# Rajesh Prasad Mishra v. The Commissioner Jhansi Division, Jhansi and others

- **Citation:** (2010) 3 ILRA 1245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-26
- **Case number:** Civil Misc. Writ Petition No. 53950 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-prasad-mishra-v-the-commissioner-jhansi-division-jhansi-and-others-41757
- **Pages:** 6

## Headnote

Appeal) Rules, 1930-Rule 55-Dismissalwithout
holding
enquiry-without
indicating place and time of enquiryafter having explanation-order passed
without giving the enquiry report-even
on demand-despite of direction of court
the disciplinary authority deliberately
given to all procedure prescribed under
rule given with cost of 10000/ dismissal
order set-a-side.

Held: Para 14

It is not in dispute that at the time when
the
proceedings
in
question
were
initiated, the matter was governed by
CCA Rules, 1930 since the new Rules
came
in

## Text

3 All] Rajesh Prasad Mishra V. The Commissioner Jhansi Division, Jhansi and others
1245

24. Registry to place the petitions
before the appropriate Bench.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 53950 of 2008

Rajesh Prasad Mishra

 ...Petitioner
Versus
The
Commissioner
Jhansi
Division,
Jhansi and others
 ...Respondents

Counsel for the Petitioner:
Sri N.L. Srivastava

Counsel for the Respondents:
C.S.C.

Civil Services (Classification control and
Appeal) Rules, 1930-Rule 55-Dismissalwithout
holding
enquiry-without
indicating place and time of enquiryafter having explanation-order passed
without giving the enquiry report-even
on demand-despite of direction of court
the disciplinary authority deliberately
given to all procedure prescribed under
rule given with cost of 10000/ dismissal
order set-a-side.

Held: Para 14

It is not in dispute that at the time when
the
proceedings
in
question
were
initiated, the matter was governed by
CCA Rules, 1930 since the new Rules
came
in
1999.
As
the
procedure
prescribed under the Rules of 1930 has
not been followed, the impugned order
cannot sustain and the writ petition
deserves to be allowed.
Case Law Discussed:
AIR 1972 SC 330, 1997 (1) LLJ 831, 2000 (1)
U.P.L.B.E.C. 541, 2008(3) ESC 1667

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri N.L. Srivastava, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. Learned counsel for the petitioner
prays for and is allowed to implead the
respondent-State of U.P. as respondent no. 5
in the array of parties. Since all the
respondents are the authorities of the State
of
U.P.
and
the
newly
impleaded
respondents is also represented by learned
Standing Counsel who has already filed
counter affidavit, therefore, with the consent
of learned counsel for the parties this Court
proceed to here this matter finally under the
Rules of the Court at this stage since
pleadings are complete.

3. Against the order of termination
passed by the District Magistrate, Hamirpur
on 25.05.1996 and the appellate order dated
24.05.2008 passed by the Commissioner,
Jhansi rejecting petitioner's appeal on the
ground of delay and laches, the present writ
petition has been filed seeking a writ of
certiorari for quashing the aforesaid orders.

4. Sri Srivastava, learned counsel for
the petitioner contended that the entire
proceedings are illegal and void ab initio
being in utter violation of principles of
natural justice and the statutory provisions
contained in Civil Services (Classification,
Control
and
Appeal)
Rules,
1930
(hereinafter referred to as "CCA Rules") as
applicable in State of U.P. inasmuch as no
oral inquiry was ever conducted against the
petitioner.

5. The petitioner was initially placed
under
suspension
on
08.09.1994/16.12.1994. A charge sheet was
issued to him on 21.12.1994 which was
1246 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
replied by him on 14.08.1995. Inquiry
officer after receiving reply did not fix any
date for oral inquiry and instead submitted
report holding the charges proved against
the petitioner. A show cause notice was
issued to the petitioner on 30.03.1996. Since
the copy of the inquiry report was not
appended thereto, the petitioner sought copy
of the inquiry report by his letter dated
13.04.1996 but the same was not furnished.
Thereafter the respondent no. 2 passed order
dated 25.05.1996 terminating petitioner
from service by way of punishment on the
ground of misconduct holding that all the
charges levelled against him stand proved.
The
petitioner
preferred
appeal
on
02.01.1997 which was dismissed on
02.04.1997 on the ground of delay
whereagainst he approached this Court in
Writ Petition No. 22348 of 1997 which was
decided on 08.04.2008 directing appellate
authority to reconsider petitioner's appeal
alongwith delay condonation application.
However, by means of the impugned order
the appellate authority has again dismissed
the appeal.

6. In para 16 and 17 of the writ
petition the petitioner has specifically stated
that no oral inquiry was ever conducted in
the matter though it is so prescribed under
the rules and was mandatory.

7. The respondents have filed counter
affidavit. The other facts are admitted. In
respect to the question of holding oral
inquiry, in para 14 of the counter affidavit
while replying para 16 of 17 of the writ
petition the respondents have said:

"14. That the contents of paragraph
Nos. 16 to 20 of the writ petition are not
admitted. The charge sheet/show cause
notice dated 21.12.1994 was given to the
petitioner thereby he was required to submit
reply stating whether he desires to cross
examine any witness mentioned in the
charge sheet and whether he desires to give
or produce evidence in his support. The
petitioner in pursuance of the said show
cause notice/charge sheet submitted his
reply dated 14.08.1995 and therein, on such
request for cross examine any witness or
personal hearing was made. This fact is
evident from the petitioner's reply dated
14.08.1995 which is already on record as
Annexure CA- 4 to this counter affidavit.
Further, Rule VII of U.P. Government
Servant Disciplinary Appeal Rules, 1999
clearly states that a charged Govt. Servant
when denies the charges, the Enquiry
Officer shall proceed to call witness
proposed in the charge sheet and record
their oral evidence in presence of the
charged Govt. Servant. From bare perusal
of the charge sheet, it is clear that none of
the charges were proposed to be proved by
the oral statement of any witness. It is
relevant to mention here that Enquiry
Officer has enquired the matter considering
the reply and evidence submitted by the
petitioner in respect of the charges levelled
against him in accordance with law and
there is no illegality in the same. Further,
the Enquiry Officer after considering the
charges and evidence and reply of the
petitioner submitted in pursuance of the
charge sheet has submitted its report dated
17.10.1995 before the respondent No. 2.
Further, the Enquiry Officer has conducted
the enquiry in accordance with law and
submitted its report after considering all the
documents placed before him and found the
charges levelled against the petitioner to be
proved."

8. It is evident from the above and
other paragraphs of the counter affidavit
that no oral inquiry whatsoever was
conducted against the petitioner. Before
3 All] Rajesh Prasad Mishra V. The Commissioner Jhansi Division, Jhansi and others
1247
coming to the question as to whether nonholding of oral inquiry is fatal in the matter,
I also looked the nature of the charges
whether they are such as would not attract
oral statement and stood proved only on the
basis of the documents.

9. There are five charges. Charges no.
4 and 5 alleges that the petitioner was guilty
of committing theft of a type writer and
selling it to one Sri Ram Babu Gupta who
admitted that the same was sold by
petitioner. The statement of Sri Ram Babu
Gupta is one of the document relied on in
support of charge no. 4. Besides, report of
one Sri Vinod Kumar Dixit is also relied on
in support of charge no. 5. Admittedly, the
authors of the two documents were never
examined. The contents of statement given
by someone is herese evidence and cannot
be relied on even in departmental inquiry
unless its author is examined. It is settled
that unless contents of a document which is
disputed, are proved by the author, who is
examined before the inquiry officer and is
available for cross examination by the
delinquent
employee,
such
document
cannot be deemed to be proved and
therefore such document cannot be relied to
hold a delinquent employee guilty and to
impose punishment upon him. I am fortified
in taking this view by the Apex Court's
judgment in M/s Bareilly Electricity
Supply Co. Ltd., Vs. The Workmen and
others, AIR 1972 SC 330 where the Apex
Court in para 14 of the judgment observed
as under:

"But the application of principle of
natural justice does not imply that what is
not evidence can be acted upon. On the
other hand what it means is that no
materials can be relied upon to establish a
contested fact which are not spoken to by
persons who are competent to speak about
them
and
are
subjected
to
crossexamination by the party against whom they
are sought to be used. When a document is
produced in a Court or a Tribunal the
question that naturally arises is, is it a
genuine document, what are its contents
and are the statements contained therein
true. When the Appellant produced the
balance-sheet and profit and loss account of
the Company, it does not by its mere
production amount to a proof of it or of the
truth of the entries therein. If these entries
are challenged the Appellant must prove
each of such entries by producing the books
and speaking from the entries made therein.
If a letter or other document is produced to
establish some fact which is relevant to the
enquiry the writer must be produced or his
affidavit in respect thereof be filed and
opportunity afforded to the opposite party
who challenges this fact. This is both in
accord with principles of natural justice as
also according to the procedure under
Order XIX Civil Procedure Code and the
Evidence Act both of which incorporate
these general principles. Even if all
technicalities of the Evidence Act are not
strictly applicable except in so far as
Section 11 of the Industrial Disputes Act,
1947 and the rules prescribed therein
permit it, it is inconceivable that the
Tribunal can act on what is not evidence
such as hearsay, nor can it justify the
Tribunal in basing its award on copies of
documents when the originals which are in
existence are not produced and proved by
one of the methods either by affidavit or by
witness who have executed them, if they are
alive and can be produced. Again if a party
wants an inspection, it is incumbent on the
Tribunal to give inspection in so far as that
is relevant to the enquiry. The applicability
of these principles are well recognised and
admit of no doubt." (para-14)
1248 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

10. Thus the defence taken in para 14
of the counter affidavit that the charges are
not so serious which require any oral
inquiry, is not accepted.

11. Now coming to the question, what
is the effect of non-holding of oral inquiry, I
find that, in a case where the inquiry officer
is appointed, oral inquiry is mandatory. The
charges are not deemed to be proved suo
motu merely on account of levelling them
by means of the charge sheet unless the
same are proved by the department before
the inquiry officer and only thereafter it is
the turn of delinquent employee to place his
defence. Holding oral enquiry is mandatory
before imposing a major penalty, as held by
Apex Court in State of U.P. & another Vs.
T.P.Lal Srivastava, 1997 (1) LLJ 831 as
well as by a Division Bench of this Court in
Subhash Chandra Sharma Vs. Managing
Director
&
another,
2000
(1)
U.P.L.B.E.C. 541.

12. The question as to whether non
holding of oral inquiry can vitiate the entire
proceeding or not has also been considered
in detail by a Division Bench of this Court
(in which I was also a member) in the case
of Salahuddin Ansari Vs. State of U.P.
and others, 2008(3) ESC 1667 and the
Court has clearly held that non holding of
oral inquiry is a serious flaw which vitiates
the entire disciplinary proceeding including
the order of punishment. This Court has said
in paras 10 and 11 of the judgement as
under:

"10. ----------- Non holding of oral
inquiry in such a case is a serious matter
and goes to the root of the case.

11. A Division Bench of this Court in
Subhash Chandra Sharma Vs. Managing
Director & another, 2000 (1) U.P.L.B.E.C.
541, considering the question as to whether
holding of an oral inquiry is necessary or
not, held that if no oral inquiry is held, it
amounts to denial of principles of natural
justice to the delinquent employee. The
aforesaid view was reiterated in Subhash
Chandra Sharma Vs. U.P. Cooperative
Spinning Mills & others, 2001 (2) UPLBEC
1475 and Laturi Singh Vs. U.P. Public
Service Tribunal & others, Writ Petition No.
12939 of 2001, decided on 06.05.2005."

13. The procedure for holding oral
inquiry is also prescribed in Rule 55 of of
CCA Rules, as substituted by Civil Services
(C.C.A.) (U.P. Amendment) Rules, 1975
published in U.P. Gazette dated 22.3.1975
which is reproduced as under:

"55. (1) Without prejudice to the
provisions of the public Servant Inquiries
Act, 1850 an order (other than an order
based on facts which had led to his
conviction in a criminal court or by a court
material) of dismissal, removal or reduction
in rank (which includes reduction to a lower
post or time scale, or to a lower stage in a
time scale but excludes the reversion to a
lower post of a person who is officiating in
a higher post) shall be passed on a person
who is a member of a Civil Service, or holds
a civil post under the State unless he has
been informed in writing of the ground on
which it is proposed to take action and has
been afforded an adequate opportunity of
defending himself. The Grounds on which it
is proposed to take action shall be reduced
in the form of a definite charge or charges
which shall be communicated to the person
charged and which shall be so clear and
precise as to give sufficient indication to the
charged Government servant of the facts
and circumstances against him. He shall be
required, within a reasonable time to put in
a written statement of his defence and to
3 All] Rajesh Prasad Mishra V. The Commissioner Jhansi Division, Jhansi and others
1249
state whether he desires to be heard in
person. If he so desires, or if the authority
concerned so directs, an oral inquiry shall
be held in respect of such of the allegation
as are not admitted. At that inquiry such
oral evidence will be heard as the inquiring
officer considered necessary. The person
charged shall be entitled to cross examine
the witnesses, to give evidence in person
and to have such witnesses called as he may
wish, provided that the officer conducting
the inquiry may for sufficient reason to be
recorded in writing refuse to call a witness.
The proceedings shall contain a sufficient
record of the evidence and statement of the
findings and the ground thereof. The officer
conducting the inquiry may also separately
from these proceedings make his own
recommendation regarding the punishment
to be imposed on the charged Government
servant.

(2) Where the punishing authority itself
inquires into any charge or appoints an
inquiring officer for holding an inquiry into
such charge, the punishing authority, if it
considered it 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.

(3) The Government servant may take
the assistance of any other Government
servant to present the case on his behalf, but
not engage a legal practitioner for the
purpose unless the presenting officer
appointed by the punishing authority is a
legal practitioner or the punishing authority
having regard to the circumstances of the
case, so permits.

(4) This rule shall not apply where the
person concerned has absconded or where
it is for other reasons impracticable to
communicate with him. All or any of the
provisions of the rule may for sufficient
reasons to be recorded in writing be waived,
where there is difficulty in observing exactly
the
requirements
of
the
rule
those
requirements can in the opinion of the
inquiring officer be waived without injustice
to person charged.

(5) This rule shall also not apply where
it is proposed to terminate the employment
of either a temporary Government servant
or of a probationer whether during or at the
end of the period of probation. In such cases
a simple notice of termination, which in the
case of a temporary Government servant
must conform to the conditions of his
service, will be sufficient."

14. It is not in dispute that at the time
when the proceedings in question were
initiated, the matter was governed by CCA
Rules, 1930 since the new Rules came in
1999. As the procedure prescribed under the
Rules of 1930 has not been followed, the
impugned order cannot sustain and the writ
petition deserves to be allowed.

15. In the result, the writ petition is
allowed. The impugned orders dated
25.05.1996
(Annexure-6
to
the
writ
petition),
02.04.1997
and
24.05.2008
(Annexures- 8 and 11 respectively) are
hereby quashed. The petitioner also be
entitled to all consequential benefits.

16. Since in the case in hand the
respondents have acted in exceptionally
negligent and careless manner and it
appears that they have deliberately given a
go bye to the procedure prescribed in the
Rules, in my view, this case deserved to be
allowed
with
costs.
The
petitioner,
therefore, shall also entitled to costs which
is quantified to Rs. 10,000/-.
1250 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

17. Liberty is granted to respondent
no. 5 to recover the aforesaid amount from
the then officer who passed the impugned
order without caring to the question as to
whether
the
proceedings
have
been
conducted in accordance with law, after
making such inquiry as prescribed in law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2010
BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No, 57930 of 2009

Nand Kishor

 ...Petitioner
Versus
Collector, Rampur and others...Respondents

Counsel for the petitioner:
Sri Madhur Prakash

Counsel for the Respondents:
Sri Satendra Kumar Pandey
S.C.

U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950-Section 279, 280
readwith U.P. Municipality Act 1916,
Section-166 and 173-Recovery of Rent
by Municipal Board-as arrear of land
revenue by evoking power under section
279 and 280 of Zamindari Act- saying
goodby to the method prescribed under
section 166 and 173 of Municipalities
Act-held-without Jurisdiction arrear of
next can not be recovered as arrear of
Land Revenues.

Held: Para 17

We are thus of the opinion, that the
arrears of rent, or the unpaid rent due,
cannot be recovered by the Municipal
Corporation from the petitioners as
arrears of land revenue by adopting a
process of recovery under the UPZA & LR
Act,
1950
and
the
Rules
framed
thereunder.
Case law discussed:
2003 (5) AWC 3479, 1998 (89) R.D. 513, 2006
(9) ADJ 66 (All), 2007 (2) ADJ 143 (DB).

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

1. We have heard Shri Madhur
Prakash,
learned
counsel
for
the
petitioner. Learned Standing Counsel
appears for the respondents. Shri Satendra
Kumar Pandey appears for Nagar Palika
Parishad, Rampur.

2. In these writ petitions the
petitioners have challenged the notices
issued on 3.11.2009 and the recovery
proceedings of the rent of the shops
owned by Nagar Palika Parishad and
allotted to the petitioner, as arrears of land
revenue. By an interim order dated
3.11.2009 the recovery proceedings in
view of the judgment of this Court in Titu
Singh Vs. District Magistrate/ Collector,
Mathura & Ors., 2003 (5) AWC 3479
were stayed.

3. The respondents have not filed
counter affidavit. Learned counsel for
Nagar Palika Parishad prays for some
more time to file counter affidavit. Since
the petitioners have not disputed the
amount, which is due from them and have
only challenged the method of recovery of
the amount as arrears of land revenue by
issuing recovery certificate/ citation dated
14.9.2009 (as arrears of land revenue), we
do not propose to adjourn the matter. We
have heard the counsels appearing for the
parties, on legal issues.

4. The Nagar Palika Parishad, Swar,
Distt. Rampur constructed 28 shops and
proposed to allow them by auction.