find that no opportunity
has been given to the petitioner to showcause against the proposed punishment.
It clearly not only violates Rule 7(iv) of
the Rules but also the mandates of
Constitution
of
India
under
Article
311(2)
which
contemplates
that
reasonable opportunity is required to be
given to the employee to defend himself.
The word reasonable opportunity has
been interpreted to me natural justice.
Article
311(2)
gives
constitutional
mandate to the principles of natural
justice and once it is proved from the
record that reasonable opportunity to
defend himself has not been provided,
the rules of natural justice would be
violated.
Case law discussed:
AIR 2010 SC 3131; (1986) 3 SCC 229

## Text

832 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
appellant, on the date of the incident was a
juvenile and hence is entitled to the
protection of his juvenility.

21. Residue of our discussion is that
the appeal is allowed in part. While
conviction of the appellant u/s 302 I.P.C.
recorded in the impugned judgment dated
30.9.1982, passed in S.T. No.33 of 1982,
State versus Satish and another, relating to
P.S. Pisawa, district Aligarh, by Session's
Judge, Aligarh, is hereby maintained, but
the sentence of life imprisonment awarded
to the appellant therefor is quashed.

22. Appellant is on bail, he need not
surrender, his bail bonds and surety bonds
are hereby discharged.

23. Copy of the judgment be certified
to the trial court for it's intimation.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2012

BEFORE
THE HON'BLE SUNIL HALI, J.

Civil Misc. Writ Petition No. 2942 of 2007

Radhey Shyam

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

Counsel for the Petitioner:
Sri S.K. Pal
Sri Ashok Mehata

Counsel for the Respondents:
C.S.C.
Sri Dashrath Prasad
Sri Vijendra Singh

Constitution of India, Article 311 (2)-
readwith CCA Rules 1999-Rule 7 (iv)-
Dismissal-without giving the copy of
supported
documents-without
issuing
show
cause
notice
before
inflicting
punishment-utter disregard of Principle
of Natural Justice-held-illegal-dismissal
order quashed.

Held: Para 19 and 29

In the present case, this procedural safeguard
has
been
violated
by
the
respondents.
The
disclosure
of
the
proposed documents and the evidence to
be adduced in support of the charges,
are required to be disclosed to the
petitioner. Mere endorsement in the
charge sheet that it is accompanied by
47
leaves,
without
disclosing
the
particulars of such enclosures, would not
be sufficient compliance of the rules.

In view of this, I find that no opportunity
has been given to the petitioner to showcause against the proposed punishment.
It clearly not only violates Rule 7(iv) of
the Rules but also the mandates of
Constitution
of
India
under
Article
311(2)
which
contemplates
that
reasonable opportunity is required to be
given to the employee to defend himself.
The word reasonable opportunity has
been interpreted to me natural justice.
Article
311(2)
gives
constitutional
mandate to the principles of natural
justice and once it is proved from the
record that reasonable opportunity to
defend himself has not been provided,
the rules of natural justice would be
violated.
Case law discussed:
AIR 2010 SC 3131; (1986) 3 SCC 229

(Delivered by Hon'ble Sunil Hali, J.)

1. While serving as Chief Revenue
Accountant
at
District
Etawah,
a
departmental enquiry was initiated against
the petitioner. Ten charges were levelled
against him vide order dated 16.6.2006. He
was called up on to submit his reply to the
said charge sheet within 15 days from the
date of receipt of the communication. It
was mentioned in the charge sheet that in
2 All] Radhey Shyam V. State of U.P. and others
833
case, he wants to examine any witness, the
name of said witness be also submitted to
the Enquiry Officer.

2. Vide communication dated
7.3.2006 the petitioner requested the
Enquiry Officer to furnish him documents
so as to enable him to file a reply to the
charge
sheet.
The
aforesaid
communication dated 7.3.2006 gave details
of the documents which were sought by
the petitioner. The documents sought by
the petitioner were in respect of the
allegations levelled against him in the
charge sheet. The disability was shown by
the petitioner in filing reply in absence of
the documents sought to be supplied to
him. A reply was sent by the District
Magistrate
in
pursuance
of
the
communication sent by the petitioner dated
7.3.2006
communicating
that
the
documents have been supplied to him. It
was replied by the petitioner vide his
communication dated 20.3.2006 in which
he has clearly stated that no such
documents have been supplied to him. It
was informed by this communication that
in case the request for supplying the
documents is rejected, the same may be
communicated to him.

3. Vide communication dated
24.3.2006, the petitioner again informed
the
Enquiry
Officer
to
supply
the
documents details of which have been
mentioned in the letter dated 7.3.2006 and
also to provide an opportunity to crossexamine the witnesses who are likely to be
examined in support of the charges
levelled
against
him.
Another
communication was addressed by the
petitioner in which it was again requested
to supply the documents sought by him.

4. Having failed to receive any
response
from
the
respondents,
the
petitioner filed an application before the
Board of Revenue, U.P. seeking its
assistance and direction to the District
Magistrate and Enquiry Officer to supply
the requisite documents, details of which
were given in the letter dated 7.3.2006.

5. While the petitioner was awaiting
a response of his communications, the
Enquiry Officer went ahead with the
enquiry and prepared an exparte report
dated 4.5.2006 and sent the same to
appointing authority. This was proceeded
by a notice dated 11.5.2006. It was
communicated through this notice that the
petitioner has not filed his reply to the
charge sheet despite opportunity being
granted to him. It was communicated to the
petitioner that the documents sought by
him were served along with the charge
sheet. While submitting his reply, vide
communication
dated
14.2.2006,
the
petitioner had denied the allegations
levelled against him. He had also sought
further documents in relation to the
misappropriation
of
funds
by
the
concerned Revenue officials of the district
which were necessary for filing reply to the
charge sheet.

6. The finding recorded by the
Enquiry Officer was that the charges were
proved against the petitioner, as a result of
which, it was proposed to dismiss him
from service. He was required to submit
his reply to the show-cause notice within a
period of 15 days. The respondents after
receipt of reply to the charge sheet served
show cause notice by publishing in the
newspaper on 27.5.2006. He was informed
that despite efforts notice could not be
served upon him, as a result of which, he
was required now through this press
834 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
release to file his reply within seven days.
The petitioner in his communication dated
2.6.2006 informed that he was out of
station w.e.f. 17th of May 2006 on account
of his illness and returned back on
2.6.2006. Immediately thereafter he came
to know about the issuance of the press
release and sought 15 days time to submit
his reply.

7. The respondents acknowledged the
communication of the petitioner and
extended period of submission of the reply
up to 17th of June, 2006. The petitioner in
his communication dated 16.6.2006 stated
that he has received the reply on 13.6.2006
and as such, sought 15 days time to file his
reply.
Without
acknowledging
the
communication dated 16.6.2006 submitted
by the petitioner for extension of time to
submit his reply to respondents, the
District Magistrate, Etawah passed the
impugned
order
dated
23.6.2006
dismissing him from service. The order of
dismissal has been questioned by the
petitioner in this petition.

8. The petitioner has questioned the
impugned order of dismissal on the
following grounds; that the charge sheet
was not accompanied by the documents.
The request for supplying documents was
declined
by
the
respondents
which
disabled him to file his reply to the charge
sheet; that the show-cause notice issued to
the petitioner was published on 27.5.2006
and no personal service of show-cause was
effected on him; the petitioner received
show-cause notice along with copy of the
enquiry report on 12.6.2006. The request
of the petitioner to submit reply within 15
days was not rejected and before awaiting
for the reply submitted by the petitioner,
the impugned order was passed on
17.6.2006. The charges levelled against the
petitioner were vague and incorrect and not
supported
by
documents.
Dominant
purpose of initiating enquiry against the
petitioner was motivated by the fact that
the petitioner had sought accounts from the
officials of Tehsil Barthana in respect of
disbursement
of
Rs.6,04,63,220/-
as
provided by the District Magistrate Etawah
for the persons effected by the natural
calamities. In order to avoid submission of
the requisite vouchers in respect of
disbursement of the said amount, the
charges were levelled against the petitioner
so as to implicate him falsely, on charges
which were trivial in nature. No reason or
opportunity was provided to the petitioner
under the rules which is violative of Rule
7(iv) of the Rules of 1999 and also
violative of Article 311 of the Constitution
of India.

9. The stand of the respondents is that
the petitioner is habitual in flouting the
orders of his superiors and was also
negligent in performing his duties. He used
unparliamentary language against his
superiors which is in violation of the CCA
rules. The petitioner was given adequate
opportunity to file his reply to the charge
sheet, which he failed to do so and instead
he levelled counter allegations against the
respondents. All the requisite documents
were supplied to the petitioner. The
intended purpose of seeking documents
was to delay the departmental proceedings.
The show cause notice was served upon
the petitioner through the Tehsildar.
However, the petitioner was not available
there. It was in this context the notice was
published in the newspaper on 27.5.2006.

10. I have heard learned counsel for
the parties.
2 All] Radhey Shyam V. State of U.P. and others
835

11. Every appointments made by the
Central
Government
or
the
State
Government in the name of the President
or the Governor are pleasure appointments.
Such appointments are held at the pleasure
of the Governor which are terminable at its
will. This right of the Governor is subject
to restrictions imposed by Articles 310(2)
and Article 311(1) (2) of the Constitution
of India. The office being terminable at the
pleasure of the State, there is no limit as to
the grounds upon which the services of the
Government servant will be terminated.
Once the procedure under Article 311(2)
has been complied with, the Courts are not
entitled to determine whether the ground or
the charge upon which Government has
proceeded against a Government servant is
sufficient to warrant a dismissal. Article
311 does not in any way alter or effect the
principle that a Government servant holds
office at the pleasure of the President or
the Governor, as the case may. Article 311
only subjects the exercise of that pleasure
to the two conditions laid down in this
Article. In other words, the provisions of
Article 311 operates as a proviso to Article
310(1) in relation to persons holding civil
posts. These two conditions are-

(i) that such an employee shall not be
dismissed or removed by any authority
subordinate to that by which he was
appointed;

(ii) that such an employee shall not be
dismissed or removed or reduced in rank
without any inquiry into the charges
against him and without offering him an
opportunity of showing cause against the
action proposed to be taken in regard to
him.

In terms of the said legal procedure,
the requirement which were required to be
followed are as under:-

(i)
opportunity
to
the
officer
concerned to deny his guilt and establish
his innocence which means he must be told
that what the charges against him are and
the allegations on which such charges are
based;

(ii) he must be given a reasonable
opportunity to cross-examine the witnesses
produced against him and examine himself
or other witnesses on his behalf; and

(iii) he must be given opportunity to
show-cause that the proposed punishment
would not be proper punishment to inflict
which
means
that
the
tentative
determination of the competent authority
to inflict one of the three punishments must
be communicated to him.

12. The mode and manner in which
an enquiry is to be conducted is provided
under the rules. The rule making power
rests with the appropriate legislature for
regulating the conditions of service of
persons appointed to public services and
posts in connection with the affairs of the
Union or of any State. In absence of any
such legislation, Governor or the President,
as the case may be, makes rules regulating
the recruitment and conditions of service
of persons as provided on such service or
posts until provisions in that behalf is made
by an Act of the appropriate legislature.
The State Government has also framed
rules namely, U.P. Government Servant
(Discipline & Appeal Rules, 1999.

13. Before adverting to the facts, it is
necessary to see the rule position in order
to find out if any procedural impropriety
836 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
has been committed by the respondents
while holding the enquiry against the
petitioner. The petitioner is governed by
the U.P. Government Servant (Discipline
& Appeal Rules, 1999. Rule-7 provides
procedure for imposing major penalties
which is quoted below :-

"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 inquiry into the charges or appoint
an Authority Subordinate to him as Inquiry
Officer to inquire into the charges.

(ii)
The
facts
constituting
the
misconduct on which it is proposed to take
action shall be reduced in the from of
definite charge or charges to be called
charge -sheet. The charge-sheet shall be
approved by the Disciplinary Authority.

Provided that where the Appointing
Authority is Governor, the charge -sheet
may be approved by the Principal
Secretary or the Secretary, as the case may
be, of the concerned department.

(iii) The charge farmed shall be so
precise and clear as to give sufficient
indication to the charged Government
Servant of the facts and circumstances
against him. The proposed documentary
evidences and the name of the witnesses
proposed to prove the same along with oral
evidence, if any, shall be mentioned in the
charge-sheet.

(iv) The charge Government Servant
shall be required to put in a written
statement of his defence in person on a
specified date which shall not be less than
15 days from the date of issue of chargesheet and to state whether he desires to
cross-examine any witness mentioned in
the charge-sheet and whether desires to
give or produce evidence in his defence .
He shall also be informed that in case he
does not appear or file written statement on
the specified date, it will be presumed that
he has none to furnish and inquiry officer
shall proceed to complete the inquiry exparte.

(v) The charge-sheet, along with the
copy of the documentary evidences
mentioned therein and list of witnesses and
their statements, if any shall be served on
the
charged
Government
Servant
personally or by registered post at the
address mentioned in the official records in
case the charge-sheet could not be served
in aforesaid manner, the charge- sheet shall
be served by publication in a daily
newspaper having wide circulation :

Provided that where the documentary
evidence
is
voluminous,
instead
of
furnishing its copy with charge-sheet, the
charge Government servant shall be
permitted to inspect the same before the
Inquiry Officer.

(vi) Where the charged Government
Servant appears and admits charges, the
Inquiry Officer shall submit his report to
the Disciplinary Authority on the basis of
such admission.

(vii) Where the charged Government
Servant denies the charge the Inquiry
Officer shall proceed to call the witnesses
proposed in the charge-sheet and record
their oral evidence in presence of the
charge Government Servant who shall be
given opportunity to cross-examine such
2 All] Radhey Shyam V. State of U.P. and others
837
witnesses. After recording the aforesaid
evidences, 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 witnesses to give evidence or
require any person to produce documents
before him in accordance with the
provisions
of
the
Uttar
Pradesh
Departmental inquiries (Enforcement of
Attendance of witnesses 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 inspite of the service of the
notice on him or having knowledge of the
date the Inquiry Officer shall proceed with
the inquiry exparte. 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) The disciplinary Authority, if it
considers if necessary to do so, may by an
order appoint a Government Servant or a
legal
practitioner
to
be
known
as
"Presenting Officer" to present on its
behalf the case in support of the charge.

(xii) The Government servant may
take
the
assistance
of
any
other
Government Servant to present the case on
this behalf but not engage a legal
practitioner for the purpose unless the
presenting
office
appointed
by
the
Disciplinary
Authority
is
a
legal
practitioner of the disciplinary Authority
having regard to the circumstance of the
case so permits.

Provided that the rule shall not apply
in following cases :

(i) Where any major penalty is
imposed on a person on the ground of
conduct which has led to his conviction on
a criminal charge.

or

(ii) Where the Disciplinary Authority
is satisfied, that for reason to be recorded
by it in writing, that it is not reasonably
practicable to held an inquiry in the
manner provided in these rules; or

(iii) Where the Governor satisfied
that, in the interest of the security of the
state, it is not expedient to hold an inquiry
in the manner provided in these rules."

14. The aforementioned rules provide
a complete mechanism and procedure in
the matter of holding an enquiry in the
cases where the major penalties are
imposed. Rule 7(iii) provides that the
charges framed shall be so precise and
clear as to give sufficient indication to the
charged Government servant of the facts
and circumstances against him. The
proposed documentary evidences and the
name of the witnesses proposed to prove
the same along with oral evidence, if any,
shall be mentioned in the charge sheet. The
charged Government servant will be
838 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
required to put in written statement of his
defence in person on a specified date,
which shall not be less than 15 days from
the date of issue of charge sheet. He shall
indicate as to whether he desires to cross
examine the witnesses mentioned in the
charge sheet and whether desires to give or
produce evidence in his defence. The
charge-sheet, along with the copy of the
documentary evidences mentioned therein
and list of witnesses and their statements,
if any shall be served on the charged
Government Servant personally or by
registered post at the address mentioned in
the official records in case the charge-sheet
could not be served in aforesaid manner,
the charge- sheet shall be served by
publication in a daily newspaper having
wide circulation. Where the charged
Government Servant denies the charge 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. On failure of the charged
Government Servant to appear on the date
fixed in the inquiry or at any stage of the
proceeding inspite of the service of the
notice on him or having knowledge of the
date the Inquiry Officer shall proceed with
the inquiry exparte. 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. The disciplinary Authority, if it
considers necessary to do so, may by an
order appoint a Government Servant or a
legal
practitioner
to
be
known
as
"Presenting Officer" to present on its
behalf the case in support of the charge.

15. The import of the aforementioned
rules clearly indicates that the procedural
proprietary has to be adhered to by the
respondents while holding enquiry against
the petitioner. In the background of the
aforementioned rules, it is to be seen as to
whether respondents have complied with
the same in the present case.

16. The learned counsel for the
petitioner contended that after service of
the
charge
sheet,
he
had
in
his
communication dated 7.3.2006 requested
for supply of the documents directly
related to the charges levelled against him.
Details of the documents sought by the
petitioner are clearly visible in his
communication.
The
respondents
maintained complete silence in this behalf
except indicating that the charge sheet was
accompanied by the relevant documents in
this behalf.

17. The first contention raised by the
learned counsel for the petitioner is that the
charges are vague and do not disclose the
allegation on the basis of which such
charges are based. The specific stand taken
is that documents on the basis of which the
charges have been framed have not been
supplied to the petitioner. In order to
substantiate his plea, stress has been laid
on various communications sent by the
petitioner to the respondents to furnish the
documents on the basis of which charges
have been framed. Various correspondence
have been exchanged by the petitioner with
the respondents in this behalf, in which
persistently it has been emphasized that he
is unable to file reply in absence of
documents
allegedly
supporting
the
charges
framed
against
him.
The
respondents in their communications have
consistently stated that the charge sheet
was accompanied by the documents. While
scanning through the charge sheet served
upon
the
petitioner,
there
is
an
endorsement that the charge sheet is
2 All] Radhey Shyam V. State of U.P. and others
839
accompanied by 47 leaves. It is not
disclosed in the charge sheet as to what are
these leaves furnished along with the
charge sheet.

18.

The
question
arises
for
consideration is as to whether it will be
presumed to be sufficient compliance once
it is shown in the charge sheet was
accompanied
by
documents
without
disclosing the details of documents which
are appended to it. The requirement of the
rule is that the charge sheet must reflect the
allegation on which the charges have been
framed along with oral as well as
documentary evidence which are required
to be proved by the department. Disclosure
of the proposed documentary evidence and
name of the witnesses proposed to prove
the charge have to be mentioned in the
charge sheet. Not only this, the disciplinary
authority is duty bound to make available
all other documents which are sought to be
relied against the delinquent employee to
prove the charge. The intended purpose of
this is to furnish to the delinquent
employee the substance of the charges
along with the supporting documents in
order to put him to notice as to what he is
requires to meet in the enquiry. It is his
constitutional right to deny his guilt and
prove his innocence. Non-supply of the
documents, as also the witnesses proposed
to be examined is likely to prejudice his
defence. In order to obviate this, necessary
protection has been given to the employee
so that he is not found guilty without
disclosing the charges supported by
evidence proposed to be adduced against
him.

19. In the present case, this
procedural safe-guard has been violated by
the respondents. The disclosure of the
proposed documents and the evidence to
be adduced in support of the charges, are
required to be disclosed to the petitioner.
Mere endorsement in the charge sheet that
it is accompanied by 47 leaves, without
disclosing
the
particulars
of
such
enclosures,
would
not
be
sufficient
compliance of the rules.

20. Second contention raised by the
learned counsel for the petitioner is that the
list of witnesses proposed to be examined
have also not been disclosed in the charge
sheet. This is an essential feature of Rule7(iii) of the Rules. Rule clearly shows that
the charge sheet must be accompanied by
proposed documentary evidence and the
name of the witnesses proposed to prove
the same along with oral evidence shall be
mentioned in the charge sheet. No such
disclosure has been made in the charge
sheet which clearly violates the aforesaid
rules.

21. Reliance has been placed by the
learned counsel for the petitioner on a
decision of the Apex Court State of U.P.
& others versus Saroj Kumar Sinha
AIR 2010 SC 3131, in which Apex Court
has observed that :

" The affect of non disclosure of
relevant documents has been stated in
Judicial Review of Administrative Action
by DeSmith, Woolf and Jowell, Fifth
Edition, Pg.442 as follows:

If relevant evidential material is not
disclosed at all to a party who is potentially
prejudiced by it, there is prima facie
unfairness, irrespective of whether the
material in question arose before, during or
after the hearing. This proposition can be
illustrated by a large number of modern
cases involving the use of undisclosed
reports by administrative tribunals and
840 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
other adjudicating bodies. If the deciding
body is or has the trappings of a judicial
tribunal and receives or appears to receive
evidence ex parte which is not fully
disclosed, or holds ex parte inspections
during the course or after the conclusion of
the hearing, the case for setting the
decision aside is obviously very strong; the
maxim that justice must be seen to be done
can readily be invoked."

22. Reliance has also been placed by
the learned counsel for the petitioner on a
decision of the Apex Court in Kashinath
Dikshita versus Union of India (1986) 3
SCC 229. The following observations
have been made by the Apex Court :-

"When a government servant is facing
a disciplinary proceeding, he is entitled to
be afforded a reasonable opportunity to
meet the charges against him in an
effective manner. And no one facing a
departmental enquiry can effectively meet
the charges unless the copies of the
relevant statements and documents to be
used against him are made available to
him. In the absence of such copies, how
can the concerned employee prepare his
defence, cross- examine the witnesses, and
point out the inconsistencies with a view to
show that the allegations are incredible? It
is difficult to comprehend why the
disciplinary
authority
assumed
an
intransigent posture and refused to furnish
the copies notwithstanding the specific
request made by the appellant in this
behalf. Perhaps the disciplinary authority
made it a prestige issue. If only the
disciplinary authority had asked itself the
question: What is the harm in making
available the material? and weighed the
pros and cons, the disciplinary authority
could not reasonably have adopted such a
rigid and adamant attitude. On the one
hand there was the risk of the time and
effort invested in the departmental enquiry
being wasted if the courts came to the
conclusion that failure to supply these
materials would be tantamount to denial of
reasonable opportunity to the appellant to
defend himself. On the other hand by
making available the copies of the
documents and statements the disciplinary
authority was not running any risk. There
was nothing confidential or privileged in
it."

23. The second ground contended by
the learned counsel for the petitioner is that
after exparte enquiry was concluded, a
report was submitted to the appointing
authority. After submissions of the report,
it was proposed to dismiss the petitioner
from service, as a result of which, showcause notice was issued to him which was
to be served upon the petitioner. The said
show-cause notice was not served upon the
petitioner till 13.6.2006.

24. The stand of the respondents is
that the notice could not be served upon
the petitioner personally as he was not at
his home on the said date. It was decided
to publish the notice in the newspaper and
accordingly the said notice was published
in the newspaper on 27.5.2006. The
petitioner came to know about the same on
2.6.2006 and submitted his reply by stating
that 15 days time time be extended to file
his reply. The notice along with enquiry
report was served upon the petitioner on
13.6.2006. He was asked to submit his
reply by 17.6.2006.

25.

The
petitioner
by
his
communication dated 16.6.2006 requested
the respondents that notice was received by
him on 13.6.2006 and he requires 15 days
time to file his reply. Without rejecting the
2 All] Radhey Shyam V. State of U.P. and others
841
request of the petitioner, the impugned
order was passed by respondent no. 2 on
23.6.2006.

26. From the aforesaid facts,
following things clearly emerges that (i) the
show-cause notice was not personally
served upon the petitioner till 13.6.2006
along with report; (ii) the extension of time
was sought by the petitioner vide his
communication dated 2.6.2006 which was
accepted by the respondents through their
communication received by the petitioner
on 13.6.2006 by extending date up to
17.6.2012; (iii) petitioner further required
grant of extension of 15 days' which was
not rejected and without informing the
petitioner about the date of his request for
extension, the impugned order has been
passed by respondent no. 2.

27. It is mandatory that the
opportunity was required to be given to the
petitioner to the show-cause against the
proposed punishment. The petitioner would
be entitled not only to question the proposed
punishment but also the manner in which
the enquiry has been conducted against him.
The enquiry which has been conducted
against the petitioner without supplying him
the relevant documents and name of the
witnesses vitiates the said enquiry. Asking
the respondents to give reply to the enquiry
report without supply of the documents is to
add insult to injury.

28. The other aspect of the matter is
that even while asking reply from the
petitioner against the proposed punishment,
it be seen that no opportunity was given to
him in this behalf. Once the petitioner had
sought
extension
of
time
vide
his
communication
dated
2.6.2006,
the
respondents granted extension of time to the
petitioner to file his reply by 17.6.2006.
Mere extension of time in itself was not
sufficient, inasmuch as, the petitioner was to
be served with the proposed show-cause
notice along with the show-cause notice and
enquiry report. Both the show-cause notice
and the enquiry report were received by the
petitioner on 13.6.2006. It is from that date
15 days time would start running i.e. after
receipt of the show-cause notice. The reply
could not be submitted by the petitioner
against the proposed show-cause notice
unless it was actually received by him. He
had rightly sought extension of time vide
his communication dated 2.6.2006. The
respondents without waiting for the same
passed the impugned order. It clearly
emerges
from
the
aforementioned
disclosures that no opportunity has been
given to the petitioner to file reply to the
show-cause notice. I say so because
admittedly the proposed show-cause notice
and the enquiry report were received by the
petitioner on 13.6.2006 and not on 2.6.2006
when the request was made by the petitioner
for extension of time.

29. In view of this, I find that no
opportunity has been given to the petitioner
to
show-cause
against
the
proposed
punishment. It clearly not only violates Rule
7(iv) of the Rules but also the mandates of
Constitution of India under Article 311(2)
which
contemplates
that
reasonable
opportunity is required to be given to the
employee to defend himself. The word
reasonable opportunity has been interpreted
to me natural justice. Article 311(2) gives
constitutional mandate to the principles of
natural justice and once it is proved from
the record that reasonable opportunity to
defend himself has not been provided, the
rules of natural justice would be violated.

30. In view of above, I allow the writ
petition and set aside the order impugned
842 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
dated 23.6.2006 passed by respondent no. 2
and order dated 8.11.2006 passed by
respondent no. 3 and direct the respondents
to re-instate the petitioner in service within
three months from the date a certified copy
of this order is produced before them.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 3422 of 2008

Dharam Singh & Others
 ...Petitioner
Versus
Commissioner, Meerut Division, Meerut
& Others

 ...Respondents

Counsel for the petitioner:
Sri S.D. Kautilya
Sri Anil Kumar
Sri G.N. Tiwari
Sri Raghubir Singh
Sri S.R.Singh

Counsel for the Respondents:
C.S.C.
Sri Rahul Sahai
Sri V.K. Singh

U.P.Z.A.&L.R.
Act
1950-Section
198Cancellation
of
Patta
on
groundauthority
granting
approval-lacks
jurisdiction as S.D.O. Has no authorityafter 25.07.2002-while after amended
provision
Tehsildar
processed
and
recommended
for
allotment-as
such
recommendation be treated as approvalwell within jurisdiction-further putting
signature
by
S.D.O.
is
superfluouscancellation-held-illegal.

Held: Para 9

In the circumstances, it cannot be said
that the approval was bereft of any
orders of the Tehsildar who was the
authority
competent
to
grant
the
approval. Putting of signatures by the
Sub
Divisional
Magistrate
might
therefore
be
superfluous,
but
the
exercise
of
the
discretion
by
the
Tehsildar
in
supporting
the
recommendations cannot be said to be
an act either without authority or
without jurisdiction. In the opinion of
the Court, the recommendation made by
the Tehsildar will amount to his approval
and in the aforesaid circumstances the
findings recorded by the authorities
below on that count cannot be sustained.
The impugned orders dated 29.8.2007
and 31.12.2007 are hereby quashed for
the aforesaid reasons.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard learned counsel for the
petitioners, Sri S.K. Purwar for the
contesting respondent no. 4 and the
learned
Standing
Counsel
for
the
respondent nos. 1 and 2. Learned counsel
for the Gaon Sabha is not present. None
of the other respondents have put forth
any contest to this petition.

2. The petitioners are allottees of
certain land by the Gaon Sabha under the
provisions of Section 198 of the U.P. Z.A.
& L.R. Act, 1950. The respondent no. 4
who is the erstwhile gram pradhan
appears to have complained against the
said allotment proceedings as being
without authority in law and one of the
major grounds raised was that the Sub
Divisional Magistrate had no authority to
approve the said allotments after 20th
July, 2002, inasmuch as, the said power
had been conferred on the Assistant
Collector
(Tehsildar)
of
the
area
concerned. It is undisputed that by a
subsequent amendment the powers have
again now been vested in the Sub
Divisional Magistrate. The fact remains