# Ram Gopal Lodhi v. State of U.P. & Ors. 270 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 6 ILRA 269
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Writ A No. 9491 of 2011
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-gopal-lodhi-v-state-of-u-p-ors-270-indian-law-reports-allahabad-series-50452
- **Pages:** 10

## Headnote

A. Service Law - UP Government Servant's
Conduct Rules, 1956 - Departmental
enquiry - Punishment - Unauthorized
absent from duty - Concealment of facts
relating to detention in civil prison - No
oral enquiry has been conducted by the
enquiry officer and no date, time and
place for oral enquiry was provided,
charges and the documents relied on the
enquiry officer have not been proved by
examining
or
cross-examining
the
witnesses - Effect - Held, basing the
entire enquiry proceedings on the basis of
charge sheet and reply submitted by the
employee without fixing date, time and
place for holding such oral enquiry and
without
examining
the
witnesses
in
support of his charges, is was not in
accordance with the settled Law - Abdul
Salam's case relied upon - High Court set
aside the impugned order. (Para 17 and
23)

Writ petition disposed of. (E-1)

List of Cases cited:

## Text

6 All. Ram Gopal Lodhi Vs. State of U.P. & Ors.
269
(Vide. Union of India v. Major General Madan
Lal Yadav (Retd.), AIR 1996 SC 1340: 1996
AIR SCW 1500 (1996) 3 SCR 785). The
violators law cannot be permitted to urge that
their offence cannot be subject matter of Inquiry,
trial or investigation. (Vide: Lily Thomas v.
Union of India, AIR 2000 SC 1650: 2000 Cr LJ
2433; (2000) 6 SCC 224)

14. So far as the arguments of learned
counsel for the petitioner that no opportunity has
been provided by the department before taking
charge from him and the action of the
department suffers from non-compliance of
principle of natural justice is concerned, law in
this regard is settled.

15. In S.P. Chengalvaraya Naidu v.
Jagannath, (1994) 1 SCC 1: AIR 1994 SC
853, the Apex Court held that it is settled
proposition of law that where an applicant gets
an order/office by making misrepresentation or
playing fraud upon the competent authority, such
order cannot be sustained in the eyes of law.
"Fraud avoids all judicial acts ecclesiastical or
temporal.

16. In United India Insurance Co. Ltd. v.
Rajendra Singh, (2000) 3 SCC 581 : AIR 2000
SC 1165, the Apex Court observed that "fraud
and justice never dwell together" (fraus et jus
nunquam cohabitant) and it is a pristine maxim
which has never lost its temper over all these
centuries.

17. In Mohammed Ibrahim v. State of
Bihar, (2009) 8 SCC 751, the Apex Court held
that the ratio laid down by Supreme Court in
various cases is that dishonesty should not be
permitted to bear the fruit and benefit to the
persons
who
played
fraud
or
made
misrepresentation and in such circumstances the
Court should not perpetuate the fraud. Fraud is
an intrinsic, collateral act, and fraud of an
egregious nature would vitiate the most solemn
proceedings of courts of justice. Fraud as a
deliberate deception with a design to secure
something, which is otherwise not due. The
expression "fraud involves two elements, deceit
and injury to the person deceived. It is a cheating
intended to get an advantage (Vide Vimla Delhi
Administration, AIR 1963 SC 1572: 1963 (2)
SC) 559 (1963) 2 Cr LJ 44 Indian Bank v.
Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC
550; AIR SCW 3228: AIR 1996 SC 2592; State
of Andhra Pradesh v. T. Suryachandra Ran AIR
2005 SC 3110: 2005 AIR SCW 3603: (2005) 6
SCC 149; K.D. Sharma v. Steel Authority of
India Ltd., (2008) 12 SCC 481: AIR 2009 SC
(Supp) 1309, 2008 AIR SCW 6654; and
Regional Manager, Central Bank of India v.
Madhalika Gor Prasad Dahir, (2008) 13 SCC
170: AIR 2008 SC 3266: 2008 AIR SCW 5525.

18. Keeping in mind the aforesaid legal
proposition of law and the fact that the
petitioner got appointment on the post in
question on the basis of forged and frivolous
documents, this Court is of the view that the
impugned
action
of
the
respondents
dispensing the services of the petitioner
w.e.f. 16.12.2010, does not require any
interference under Article 226 of the
Constitution of India.

19. The writ petition is, accordingly,
dismissed.
----------
(2023) 6 ILRA 269
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 9491 of 2011

Ram Gopal Lodhi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
270 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Deepak Srivastava, Akash Dhar Dubey, K.K.
Singh, Nirmal Singh Yadav, Shiv Pravesh
Dhar Dubey

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Government Servant's
Conduct Rules, 1956 - Departmental
enquiry - Punishment - Unauthorized
absent from duty - Concealment of facts
relating to detention in civil prison - No
oral enquiry has been conducted by the
enquiry officer and no date, time and
place for oral enquiry was provided,
charges and the documents relied on the
enquiry officer have not been proved by
examining
or
cross-examining
the
witnesses - Effect - Held, basing the
entire enquiry proceedings on the basis of
charge sheet and reply submitted by the
employee without fixing date, time and
place for holding such oral enquiry and
without
examining
the
witnesses
in
support of his charges, is was not in
accordance with the settled Law - Abdul
Salam's case relied upon - High Court set
aside the impugned order. (Para 17 and
23)

Writ petition disposed of. (E-1)

List of Cases cited:

1. Moti Ram Vs St.; 2013 LCD 1319

2. Vinod Kumar Vs Bank of Baroda; 2013 (31)
LCD 2116

3. Rajender Prasad Srivastava Vs St.; 2011 (29)
LCD 2417

4. Dr. Abha Gupta Vs St.; 2013 (31) LCD 2568

5. Arun Kumar Pandey Vs U.P. Vikas Ayukt;
2004 (22) LCD 964

6. Abdul Salam Vs St. of U.P. & ors.; 2011 (29)
LCD 832

7. St. of U.P. v. Saroj Kumar Sinha; (2010) 2
SCC 772

8. Vijay S. Sathaye Vs Indian Airlines & ors.;
2013 (31) LCD 1938

9. North Eastern Karnataka R.T. Corporation Vs
Ashappa; MANU/SC/8174/2006

10. Haryana Financial Corporation & ors. Vs
Kailash Chandra Ahuja; MANU/SC/7804/2008

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard learned counsel for the
applicant, Shri Shiv Pravesh Dhar Dubey as
well as Sanjeev Singh, learned CSC for the
State.

2. By this petition, the petitioner has
prayed for the following relief:-

(i) Issue a writ, order or direction
in the nature of certiorari quashing the
impugned
order
dated
25.11.2011,
contained in Annexure No. 1 with this writ
petition.

(ii) Issue a writ, order or
direction in the nature of mandamus
commanding the respondents to accept
joining of the petitioner and pay all his
consequential benefits immediately.

(iii) Issue any other writ, order or
direction in the nature which this Hon'ble
Court may deem just and proper in the
circumstances of the case."

3. Brief facts of the case are that the
petitioner was appointed in the year 1987
under
the
opposite
party
No.2.
On
16.03.1988, the petitioner was posted as
Tractor Driver at Ruramallu. The petitioner
became absent without any intimation to
the authorities since November, 1991 hence
an explanation was called from him as the
6 All. Ram Gopal Lodhi Vs. State of U.P. & Ors.
271
petitioner neither reported duty nor any
explanation was submitted by him with
regard to registered letter dated 31.08.1992
by which the petitioner was intimated that
if he does not come to his duty within a
week, the action will be taken against him
under the provisions of U.P. Government
Servant's Conduct Rules, 1956. In spite of
that letter, he has not reported on duty. The
letter
was
ultimately
served
to
the
petitioner on 01.07.1993 to which the
petitioner replied that he is ill since
November,
1991
and
still
has
not
recovered. He submitted his joining report
on 15.03.1996. The matter of the petitioner
was referred to the opposite party No.2 for
further course of action who sought
direction from the Additional Director of
Agriculture
(Administration)
U.P.
Lucknow. In the meantime, the petitioner
filed Writ Petition No.4154 (S/S) of 1998
for acceptance of his joining. The writ
petition was disposed of vide judgment and
order dated 23.07.2008 with a direction to
the opposite party No.3 to take a decision
in the matter. In compliance of the order
dated 23.07.2008 passed by this Court, the
petitioner's case was considered by the
Additional
Director
of
Agriculture
(Administration) U.P. Lucknow who vide
order dated 21.01.2009 directed the Joint
Director of Agriculture Jhansi Mandal
Jhansi (Appointing Authority) to decide the
matter of the petitioner on merits after
making
enquiry
and
affording
the
opportunity of hearing. Pursuant to the
order dated 21.01.2009 passed by the
Additional Director of Agriculture, the
Enquiry Officer was appointed, chargesheet was issued to the petitioner on
17.02.2009 containing charge that he was
absent from duty since November, 1991 to
14.03.1996 and also he was in jail in Case
Crime No.130A/91 under Sections 147,
148, 149, 307 & 504 I.P.C. Reply to the
charge-sheet
was
submitted
by
the
petitioner and after that Enquiry Officer
submitted his report after conducting the
enquiry and recommended for punishment
and disciplinary authority ultimately has
passed the order of punishment.

4. Learned counsel for the petitioner
submits that after suplly of the copy of the
charge sheet, the petitioner though has
submitted reply, however, during course of
the entire enquiry, no oral hearing was
done. No documents on which the charges
were pasted were supplied to the petitioner.
Documents relied by the enquiry officer has
not been proved by the witnesses. No
evidence has been recorded in presence of
the petitioner, neither any opportunity to
cross examine was given to the petitioner.
No date, time and place of enquiry was
fixed. enquiry report was submitted only on
the basis of reply to the charge sheet.

5. In support of his contention, learned
counsel for the petitioner has relied on the
following judgments:

(i) Moti Ram Vs. State {2013
L.C.D. Page 1319}

(ii) Vinod Kumar Vs. Bank of
Baroda {2013 (31) L.C.D. page 2116}

(iii) Rajender Prasad Srivastava
Vs. State {2011 (29) L.C.D. page 2417}

(iv) Dr. Abha Gupta Vs. State
{2013 (31) L.C.D. page 2568}

(v) Arun Kumar Pandey Vs. U.P.
Vikas Ayukt {2004 (22) L.C.D. page 964)

(vi) Abdul Salam Vs. State of U.P.
and others {2011 (29) L.C.D. page 832)

6. Per contra, Shri Sanjeev Singh,
learned Additional CSC opposed the
contention submitting that the petitioner
was
unauthorizedly
absent
w.e.f.
01.11.1991
to
14.03.1996
without
272 INDIAN LAW REPORTS ALLAHABAD SERIES
information. He also submits that the
petitioner remained in jail for 17 days i.e.
from 25.01.1991 to 09.12.1991. The
petitioner concealed this fact from the
department. Vide letter dated 10.12.1991,
29.02.1992 and 12.08.1992 he was directed
to show cause and to remained present on
duty, however, the petitioner ignored this
letter and did not report on duty. The
Additional Director (Agriculture) vide
order
dated
01.07.1993
directed
the
petitioner to join the duty, to which the
petitioner replied that he is not well and as
early as he is declared fit, he will report for
duty along with medical certificate.

7. In compliance of the order dated
23.07.2008 passed in writ petition No.
4154/SS/1998, the Additional Director
(Agriculture)
directed
the
appointing
authority to initiate the departmental
proceedings against the petitioner for his
unauthorized absence and concealment of
fact that he was confined in civil prison.
The Deputy Director, Jalaun was appointed
as enquiry officer vide letter dated
24.01.2009. Charge sheet dated 17.02.2009
was issued and charges were framed first
for
absence
of
the
applicant
from
November, 1991 to 14.03.1996. Second
charge was regarding concealment of fact
regarding detention in civil prison in crime
No.
130M/1991,
under
Section
147/148/149/307/506
I.P.C.
from
the
department which is against The U.P.
Government Servant's Conduct Rules,
1956.

8. The applicant has replied to the
charge sheet admitting his detention from
25.11.1991 to 09.12.1991 and submitted
that thereafter he became ill and after that
he submitted joining on 15.03.1996 with
medical certificates. Enquiry report dated
04.06.2011 was submitted by the Deputy
Director, Jalaun holding the petitioner
guilty of unauthorized absence from
01.11.1991 to 14.03.1996 and concealment
of fact from the department regarding his
confinement to jail. On 25.11.2011 the
impugned punishment order passed by
Joint
Director,
Jhansi
Division
by
concluding with enquiry report that the
petitioner concealed the fact regarding his
detention
from
the
department
and
therefore, accepting report is not in the
interest of the State and consequently the
joining report of the petitioner after four
years and four month and thirteen days was
rejected.

9. The petitioner filed a claim petition
No. 721/2005 "Ram Gopal Lodhi Vs. State
of U.P. and others", before the Services
Tribunal,
UP,
Lucknow
which
was
dismissed
and
opposite
parties
were
directed to complete the enquiry and pass
consequential order within a period of three
months.

10. Heard learned counsel for the
parties.

11. It is not disputed at bar that during
course of enquiry, no opportunity of
hearing was provided to the petitioner. The
enquiry officer did not conduct any oral
hearing. The documents relied on by the
enquiry officer were not proved by
examining any witness and no opportunity
to examine or cross-examine the witnesses
of the enquiry was given to the petitioner.
Even after submission of the enquiry
report, copy of the report was not given to
the petitioner. The Division Bench of this
Court in the case of Moti Ram (supra) has
held that a proper opportunity must be
afforded to the government servant at the
stage of enquiry after the charge sheet is
supplied to the delinquent employee as well
6 All. Ram Gopal Lodhi Vs. State of U.P. & Ors.
273
as at the stage when punishment is about to
be imposed on him. It has also been held
that an oral enquiry is must whether
employee demands it or not. Relevant para
8, 9 and 17 are extracted below:-

"In State of Madhya Pradesh vs.
Chintaman Sadashiva Waishampayan; AIR
1961 SC 1623; State of U.P. vs. Shatrughan
Lal and another; (1998) 6 SCC 651 and
State of Uttaranchal and others vs. Kharak
Singh (2008) 8 SCC 236, the Apex Court
has emphasized that a proper opportunity
must be afforded to a government servant
at the stage of enquiry, after the charge
sheet is supplied to the delinquent as well
as at the second stage when punishment is
about to be imposed on him. In State of
Uttaranchal & ors. V. Kharak Singh
(supra), the Apex Court has enumerated
some of the basic principles regarding
conducting the departmental inquiries and
consequences in the event, if these basic
principles are not adhered to, the order is
to be quashed. The principles enunciated
are reproduced herein:-

(a)
The
enquries
must
be
conducted bona fide and care must be taken
to see that the enquiries do not become
empty formalities.

(b) If an officer is a witness to
any of the incident which is the subject
matter of the enquiry or if the enquiry was
initiated on the report of an officer, then in
all fairness he should not be the Enquiry
Officer. If the said position becomes known
after the appointment of the Enquiry
Officer, during the enquiry, steps should be
taken to see that the task of holding an
enquiry is assigned to some other officer.

(C)
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent
charged,
give
an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
he wants to lead any evidence and asked to
give any explanation about the evidence led
against him.

A Division Bench of this Court in
Radhey Kant Khare vs. U.P. Cooperative
Sugar Factories Federation ltd. [2003](21)
LCD 610] held that after a charge-sheet is
given to the employee an oral enquiry is a
must, whether the employee requests for it
or not. Hence a notice should be issued to
him indicating him the date, time and place
of the enquiry. On that date so fixed the
oral and documentary evidence against the
employee should first be led in his
presence. Thereafter the employer must
adduce his evidence first. The reason for
this principle is that the charge-sheeted
employee should not only know the charges
against him but should also know the
evidence against him so that he can
properly reply to the same. The person who
is required to answer the charge must be
given a fair chance to hear the evidence in
support of the charge and to put such
relevant questions by way of crossexamination, as he desires. Then he must be
given a chance to rebut the evidence led
against him."

xxxxx

Even, if we assume that most of
the charges have been admitted by the
petitioner in his reply, but still there are
some charges which are to be proved
against him. For this purpose also,
petitioner has to be afforded an opportunity
of hearing before submission of enquiry
report.
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent
charged,
give
an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
274 INDIAN LAW REPORTS ALLAHABAD SERIES
he wants to lead any evidence and asked to
give any explanation about the evidence led
against him, as has been observed by the
Apex Court in the case of State of
Uttaranchal & ors. V. Kharak Singh
(supra). Further, the person who is required
to answer the charge must be given a fair
chance to hear the evidence in support of
the charge and to put such relevant
questions by way of cross-examination, as
he desires. Then he must be given a chance
to rebut the evidence led against him, as
has been held by this Court in the case of
Radhey
Kant
Khare
(supra).
While
entertaining the writ petition, this Court
stayed the impugned order, by means of
order dated 29.10.1999.

12. In the case of Vinod Kumar
(supra), the Division Bench of this Court
has enumerated the basic principles or
conducting
departmental
enquiries.
Relevant para No. 19 is extracted below:-

In State of Madhya Pradesh vs.
Chintaman Sadashiva Waishampayan; AIR
1961 SC 1623; State of U.P. vs. Shatrughan
Lal and another; (1998) 6 SCC 651 and
State of uttaranchal and others vs. V.
Kharak Singh (2008) 8 SCC 236, the Apex
Court has emphasized that a proper
opportunity
must
be
afforded
to
a
government servant at the stage of the
enquiry, after the charge sheet is supplied
to the delinquent as well as at the second
stage when punishment is about to be
imposed on him. In State of Uttaranchal &
ors. V. Kharak Singh (supra) the Apex
Court has enumerated some of the basic
principles
regarding
conducting
the
departmental inquiries and consequences
in the event, if these basic principles are
not adhered to, the order is to be quashed.
The principles enunciated are reproduced
herein:

(a)
The
enquries
must
be
conducted bona fide and care must be taken
to see that the enquiries do not become
empty formalities.

(b) If an officer is a witness to
any of the incident which is the subject
matter of the enquiry or if the enquiry was
initiated on the report of an officer, then in
all fairness he should not be the Enquiry
Officer. If the said position becomes known
after the appointment of the Enquiry
Officer, during the enquiry, steps should be
taken to see that the task of holding an
enquiry is assigned to some other officer.

(C)
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent
charged,
give
an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
he wants to lead any evidence and asked to
give any explanation about the evidence led
against him.

13. In the aforesaid judgment of Vinod
Kumar it has further held that after charge
sheet is given to the employee, an oral
enquiry is must. Relevant para 24 is
extracted below:-

A Division Bench of this Court in
Radhey Kant Khare vs. U.P. Cooperative
Sugar Factories Federation ltd. [2003](21)
LCD 610] held that after a charge-sheet is
given to the employee an oral enquiry is a
must, whether the employee requests for it
or not. Hence a notice should be issued to
him indicating him the date, time and place
of the enquiry. On that date so fixed the
oral and documentary evidence against the
employee should first be led in his
presence. Thereafter the employer must
adduce his evidence first. The reason for
this principle is that the charge-sheeted
6 All. Ram Gopal Lodhi Vs. State of U.P. & Ors.
275
employee should not only know the charges
against him but should also know the
evidence against him so that he can
properly reply to the same. The person who
is required to answer the charge must be
given a fair chance to hear the evidence in
support of the charge and to put such
relevant questions by way of crossexamination, as he desires. Then he must be
given a chance to rebut the evidence led
against him.

14. In the case of Rajendra Prasad
Srivastava (supra), it was held that before
any major punishment is awarded, the
charges should be proved. The relevant
para No. 14 is extracted below:-

We also take notice of the fact
that the earlier dismissal order dated
1.9.2001 was set aside by this Court in
earlier writ petition with the specific
direction to the respondents to pass a fresh
order after affording adequate opportunity
to the appellant but the department though
was concious, that the opportunity as
required under Article 311(2) of the
Constitution need be afforded, actually did
not afford the said opportunity. There
cannot be a presumption of guilt where the
law requires that the charges should stand
proved before any major punishment is
awarded, unless there is an unqualified
admission of the delinquent to the charges
levelled against him.

15. In the case of Dr. Smt. Abha Gupta
(supra) again it was held that not holding
oral enquiry is a serious flaw which can
vitiate the order of disciplinary authority.
Relevant para 32 and 35 are extracted
below:-

32. The Division Bench of this
Court, in the case of Salahuddin Ansari v.
State of U.P. and others, reported in 2008
(3) ESC 1776, has held that not holding of
oral enquiry is a serious flaw which can
vitiate the order of the Disciplinary
authority, including the order of the
punishment. It has been observed that
"Non-holding of oral enquiry in such a
case is a serious matter and goes to the
root of the case."

35. The Division Bench of this
Court, in the case of Vijay Kumar Sinha v.
State of U.P. and others, reported in 2011
(4) ESC, 2949, has held that "in cases
where no oral evidence in the presence of
charged government servant has been
recorded,
there
is
no
question
of
opportunity to cross-examine to him and in
respect to providing opportunity to award
major punishment like dismissal, holding of
full-fledged enquiry must be there." The
Division Bench in the said case has
observed as under:

16. In the case of Arun Kumar Pandey
(supra) it was held that not intimating the
petitioner about date and time of oral
enquiry and not recording any evidence in
presence
of
the
petitioner
and
no
opportunity of cross examination to the
petitioner vitiates the enquiry. The relevant
para 7 is extracted below:-

"There was a denial of charges.
Oral enquiry into the charges was required.
There is an avermes) in the respective
paras of writ petition that the petitioner
was never intimated about date and time of
such oral enquiry and no evidence was
recorded in his presence or no opportunity
of cross-examination was afforded. It is
also said that he was never asked to adduce
evidence in detence (see paras 19, 19-8,
19-D, 19-E, 20, 21, of the writ petition). A
perusal of counter-affidavit would reveal
that though there are averments to the
276 INDIAN LAW REPORTS ALLAHABAD SERIES
effect that the petitioner was given ample
opportunity to have his say in the matter
but it was not specified as to whether he
was intimated about the date or dates of
oral enquiry if so in what manner. General
denial was not sufficient. The department
ought to have disclosed that such and dales
were fixed for oral enquiry, and the
petitioner was informed by such and such
mode, about such dates etc. Even if the
petitioner was not cooperating as alleged
in para- (sic) of the counter-affidavit, oral
enquiry after intimation of the date or dates
was the legal requirement. The Court is of
the view that the order of punishment is
vitiated for the said reasons and for denial
of reasonable opportunity of hearing."

17. In the case of Abdul Salam (supra),
it was held that basing the entire enquiry
proceedings on the basis of charge sheet
and reply submitted by the employee
without fixing date, time and place for
holding such oral enquiry and without
examining the witnesses in support of his
charges, it was held that departmental
enquiry was not in accordance with the
settled law and orders were set aside.
Relevant para No. 16, 17, 24, 25, 26, 27
and 29 are extracted below:-

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 shortcut 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 crossexamine 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 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.

xxxxxx

24. In the present case it is
evident from the records that the enquiry
officer during the course of enquiry by
order dated 03.07.2002 had come to the
conclusion that it is necessary to provide
opportunity of hearing to the delinquent
6 All. Ram Gopal Lodhi Vs. State of U.P. & Ors.
277
employee and for that purpose had fixed
15.07.2002.
However,
on
15.07.2002
enquiry could not be held, so another date
was fixed. Thereafter certain dates were
fixed by the enquiry officer and it was by an
order dated 29.8.2002, the enquiry officer
had observed that no other document is
required to be given to the delinquent
employee, therefore, 07.09.2002 was fixed
for submitting reply by the delinquent. It is
admitted fact as borne out from the enquiry
report dated 17.10.2002 that the delinquent
employee had submitted his written reply
on 05.10.2002. However, from the perusal
of record it appears that no date, time and
place was fixed by the enquiry officer for
holding oral enquiry after submission of
the reply to the charge-sheet by the
delinquent employee and the entire enquiry
proceedings were completed on the basis of
charge-sheet and the reply submitted by the
delinquent
employee,
relying
on
the
documentary evidence submitted in support
of the alleged charges.

25. The learned Single Judge in
the impugned judgment has come to the
conclusion that the enquiry officer did not
examine any witnesses as there was no
need to summon any witness for the simple
reason that in support of the charges, only
the documents were relied upon and the
documents were so categorical that they
were not required to be proved by any
witness. It has been further observed by the
learned Single Judge that if we examine the
report of the enquiry officer, indeed, the
documentary evidence seems to be so
whelming that it was not obligatory for the
enquiry officer to have called any witness
in support of the charges.

26. The learned Single Judge,
however, did not take into consideration that
if the witnesses were not required to be
examined in support of the charges, even then
it was incumbent upon the enquiry officer to
have fixed the date, time and place after
submission of the reply to the charge-sheet by
the delinquent for holding oral enquiry in
order to appreciate the evidences filed in
support of the charges in presence of the
delinquent employee and call upon the
department to prove the alleged charges.
There is no denial about the fact that such
exercise was not done by the enquiry officer
in the present case.

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.

xxxxx

29. In view of the above, the
impugned
judgment
and
order
dated
31.01.2007 passed by the learned Single
Judge in writ petition no.151(SS) of 2003 is
not sustainable and it is hereby set aside. The
punishment order dated 27.12.2002 passed
by the opposite party no.3, is also liable to be
quashed, which is hereby quashed.

18. In the case of State of U.P. v. Saroj
Kumar Sinha, (2010) 2 SCC 772, the Apex
Court has held that the employee should be
treated fairly in any proceedings which
may
culminate
in
punishment
being
imposed on him.

19. Learned Standing Counsel has
relied on the following judgments in
support of his contention:-

(i) Vijay S. Sathaye Vs. Indian
Airlines and others {2013 (31) LCD 1938}.

(ii) North Eastern Karnataka R.T.
Corporation
Vs.
Ashappa
(MANU/SC/8174/2006).
278 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii)
Haryana
Financial
Corporation
and
others
Vs.
Kailash
Chandra Ahuja {MANU/SC/7804/2008}.

20. So far as the judgment relied on by
the learned Standing Counsel in the case of
Vijay S. Sathaye (supra) is concerned, in
that case, the petitioner has voluntarily
abandoned the services of the respondent.
Here is not such case. Here the petitioner
has requested for joining in the year 1996,
hence,
on
facts,
the
judgment
is
distinguished.

21. So far as the judgment of North
Eastern Karnataka R.T. Corporation (supra)
is concerned, the Supreme Court was
dealing with whether the punishment of
dismissal from service is disproportionate
or not. Here is not such case.

22. So far as the judgment in a case of
Haryana Financial Corporation (supra) is
concerned, the oral enquiry during course
of enquiry was not in question before the
Supreme Court, only non-supply of enquiry
report by the enquiry officer to the
delinquent
employee
was
under
consideration where employee had to show
prejudice. Here is not such case. Here is the
case where no oral enquiry at all has been
conducted by the enquiry officer, hence,
this judgment is also distinguishable.

23. In view of the settled position of
law and undisputed facts that no oral
enquiry has been conducted by the enquiry
officer and no date, time and place for oral
enquiry was provided, charges and the
documents relied on the enquiry officer
have not been proved by examining or
cross-examining the witnesses, hence, in
view of the settled preposition of law, the
impugned order contained in Annexure No.
1 is set aside.

24. The matter is remanded to the
Disciplinary Authority directing him to
conduct a de novo enquiry from the stage
of supplying of charge sheet within a
period of three months from the date of
receiving of certified copy of this order. No
order as to cost.
----------
(2023) 6 ILRA 278
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ B No. 388 of 2023
&
Writ B No. 419 of 2023

Daya Shankar & Ors. ...Petitioners
Versus
Deputy Director of Consolidation, Kheri,
District Kheri & Ors. ...Respondents

Counsel for the Petitioners:
Pradeep Kumar Tiwari, Parmatma Prasad
Singh

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey

A. Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1961-Section 27(3) -
Forest Act, 1927 - Sections 4 & 20 - U.P.
Consolidation of Holdings Act, 1954Section 9-A(2)-Lease-Land declared as
suplus under the Act of 1960 was allotted
by execution of lease deed by S.D.O.-After
issuance of notification u/s 4 of the Act,
1927 the land in question vests in the
Forest Department and no one can claim
any right or title on the basis of any
subsequent patta-Further, as per Section
27(3) of the Act, 1960 lease may be
granted only by Collector, and S.D.O. was
not competent authority to grant leaseClaim of petitioners to the land on the