# Ram Jatan v. Banaras Hindu University & Anr

- **Citation:** (2020) 1 ILRA 1837
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-06
- **Case number:** Writ-A No. 21669 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-jatan-v-banaras-hindu-university-anr-45071
- **Pages:** 9

## Headnote

A. Indian Penal Code, 1860 - Section 457,
380, 411 - theft from Garbh Grih of
Vishwanath
Temple-recovery
of
cash
amount-
suspension-violation
of
Ordinance 23, Sub-Rule (2) of nonteaching employees of BHU-petitioner
challenged
suspension
as
well
as
punishment-no
opportunity
given
to
petitioner by Disciplinary Committee for
his defence-inconsistent to principle of
natural
justice-impugned
orders
of
punishment
cannot
be
sustained-
Procedure laid down in Rule 24 of
Ordinance
which
is
consistent
with
natural justice should be followed. (Para
32 to 35)

In a departmental inquiry an employee is
entitled to be given adequate opportunity of
defence and if a particular procedure is
prescribed in relevant Rules, employer is bound
to follow and observe the same in words and
spirit and violation thereof would vitiate an
order of punishment. (Para 33)

Writ Petitions allowed. (E-6)

## Text

1838 INDIAN LAW REPORTS ALLAHABAD SERIES

32. Consequently, the writ petition is
allowed and the respondents are directed
to fix and pay the salary of the petitioners
in accordance with the fitment chart given
in Schedule-I and Schedule-II attached
with
the
Government
Order
dated
16.09.2010 with effect from the date of
their promotion on the post of Personal
Assistant at par with those working on the
similar posts in the establishment of this
Court. Arrears in that regard may be
released within three months from the date
a certified copy of this order is filed before
the authority concerned.
----------
(2020)1ILR 1837

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ-A No. 21669 of 2004
with
Writ-A No. 31955 of 2005
&
Writ-A No. 21210 of 2004

Ram Jatan ...Petitioner
Versus
Banaras Hindu University & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri P.M.N. Singh, Sri Amit Kumar Singh

Counsel for the Respondents:
S.C., Sri V.K. Upadhyay, Sri Arun Prakash,
Sri Hem Pratap Singh

A. Indian Penal Code, 1860 - Section 457,
380, 411 - theft from Garbh Grih of
Vishwanath
Temple-recovery
of
cash
amount-
suspension-violation
of
Ordinance 23, Sub-Rule (2) of nonteaching employees of BHU-petitioner
challenged
suspension
as
well
as
punishment-no
opportunity
given
to
petitioner by Disciplinary Committee for
his defence-inconsistent to principle of
natural
justice-impugned
orders
of
punishment
cannot
be
sustained-
Procedure laid down in Rule 24 of
Ordinance
which
is
consistent
with
natural justice should be followed. (Para
32 to 35)

In a departmental inquiry an employee is
entitled to be given adequate opportunity of
defence and if a particular procedure is
prescribed in relevant Rules, employer is bound
to follow and observe the same in words and
spirit and violation thereof would vitiate an
order of punishment. (Para 33)

Writ Petitions allowed. (E-6)

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

1. Heard Sri Amit Kumar Singh,
Advocate, for petitioners and Sri V.K.
Upadhyay,
learned
Senior
Advocate,
assisted by Sri Arun Prakash, Advocate,
for respondent-University.

2. The Writ Petition No. 21669 of
2004 (hereinafter referred to as "WP-1")
under Article 226 of the Constitution of
India has been filed by sole petitioner,
Ram Jatan, being aggrieved by order dated
26.11.1996
(Annexure-5
to
WP-1)
imposing punishment of dismissal and
order dated 07.01.2004 (Annexure-9 to
WP-1) communicating him that his appeal
has been rejected and punishment imposed
vide order dated 26.11.1996 has been
upheld.

3. Facts in brief, giving rise to
present dispute, as pleaded in WP-1, are
that petitioner was appointed as Farrash in
1977
in
Banaras
Hindu
University
(hereinafter referred to as "BHU") and
posted to work in Vishwanath Temple
situated in Campus of BHU. An incident
1 All. Ram Jatan Vs. Banaras Hindu University & Anr.
1839
of theft occurred in the intervening night
of 26/27.03.1996 in the Garbh-Grih of
Vishwanath Temple situated in Campus of
BHU
in
respect
whereof
a
First
Information Report was lodged under
Sections 457, 380, 411 I.P.C. by Ram
Auatar, an employee of BHU against
petitioner and four others. Petitioner was
placed under suspension vide order dated
29.03.1996 passed by Registrar, BHU
exercising power under Section 4(5)(a) of
Statute of BHU. A charge-sheet dated
10/12.04.1996 was issued containing a
charge that he was indulged in theft, in the
Temple, committed on 26/27.03.1996 and
in the past also he was indulged in such
type of thefts which he has admitted.
Entire charge levelled against petitioner
reads as under:

^^1- fnukad 26@27 ekpZ] 1996 dks Jh
jke tru flag] QjkZl] Jh fo'oukFk efUnj ds
vU; O;fDr;ksa ds lkFk pksjh djus ds mn~ns'; ls
Jh fo'oukFk efUnj] dk'kh fgUnw fo'ofo|ky; ds
xHkZ&x`g ds vUnj nkf[ky gq,A

2- fo'ofo|ky; ds lqj{kk lSfudksa ,oa
LFkkuh; iqfyl ds la;qDr Nkis ds nkSjku Jh jke
tru flag] QjkZl] vU; yksxksa ds lkFk xHkZ&x`g
ls pksjh djrs gq, jaxs gkFk idM+k x;k ,oa :0
1808-50 udn cjken gqvkA

3- iqfyl }kjk iwN&rkN ds nkSjku Jh
jke tru flag] QjkZl bl rjg dh pksfj;ksa esa
fiNys lkr&vkB o"kksZ ls 1⁄4gj eaxyokj1⁄2 dks fyIr
jguk Lohdkj fd;k gS vkSj ;g Hkh Lohdkj fd;k
gS fd bl dk;Z ds fy, muds ikl MqIyhdsV
pkfc;ka gSaA

4- pksjh dh mDr ?kVukvksa ds i'pkr]
idM+s tkus ij cjken dh x;h /kujkf'k]
rkyk&pkch] xUuh cSx vkfn dks yadk iqfyl
Fkkuk ds dCts esa dj fn;k x;kA Jh jke tru
flag] QjkZl dks yadk iqfyl }kjk tsy Hkst fn;k
x;kA

5- Jh jke tru flag] QjkZl dk
mijksDr izdkj dk vkpj.k ?kksj vkifRrtud gS
ftlls fo'ofo|ky; dh ifo=rk o xfjek ij
vk?kkr yxk gS vkSj mudk bl izdkj dk vkpj.k
xSj f'k{k.k deZpkjh dh lsok 'krsZa dh vkpj.k
lafgrk @ fu;e 2-1 ds izfrdwy gSA**

"1. On 26/27 March, 1996 Sri
Ram Jatan Singh, Farrash, along with
some other persons associated with Sri
Vishwanath
Temple,
entered
the
Garbhagrih (sanctum sanctorum) of Sri
Vishwanath
Temple,
Banaras
Hindu
University with an intent to commit theft.

2. During the joint raid of
security personnel of the University and
the local police, Sri Ram Jatan Singh,
Farrash was caught red handed along
with other accomplishes while committing
theft in the Garbhagrih and a cash amount
of Rs 1808.50 was recovered.

3. While being interrogated by
the police, Sri Ram Jatan Singh, Farrash
has confessed his involvement in similar
thefts over the past seven-eight years (on
every Tuesday) and also having duplicate
keys for the said act.

4. On being arrested for the
aforesaid
theft
incidents,
recovered
amounts, locks & keys, gunny bags, etc
were given into possession of the Lanka
police station. Sri Ram Jatan Singh,
Farrash was sent to jail by the police of
P.S. Lanka.

5. The aforesaid type of conduct
of Sri Ram Jatan Singh, Farrash is highly
objectionable having undermined the
sanctity and dignity of the University and
this type of conduct of his is contrary to
the Conduct Code/ Rule 2.1 of the Service
Conditions
of
the
Non-teaching
Employees."
(English
Translation
by Court)

4. Petitioner was required to submit
reply within ten days. In the charge-sheet,
there was no reference to any evidence
relied in support of charges, whether oral
or documentary.
1840 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Petitioner submitted reply dated
19.04.1996 (Annexure-3 to WP-1) wherein
he denied all the charges and also stated
that relevant documents and statements,
which are foundation of charge, have not
been supplied, therefore, the same may be
made available to him so that he may give
a further effective reply. He also stated
that he shall give his evidence and crossexamine witnesses produced against him
in support of charge.

6. It appears that besides petitioner,
three other employees were also similarly
charged and BHU constituted an Inquiry
Committee consisting of Prof. Janardan
Singh, Department of Entomology and
Agricultural
Zoology,
Dr.
M.N.P.
Srivastava, Reader, Faculty of Law; and,
Dr. Babu Lal Mishra, Honorary Manager
of Vishwanath Temple and also clubbed
all the inquiries together which comprised
of petitioner and Shiv Charan, Farrash,
Rama Shankar Singh Yadav, Chowkidar
and Lal Bahadur Singh, Chowkidar.

7. Vide letter dated 23.07.1996,
Assistant Registrar (Administration)-II and
Secretary, Inquiry Committee informed
petitioner
and
others
that
Inquiry
Committee shall hold its meeting on 2nd
and 3rd, August 1996 at 2.00 PM in the
Chamber of Chairman, i.e., Prof. Janardan
Singh.

8. Petitioner and other charged
employees
appeared
before
Inquiry
Committee on the dates, scheduled and
informed, as above, when no evidence was
recorded by Inquiry Committee and
petitioner and others were only required to
sign some papers and thereafter they were
asked to leave campus. No further inquiry
was held and no date, time or place was
fixed.
Instead,
Inquiry
Committee
submitted inquiry report dated 14.10.1996.
Thereafter petitioner was straightway
served with an order of dismissal dated
26.11.1996 (Annexure-5 to WP-1).

9.

Petitioner
appealed
against
dismissal order vide representation dated
01.01.1997 in which he specifically
pleaded that no adequate opportunity of
defence was provided and no proper
inquiry was conducted.

10. In the meantime, petitioner was
also tried in Criminal Case No. 596 of 1996
in the Court of Special Chief Judicial
Magistrate, Varanasi, who vide judgment
dated 19.02.2000 convicted petitioner under
Section 457, 380 and 401 I.P.C. and
awarded four years rigorous imprisonment
(hereinafter referred to as "R.I.") and 1000/-
fine under Section 457 I.P.C., three and half
years R.I. and fine of Rs. 1,000/- under
Section 380 I.P.C. and 2 years R.I. and fine
of Rs. 500/- under Section 411 I.P.C.
Criminal Appeal No. 52 of 2000 was
preferred by petitioner which came to be
heard along with other appeals by Sri T.N.
Pandey, Additional Sessions Judge, Court
No. 13, Varanasi who allowed appeal vide
judgment dated 10.04.2003, set aside order
of sentence awarded by Magistrate and held
that there was no credible evidence and
circumstances to convict petitioner, hence,
judgment
of
Special
Chief
Judicial
Magistrate dated 19.02.2000 was set aside.

11. The above judgment of Appellate
Court was communicated by petitioner to
Registrar,
BHU
vide
letter
dated
02.09.2003. However, vide letter dated
07.01.2004,
Deputy
Registrar
(Administration)-II
has
informed
petitioner that his appeal has been rejected
and earlier order of punishment has been
maintained.
1 All. Ram Jatan Vs. Banaras Hindu University & Anr.
1841

12. Respondents have filed counter
affidavit contesting WP-1 stating that in
the night of 26/27.03.1996 petitioner and
four others were caught red handed in the
night about 2.00 AM while emptying DanPatra, kept at ground floor of Garbh-Grih
of Vishwanath Tempt at BHU Campus.
Police registered Case No. 77 of 1996
under Section 457, 380, 411 I.P.C. and
sent all the culprits to Jail. Considering
seriousness of criminal incident and
involvement of petitioner and other
employees, an order of suspension was
passed on 28.03.1996 by Vice-Chancellor,
BHU,
which
was
communicated
to
petitioner vide Registrar, BHU's letter
dated 29.03.1996.

13. A disciplinary inquiry was
initiated for act of misconduct, i.e.,
violation of Ordinance 23, Sub-Rule (2)
which governs terms and conditions of
service of non-teaching employees of
BHU. It was served upon petitioner vide
letter dated 10/12.04.1996 issued by
Deputy Registrar (Administration), BHU.
Further
vide
Office
Order
dated
12.04.1996 an Inquiry Committee was
constituted and petitioner was given
opportunity to submit his defence before
Inquiry Committee. Inquiry Committee
submitted inquiry report dated 14.10.1996
and a copy thereof has been filed along
with counter affidavit as Annexure CA-3.
It is not disputed that in the criminal trial,
petitioner has been acquitted by Appellate
Court vide judgment dated 10.04.2003.
Thereafter,
petitioner
submitted
representation dated 02.09.2003 requesting
for the reinstatement but since he was not
dismissed from service on the basis of
conviction in criminal case but after
finding him guilty in a departmental
inquiry,
hence,
question
of
his
reinstatement on the basis of Appellate
Court's judgment had not arisen, hence his
request was not accepted. It is also said
that petitioner and others confessed their
involvement in theft before Sri Ram
Auatar, Assistant Security Officer in the
office of Chief Proctor and others, hence
report was lodged against them, besides
initiating departmental inquiry. However,
after
service
of
charge-sheet
in
disciplinary proceedings, since petitioner
denied all the charges vide reply dated
19.04.1996, therefore competent authority
in BHU passed order dated 14.05.1996
requesting Inquiry Committee to proceed
with
the
disciplinary
proceedings.
Petitioner and others were given ample
opportunity of defence. Representation
dated 01.01.1997 submitted by petitioner
against punishment order was considered
by competent authority and its decision
was communicated to petitioner vide
Assistant
Registrar
(Administration),
BHU's letter dated 03/06.03.1997. The
punishment order has been passed by
Vice-Chancellor after considering report
of Inquiry Committee and same has been
ratified by Appointments Committee of
BHU constituted under Section 26 of
Banaras Hindu University Act, 1915
(hereinafter referred to as "Act, 1915").

14. In the Rejoinder Affidavit,
petitioner
has
reiterated
that
no
departmental inquiry was conducted in
accordance with relevant Statute and he
was never communicated about the order
dated
03/06.03.1997
whereby
his
representation
was
rejected.
He
specifically denied that he was caught red
handed at any point of time.

15. Writ Petition No. 31995 of 2005
(hereinafter referred to as "WP-2") has
been filed by Rama Shankar Singh Yadav,
who was appointed as Chowkidar in BHU
1842 INDIAN LAW REPORTS ALLAHABAD SERIES
and posted in Vishwanath Temple. Rest of
the facts are similar to that of WP-1
including
punishment
order
dated
26.11.1996 (Annexure-5 to WP-2) and all
other pleadings are similar. Hence, I am
not repeating the same.

16. Writ Petition No. 21210 of 2004
(hereinafter referred to as "WP-3") has
been filed by Shiv Charn, who was
appointed as Farrash on 01.10.1963 and
posted in Vishwanath Temple and all other
facts are similar to WP-1 including the
punishment order dated 26.11.1996 and
the letter dated 07.01.2004 whereby
Assistant
Registrar,
BHU
has
communicated
him
rejection
of
his
representation dated 03.09.2003. All other
pleadings are common, hence are not
repeated.

17. Inquiry Report dated 14.10.1996
placed on record by University along with
its Counter Affidavit filed in WP-1 shows
that it recommended punishment to
petitioners as per Rules of University but
further proposed that they should be kept
in active service with immediate effect,
except Temple, and be required to deposit
Rupees three hundred per month for five
years in the form of draft/cash/cheque in
'Dan Patra', in the presence of Manager
and Poojari, after taking proper oath
before donating money, in front of Lord
Shiva Idol, for not committing any such
illegal and immoral act in future and if any
of them is retired before five years, he
shall be required to deposit consolidated
amount for remaining period and also to
take proper oath that he will not commit
any such illegal or immoral act in future.

18. In view thereof petitioners sought
amendments in their writ petitions that
Inquiry Committee since recommended for
a corrective measure and not punishment
in
accordance
with
Rules,
and
recommended
for
reemployment/reinstatement
in
active
service, University in taking a different
decision has erred.

19. Thereafter order sheet also shows
that on a statement made by counsel for
BHU that matter of petitioners would be
considered
afresh
sympathetically
by
BHU, indulgence was granted and matter
was postponed but no concrete result
came. In these circumstances matter was
heard by Court on merits on 16.05.2009
when it was argued that inquiry was not
conducted in accordance with procedure
prescribed in Statute and there was a gross
violation of principles of natural justice
resulting in denial of adequate opportunity
of defence to petitioners. Hence, this Court
observed that perusal of record of inquiry
would be necessary and directed BHU to
produce inquiry record before this Court.

20.

A
supplementary
Counter
Affidavit was filed by BHU in WP-2 and
affidavit has been sworn by Sri Neeraj
Tripathi, Registrar stating that record of
inquiry was not available/traceable and for
its discovery a Committee consisting of
Prof. H.B. Srivastava as Chairman and
Prof. Rakesh Singh as Member was
constituted wherein Pushya Mitra Dwivedi
was Member Secretary and they submitted
report on 28.06.2019 that record of inquiry
is not available and responsible persons,
supposed to be custodian of record, had
either retired about two decades ago or
expired.

21.

In
this
backdrop,
Court
proceeded to hear matter again on the
basis of record whatever is available and
pleadings of parties.
1 All. Ram Jatan Vs. Banaras Hindu University & Anr.
1843

22. The common case of all the
petitioners
is
that
they
received
information to appear before Inquiry
Committee vide letter dated 23.07.1996 on
the scheduled dates, i.e. 2nd and 3rd,
August, 1996. On these dates they
appeared and they were required to sign
some papers and nothing further happened
and they were directed to leave the
premises. Thereafter no date, time or place
was fixed for oral inquiry whatsoever. On
the
contrary,
Inquiry
Report
dated
14.10.1996
submitted
by
Committee
consisting
of
Sri
Janardan
Singh,
Chairman and Sri M.N.P. Srivastava,
Member shows that it recorded statements
of Dr. S.K. Singh, Deputy Chief Proctor,
Ram Autar, Assistant Security Officer,
Dinkar Kumar Singh, a Student of
B.Com.-II, Sri Chandra Bhan Ram, a
student of B.Com.-II and also statement of
these petitioners. Dr. Babu Lal Mishra,
Honorary
Manager
of
Temple
also
submitted a written statement before
Committee.3

23. Inquiry Committee held its
meeting
on
30.04.1996,
07.06.1996,
02.08.1996, 03.08.1996 and 04.09.1996. It
is
evident
that
petitioners
were
communicated to participate in the inquiry
before Inquiry Committee for the first time
vide letter dated 23.07.1996 and they were
required
to
appear
before
Inquiry
Committee only on 2nd and 3rd August,
1996 while Inquiry Committee had already
held its meeting twice earlier, i.e, on
30.04.1996 and 07.06.1996 in respect
whereof no information was given to
petitioners
and
thereafter
also
held
proceedings on 04.09.1996 and this date
was also not communicated to petitioners.

24. It is also not stated in the entire
inquiry report that statements of various
witnesses in support of charges were
recorded
in
presence
of
delinquent
employees namely petitioners and they
were given opportunity to cross-examine
those witnesses.

25. In the findings recorded by
Inquiry Committee, it says that statements
of witnesses are corroborative to each
other; there is no contradiction and they
have repeated the same facts regarding
occurrence of incident and involvement of
petitioners in the theft committed in
temple in the night of 26/27.03.1996,
hence charges levelled against petitioners
are established. Petitioners have only
denied charges but failed to produce any
evidence, hence their defence is not
acceptable. Inquiry Committee has also
held that Rama Shankar, petitioner of WP2 was arrested in connection with theft
incident occurred on 10.08.1994 and
therein he was granted bail which also
prove his character and involvement in the
present incident though from inquiry
report it does not appear that there was any
material evidence to prove involvement of
petitioner of WP-2 in the alleged incident
of 10.08.1994 since witnesses examined
by Inquiry Committee all corroborated
alleged incident of 26/27.03.1996 and not
of 10.08.1994.

26. It cannot be doubted that it was
incumbent
upon
Inquiry
Committee,
constituted to hold inquiry, to examine
witnesses of employer in presence of
charged employees and these witnesses
appeared in support of charges ought to
have been allowed to be cross examined
by charged employees. Only thereafter,
when employer prima facie succeed to
prove the charges, question of defence by
employee could have arisen. However, in
the present case, charged employees have
1844 INDIAN LAW REPORTS ALLAHABAD SERIES
specifically pleaded that virtually no oral
inquiry was held. They were called to
appear on 2nd and 3rd August, 1996 on
which date they appeared and they were
required to sign certain papers only and
thereafter nothing happened except they
were served with the punishment order. To
contradict above submission, respondents,
despite repeated opportunity, could not
bring anything on record to show that oral
inquiry
was
conducted
with
due
participation of charged employees and
they were given due opportunity to cross
examine the witnesses.

27. Oral evidence recorded in a
departmental
inquiry
without
giving
opportunity to cross-examine is not
admissible in evidence, even though
Evidence Act, 1872 (hereinafter referred to
as "Act, 1872") is not applicable in
departmental inquiry. The statement of
such person is an ex-parte version with
which charged employee remained un-
confronted and such ex-parte version is in
the nature of hearse evidence which is not
admissible even in departmental inquiry.

28. Moreover, record clearly shows
that as per own stand taken by Inquiry
Committee, it held its meetings on five
dates,
i.e.,
30.04.1996,
07.06.1996,
02.08.1996, 03.08.1996 and 04.09.1996
but petitioners were called only on two
dates, i.e., 02.08.1996 and 03.08.1996 and
not others. Neither respondents' counsel
could explain nor anything has been
placed on record nor during the course of
argument, this Court could be informed of
any reason as to why Inquiry Committee,
as and when held its meetings for holding
oral inquiry, on all such dates charged
employees were not called. Therefore,
finding
of
guilt
recorded
against
petitioners, based on such inadmissible
evidence, amounts to holding petitioners
guilty in an inquiry held in utter violation
of principles of natural justice and the
same cannot be sustained in law.

29. There is another flaw in the
proceedings. Petitioners have quoted Rule
24.4 of the Ordinance dealing with
departmental
proceedings,
and
in
particular, action on the inquiry report. Its
applicability is not disputed before this
Court. It reads as under:

"24.4
If
the
disciplinary
authority having regard to its findings on
all or any of the articles of charge is of the
opinion that any of the penalties specified
in clauses (v) to (ix) of rule 20 should be
imposed on the employee, it shall:

(a) Furnish to the employee a
copy of the report of the inquiry held by it
and its findings on each article of charge,
or where the inquiry has been held by an
inquiring authority appointed by it, a
copy of the report of such authority and a
statement of its findings on each article
of charge together with brief reasons for
the inquiring authority.

(b) Give the employee a notice
stating the penalty proposed to be
imposed on him and calling upon him to
submit within fifteen days of receipt of the
notice or such further time not exceeding
fifteen days, as may be allowed, such
representation as he may wish to make on
the proposed penalty on the basis of the
evidence adduced during the inquiry held
under rule 23.

The disciplinary authority shall
consider the representation, if any, made
by the employee in pursuance of the notice
given to him under clause (1) and
determine what penalty, if any, should be
imposed on him and made such order as it
may deed fit. (emphasis added)
1 All. Ram Jatan Vs. Banaras Hindu University & Anr.
1845

30. Above Rule clearly says that
Disciplinary Authority having regard to
finding on the charge if, of the opinion that
any of the penalty specified in Clauses (v)
to (ix) of Rule 20 should be imposed, then
it shall furnish a copy of report of inquiry
and also its own findings, if any, and give
the employee an opportunity informing
him about proposed penalty to submit his
reply
and
after
considering
his
representation, if any, only thereafter an
order of punishment, if necessary, would
be passed.

31. In the present case, learned
counsel appearing for BHU could not
dispute that no inquiry report was
furnished
to
petitioners.
In
fact,
respondents treated the charge-sheet and
reply submitted by petitioners as also
petitioners' participation on 2nd and 3rd
August' 1996 before Inquiry Committee to
be sufficient compliance of requirement of
Rule 24.4. In this regard, I may reproduce
Para-14 of WP-1 and its reply contained in
para-20 of Counter Affidavit submitted by
BHU in WP-1 as under:

"14. That petitioner was served
with the impugned order dated 26-11-96
by means of which services of the
petitioner
were
terminated
by
the
Registrar. That it is pertinent to mention
here that no Show cause was ever issued
to the petitioner before inflicting the
ultimate
punishment
i.e.
order
of
termination."

"20.
That
the
contents
of
paragraph no. 14 of the writ petition are
wrong and denied. In reply, it is stated that
it is wrong to allege that no show cause
was ever issued to petitioner before
inflicting the order of termination. In fact
the petitioner was directed to submit his
written defence of the office memorandum
dated 10/12.4.1996 and thereafter he was
accorded sufficient opportunity of hearing
vide letter dated 23.7.1996 of the Assistant
Register (Admit) II, BHU. Since the
petitioner and other accused were caught
red handed in the incident of theft and the
charges
levelled
against
them
were
established by the Disciplinary enquiry
committee, as such the services of the
petitioner was terminated vide letter dated
26.11.1996
after
initiating
proper
disciplinary proceedings by the respondent
university under Ordinance 23 governing
the terms and conditions of service of the
non-teaching employees of the University."

32. Learned Senior Counsel, Sri
Upadhyay, when confronted to the above
pleadings, could not dispute that after
receiving inquiry report, it was never
supplied to petitioners and this is virtually
an admitted fact from the pleadings of
University also. There is nothing to
contradict it. Therefore, even procedure
laid down in Rule 24 of Ordinance, which
is consistent to principles of natural justice
made with an intention to give adequate
opportunity of defence to employee
concerned, has not been followed by BHU.

33. In a departmental inquiry an
employee is entitled to be given adequate
opportunity of defence and if a particular
procedure is prescribed in relevant Rules,
employer is bound to follow and observe the
same in words and spirit and violation thereof
would vitiate an order of punishment.

34. In view of above discussion, I
have no hesitation in holding that
impugned orders of punishment cannot be
sustained.

35. In the result, writ petitions are
allowed.
Impugned
orders
dated
1846 INDIAN LAW REPORTS ALLAHABAD SERIES
26.11.1996 are hereby quashed and the
orders
dated
07.01.2004
whereby
representation
of
petitioner
in
Writ
Petition No. 21669 of 2004 and Writ
Petition No. 21210 of 2004 have been
rejected are also set aside.
----------
(2020)1ILR 1845

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ-A No. 21944 of 2003

Smt. Dulari Devi & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri M.D. Mishra, Sri J.H. Khan, Sri N.H.
Khan, Sri W.H. Khan, Sri Ramanuj Pandey,
Sri Awadhesh Kumar

Counsel for the Respondents:
Sri A.N. Roy, A.S.G.I., Sri Arun Kumar, Sri
Arvind Srivastava, Sri Ashok Singh, Sri
B.N. Singh, Sri K.C. Shukla, Sri K.C. Sinha,
Sri K.C. Srivastava, Sri K.K. Shukla, Sri
R.S. Mishra, S.S.C.

A. Service - Retrenchment - Industrial
Disputes Act, 1947: Section 25-L(b)(ii),
25-K, 25-N, 25-N(1)(a), 25-N(2), 25N(3), 25-N(9), 25-S; Industrial Disputes
Rules, 1957: Rule 76-A; Constitution of
India: Art. 77; Companies Act, 1956:
Section
619,
620;
Sick
Industrial
Companies
(Special
Provisions)
Act,
1985: Section 3(1)(o);

VSS is a well-recognized mode of "Golden
Handshake"
principle
known
in
the
business
world
-
Circular
dated
16.09.2002 circulating VSS was not found
illegal and arbitrary - Facts demonstrate the
genuineness of claim of respondent-Employer
that it had sustained losses, became sick to the
extent of incapable of revival/ rehabilitation,
hence, its closure was found appropriate.
Petitioners could not demonstrate any of the
terms and conditions, to be unreasonable,
illegal or against public policy so as to justify
interference by this Court. Opting of VSS by all
employees
i.e.
5712
(except-11
i.e.
petitioners), also shows that terms and
conditions of VSS are reasonable and almost all
employees were satisfied with them. (Para 47,
50 to 53)

B. Every individual company incorporated
and
registered
is
a
separate
and
independent entity and employees of
such company, as a matter of right,
cannot claim employment in another
company since every company has its own
right in its individual employer and has its own
authority and power to make appointment of
its employees. Promotor of FCIL is GOI, as it
holds 100% shares of FCIL. But it still is an
independent and separate legal entity, different
from its Promotor. Employees of such company
cannot be said to be employees of Central
Government or Promoters of Company.

Petitioners could not show any legal or
otherwise right to claim that FCIL has
obligation
to
ensure
their
absorption/rehabilitation or re-employment or
continued
employment
in
any
other
company/department of Central Government.
No appointment in any manner can be made
on any post in the department of Government
contrary to statutory provisions made for such
recruitments and appointments. (Page 55, 56,
73 & 74)

C. Sufficient compliance with procedure
prescribed - Facts indicate that workmen
concerned have been given notice in writing as
required u/s 25-N(1)(a). A copy of application
was sent by speed post as required u/s 25N(2). Petitioners also availed opportunity of
hearing given by the Government Department.
After
receiving
approval
from
GOI,
retrenchment orders along with retrenchment
compensation were sent to petitioners by
registered post, which they refused to receive.
Therefore,
there
is
no
illegality
in
retrenchment/termination. (Para 82 to 90)