# Rajesh Kumar v. Chairman Nagar Panchayat, G.B. Nagar & Ors

- **Citation:** (2021) 1 ILRA 892
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-10
- **Case number:** Writ A No. 36193 of 2015
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-v-chairman-nagar-panchayat-g-b-nagar-ors-46135
- **Pages:** 11

## Headnote

C.S.C., Anupama Parashar Upadhyay, Sri
Chandra Bhan Gupta, Sri Devendra Kumar,
Sri
Satendra
Kumar
Upadhyay,
Smt.
Anupama Parashar, Sri Satyendra Kr.
Upadhyay

A. Service Law - Disciplinary Inquiry -
Major Punishment - Proof of charges -
Leading of the witnesses - Parole
Evidence - Necessity of - Obligation of
Establishment and Inquiry Committee
- Even if an employee does not appear
before
the
Inquiry
Tribunal/Committee, the charges do
not stand proved by the delinquent's
default - The establishment have to
lead, both documentary evidence and
examine witnesses in support of the
charges.
The
charges
have
to
be
established by the establishment, even
if the delinquent is ex parte - If the
employee appears, he has a right not
only to cross-examine witnesses, who
appear on behalf of the establishment,
but also to lead his own evidence, both
documentary and oral - In cases
involving major punishment, parole
evidence ought to be led to establish
the
charges
-
Held,
the
inquiry
committee has proceeded to accept the
charges by surreptitiously rejecting
the petitioner's reply to each of them,
with no evidence before them to prove
the charges - Documents that were
considered, were not proved by any
evidence, particularly, parole evidence.
(Para 23 and 32)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

892 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)01ILR A892
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2020

BEFORE

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

Writ A No. 36193 of 2015

Rajesh Kumar ...Petitioner
Versus
Chairman Nagar Panchayat, G.B. Nagar &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Manu Saxena

Counsel for the Respondents:
C.S.C., Anupama Parashar Upadhyay, Sri
Chandra Bhan Gupta, Sri Devendra Kumar,
Sri
Satendra
Kumar
Upadhyay,
Smt.
Anupama Parashar, Sri Satyendra Kr.
Upadhyay

A. Service Law - Disciplinary Inquiry -
Major Punishment - Proof of charges -
Leading of the witnesses - Parole
Evidence - Necessity of - Obligation of
Establishment and Inquiry Committee
- Even if an employee does not appear
before
the
Inquiry
Tribunal/Committee, the charges do
not stand proved by the delinquent's
default - The establishment have to
lead, both documentary evidence and
examine witnesses in support of the
charges.
The
charges
have
to
be
established by the establishment, even
if the delinquent is ex parte - If the
employee appears, he has a right not
only to cross-examine witnesses, who
appear on behalf of the establishment,
but also to lead his own evidence, both
documentary and oral - In cases
involving major punishment, parole
evidence ought to be led to establish
the
charges
-
Held,
the
inquiry
committee has proceeded to accept the
charges by surreptitiously rejecting
the petitioner's reply to each of them,
with no evidence before them to prove
the charges - Documents that were
considered, were not proved by any
evidence, particularly, parole evidence.
(Para 23 and 32)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Chamoli District Co-operative Bank Ltd.
Through its Secretary/ Mahaprabandhak &
anr. Vs Raghunath Singh Rana & ors.,
(2016) 12 SCC 204
2. St. of U.P. & ors. Vs Saroj Kumar Sinha,
(2010) 2 SCC 772
3. St. of U.P. Vs Aditya Prasad Srivastava &
anr., 2017 (2) ADJ 554 (DB) (LB)
4. Smt. Karuna Jaiswal Vs State Of U.P.
Through Secy Mahila Evam Bal Vikas, 2018
(9) ADJ 107 (DB) (LB)
5. Roop Singh Negi Vs P.N.B. & ors., (2009)
2 SCC 570

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
an order dated May the 14th, 2015 passed by
the Executive Officer, Nagar Panchayat,
Jewar,
District
Gautam
Budh
Nagar,
terminating the petitioner's service. In
addition, the petitioner has been ordered to
deposit a sum of Rs.11,000/- with the
Employers, held to be embezzled by him.

2. Admittedly, a counter affidavit has
been filed in this case on behalf of
respondent nos.2 and 3, to which a
rejoinder has been filed on 26th February,
2017. However, the counter affidavit has
not been placed on record by the office.
Learned Counsel for the petitioner has
supplied a copy of the counter affidavit,
which is being retained on record and shall
form part of it. Thus, the parties have
exchanged affidavits.
1 All. Rajesh Kumar Vs.Chairman Nagar Panchayat, G.B. Nagar & Ors.
893

3. Admit.

4. Heard forthwith.

5. Heard Mr. Manu Saxena, learned
Counsel for the petitioner and Mr. Satendra
Kumar
Upadhyay,
learned
Counsel
appearing on behalf of respondent nos.1
and 6. No one appears on behalf of
respondent nos.2 and 3, though the name of
Mr. Devendra Kumar, learned Counsel, is
shown on behalf of the said respondents.

6. The petitioner was appointed as a
Tax Collector with the Nagar Panchayat,
Jewar, District Gautam Budh Nagar. He
was suspended pending inquiry by the
Executive
Officer,
vide
order
dated
20.04.2012. The allegations indicate that
there were, in the receipts relating to
levies on sale of animals in the cattle fair,
many irregularities found. It was indicated
that in a number of receipts, the number of
cattle and the sum of money collected
have been tampered with. The petitioner
was charged prima facie with tampering
official record to commit embezzlement
and placed under suspension, as aforesaid.
A charge sheet was issued to the petitioner
on 22.06.2012, to which he submitted his
reply on 07.10.2012. An inquiry report
was submitted in the matter on 17.01.2013
by the Inquiry Officer/ Naib Tehsildar. The
Inquiry Officer found that the petitioner
had embezzled a sum of Rs.87,370/-, but
since that money was deposited in the
Nagar Panchayat Account, the Inquiry
Officer thought that no charge survived
against the petitioner. The forwarding note
of the office to the Executive Officer
shows
that
the
petitioner
was
recommended to be reinstated in service,
with
a warning not to
repeat his
misconduct.

7. It must be remarked that the
inquiry report was considered by the
Disciplinary Authority/ the Executive
Officer, who held the petitioner not guilty
of embezzlement, but held him guilty of
charges of tampering official records and
not depositing Government moneys in
accordance with rules. The petitioner was
reinstated in service with a warning not to
repeat such a mistake in future. He was
also awarded an adverse entry. This order
of reinstatement with a minor punishment
was made by the Executive Officer on
16.02.2013.

8. Post reinstatement in service, the
petitioner was given charge of a Tax
Collector. He was assigned duties at
different places from time to time. Despite
reinstatement, the petitioner was neither
paid salary for the period during which he
was suspended from service nor his
subsistence allowance. These were not
paid, though he was reinstated in service. It
appears that post reinstatement also, the
petitioner's salary was not paid. The
petitioner
made
a
number
of
representations in this regard to the Nagar
Panchayat, but to no avail. Still, the
Executive Officer appears to have written a
letter addressed to the Chairman dated
13.01.2014, apprising the latter that the
petitioner has been reinstated in service
with the imposition of a minor punishment,
and that there was no justification to
withhold his salary. It does appear from this
letter that there was some issue raised by
the Chairman about the jurisdiction of the
Executive Officer to pass final orders in the
disciplinary proceedings. The Executive
Officer cited the provisions of Sections 74,
75
and
76
of
the
Uttar
Pradesh
Municipalities Act, 1916 to say that he had
powers to dispose of the disciplinary
894 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings against an employee of the
petitioner's cadre.

9. The course of proceedings show
that the Chairman of the Nagar Panchayat
and the Executive officer were not ad idem
about the disciplinary proceedings initiated
against the petitioner and concluded by the
Executive Officer's order dated 16.02.2013.
Upon
receipt
of
the
memo
dated
13.01.2014 from the Executive Officer, the
Chairman ordered an inquiry afresh to be
done by one Mohan Lal Gupta, an Officer
of the Nagar Panchayat. He submitted a
short report dated 22.04.2014, saying that
about the added charge of threat to commit
suicide by the petitioner, there was no
evidence and so far as the other charges
were concerned, these had already been
inquired
into
and
the
disciplinary
proceedings
concluded
against
the
petitioner. It is also indicated in this report
that the Chairman was the Disciplinary
Authority relating to employees of the
clerical cadre and still higher cadres. This
remark
in
the
inquiry
report
dated
22.04.2014 is further reflective of some
issue between the Chairman and the
Executive Officer, about the disciplinary
jurisdiction over an employee of the
petitioner's cadre.

10. It is alleged by the petitioner that
the Chairman, on receipt of this report, sent
one Vikas Sharma, a member of the Nagar
Panchayat, from Ward no.16 to the Nagar
Panchayat Office, with instructions to
secure
the entire
record relating to
disciplinary
proceedings
against
the
petitioner. The member concerned had
instructions from the Chairman to remove
the record of the disciplinary proceedings
away from the Nagar Panchayat Campus. It
is claimed that the member concerned
forcefully took away the entire record of
the disciplinary proceedings, relating to the
petitioner, on 09.05.2014 at about 10 O'
clock in the morning. A report in this
connection was immediately submitted by
the Clerk to the Executive Officer on
09.05.2014. The petitioner also reported the
matter
to the Executive Officer on
09.05.2014. A First Information Report was
lodged by the Executive Officer on
09.05.2014 with Police Station Kotwali
Jewar, District Gautam Budh Nagar. It,
however, does not appear from the record
that the written information sent vide
memo no. 198/3/ न.प.जे./ 2014, dated
09.05.2014, led to the registration of a
crime.

11. It is asserted that this action of the
Executive Officer enraged and annoyed the
Chairman of the Nagar Panchayat to the
extent that he set aside the petitioner's
reinstatement order dated 16.02.2013 and
ordered revival of his earlier suspension
order dated 20.04.2012. This order was
passed by the Chairman on 30.05.2014. In
consequence,
disciplinary
proceedings
against the petitioner stood revived. The
petitioner says that this revival was without
jurisdiction. Nevertheless, another inquiry
report was submitted on 23.06.2014,
followed
by
a
further
report
dated
24.06.2014, both undertaken by Vikas
Sharma,
the
member
of
the
Nagar
Panchayat, detailed by the Chairman to
remove the disciplinary proceedings' record
from the Nagar Panchayat premises, earlier.
Based on these two inquiry reports dated
23.06.2014 and 24.06.2014, a show cause
notice dated 26.06.2014 was issued to the
petitioner by the Chairman of the Nagar
Panchayat.

12. The show cause notice details
some five charges against the petitioner,
four of which did not figure in the charge
1 All. Rajesh Kumar Vs.Chairman Nagar Panchayat, G.B. Nagar & Ors.
895
sheet issued to him. The petitioner filed a
reply to the show cause on 05.07.2014.
Post submission of the petitioner's reply to
the show cause notice, the Inquiry Officer,
Mohal Lal Gupta, who had submitted the
first inquiry report dated 11.02.2013,
substantially exonerating the petitioner,
submitted a fresh inquiry report. It is
claimed by the petitioner that this report
was made by Mohan Lal Gupta under
coercion and undue influence by the
Chairman. This report runs contrary to the
earlier inquiry report dated 11.02.2013
authored by Gupta himself. The inquiry
report dated 07.07.2014 holds the petitioner
guilty.

13. It must be remarked here that the
inquiry report dated 07.07.2014 is more of
an office appraisal note about the inquiry
reports submitted against the petitioner
(without mentioning the dates of those
reports). This report dated 07.07.2014 also
certifies the fact that it is the Chairman,
who is the competent Disciplinary and
Appointing
Authority,
vis-a-vis
an
employee of the petitioner's cadre. This
report/ office note also recommends that it
is not in the Nagar Panchayat's interest for
the petitioner to continue in service.

14. The Chairman, by his order dated
08.07.2014, terminated the petitioner's
services. The petitioner filed an appeal
from
the
termination
order
dated
08.07.2014
to
the
Divisional
Commissioner, under Section 77 of the
Uttar Pradesh Municipalities Act, 1916.
The
Commissioner
found
that
the
procedure adopted by the Chairman was
utterly flawed, where no proper charge
sheet was issued to the petitioner. It was
also found that a three member inquiry
committee report dated 24.06.2014, that
dealt with the charges against the petitioner,
was not provided to the petitioner. It was
also held that the Chairman was not the
petitioner's Appointing Authority, but the
jurisdiction vested with the Executive
Officer, under the provisions of Sections 74
and 75 of the Act of 1916. The order of the
Chairman
terminating
the
petitioner's
services dated 08.07.2014 was, therefore,
held to be without jurisdiction and the
product of an essentially flawed procedure.
The petitioner's appeal was allowed by the
Commissioner vide order dated 30.09.2014,
setting aside the order dated 08.07.2014,
terminating the petitioner's services. It was
further
ordered
that
in
case
some
embezzlement or other misconduct had
been committed by the petitioner, the
competent Authority can place him under
suspension, after issuing him with a charge
sheet,
and
conclude
the
disciplinary
proceedings in accordance with rules.

15. In compliance with the aforesaid
orders, the petitioner was reinstated in
service. However, taking a cue from the
liberty given by the Commissioner to
proceed afresh, the petitioner was promptly
placed under suspension pending inquiry,
once more. The suspension order was
passed by the Executive Officer, indicating
added charges, apart from the claimed
embezzlement. A charge about the issue of
a death certificate after accepting a bribe of
Rs.200/-, a charge about threat to commit
suicide, a charge about misbehaving with a
clerk followed by an ''et cetera', were
included. This suspension order was
followed
by
a
charge
sheet
dated
22.12.2014. This charge sheet carries six
charges. The petitioner filed his reply to the
said charge sheet on 02.01.2015.

16. It is the petitioner's case that post
submission of his reply, no inquiry was
convened. He was not intimated of any
896 INDIAN LAW REPORTS ALLAHABAD SERIES
date, time or venue of inquiry. He was not
shown any documents, on which the
establishment relied to prove the charges,
or permitted to cross-examine witnesses. In
fact, no witness was examined in support of
the charges. It is the petitioner's case that
entire disciplinary proceedings were held
and concluded behind his back, for
whatever these were. The impugned order
of termination from service was passed on
14.05.2015, with no inquiry ever being held
to prove the charges, on which it was
founded. It is claimed that the entire
disciplinary proceedings culminating in the
impugned order have been undertaken in
utter violation of the principles of natural
justice.

17. It is argued by Mr. Manu Saxena,
learned Counsel for the petitioner, that the
impugned order is one that has been passed
without following the prescribed procedure
for holding a disciplinary inquiry or
adhering to the essentials of such an
inquiry, like fixing a date, time and place
with intimation to the petitioner. These
vitiate that order. Apart from it, the
impugned order has been assailed as a
product of the then incumbent Chairman's
mala fides, who has virtually scripted an
outcome on a premeditated basis.

18. This Court has looked into the
counter affidavit filed on behalf of the
Nagar Panchayat and the Executive Officer,
arrayed as respondent nos.3 and 2,
respectively, in that order. This Court
notices that there is a plea raised in
paragraph no.27 of the counter affidavit
that the present challenge laid to the
impugned order of termination of service is
rendered meaningless, because pendente
lite the petitioner has instituted Writ - A
No.46921 of 2015 with a solitary prayer
that the petitioner may be paid the entire
arrears of his salary. That writ petition was
dismissed vide order dated 27.10.2015,
because the entire arrears of the petitioner's
salary were paid in the meanwhile. In order
to examine the effect of institution of Writ -
A No.46921 of 2015 by the petitioner on
the cause of action involved in the present
writ petition, this Court called for the
papers of the decided case and perused the
same. A perusal of the said writ petition
shows that the cause of action there is quite
unrelated to that involved in the present
writ petition, though there are assertions of
a similar kind, assailing the procedure of
disciplinary proceedings undertaken against
the petitioner and the unfair manner in
which he was suspended and terminated
from service. The cause of action is
confined entirely to three heads of dues of
the petitioner, to which he would be
entitled, irrespective of the impugned order
of termination. The reliefs claimed in Writ -
A No.46921 of 2015 would be the best
evidence about the unrelated and limited
cause of action there. The material reliefs,
sought in Writ - A No.46921 of 2015, read:

"A. issue a writ, order or
direction in the nature of mandamus,
commanding the respondents to pay the
entire salary of the petitioner w.e.f. April2012 till October-2014 along with interest
thereon @ 18% per annum, within time
specified by this Hon'ble Court.

B. issue a writ, order or direction in
the nature of mandamus, commanding the
respondents
to
pay
the
suspension
allowance
w.e.f.
November-2014
till
14.05.2015 along with interest thereon @
18% per annum, within time specified by
this Hon'ble Court.

C. issue a writ, order or direction in
the nature of mandamus, commanding the
respondents
to
pay
the
suspension
allowance
w.e.f.
November-2014
till
1 All. Rajesh Kumar Vs.Chairman Nagar Panchayat, G.B. Nagar & Ors.
897
14.05.2015 along with interest thereon @
18% per annum, within time specified by
this Hon'ble Court."

19. Paragraph no.24 of the writ
petition last mentioned discloses the fact of
institution of the present writ petition and
its pendency. It has been clearly disclosed,
what reliefs have been sought here, somuch
so that the petitioner has appended as
Annexure no.19, a copy of the array of
parties here, the relief clause and the order
made on 09.07.2015 by the Court, while
entertaining the writ petition and a further
order dated 04.08.2015.

20. This Court is, therefore, of
opinion that the cause of action involved in
the present writ petition is distinct and
different from that involved in Writ - A
No.46921 of 2015, which had very limited
office. The institution of Writ - A No.46921
of 2015 or its eventual dismissal as
infructuous vide order dated 27.10.2015,
have no bearing on the petitioner's right
involved in the present petition.

21. Now, turning to the thrust of Mr.
Manu Saxena's submission, the specific
case pleaded is that post a third round of
suspension
and
redone
disciplinary
proceedings, no inquiry, whatsoever, was
held after the petitioner submitted his reply
to the charge sheet. No date, time and
venue of inquiry were determined or the
petitioner intimated about it. The impugned
order was passed on a mere perusal of
papers, based on the report of the inquiry
committee, which did nothing more than
looking into the charge sheet and the
petitioner's reply, or at best, perusing some
records in the petitioner's absence. No
witnesses were examined on behalf of the
establishment
before
the
inquiry
committee, or any documentary evidence
properly led and proved. This Court notices
that this submission of the learned Counsel
for the petitioner is based on specific
averments made in paragraph nos.20 and
21 of the writ petition, relative to which
Grounds ''Q' and ''R' have been raised.

22. A perusal of the counter affidavit
shows that the assertion in paragraph
nos.20 and 21 of the writ petition have not
been specifically denied, with pleadings to
show, along with material, that a date, time
and place for inquiry were fixed and
intimated to the petitioner. Paragraph
nos.20 and 21 of the writ petition have been
answered in paragraph no.29 of the counter
affidavit, that carries no denial, whatsoever,
about those specific assertions in the writ
petition. This Court also finds that
whatever of the record has been enclosed
with the counter affidavit, does not
evidence an inquiry being held with a date,
time and place intimated to the petitioner. A
perusal
of
the
inquiry
report dated
12.05.2015, annexed as Annexure no. CA15, also does not show that anyone on
behalf of the establishment appeared before
the inquiry committee to lead evidence in
support of the charges.

23. It is, by now, the settled position
of law that even if an employee does not
appear
before
the
Inquiry
Tribunal/
Committee, the charges do not stand
proved by the delinquent's default. These
cannot be proved by the inquiry committee,
going through the record of their own. The
establishment
have
to
lead,
both
documentary
evidence
and
examine
witnesses in support of the charges. The
charges have to be established by the
establishment, even if the delinquent is ex
parte. If the employee appears, he has a
right not only to cross-examine witnesses,
who appear on behalf of the establishment,
898 INDIAN LAW REPORTS ALLAHABAD SERIES
but also to lead his own evidence - both
documentary and oral. Apart from that, it is
also, by now, an acknowledged principle of
law
that
in
cases
involving
major
punishment, parole evidence ought to be
led to establish the charges. A perusal of the
inquiry report in this case shows that no
such procedure has been adopted. The
inquiry committee has perused the charge
sheet, the petitioner's reply and the
documents annexed to the charge sheet of
its own. No evidence before them has been
led on behalf of the establishment, with the
documents being proved or witnesses being
examined. The inquiry committee has
proceeded to accept the charges by
surreptitiously rejecting the petitioner's
reply to each of them, with no evidence
before them to prove the charges.

24. The first, second and fifth charges
have not been held to be proved. Therefore,
those need not be looked into. The third
charge has been held proved, which relates
to
an
embezzlement
of
a
sum
of
Rs.11,000/-. The charge has been held
proved on an inquisitorial examination of
the Bank Account entries relied on by the
establishment, with no witness from the
Accounts
Department
of
the
Nagar
Panchayat or otherwise In-charge of
handling the Accounts to prove in what
manner the entries precisely prove the
charge about embezzlement. The entire
finding has been recorded without any
evidence being led before the inquiry
committee.

25. The fourth charge relates to a
threat by the petitioner to commit suicide.
The finding has again been recorded upon a
reading of the charge, the petitioner's reply
and pre-recorded statements of some
employees and members of the Nagar
Panchayat
about
an
event
dated
17.02.2014, when the meeting of the Board
was in progress. None of the employees or
members of the Nagar Panchayat, who
witnessed
the
alleged
threat,
were
examined by the establishment in support
of the charge. Still, the charge was held
partly proved.

26. The sixth charge relates to the
petitioner not constructing the demand
book relating to tax or making efforts to
realize the assessed tax. The charge has
been held proved on a perusal of the
petitioner's reply and documents on record
before the inquiry committee. It has been
held that from time to time, directions have
been given to the petitioner to secure
assessment of house tax and to recover the
same in accordance with the Board's
resolutions and applicable bylaws, but he
has not shown any interest in that regard.
Whatever
tax
he
has
recovered,
is
negligible. The demand has not been
properly drawn. This charge would require
the oral evidence of those officers and
employees, who directed the petitioner to
ensure assessment and effect recovery of
taxes. There was much detail to be proved
on the basis of evidence, both oral and
documentary, to be led on behalf of the
establishment. Nothing of the kind was
done. The inquiry committee, instead
recorded a finding of guilt on the sixth
charge, on a mere perusal of papers that can
hardly be called evidence, properly led and
proved to establish the charge.

27. Here, it would be relevant to refer
to
the
law
regarding
the
essential
requirements of holding a disciplinary
inquiry, where charges are serious and
imposition
of
major
punishment
is
involved. In this connection, reference may
be made to the decision of the Supreme
Court in Chamoli District Co-operative
1 All. Rajesh Kumar Vs.Chairman Nagar Panchayat, G.B. Nagar & Ors.
899
Bank
Ltd.
Through
its
Secretary/
Mahaprabandhak
and
another
vs.
Raghunath Singh Rana and others,
(2016) 12 SCC 204. In Chamoli District
Co-operative Bank Ltd. Through its
Secretary, it has been held:

"22. From the propositions of
law, as enunciated by the Apex Court as
noted above, and the facts of the present
case,
we
arrive
at
the
following
conclusions:

22.1. After service of chargesheet
dated
16-1-1993
although
the
petitioner submitted his reply on 4-2-1993
but neither inquiry officer fixed any date of
oral inquiry nor any inquiry was held by
the inquiry officer.

22.2. Mandatory requirement of a
disciplinary inquiry i.e. is holding of an
inquiry when the charges are refuted and
serving the inquiry report to the delinquent
has been breached in the present case.

22.3. Respondent 1 employee
having not been given opportunity to
produce his witnesses in his defence and
having not been given an opportunity of
being heard in person, the statutory
provisions as enshrined in Regulation
85(i)(b), have been violated.

22.4. The disciplinary authority
issued show-cause notice dated 4-5-1993 to
Respondent 1 employee without holding of
an inquiry and subsequent resolution by
disciplinary authority taken in the year
2000 without there being any further steps
is clearly unsustainable. The High Court
has rightly quashed the dismissal order by
giving liberty to the Bank to hold de novo
inquiry within a period of six months, if it
so desires.

22.5. The Bank shall be at liberty
to proceed with the disciplinary inquiry as
per directions of the High Court in para 1
of the judgment. The High Court has
already held that the petitioner shall be
deemed to be under suspension and shall be
paid suspension allowance in accordance
with the rules."

28. In State of U.P. and others vs.
Saroj Kumar Sinha, (2010) 2 SCC 772, it
has been held:

"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
900 INDIAN LAW REPORTS ALLAHABAD SERIES
could
not
have
been
taken
into
consideration to conclude that the charges
have been proved against the respondents.
 (Emphasis by Court)"

29. This position of law was echoed
by a Division Bench of this Court in State
of U.P. vs. Aditya Prasad Srivastava and
another, 2017 (2) ADJ 554 (DB) (LB). In
State
of
U.P.
vs.
Aditya
Prasad
Srivastava, it has been held by their
Lordships of the Division Bench:

"17.
It
is
trite
law
that
the
departmental
proceedings
are
quasi
judicial proceedings. The Inquiry Officer
functions as quasi judicial officer. He is
not merely a representative of the
department. He has to act as an
independent and impartial officer to find
out the truth. The major punishment
awarded to an employee visit serious civil
consequences
and
as
such
the
departmental proceedings ought to be in
conformity with the principles of natural
justice. Even if, an employee prefers not
to participate in enquiry the department
has to establish the charge against the
eployee by adducing oral as well as
documentary evidence. In case charges
warrant major punishment then the oral
evidence by producing the witnesses is
necessary.
 (Emphasis by Court)"

30. There are some very pertinent
remarks in a Division Bench decision 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) relevant to
the issue here. It was a case where the
inquiry was held ex parte, but the
petitioner was not intimated of the date,
time and place of inquiry, nor oral
evidence was led. It was held in Smt.
Karuna Jaiswal thus:

"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.

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.
1 All. Rajesh Kumar Vs.Chairman Nagar Panchayat, G.B. Nagar & Ors.
901

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."

31. There is sterling guidance on this
issue to be found in the decision of their
Lordships of the Supreme Court in Roop
Singh Negi vs. Punjab National Bank
and others, (2009) 2 SCC 570, where it
has been held:

"14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon taking into consideration the materials
brought on record by the parties. The
purported
evidence
collected
during
investigation by the investigating officer
against all the accused by itself could not
be treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove the said documents. The management
witnesses merely tendered the documents
and did not prove the contents thereof.
Reliance, inter alia, was placed by the
enquiry officer on the FIR which could not
have been treated as evidence."

32. In the present case, it appears
without cavil, that the documents that were
considered, were not proved by any
evidence, particularly, parole evidence. The
documents, which the inquiry committee
took into consideration, were, therefore,
idle papers, but not documentary evidence.
Those papers had to be galvanized through
a well-ordered presentation and proof,
before the inquiry to be done by the
establishment. Nothing of the kind was
done.

33. In view of what this Court has
found and the way the law bears on the
issue, the impugned order dated 14.05.2015
cannot be sustained. At the same time, the
impugned order, being one that is held to be
bad on account of an utterly flawed
procedure adopted to hold disciplinary
proceedings, liberty to the respondents to
proceed afresh ought not to be denied in the
event they desire to proceed afresh.

34. In case, the respondents do elect
to proceed afresh, they would be at liberty
to do so from the stage where the chargesheet dated 22.12.2014 was served upon
the petitioner and he submitted the reply
dated
02.01.2015.
All
subsequent
proceedings would stand effaced, including
the impugned order of termination of
services. It is also required to be stipulated
that ever if the respondents choose to
proceed afresh, the petitioner shall be
forthwith reinstated in service and paid all
arrears of salary due upto date (excluding
whatever
the
petitioner
has
already
received). Also, considering the manner in
which the proceedings have taken course in
this case, this Court thinks that if the
petitioner were to be proceeded with
against afresh at all, he ought not be placed
under suspension pending inquiry any
more.
902 INDIAN LAW REPORTS ALLAHABAD SERIES

35. In the result, this petition
succeeds and is allowed with costs. The
impugned order dated 14.05.2015 passed
by
the
Executive
Officer,
Nagar
Panchayat, Jewar, District Gautam Budh
Nagar,
terminating
the
petitioner's
services,
is
hereby
quashed.
The
respondents - the Executive Officer,
Nagar Panchaway, Jewar, District Gautam
Budh Nagar and the Chairman, Nagar
Panchayat, Jewar, District Gautam Budh
Nagar, are ordered to reinstate the
petitioner in service forthwith, with all
consequential
benefits,
including
continuity of service and arrears of salary.
In computing the arrears of salary due to
the petitioners, the emoluments that the
petitioner has already received, shall be
adjusted.
It
will
be
open
to
the
respondent, Nagar Panchayat and their
various officers, if they so desire, to
proceed afresh with the departmental
proceedings against the petitioner. If the
respondents proceed afresh, they would
do so from the stage of the charge-sheet
dated 22.12.2014 and its reply dated
02.01.2015 submitted by the petitioner;
all subsequent proceedings shall stand
effaced.
In
the
peculiar
facts
and
circumstances,
in
the
event
the
respondents choose to proceed afresh,
they will do so after reinstating the
petitioner
and
paying
all
his
due
emoluments, but shall not place him
under suspension pending inquiry.

36. Let this order be communicated
to the Chairman and the Executive
Officer, Nagar Panchayat, Jewar, District
Gautam Budh Nagar, through the learned
Chief Judicial Magistrate, Gautam Budh
Nagar
by
the
Joint
Registrar
(Compliance).
----------
(2021)01ILR A902
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2021

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ B No. 39148 of 2017

Sibtulain Khan ...Petitioner
Versus
State of UP & Ors. ...Respondents

Counsel for the Petitioner:
Sri S. Rashid

Counsel for the Respondents:
C.S.C., Sri Ramesh Chandra Upadhyay

A. Civil Law - Consolidation of Holdings
Act, 1953 - Sections 9, 11(1), 48 - U.P.
Consolidation of Holdings Rules, 1954 -
Rule 109 - U. P. Zamindari Abolition and
Land
Reforms
Act
-
Section 229B -
Application for Amal Daramad -Bereft of
reasons,
the
decision
is
inherently
arbitrary
-
It
is
well
known
that
"conclusions" and "reasons" are two
different things and reasons must show
mental exercise of authorities in arriving
at a particular conclusion.

It is trite to say for a legal principle that an
order passed by any judicial or quasi-judicial
Authority, or for that matter even Administrative
Authorities, where rights of parties are decided
ought to disclose reasons for the decisions
reached. As is often said, reasons are the soul
and heart of a decision and convey to the
persons affected, as also a superior Authority or
a Superior Court, the considerations that have
weighed with the decision maker in arriving at
his conclusions. On howsoever good and valid
consideration a decision may have been
rendered, the absence of reasons would make it
foul of Article 14 of the Constitution. (Para 14 to
16)

Court observed that the matter has been
pending consideration before the authorities