# Ram Babu Chittoria v. High Court of Judicature at Allahabad and others

- **Citation:** (2012) 2 ILRA 646
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-08
- **Case number:** Civil Misc. Writ Petition No. 70649 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-babu-chittoria-v-high-court-of-judicature-at-allahabad-and-others-42244
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226Dismissal
from
Service-petitioner
working
on
reader-embezzlement
of
certain amount of fine-defence taken
that amount of fine actually in hands of
presiding officer-given on belated stateduring inquiry neither the Presiding
Officer shown as prosecution on defense
witness-plea
regarding
denial
of
opportunity
of
cross-examination-not
available -dismissal order confirmed by
Appellate authority-held-justified.

Held: Para 8

When Sri Amit Kumar Pandey was not
examined for chief, the question of his
cross examination does not arise. It is
true that Evidence Act as such is not
applicable in departmental enquiry but
simultaneously a witness, not adduced
by the department in support of the
charges and is also not called as defence
witness cannot be produced so as to be
cross-examined
by
party
concerned
though he himself has not otherwise said
anything either in support of charge or
against the charge. The request of
petitioner therefore, to call Sri Amit
2 All] Ram Babu Chittoria V. High Court of Judicature at Allahabad and others
647
Kumar Pandey only for the purpose of
cross-examination was wholly illegal. It
cannot
be
said
that
in
these
circumstances if Sri Amit Kumar Pandey
ultimately was not produced, that shall
vitiate the proceedings. The respondents
have found the charges proved flowing
mainly
from
the
admission
of
the
petitioner and explanation he submitted.
In respect to the explanation to the
admission, onus lie upon him to prove
which he failed.

## Text

646 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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."

13. As per the law laid down by the
Supreme Court it is incumbent upon the
enquiry officer to have discussed the report
of the Sr. Station Officer, Taj Depot, Agra
and the documents relied upon while
writing the said report. The author of the
document was also required to have been
examined in the enquiry. It is no defence to
the respondents to bring home a finding of
guilt against the petitioner merely on the
ground that the petitioner did not participate
or did not submit his defence reply to the
charge sheet.

14. In view of the above facts and
circumstances of the case and the legal
position settled by the Supreme Court, this
writ petition deserves to be allowed.
Accordingly the writ petition is allowed and
the impugned order dated 22.6.2004 and
21.9.2004 are quashed. The enquiry officer
shall proceed to pass fresh order after taking
into consideration the relied upon document
and after discussing the material on the
basis of which such report has been
prepared by Shri Mahesh Chandra Kamal,
Sr. Station Officer, Taj Depot, Agra. This
exercise shall be completed by the
respondent
no.
3-Assistant
Regional
Manager, Taj Depot, Agra within a period
of two months from the date a certified
copy of this order is received by him.

15. There shall be no order as to cost.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 70649 of 2011

Ram Babu Chittoria

 ...Petitioner
Versus
High Court of Judicature at Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri H.N.Singh
Sri Vineet Kumar Singh

Counsel for the Respondents:
Sri Y. Varma
Sri Ashish Misra

Constitution
of
India,
Article
226Dismissal
from
Service-petitioner
working
on
reader-embezzlement
of
certain amount of fine-defence taken
that amount of fine actually in hands of
presiding officer-given on belated stateduring inquiry neither the Presiding
Officer shown as prosecution on defense
witness-plea
regarding
denial
of
opportunity
of
cross-examination-not
available -dismissal order confirmed by
Appellate authority-held-justified.

Held: Para 8

When Sri Amit Kumar Pandey was not
examined for chief, the question of his
cross examination does not arise. It is
true that Evidence Act as such is not
applicable in departmental enquiry but
simultaneously a witness, not adduced
by the department in support of the
charges and is also not called as defence
witness cannot be produced so as to be
cross-examined
by
party
concerned
though he himself has not otherwise said
anything either in support of charge or
against the charge. The request of
petitioner therefore, to call Sri Amit
2 All] Ram Babu Chittoria V. High Court of Judicature at Allahabad and others
647
Kumar Pandey only for the purpose of
cross-examination was wholly illegal. It
cannot
be
said
that
in
these
circumstances if Sri Amit Kumar Pandey
ultimately was not produced, that shall
vitiate the proceedings. The respondents
have found the charges proved flowing
mainly
from
the
admission
of
the
petitioner and explanation he submitted.
In respect to the explanation to the
admission, onus lie upon him to prove
which he failed.

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

1. Heard Sri H.N.Singh, learned
counsel for the petitioner, Sri Ashish Mishra
for the respondents and perused the record.

2. The petitioner was working as a
Clerk; Class III ministerial employee in
Judgship Agra. By order dated 17.7.2010
District
Judge
Agra
has
imposed
punishment of dismissal upon the petitioner
and his appeal has been rejected by the
Court (Administrative Judge) by order
dated 15.3.2011.

3. The petitioner was charged of
misappropriation and embezzlement of the
amount deposited by way of fine while
posted as Reader in the Court of Civil
Judge, Junior Division, Fatehabad, Agra.
The charge includes that while receiving
fine of Rs.1500/- the receipt was issued for
Rs.150/- and similarly again for an amount
of Rs.2,000 the receipt was issued for
Rs.200/-.

4. In departmental enquiry, charges
were found proved whereafter impugned
order of punishment has been passed. The
petitioner has admitted to receive the
amount in question but failed to show
deposit of entire amount within time in
Nazarat. His defence is that the money was
actually in the hands of Presiding Officer
and he himself gave it belatedly to the
petitioner hence there was a delay in deposit
of the amount. Preparation of vouchers etc.
by petitioner is also not disputed. Similarly
preparation of receipts mentioning wrong
amount of fine is also not disputed but
defence is that the amount was mentioned
on the dictates of Presiding Officer.

5. Sri H.N.Singh, learned counsel for
the petitioner stated that his request for
summoning the then Presiding Officer
namely Sri Amit Kumar Pandey, Civil
Judge (Junior Division), Sitapur was not
allowed and therefore, entire proceedings
are vitiated in law.

6. The Court finds that Sri Amit
Kumar
Pandey,
Civil
Judge
(Junior
Division) the then Presiding Officer of the
Court was not a witness on behalf of
respondents to prove charges but petitioner
wanted to shift his blame upon Sri Amit
Kumar Pandey. He did not request Enquiry
Officer for producing Sri Amit Kumar
Pandey as defence witness but what he
actually requested is that he should be
allowed to cross examine Sri Amit Kumar
Pandey. This is evident from letter dated
01.9.2009 issued by Enquiry Officer to Sri
Amit Kumar Pandey (Annexure 15 to the
writ petition).

7. Sri H.N.Singh, learned counsel for
the petitioner was required by this Court to
show that a witness, if not produced by
prosecution and has not recorded his
examination-in-chief, can he be allowed to
be cross-examined and if so, in what
manner and under which principle of law.
The Court also enquired as to whether
petitioner wanted to produce Sri Amit
Kumar Pandey as defence witness to which
Sri Singh replied that he could not have
648 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
been produced as a defence witness since
petitioner wanted to examine him so as to
implicate him in the aforesaid charges and
hence wanted to cross examine him.

8. When Sri Amit Kumar Pandey was
not examined for chief, the question of his
cross examination does not arise. It is true
that Evidence Act as such is not applicable
in departmental enquiry but simultaneously
a witness, not adduced by the department in
support of the charges and is also not called
as defence witness cannot be produced so as
to be cross-examined by party concerned
though he himself has not otherwise said
anything either in support of charge or
against the charge. The request of petitioner
therefore, to call Sri Amit Kumar Pandey
only for the purpose of cross-examination
was wholly illegal. It cannot be said that in
these circumstances if Sri Amit Kumar
Pandey ultimately was not produced, that
shall
vitiate
the
proceedings.
The
respondents have found the charges proved
flowing mainly from the admission of the
petitioner and explanation he submitted. In
respect to the explanation to the admission,
onus lie upon him to prove which he failed.

9. In the circumstances, I do not find it
a fit case warranting interference under
Article 226 of the Constitution. Even
otherwise the writ petition, in view of above
discussion is devoid of merit.

10. Dismissed.
---------