# Raghvendra Kumar Srivastava v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 447
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghvendra-kumar-srivastava-v-state-of-u-p-and-others-42192
- **Pages:** 6

## Headnote

C.S.C.

U.P.
Govt.
Servant
(Discipline
and
Appeal)
Rules
1999-Rule-7-Dismissal
from
Services-without
serving
chargesheet-without fixing date, time
and place of inquiry-without opportunity
of evidence-without following procedure
contained
under
Rule
7-held-illegalunsustainable-dismissal quashed.

Held: Para 22

The U.P. Government Servant (Discipline
and Appeal) Rules, 1999, particularly
Rule 7 provides the procedure for
imposing major penalties and Rule 8
relates to submission of enquiry report,
whereas Rule 9 deals with action on
enquiry report. The opposite parties have
not followed the procedure prescribed
for imposing major penalty of dismissal
on the petitioner.
Case law discussed:
2011 (29) LCD 832

## Text

1 All] Raghvendra Kumar Srivastava V. State of U.P. and others
447
challenge in the present case cannot be said
to be an action in contravention to the
mandatory provisions as provided under
the Act for adjudication of the industrial
dispute referred to it by the State
Government under Section 4K of the Act.

24. For the foregoing reasons, writ
petition lacks merit and is dismissed.

25. Keeping in view the facts and
circumstances of the case that the
adjudication case on the reference made by
the State Government under Section 4K of
the Act has been registered before the
Labour Court in the year 1985 and since
then the same is pending before opposite
party no.2, a direction is issued to opposite
party
no.2
to
decide
the
matter
expeditiously, preferably, within a period
of six months from the date a certified
copy of this order is produced.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.04.0212

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.

Service Single No. - 5415 of 2002

Raghvendra Kumar Srivastava

 ...Petitioner
Versus
State of U.P.Thru Secy.,Revenue Deptt.,
Lucknow and 3 others ...Respondents

Counsel for the Petitioner:
Sri Ashok Pandey
Sri Vinod Kumar Pandey

Counsel for the Respondents:
C.S.C.

U.P.
Govt.
Servant
(Discipline
and
Appeal)
Rules
1999-Rule-7-Dismissal
from
Services-without
serving
chargesheet-without fixing date, time
and place of inquiry-without opportunity
of evidence-without following procedure
contained
under
Rule
7-held-illegalunsustainable-dismissal quashed.

Held: Para 22

The U.P. Government Servant (Discipline
and Appeal) Rules, 1999, particularly
Rule 7 provides the procedure for
imposing major penalties and Rule 8
relates to submission of enquiry report,
whereas Rule 9 deals with action on
enquiry report. The opposite parties have
not followed the procedure prescribed
for imposing major penalty of dismissal
on the petitioner.
Case law discussed:
2011 (29) LCD 832

(Delivered by Hon'ble Ritu Raj Awasthi,J. )

1. Heard learned counsel for the
petitioner as well as the learned Standing
Counsel and perused the records.

2. The writ petition has been filed
challenging the order dated 31.12.2001 by
which the petitioner while working on the
post of Collection Amin has been
dismissed from the service after holding
disciplinary proceedings.

3. Learned counsel for the petitioner
submitted that the petitioner was neither
provided relevant documents demanded
by him for submission of reply to the
charge sheet nor any date, time or place
was fixed by the Enquiry Officer to hold
the enquiry. It is also submitted that even
the charge sheet was not served upon the
petitioner
and
the
entire
enquiry
proceedings were held ex parte in the
absence of the petitioner. It is also
submitted that the petitioner was not
provided with the enquiry report and the
448 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
opportunity to rebut the findings recorded
in the enquiry report.

4. Learned counsel for the petitioner
in order to emphasize his submissions
submitted that from the perusal of the
impugned order itself, it is very much
clear that the enquiry report was sent
along with certain documents demanded
by the petitioner as well as the report of
Naib
Tehsildar,
Shahganj
dated
30.10.2000 and the report of the Deputy
Collector, Bikapur dated 13.11.2000 for
service on the petitioner, but the same was
not served on the petitioner.

5. It is also submitted that from the
perusal of the order impugned, it is very
much clear that the relevant records
demanded by the petitioner were supplied
along with the enquiry report, meaning
thereby that the enquiry proceedings were
completed and thereafter the opposite
parties had sent the said relevant records
to the petitioner, which itself indicates
that the petitioner was not provided
opportunity to properly defend himself in
the so called enquiry proceedings.

6. It is also emphasized that the
entire enquiry proceedings were held in
gross violation of principles of natural
justice as well as the procedure prescribed
under the U.P. Government Servant
(Discipline and Appeal) Rules, 1999
especially Rule 7 of the said Rules, 1999.

7. In support of his submissions
learned counsel for the petitioner has
relied upon the judgment of the Division
Bench in the case of Abdul Salam Vs.
State of U.P. & others 2011 (29) LCD
832 (Paras 16,17,18 & 27), wherein it has
been observed that in the departmental
proceedings
for
awarding
major
punishment, no short-cut is permissible.
The charge sheet has to be furnished to
the delinquent to apprise him of the
charges, which should be specific along
with
the
evidence,
both
oral
and
documentary,
which
the
department
intends to rely for upholding the charges.
In case after service of charge sheet, the
delinquent needs any document or copy
thereof, such prayer has to be considered
by the enquiry officer and the documents
which are found relevant for enquiry are
to be 0.00"supplied to the delinquent. In
case copies of any such document cannot
be supplied for any valid reason, free
access has to be afforded to the delinquent
for making inspection of such records.
After this stage, the reply is to be
submitted by the delinquent within the
given time schedule and the enquiry is to
proceed, fixing date, time and place
calling the delinquent.

8. It has also been observed by the
Division
Bench
that
normally
the
evidence by the department is required to
be led first to prove the charges wherein
the
delinquent
is
also
allowed
to
participate, who can cross-examine the
witnesses, with opportunity of adducing
the evidence either in rebuttal or for
disapproving the charges.

9. Learned Standing Counsel, on the
other hand, on the basis of the counter
affidavit submitted that the petitioner was
fully
aware
about
the
disciplinary
proceedings initiated against him but he
never filed reply to the charge sheet and
intentionally
kept
on
demanding
documents by sending letters through
Speed Post. The petitioner was guilty of
embezzlement and misappropriation of
funds
which
itself
indicates
the
seriousness of the charges and as such the
1 All] Raghvendra Kumar Srivastava V. State of U.P. and others
449
petitioner was rightly dismissed from the
service.

10. The learned Standing Counsel
also tried to submit that the petitioner had
deposited a sum of Rs. 67,925/- in the
Bank which in itself is the admission on
the part of the petitioner and as such as
per Rule 7 (vi) of U.P. Government
Servant (Discipline and Appeal) Rules,
1999,
no
disciplinary
enquiry
was
required to be conducted.

11.

I
have
considered
the
submissions made by the parties' counsel.

12. From the perusal of the
impugned order, it appears that the
opposite party no. 2 while passing the said
order has recorded that the charge sheet
was
served
on
the
petitioner
on
20.12.2000, however, in the same order in
the subsequent paragraph, the date of
charge sheet is mentioned as 23.4.2001,
as such the said charge sheet could not
have been served on the petitioner on
20.12.2000. The impugned order also
indicates that the enquiry report dated
8.11.2001 along with the relevant records
relating to the charges, i.e. report dated
30.10.2000
of
the
Naib
Tehsildar,
Shahganj, the report dated 9.11.2000 of
Tehsildar Bikapur as well as the report
dated 13.11.2000 of Deputy Collector,
Bikapur were sent for service at the
residence of the petitioner on 15.12.2001,
however, the petitioner was not found
residing at the recorded address hence the
same could not be served on him.

13. From the said fact, it is evidently
clear that the records which were
considered during the enquiry were sent
for service on petitioner along with the
enquiry report, meaning thereby that the
petitioner was not given the said records
earlier and no opportunity to rebut the
same and submit his defence in this
regard was provided.

14. It is to be noted that the enquiry
report dated 8.11.2001, after conclusion
of the enquiry proceedings was sent for
service on the petitioner requiring him to
give his reply/objection.

15. I am of the considered opinion
that it was not a stage to provide relevant
records to the petitioner as at that time the
enquiry
proceedings
were
already
completed and the enquiry report was
already prepared. In case the relevant
records were required to be served on the
petitioner, the same should have been
served prior to holding oral enquiry.

16. It is also required as to whether
the Enquiry Officer had taken any
decision with regard to providing the
documents demanded by the petitioner for
the purpose of submitting his reply to the
charge sheet. There is nothing on record
on the basis of which it can be said that
the enquiry officer had applied his mind
with regard to the relevancy of the
documents demanded by the petitioner.
On the other hand, the impugned order
indicates that the punishing authority
while passing the impugned order has
observed that the documents demanded
by the petitioner had no relevancy.

17. It is to be observed that it is not
the requirement of law. In fact, in case a
delinquent demands any document for the
purpose of submitting reply to the charge
sheet, the Enquiry Officer is required to
apply his mind regarding relevancy of
such documents and decide as to whether
the said documents are required to be
450 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
given or not. The punishing authority at
the time of awarding punishment is not to
decide the relevancy 0.00"of the said
documents as that would defeat the very
purpose of giving adequate opportunity to
the delinquent.

18. In the present case, it appears
that the relevant records were neither
supplied to the petitioner nor any date,
time or place was fixed by the Enquiry
Officer to hold the enquiry.

19. It is also to be observed that
even if a delinquent has not participated
or did not cooperate in the enquiry, it is
the duty of the Enquiry Officer to hold the
enquiry proceedings in order to prove the
charges on the basis of the evidences
relied in support of the charges.

20. In the present case, the petitioner
was also not provided with the enquiry
report and an opportunity to file his
objection as required under the rules. In
case the service could not be effected by
the messenger, it was the duty of the
opposite parties to have effected the
service on the petitioner through the
publication or other mode of service.

21. In the case of Abdul Salam
(Supra), the Court has observed that time
and again the Apex Court as well as this
Court has pronounced in the matters of
enquiry for awarding major punishment
no short-cut is permissible. The relevant
paragraphs Nos. 16,17,18 and 27 are
reproduced hereunder:

16. Before coming to any conclusion,
it would be relevant to mention the legal
position with regard to the conduction of
the departmental enquiry and award of
punishment to a delinquent employee.
Time and again, the Hon'ble Apex Court
as well as this Court has pronounced that
in the matter of enquiry for awarding
major
punishment,
no
short-cut
is
permissible. The charge-sheet has to be
furnished to the delinquent to apprise him
of the charges, which should be specific
along with the evidence, both oral and
documentary,
which
the
department
intends to rely for upholding the charges.
In case after service of charge-sheet, the
delinquent needs any documents or copy
thereof, such prayer has to be considered
by the enquiry officer and the documents
which are found relevant for enquiry are
to be supplied to the delinquent. In case
copies of any such document can not be
supplied for any valid reason, free access
has to be afforded to the delinquent for
making inspection of such records. After
this stage, the reply is to be submitted by
the delinquent within the given time
schedule and the enquiry is to proceed,
fixing the date, time and place calling the
delinquent.

17. Normally, the evidence by the
department is required to be led first to
prove the charges wherein the delinquent
is also allowed to participate, who can
cross-examine
the
witnesses,
with
opportunity of adducing the evidence
either in rebuttal or for disproving the
charges. It is thereafter that the enquiry
officer has to submit its report either
saying that any of the charges stand
proved
or
not.
There
has
to
be
corroborating evidence to prove the
charge and without any material being
placed by the department to substantiate
the documentary evidence, the charge can
not be found to be proved. There has to be
a corroboration of facts from the
documents on record and if any report is
also being relied upon, the said report is
1 All] Raghvendra Kumar Srivastava V. State of U.P. and others
451
also required to be authenticated by the
person who has submitted the report,
therefore, for this purpose the oral
enquiry is required to be held for proving
the charges.

18. In the case of State of Uttar
Pradesh and others Versus Saroj Kumar
Sinha, the Hon'ble Apex Court has
observed as under:

"26. The first inquiry report is
vitiated also on the ground that the
inquiry officers failed to fix any date for
the appearance of the respondent to
answer the charges.

Rule 7(x) clearly provides as under:

"(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."

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 enquiry officer can
proceed with the inquiry ex parte. Even in
such circumstances it is incumbent on the
enquiry 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 cross
examination
of
the
witnesses.
But
nonetheless in order to establish the
charges the department is required to
produce the necessary evidence before the
enquiry officer. This is so as to avoid the
charge that the enquiry officer has acted
as a prosecutor as well as a judge.

28. An enquiry officer acting as 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."

27. In this view of the matter, we are
of the considered opinion that the
departmental enquiry conducted against
the appellant-petitioner on the basis of
which the punishment of dismissal from
service was awarded, was not held in
accordance with law as propounded by
the Apex Court as well as this Court, as
discussed above.

22. The U.P. Government Servant
(Discipline and Appeal) Rules, 1999,
particularly Rule 7 provides the procedure
for imposing major penalties and Rule 8
relates to submission of enquiry report,
whereas Rule 9 deals with action on
enquiry report. The opposite parties have
452 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
not followed the procedure prescribed for
imposing major penalty of dismissal on
the petitioner.

23. I am of the considered opinion
that the order impugned for the reasons
given above, is not sustainable. As such
the order dated 31.12.2001, a copy of
which is annexed as Annexure No. 10 to
the writ petition, is hereby quashed with
liberty to the opposite parties to hold
afresh enquiry from the stage of issuance
of the charge sheet. In case the enquiry
proceedings are held, the same shall be
concluded and final order shall be passed
within a period of five months. The
petitioner shall be reinstated in service
forthwith. However, the consequential
benefits would depend on the outcome of
the enquiry.

24. The writ petition is allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2012

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE P.K.S. BAGHEL, J.

Criminal Appeal No. 6952 of 2010

Babloo @ Virendra and others

 ...Petitioner
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri P.S. Pundir
Sri R.B. Yadav

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-Section 374
(2)-Criminal
Appeal-conviction
U/S
302/34 I.P.C.-burden of proof wrongly
shifted on appellant in terms of Section
106 of evidence Act-in the fact and
circumstances of the case prosecution
can not creave from burden of proofTrail Court placed much reliance upon
recovery of country made pistol from
accuse Babloo-while recovery memodisclose place of recovery from the field
of Baran Singh-apart from so many
diversity in prosecution evidence-heldprosecution failed to prove its case
beyond
reasonable
doubt-not
sustainable.

Held: Para 20 and 27

What
emerges
from
the
above
mentioned
cases
are
that
the
prosecution is not absolved from its duty
of discharging its general or primary
burden of proving the prosecution case
beyond
reasonable
doubt
and
the
Section 106 of the Evidence Act is
attracted in exceptional cases.

Having regard to the circumstances of
the case, we are satisfied that that the
prosecution has failed to prove its case
against the accused beyond reasonable
doubt and the findings of the trial court
are not sustainable for the reasons given
hereinabove.
Case law discussed:
AIR 1956 SC 404; AIR 1992 SC 2100; AIR
2000 SC 2988; AIR 2005 SC 2345; 1956 SCR
199; (1960) 1 SCR 452; (1974) 4 SCC 193;
AIR 2005 SC (2345); (2012) 1 SCC 10; 1991
CRI.L.J. 1235; 1988 CRI.L.J. 1583

(Delivered by Hon'ble P.K.S. Baghel,J.)

1. The appellants Babloo @
Virendra, Sandeep and Dharmvir have
preferred this Criminal Appeal under
Section 374 (2) Cr.P.C. against the
judgment and order dated 15.10.2010
passed by the First, learned Additional
Sessions Judge, F.T.C. No.1, Bijnor in
S.T. No. 242 of 2010, Crime no. 1101 of
2009 and S.T. No. 243 of 2010, Crime