# Ram Dutt Agnihotri v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 1035
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-14
- **Case number:** Civil Misc. Writ Petition No. 25974 of 2006
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-dutt-agnihotri-v-state-of-u-p-and-others-40992
- **Pages:** 5

## Headnote

U.P. Basic Education Staff Rules 1973Section 19-Adoption of the provisions of
CCA
Rules-1999
Rule-7
readwith
Constitution of India Art. 311-Dismissal
of
Head
Master-in
Primary
Schoolwithout charge sheet-without holding
enquiry in utter violation of principle of
Natural justice held illegal can not
sustain-a man can not be condemn
without reasonable opportunity.

Held: Para 8

Thus from the above provisions it is
ample clear that before imposing a major
punishment of dismissal from services, it
is
incumbent
upon
the
disciplinary
Authority
to
conduct
a
disciplinary
enquiry against the delinquent officer
either himself or through an officer
subordinate to him as enquiry officer and
the delinquent officer be informed of the
charges levelled against him by means of
a charge sheet along with the proposed
documentary evidence and the name of
the witnesses. It is only thereafter that
an order of punishment of dismissal from
service can be
passed against the
delinquent officer subject to the three
exceptions carved out. In short the
aforesaid rules in a way adopts the
analogy of Article 311 of the Constitution
of
India
and
contemplates
not
to
condemn any person without affording
reasonable opportunity of hearing to
him. Admittedly, in the present case no
disciplinary enquiry was initiated against
the petitioner and the petitioner has not
been found guilty of any misconduct in
any such enquiry so as to inflict the
punishment of dismissal from service.

## Text

3 All] Ram Dutt Agnihotri V. State of U.P. and others
1035
aside and the order dated 28.10.2003
passed by Sri S.N. Saroj, Judicial
Magistrate, Mathura in criminal case
no.105 of 2003, Ramesh Vs. Dibban and
others, is hereby restored and the matter
as
remanded
back
to
the
Judicial
Magistrate, Mathura for passing suitable
orders under section 203/204, Cr.P.C.
after hearing the complainant.

11. The learned Magistrate shall, be
at liberty to pass suitable order as to
whether any case for summoning the
accused is made out or not on the basis of
the evidence of the complainant and his
witnesses under sections 200 and 202
Cr.P.C. as well as other evidence and
circumstances.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2007

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 25974 of 2006

Ram Dutt Agnihotri

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

Counsel for the Petitioner:
Sri Shesh Kumar
Sri Sunil Dubey

Counsel for the Respondents:
Sri Vimal Chandra Misra
Sri S.K. Singh
S.C.

U.P. Basic Education Staff Rules 1973Section 19-Adoption of the provisions of
CCA
Rules-1999
Rule-7
readwith
Constitution of India Art. 311-Dismissal
of
Head
Master-in
Primary
Schoolwithout charge sheet-without holding
enquiry in utter violation of principle of
Natural justice held illegal can not
sustain-a man can not be condemn
without reasonable opportunity.

Held: Para 8

Thus from the above provisions it is
ample clear that before imposing a major
punishment of dismissal from services, it
is
incumbent
upon
the
disciplinary
Authority
to
conduct
a
disciplinary
enquiry against the delinquent officer
either himself or through an officer
subordinate to him as enquiry officer and
the delinquent officer be informed of the
charges levelled against him by means of
a charge sheet along with the proposed
documentary evidence and the name of
the witnesses. It is only thereafter that
an order of punishment of dismissal from
service can be
passed against the
delinquent officer subject to the three
exceptions carved out. In short the
aforesaid rules in a way adopts the
analogy of Article 311 of the Constitution
of
India
and
contemplates
not
to
condemn any person without affording
reasonable opportunity of hearing to
him. Admittedly, in the present case no
disciplinary enquiry was initiated against
the petitioner and the petitioner has not
been found guilty of any misconduct in
any such enquiry so as to inflict the
punishment of dismissal from service.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri Shesh Kumar, learned
counsel appearing for the petitioner and
Sri S.K. Singh, holding brief of Sri Vimal
Chandra Misra learned counsel who
appears for respondents No. 2,3 and 5.
Standing Counsel appears for respondent
No. 1.

2. The petitioner was working
substantively since1986 as Head Master
in Prathamik Vidhyala, District Banda.
He had proceeded on a day's casual leave
on 30th July 2003 and on the same day he
1036 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
was put under suspension on account of
unauthorized
absence
from
duty.
However, this order of suspension was
revoked
on
15.5.2004
and
the
communication to the said effect was
given to the petitioner vide letter dated
19th August 2004. It is said that despite
the suspension order being revoked the
petitioner was not allowed to join at the
institution on the pretext that he had not
produced the order of reinstatement.
Accordingly, the petitioner demanded the
order of reinstatement which was not
supplied to him and as a result he could
not rejoin. Thereafter, a notice was
published in the newspaper 'Amar Ujala'
dated 25.3.2005 requiring the petitioner to
join the institution before 30th March
2005, failing which a disciplinary action
was
contemplated
against
him
for
termination of his services. It appears that
the petitioner could not join despite
publication of the aforesaid notice in the
newspaper and continued to insist for
supply of the copy of the order of
reinstatement. Thus, the Basic Shiksha
Adhikari, Banda by the impugned order
dated 17.5.2005 terminated the services of
the petitioner on the ground that he has
failed to resume his duties and has
illegally absented himself despite notice
dated 25.3.2005. Aggrieved by this order
of termination the petitioner has filed this
writ petition.

3. The writ petition was finally
dismissed on 11.5.2006 on the ground that
the petitioner has not exhausted the the
alternative remedy of filing an appeal
under Rule 5 of the U.P. Basic Education
Staff Rules, 1973. However, this order
dismissing the appeal was set aside in
special appeal preferred by the petitioner
and this how the petition has come up for
consideration before me.
4. A counter affidavit has been filed
on behalf of respondents No. 2,3 and 5
stating that in view of the fact that a
notice was published in the newspaper
and since the petitioner failed to resume
his duty within time stipulated therein, his
services have rightly been terminated.

5. Learned counsel for the petitioner
has submitted that the services of the
petitioner could not have been terminated
without
holding
an
enquiry
or
a
disciplinary enquiry against him.

6. A plain reading of the impugned
order dated 17.5.2005 indicates that the
said order has been passed solely on the
basis of the notice issued in the
newspaper Amar Ujala dated 25.5.2005.
There is no reference to any enquiry or of
holding
of
disciplinary
proceedings
against the petitioner before imposing the
above punishment of dismissal. The
petitioner in paragraphs 30 and 32 of the
writ petition has clearly stated that no
disciplinary proceedings were initiated
against him and he has been punished
without holding him guilty of any
misconduct. The counter affidavit is
completely silent with regard to initiation
of any disciplinary proceedings against
the petitioner. Thus the conclusion is
inevitable that no disciplinary enquiry
whatsoever was conducted and the
impugned order of dismissal has been
passed without holing him guilty of any
charge or misconduct.

7. The U.P. Basic Education Staff
Rules, 1973 which have been framed in
exercise of powers under Section 19 of
the Basic Education Act, 1972 in subclause 3 of Rule 5 provides that the
procedure laid down in the Civil Services
(Classification, Control & Appeal) Rules,
3 All] Ram Dutt Agnihotri V. State of U.P. and others
1037
as applicable to Servants of the U.P.
Government shall, as far as possible, be
followed in disciplinary proceedings. The
said Rules have been superseded and have
been replaced by the U.P. Government
Servants (Discipline and Appeal) Rules,
1999. Rule 3 of the new Rules provides
for the minor and major penalties which
can be imposed upon the government
servants
including
the
penalty
of
dismissal and removal as major penalties
by way of punishment. Rule 7 of the
aforesaid Rules prescribes the procedure
for imposing major penalties.

Rule 7 of the Rules, 1999 reads as
under:-

1. 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 inquire into the charges or appoint
an Authority subordinate to him an
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 form of definite
charge
or
charges
to
be
called
chargesheet. The chargesheet shall be
approved by the Disciplinary Authority:

Provided that where the Appointing
Authority is Governor, the chargesheet
may be approved by the Principal
Secretary or the Secretary, as the case
may be, of the concerned department.
(iii) 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
evidence and the name of witnesses
proposed to prove the same along with
oral evidences, if any, shall be mentioned
in the chargesheet.
(iv) The charged 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 chargesheet and whether
desires to give or produce evidence in his
defence. He shall also be informed that in
case be does not appear or file the 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 chargesheet, along with the copy
of 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 chargesheet could not be served in
aforesaid manner, the chargesheet 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 chargesheet, the
charged government servant shall be
permitted to inspect the same before the
Inquiry Officer.
(vi) Where the charged Government
Servant appears and admits the 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 charges the Inquiry
1038 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Officer shall proceed to call the witnesses
proposed in the chargesheet and record
their oral evidence in presence of the
charged Government Servant who shall
be given opportunity to cross examine
such 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
chargesheet in absence of the charged
Government Servant.
(xi) The Disciplinary Authority, if it
considers 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 of 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 his behalf
but not engage a legal practitioner for the
purpose unless the presenting officer
appointed by the Disciplinary Authority is
a legal practitioner of the Disciplinary
Authority
having
regard
to
the
circumstances of the case so permits:

Provided that this 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 hold an inquiry in the
manner provided in these rules; or
(iii) Where the Government is 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.

8. Thus from the above provisions it
is ample clear that before imposing a
major punishment of dismissal from
services, it is incumbent upon the
disciplinary Authority to conduct a
disciplinary
enquiry
against
the
delinquent officer either himself or
through an officer subordinate to him as
enquiry officer and the delinquent officer
be informed of the charges levelled
against him by means of a charge sheet
along with the proposed documentary
evidence and the name of the witnesses. It
is only thereafter that an order of
punishment of dismissal from service can
be passed against the delinquent officer
3 All] Raj Kishore Pathak V. Chancellor, D.D.U., Gorakhpur and others
1039
subject to the three exceptions carved out.
In short the aforesaid rules in a way
adopts the analogy of Article 311 of the
Constitution of India and contemplates
not to condemn any person without
affording
reasonable
opportunity
of
hearing to him. Admittedly, in the present
case no disciplinary enquiry was initiated
against the petitioner and the petitioner
has not been found guilty of any
misconduct in any such enquiry so as to
inflict the punishment of dismissal from
service. In fact the principles of natural
justice which are applicable to the whole
range of subjects particularly to the
matters
of
imposing
punishment
contemplates of giving two opportunities
to the delinquent, one before the inquiry
officer and the other by the disciplinary
Authority before passing the final order of
punishment on the basis of the report of
the inquiry officer. Here as the petitioner
was not subjected to any disciplinary
proceedings, he was not given any
opportunity to defend himself at any stage
and the order of punishment was passed
in clear violation of the principles of
natural justice. Thus as the impugned
order is clearly within the teeth of the
principles of natural justice and has been
passed in violation of Rule 7 of the U.P.
Government servants (Discipline and
Appeal) Rules, 1999, it is liable to be
quashed. Accordingly, a writ of certiorari
is issued quashing the impugned order
dated 17.5.2005 (Annexure-10 to the writ
petition) with liberty to the disciplinary
authority
to
take
action
afresh, if
necessary, in accordance with law.

9. The petition succeeds and is
allowed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.34774 of 1999

Raj Kishore Pathak

...Petitioner
Versus
Chancellor
Deen
Dayal
Upadhyaya,
Gorakhpur University, Gorakhpur and
others

...Respondents

Counsel for the Petitioner:
Sri Ramesh Upadhyaya

Counsel for the Respondents:
Sri Neeraj Tripathi
Sri R.K. Ojha

U.P. State Universities Act 1973-Section68-Eiligibility-whether for the Post of
Reader in Law can be filled up by
candidate having be research work in
Political
Science
"A
problem
in
constitutional Hermeneutics? Held-"No"-
view taken by Vice-Chancellor correct
can not be interfered by writ court.

Held: Para 4

The Chancellor, therefore, found that the
research work done by the petitioner,
Raj Kishore Pathak, cannot be said to be
research work in connection with Law
Faculty or in the subject of Law and,
therefore, the Chancellor has held that
since the petitioner, Raj Kishor Pathak,
did not possess requisite qualification for
appointment to the post of Reader,
therefore,
the
appointment
of
the
petitioner as Reader is cancelled. The
petitioner has challenged this order by
means of the present writ petition and
the order dated 13th August 1999 which
is consequential order communicated by
the Registrar of the University.
Case law discussed: