# Salomon v. A. Solomon and Company

- **Citation:** (2008) 2 ILRA 513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-01
- **Case number:** Civil Misc. Writ Petition No.58441 of 2006
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/salomon-v-a-solomon-and-company-41164
- **Pages:** 11

## Headnote

Constitution
of
India
Art
311(2)-
Dismissal order-without holding enquirywithout indicating the date time placeenquiry officer submitted report-without
supplying
the
copy
of
supporting
document-the
disciplinary
authority
ought to have either hold fresh enquiry
after affording opportunity of hearing or
to differ his opinion from enquiry reportdismissal order cannot sustain.

Held: Para 16

At any rate, in my considered opinion,
the case in hand is a case where there is
violation of principles of natural justice
of such a fundamental character, whose
violation itself is a proof of prejudice
which is self evident and court is not
required to insist for further proof of
prejudice. As held earlier that the fault
found in disciplinary inquiry is such a
fundamental character which cannot be
repaired, without having recourse of
holding fresh inquiry from the stage of
submission of reply of the charge-sheet.
Therefore, the impugned order passed by
the Respondent no 4 has to be held
nullity and void ab-initio which cannot
be sustained. Accordingly the same is
hereby
quashed.
In
the
result
the
petitioner is reinstated in service only for
limited
purpose
of
holding
fresh
disciplinary inquiry from the stage of
submission of reply of the charge sheet.
Case law discussed:
2006 (4) AWC 3719, 2005 (4) ESC 2899, 2004
(4) AWC 3536, 2006 (1) SAC 261, AIR 1963
SC 1719, A.I.R. 1962 S.C. 1348, 2005 ESC
2899, AIR 1984 SC 1227, AIR 1985 SC 1416,
1986 SC 1173, AIR 1988 SC 1000, AIR 1991
SC 471, AIR 1994 SC 1074, A.I.R. 1996 SC

## Text

2 All] Shyam Kumar V. State of U.P. and others
513
is slippery phrase as observed in Aron
Salomon V. A. Solomon and Company
Ltd.
1897
AC
22,
38:
See
also
observations
in
Lord
Howard
departmental enquiry Walden V. Inland
Revenue Commissioners, (1948) 2 All ER
825. In such cases it is better to find out
the intention of the legislature from the
words used by the natural meaning of the
words and the spirit and reason of the
law.
See
Cross
on
Statutory
Interpretation, Second Edition, page 21."

21. Thus, the judgment of the Apex
Court in Commissioner of Sales Tax is
also distinguishable and does not help the
petitioners in the present case.

22. As noticed above, the Division
Bench judgment in the case of Smt.
Krishna Devi (supra) as well as earlier
Full Bench judgment in the case of Shah
Chaturbhuj (supra) had considered the
similar issues in context of other Statutes
despite the finality of the order as
provided under U.P. Zamindari Abolition
and Land Reforms Rules. The Division
Bench in the case of Smt. Krishna Devi
(supra) held that revision under section
333 of the U.P. Zamindari Abolition and
Land Reforms Act, 1950 is not barred.
The revisional power provided under
section 48 is equally extensive and wide
as revisional power under section 333
U.P. Zamindari Abolition and Land
Reforms Act, 1950. Hence, the above
judgments apply to the facts of the present
case in full force. The Full Bench in the
case of Ram Swaroop (supra) after
noticing that finality has been attached to
an order passed by the Commissioner
under Rule 285-I, held that said order is
revisable under section 333 of U.P.
Zamindari Abolition and Land Reforms
Act, 1950.

23. The judgement in the case of
Ram Pujan (supra) also fully supports
the view taken by me in this case. In Ram
Pujan's case same question fell for
consideration as to whether an order
passed in appeal under Rule 109-A is
revisable. This Court after considering the
provisions
of
section
48
of
U.P.
Consolidation of Holdings Act, took the
view
that
Deputy
Director
of
Consolidation can exercise the powers
under section 48.

24. In view of the above discussions,
it is to be held that Director of
Consolidation is not precluded from
examining the correctness of an order
passed
by
the
Settlement
Officer
Consolidation under Rule 109 of the U.P.
Consolidation
of
Holdings
Rules.
Although
the
Deputy
Director
of
Consolidation in the impugned order has
not considered the submissions raised by
learned counsel for the petitioner but in
view
of
the
fact
that
respective
submissions have been examined in this
writ petition, I do not find it a fit case to
interfere in the impugned order, passed by
the Deputy Director of Consolidation
rejecting the objection of the petitioner
regarding maintainability of the revision.
In the result, the writ petition is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.58441 of 2006

Shyam Kumar

...Petitioner
Versus
State of U.P. and others ...Respondents
514 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Counsel for the Petitioner:
Sri. H.R. Misra
Sri. K.M. Misra

Counsel for the Respondents:
Sri. Nripendra Misra
Sri. S.N. Singh
S.C.

Constitution
of
India
Art
311(2)-
Dismissal order-without holding enquirywithout indicating the date time placeenquiry officer submitted report-without
supplying
the
copy
of
supporting
document-the
disciplinary
authority
ought to have either hold fresh enquiry
after affording opportunity of hearing or
to differ his opinion from enquiry reportdismissal order cannot sustain.

Held: Para 16

At any rate, in my considered opinion,
the case in hand is a case where there is
violation of principles of natural justice
of such a fundamental character, whose
violation itself is a proof of prejudice
which is self evident and court is not
required to insist for further proof of
prejudice. As held earlier that the fault
found in disciplinary inquiry is such a
fundamental character which cannot be
repaired, without having recourse of
holding fresh inquiry from the stage of
submission of reply of the charge-sheet.
Therefore, the impugned order passed by
the Respondent no 4 has to be held
nullity and void ab-initio which cannot
be sustained. Accordingly the same is
hereby
quashed.
In
the
result
the
petitioner is reinstated in service only for
limited
purpose
of
holding
fresh
disciplinary inquiry from the stage of
submission of reply of the charge sheet.
Case law discussed:
2006 (4) AWC 3719, 2005 (4) ESC 2899, 2004
(4) AWC 3536, 2006 (1) SAC 261, AIR 1963
SC 1719, A.I.R. 1962 S.C. 1348, 2005 ESC
2899, AIR 1984 SC 1227, AIR 1985 SC 1416,
1986 SC 1173, AIR 1988 SC 1000, AIR 1991
SC 471, AIR 1994 SC 1074, A.I.R. 1996 SC
1669.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. By this petition, the petitioner has
sought relief of writ of certiorari for
quashing the order dated 28.9.2006
(Annexure-9 of the writ petition) passed
by respondent no.4 namely Managing
Director, U.P. Sahkari Gram Vikas Bank
Ltd.,
Lucknow,
whereby
petitioner's
services have been dispensed with after
holding disciplinary inquiry against him
and the payment of salary was also denied
during the period of suspension except the
subsistence allowance already paid to him
nothing more paid to him.

2. The relief sought in the writ
petition rests on the assertions that while
working on the post of Assistant Field
Officer in U.P. Sahkari Gram Vikas Bank
Ltd, on account of some financial
irregularities
alleged
to
have
been
committed by the petitioner in Pilkhuwa
branch, Co-operative Land Development
Bank, Ghaziabad, a First Information
Report was also lodged against him and
he was arrested on 30.10.2004 but was
released on bail on 2.11.2004. Thereafter
he was placed under suspension on
3.11.2004 pending disciplinary inquiry
against
him.
Thereafter,
disciplinary
inquiry was initiated and a charge sheet
has been served upon him on 3.3.2005 by
the Inquiry Officer i.e. Deputy General
Manager of the Head Office, Lucknow
containing as many as six charges based
on
the
preliminary
inquiry
report,
conducted on 3.11.2004 ex-parte behind
the back of the petitioner. A copy of
charge sheet is on record as Annexure-l of
the writ petition. It is stated that from bare
perusal of it, it indicates that the charges
2 All] Shyam Kumar V. State of U.P. and others
515
levelled in the charge sheet were sought
to be proved either on the basis of inquiry
report of Ajay Pal Singh, Deputy
Manager, Head Office, Lucknow dated
17.11.2004 and/or on the basis of joint
inquiry report of Additional Collector,
(Land Acquisition) Irrigation, Ghaziabad
and Regional Manager of the Bank, but
material on the basis of which charges
levelled in the charge sheet were shown to
be proved, were not supplied to the
petitioner along with the charge sheet,
therefore, the petitioner sought inspection
of relevant documents vide his letter dated
9.3.2005, in pursuance thereof he was
permitted to inspect the record of
Pilkhuwa branch on 25.4.2005 but he
could not inspect all the documents, hence
sought further time to inspect the same
but on 27.4.2005 no further time was
given to the petitioner to make inspection
of the remaining records. However, some
how or other, he submitted his reply to the
charge sheet on the basis of available
materials denying the charges levelled
against him.

3. It is further stated that after
submission of reply of the charge sheet,
the Inquiry Officer without holding any
disciplinary inquiry against the petitioner
has
submitted
inquiry
report
dated
12.8.2005 against the petitioner. Before
submission of said inquiry report no
notice regarding the date and place of
disciplinary inquiry has been issued and
served upon the petitioner by the Inquiry
Officer nor he has, in fact, any knowledge
about the date and place of holding of
inquiry nor he could participate in the said
disciplinary inquiry. It appears that the
Inquiry Officer has prepared the inquiry
report against the petitioner and straight
way submitted the same on 12.8.2005 to
Disciplinary Authority in fact without
holding any disciplinary inquiry, who
acting upon the aforesaid inquiry report
issued and served a show cause notice
upon the petitioner vide order dated
9.3.2006 contained in Annexure-6 of the
writ petition proposing the punishment of
dismissal or the petitioner from service.
On receipt of show cause notice the
petitioner has submitted a comprehensive
reply on 25.4.2006 pointing out glaring
illegalities
in
holding
departmental
inquiry against him. Ultimately, the
Managing Director, vide order dated
28.9.2006 has dismissed the petitioner
from
service
by
taking
prior
approval/consent from U.P. Cooperative
Institutional Service Board as contained
in Annexure-9 of the writ petition.
Feeling aggrieved against which the
petitioner has filed above noted writ
petition.

4. The submission of Sri K.M.
Misra, learned counsel for the petitioner
in nutshell is that after submission of
reply of charge sheet since no notice
regarding the date and place of inquiry
has been communicated to the petitioner
and served upon him, therefore, the
petitioner could not participate in the said
inquiry. The inquiry report submitted by
the Inquiry Officer on 12.8.2005 was
prepared only on the basis of preliminary
inquiry report as revealed from it which
was never supplied to the petitioner either
along with charge sheet shown as
documents in support of charges or
thereafter nor it was proved before
Inquiry Officer while holding the said
disciplinary inquiry in accordance with
the provisions of law or principles of
natural justice, as such the said inquiry
report can be said to be no inquiry report
in the eye of law and could not have been
acted upon by the Disciplinary Authority.
516 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Secondly
learned
counsel
for
the
petitioner has further submitted that since
the aforesaid preliminary inquiry report
has never been proved in accordance with
the provisions of law before Inquiry
Officer, therefore, the same could not be
treated to be admissible piece of evidence
to be relied upon against the petitioner to
prove the charges levelled against him
and such preliminary inquiry report could
not be made basis in support of the
charges levelled in the charge sheet and
since except the aforesaid preliminary
inquiry report no other material has been
shown in support of the charges contained
in the charge sheet, therefore, the
petitioner could not be connected with the
aforesaid charges of misconduct levelled
against him, as it would be a case of no
evidence to establish the delinquency of
petitioner on the basis of admissible
evidence on record, therefore, impugned
order based on such inquiry report cannot
be sustained. In support of his aforesaid
submission learned counsel for the
petitioner placed reliance upon the
decisions rendered in Shiv Shanker
Saxena Vs. State of U.P. and others 2006
(4) AWC 3719, Gopal Chandra Sinha
Vs. State of U.P. and others 2005 (4)
ESC 2899, Rajendra Prasad Tripathi Vs.
State of U.P. and others 2004 (4) AWC
3536 and Bhupendra Kumar Misra Vs.
M.D., U.P.F.C. & others 2006 (1) SAC
261.

5. Contrary to it, Sri Nripendra
Mishra,
learned
counsel
for
the
respondents has submitted that before
passing
the
impugned
order
full
opportunity of hearing has been given to
the petitioner. In pursuance of earlier
direction of this Court Sri Nripendra
Mishra has also produced the record
before this Court at the time of hearing.
On the basis of record produced before
the Court Sri Nripendra Mishra has made
statement that the petitioner was given
opportunity of personal hearing before the
Managing Director of the Bank, who was
disciplinary authority of the petitioner and
he has appeared before the Managing
Director on 24.6.2006 before impugned
order was passed against him but except
to written reply earlier submitted by him,
he could not adduce any defence evidence
in support of his case. Therefore, the
petitioner cannot be heard on that count at
this stage before this Court and he cannot
blame the Disciplinary Authority on
alleged fault in disciplinary proceedings
held against him.

6. Heard Sri K. M. Misra, learned
counsel for the petitioner and learned
Standing
counsel
for
the
State
respondents and Sri Nripendra Misra for
Land Development Bank, Ghaziabad.

7. Having heard learned counsel for
the parties and on perusal of the records,
the
question
which
arises
for
consideration of this court is that as to
whether before the impugned order was
passed against the petitioner he was
afforded
reasonable
opportunity
of
hearing in consonance with the principles
of natural justice or not, if not, what
would be its effect?

8. In this connection it is to be
pointed
out
that
somewhat
similar
contention as raised by Sri Nripendra
Mishra had been rejected by Hon'ble
Apex Court more than four decades ago
in Meenglas Tea Estate Vs. The
Workmen AIR 1963 SC 1719 wherein
while stating the import of principles of
natural justice in domestic inquiry in para
2 All] Shyam Kumar V. State of U.P. and others
517
24 of the decision the Hon'ble Apex Court
has held as under:-

"It is an elementary principle that a
person who is required to answer a
charge must know not only the accusation
but also the testimony by which the
accusation is supported. He 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. This is the barest
requirement of an enquiry of this
character and this requirement must be
substantially fulfilled before the result of
the enquiry can be accepted. A departure
from this requirement in effect throws the
burden upon the person charged to repel
the charge without first making it out
against him. In the present case neither
was any witness examined nor was any
statement made by any witness tendered
in evidence. The enquiry, such as it was,
made by Mr. Marshall or Mr. Nichols
who were not only in the position of
Judges but also of prosecutors and
witnesses. There was no opportunity to
the persons charged to cross-examine
them and indeed they drew upon their
own knowledge of the incident and
instead
cross-examined
the
persons
charged. This was such a travesty of the
principles of natural justice that the
Tribunal was justified in rejecting the
findings and asking the Company to prove
the allegation against each workman de
novo before it. " '

9. In view of aforestated legal
position enunciated by Hon'ble Apex
Court it is clear that a person who is
required to answer a charge must know
not only the accusation but also the
testimony by which the accusation is
supported. He must be given 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 chance to rebut
evidence led against him. This is the
barest requirement of a domestic enquiry
and this requirement must be substantially
fulfilled before the result of inquiry can
be
accepted.
A
departure
from
requirement in effect throws the burden
upon the person charged to repel the
charge without first making it out against
him. In instant case there is nothing from
the records shown by Sri Nripendra
Mishra to indicate that before submission
of inquiry report on 12.8.2005 while
holding the petitioner guilty of charges
levelled against him, Inquiry Officer has
ever given any notice to the petitioner
indicating the date and place of holding
disciplinary inquiry against him, or the
petitioner has ever appeared before
Inquiry officer and participated in said
disciplinary inquiry. Besides this, Sri
Nripendra Mishra could not point out any
thing from record indicating as to whether
Inquiry Officer has ever conducted any
disciplinary inquiry before submission of
his inquiry report against the petitioner
wherein he has ever examined any
witness in support of the charges levelled
against the petitioner. There is no
indication from the record inasmuch as
from inquiry report itself as to whether
any person was ever examined to prove
preliminary inquiry report before the
Inquiry Officer, which was only material
in support of the charges levelled against
the petitioner. In such a situation it is very
difficult to accept the contention of
learned counsel for the respondents that
since the petitioner was given opportunity
to
appear
before
the
Disciplinary
518 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Authority in pursuance of which he
appeared before him on 24.6.2006 before
impugned order was passed against him,
therefore, he has been afforded adequate
opportunity to defend his case before
impugned action was taken against him.

10. In this connection I would make
the position further clear that even in the
ex-parte inquiry, the charges are to be
proved before Inquiry Officer even in
absence of delinquent employee under the
circumstances warranting for holding
such ex-parte inquiry such as where
despite notice or knowledge about the
date and place of disciplinary inquiry,
delinquent employee does not participate
in such disciplinary inquiry or fails to
participate in it, but not in other
circumstances like present case where no
notice was given to the petitioner
indicating date and place of disciplinary
inquiry. Hon'ble Apex Court in Imperial
Tobacco Co. Ltd. Vs. its workmen A.I.R.
1962 S.C. 1348 has held that even if an
employee refuses to participate in the
inquiry, the employer cannot straight way
dismiss him but he must hold an ex-parte
inquiry where the evidence must be led to
prove the charges levelled against him.
Therefore, in my opinion a distinction has
to be drawn between the cases of "no
inquiry" and "ex-parte inquiry". An exparte inquiry can be justified on principle
of waiver that despite notice and/or
knowledge about the date and place of
inquiry, the delinquent employee refuses
or fails to participate in disciplinary
inquiry whereas the case of "no inquiry"
can be justified only in a situation where
delinquent employee admits the charges
before the inquiry officer and not in other
situations as dealt with by this Court in
quite detail in Gopal Chand Sinha Vs.
State of U.P. and others 2005 ESC 2899
(pr. 17,18, 18-A).

11. In view of aforesaid settled legal
position, I am of the considered opinion
that unless aforesaid minimal requirement
of natural justice is complied with and the
respondents have made out a case first
against the petitioner in the manner
aforestated, it is not understandable as to
how the petitioner could rebut the
evidence which were not led before
Inquiry Officer to prove the charges
levelled against him and as to how he
could repel those charges without being
first made out against him even by
appearing
before
the
Disciplinary
Authority at that stage of disciplinary
proceeding. Therefore, in absence of
compliance
of
aforesaid
minimal
requirement of principle of natural justice,
in my opinion, the findings of Inquiry
Officer could not be accepted by the
Disciplinary Authority and only course
which was open to him was either to ask
the Inquiry Officer to hold fresh inquiry
from the stage of submission of reply of
charge sheet or to hold fresh disciplinary
inquiry himself from the aforesaid stage.

12. In this connection, at this
juncture, it is also necessary to point out
that there is a vast and fundamental
difference
between
two
stages
of
disciplinary inquiry, one before the
inquiry
officer
and
another
before
disciplinary authority if the disciplinary
inquiry is conducted by an officer other
than the disciplinary authority as found in
present case. In the first stage of the
proceeding the inquiry officer after
conducting such disciplinary inquiry
submits
his
inquiry
report
to
the
disciplinary authority by holding the
delinquent employee either guilty of
2 All] Shyam Kumar V. State of U.P. and others
519
charges found fully proved or partly
proved or by exonerating him from the
charges levelled in the charge sheet.
Thereupon at subsequent stage of the
proceeding for sake of convenience, I
may say second stage, if the disciplinary
authority agrees with the findings of
inquiry officer, contained in the inquiry
report, under which charges are found
fully or partly proved against the
delinquent employee, he gives show cause
notice to the employee along with the
findings of inquiry officer contained in
the inquiry report asking him to make
comments thereon, thereupon passes
appropriate final order in the matter. But
where he does not agree with the findings
of inquiry officer in cases where inquiry
officer exonerated or partly exonerated
the delinquent employee from the charges
levelled, he communicates his tentative
opinion of disagreement with inquiry
report along with the show cause notice
and after seeking comment thereon, takes
final decision in the matter. As stated
earlier
unless
first
stage
of
such
disciplinary proceeding is conducted
before inquiry officer in compliance of
aforesaid
minimal
requirement
of
principles of natural justice, in given facts
and circumstances of the case it is very
difficult to comprehend the situation
under which the petitioner could repel the
charges which were not proved before
inquiry officer even by appearing before
the Disciplinary Authority at the second
stage of the proceeding. At this stage of
proceeding unless the Managing Director
being
disciplinary
authority
of
the
petitioner either directs the Inquiry
Officer to hold inquiry de-novo from the
stage of reply of charge sheet or decides
to hold fresh disciplinary inquiry by
himself from the aforesaid stage, in my
opinion, no useful purpose could be
served on mere appearance of the
petitioner before the Managing Director,
as the fault pointed out by the petitioner in
said disciplinary inquiry proceeding are
such a fundamental in nature, which could
not be repaired by Disciplinary Authority
without
having
recourse
of
fresh
disciplinary proceeding from the aforesaid
stage.

13. In this connection I would like to
make it further clear that aforesaid
division of disciplinary proceeding in two
different stages indicated hereinbefore
should be understood only in common
parlance; it should not be understood in
legal parlance as synonymous of two
opportunities as were provided under
Article 311 (2) prior to Forty Second
Amendment of the Constitution. After
aforesaid amendment the provisions for
making representation against proposed
punishment has been deleted from the
provisions of Article 311 (2) of the
constitution. The effect of aforesaid
amendment under said Article has been
examined by the Hon'ble Apex Court in
Associated Cement Companies Ltd. Vs.
T.C. Srivastava AIR 1984 SC 1227,
Union
of
India
and
another Vs.
Tulsiram Patel AIR 1985 SC 1416, Ram
Chander Vs. Union of India AIR 1986
SC 1173, Union of India Vs. E. Bashya
AIR 1988 SC 1000. Union of India Vs.
Mohd. Ramzan Khan AIR 1991 SC 471
and Managing Director E.C.I.L Vs. B.
Karunakar AIR 1994 SC 1074. On such
examination in last two cases Hon'ble
Apex Court has held that the right to
receive the finding of inquiry officer
contained in inquiry report before any
action is taken thereon is part of
reasonable opportunity of hearing of an
employee to defend his case as an integral
part of principles of natural justice. This
520 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
aspect of the matter has been discussed by
Division Bench of this Court in quite
detail with the assistance of law laid down
by Hon'ble Apex Court from time to time
in Gopal Chandra Sinha Vs. State of
U.P. (supra).

14. Before concluding the issue, it
would also be useful to refer a decision of
Hon'ble Apex Court rendered in State
Bank of Patiala and others Vs. S.K.
Sharma A.I.R. 1996 SC 1669, wherein
after making survey of entire case law on
the question in issue in para 32 of the
decision (at page 1683-84 of the Report)
the Hon'ble Apex Court has summarised
the principles holding that these principles
are not exhaustive rather illustrative in
nature which are as under:-

"32.
We
may
summarise
the
principles emerging from the above
discussion. (These are by no means
intended to be exhaustive and are evolved
keeping in view the context of disciplinary
inquiries and orders of punishment
imposed by an employer upon the
employee):
(1) An order passed imposing a
punishment on an employee consequent
upon a disciplinary/departmental enquiry
in
violation
of
the
rules/regulations/statutory
provisions
governing such enquiries should not be
set aside automatically. The Court or the
Tribunal should enquire whether (a) the
provision violated is of a substantive
nature or (b) whether it is procedural in
character.
(2) A substantive provision has
normally to be complied with as explained
hereinbefore and the theory of substantial
compliance or the test of prejudice would
not be applicable in such a case.
(3) In the case of violation of a
procedural provision, the position is this:
procedural provision are generally meant
for affording a reasonable and adequate
opportunity
to
the
delinquent
officer/employee. They are, generally
speaking, conceived in his interest.
Violation of any and every procedural
provision cannot be said to automatically
vitiate the enquiry held or order passed.
Except cases failing under 'no notice', 'no
opportunity', 'no hearing' categories, the
complaint of violation of procedural
provision should be examined from the
point of view of prejudice, viz. Whether
such
violation
has
prejudiced
the
delinquent officer/employee in defending
himself properly and effectively. If it is
found that he has been so prejudiced,
appropriate orders have to be made to
repair and remedy the prejudice including
setting aside the enquiry and/or the order
of
punishment.
If
no
prejudice
is
established to have resulted therefrom, it
is obvious, no interference is called for. In
this connection, it may be remembered
that there may be certain procedural
provisions which are of fundamental
character, whose violation is by itself
proof of prejudice. The Court may not
insist on proof of prejudice in such cases.
As explained in the body of the judgment,
take a case where there is a provision
expressly
providing
that
after
the
evidence of the employer/Government is
over, the employee shall be given an
opportunity to lead defence in his
evidence, and in a given case, the Inquiry
Officer does not give that opportunity in
spite of the delinquent officer/employee
asking for it. The prejudice is self-evident.
No proof of prejudice as such need be
called for in such a case. To repeat, the
test is one of prejudice, i.e., whether the
person has received a fair hearing
2 All] Shyam Kumar V. State of U.P. and others
521
considering all things. Now, this very
aspect can also be looked at from the
point of view of directory and mandatory
provisions, if one is so inclined. The
principle stated under (4) hereinbelow is
only another way of looking at the same
aspect as is dealt with herein and not a
different or distinct principle.
(4) (a) In the case of a procedural
provision which is not of a mandatory
character, the compliant of violation has
to be examined from the stand point of
substantial compliance. Be that as it may,
the order passed in violation of such a
provision can be set aside only where
such violation has occasioned prejudice
to the delinquent employee.
(b) In the case of violation of a
procedural provision, which is of a
mandatory character, it has to be
ascertained whether the provision is
conceived in the interest of the person
proceeded against or in public interest. If
it is found to be the former, then it must
be seen whether the delinquent officer has
waived the said requirement, either
expressly or by his conduct. If he is found
to have waived it then the order of
punishment cannot be set aside on the
ground of said violation. If, on the other
hand, it is found that the delinquent
officer/employee has not waived it or that
the provision could not be waived by him,
then the Court or Tribunal should make
appropriate directions (include the setting
aside of the order of punishment), keeping
in mind the approach adopted by the
Constitution Bench in B.Karunakar, 1994
AIR SCW 1050. The ultimate test is
always the same, viz., test of prejudice or
the test of fair hearing, as it may be
called.
(5) Where the enquiry is not
governed by any rules/ regulations/
statutory
provisions
and
the
only
obligation is to observe the principles of
natural justice- or, for that matter,
wherever such principles are held to be
implied by the very nature and impact of
the order/action- the Court or the
Tribunal should make a distinction
between a total violation of natural justice
(rule of audi alteram partem) and
violation of a facet of the said rule, as
explained in the body of the judgment. In
other words, a distinction must be made
between
"no
opportunity"
and
"no
adequate opportunity", i.e. between "no
notice"/ "no hearing and no fair hearing".
(a) In the case of former, the order passed
would undoubtedly be invalid (one may
call it "void" or a nullity if one chooses
to). In such cases, normally, liberty will
be reserved for the authority to take
proceedings afresh according to law, i.e.
in accordance with the said rule (audi
alteram partem) has to be examined from
the stand-point of prejudice, in other
words, what the Court or Tribunal has to
see is whether in the totality of the
circumstances,
the
delinquent
officer/employee did or did not have a fair
hearing and the orders to be made shall
depend upon the answer to the said query.
(It is made clear that this principle (No.5)
does not apply in the case of rule against
bias, the test in which behalf are laid
down elsewhere).
(6) While applying the rule of audi
alteram partem (the primary principle of
natural
justice)
the
Court/Tribunal/
Authority must always bear in mind the
ultimate
and
overriding
objective,
underlying the said rule, viz" to ensure a
fair bearing and to ensure that there is no
failure of justice. It is this objective which
should guide them in applying the rule to
varying situations that arise before them.
(7) There may be situations where
the interests of State or public interest
522 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
may call for a curtailing or the rule of
audi alteram partem. In such situations
the
Court
may
have
to
balance
public/State interest with the requirement
of natural justice and arrive at an
appropriate decision. "

15. Although while stating the
aforesaid principles Hon'ble Apex Court
itself has observed that they are not
exhaustive, rather illustrative in nature,
but principles enunciated hereinbefore
have covered almost all the situations
which may arise in such disciplinary
inquiry, therefore, the facts of the case has
to be tested on the aforesaid principles.
While doing so I find that the case in hand
would come to a category of case akin to
case of 'no notice', 'no opportunity' and 'no
hearing' before submission of inquiry
report by the Inquiry Officer which was
acted upon by the Disciplinary Authority.
In view of aforesaid legal position it
cannot be held to be merely a case of "no
adequate opportunity" or "no fair hearing"
requiring the action to be tested further on
the touchstone of prejudice caused to the
employee on account of violation of rules
or any facet of principles of natural justice
for the simple reason that it is neither a
case of mere denial of cross-examination
of any witnesses, who were examined in
support of the charges nor the case of
non-supply of inquiry report along with
show cause notice, contrary thereto it is a
case where no notice about the date and
place of inquiry was given to the
petitioner and in fact neither any inquiry
nor even ex-parte inquiry was held before
inquiry officer as neither any witnesses
were examined nor any material shown in
support of the charges levelled against the
petitioner in the charge-sheet were proved
according to law or in consonance with
the principles of natural justice before
Inquiry Officer even in absence of the
petitioner. Therefore, question of any
cross-examination
or
denial
of
opportunity of such cross-examination by
Inquiry Officer does not arise in the
instant case.

16. As distinguished from ex-parte
inquiry, as stated earlier, it is case of "no
inquiry" wherein the inquiry officer did
not examine any witness and any material
in support of the charges. At any rate, in
my considered opinion, the case in hand is
a case where there is violation of
principles of natural justice of such a
fundamental character, whose violation
itself is a proof of prejudice which is self
evident and court is not required to insist
for further proof of prejudice. As held
earlier that the fault found in disciplinary
inquiry is such a fundamental character
which cannot be repaired, without having
recourse of holding fresh inquiry from the
stage of submission of reply of the
charge-sheet. Therefore, the impugned
order passed by the Respondent no 4 has
to be held nullity and void ab-initio which
cannot be sustained. Accordingly the
same is hereby quashed. In the result the
petitioner is reinstated in service only for
limited
purpose
of
holding
fresh
disciplinary inquiry from the stage of
submission of reply of the charge sheet.

17. However, during the period of
such inquiry to be held against the
petitioner, the petitioner shall be deemed
to be placed under suspension and be paid
his subsistence allowance, since deemed
suspension would relate back from the
date of initial order of suspension,
therefore, the petitioner shall be paid his
subsistence allowance from the date since
when his services were dispensed with, as
earlier to it he was paid subsistence but on
2 All] Kameshwar and others V. The Dy. Director of Consolidation and others
523
dismissal
he
could
be
paid
such
subsistence
allowance
during
the
pendency of writ petition till now but by
virtue of this order since his suspension
would be deemed to be revived from
initial date of suspension, therefore, he is
entitled for -Subsistence allowance for the
aforesaid period as admissible to him
under rule. The arrears of subsistence
allowance for the aforesaid period shall be
paid to him within one month from the
date of production of certified copy of this
order before the Disciplinary Authority
and only on payment of arrears of
subsistence allowance fresh disciplinary
inquiry shall be held against the petitioner
as indicated in this judgement. However,
such subsistence allowance shall be
continuously
paid
to
him
till
the
conclusion of inquiry.

18. With the-aforesaid observation
and direction, writ petition succeeds and
is allowed to the extent indicated
hereinabove.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.

Civil Misc. Writ Petition No. 3475 of 2008

Kameshwar and others ...Petitioners
Versus
The
Dy.
Director
of
Consolidation,
Kushinagar and others ...Respondents

Counsel for the Petitioners:
Sri. A.P. Tewari
Sri. S.S. Tripathi

Counsel for the Respondents:
Sri. R.C. Singh, S.C.
U.P. Consolidation of Holding Act 1953Section 48-Revision-Appeal decided by
S.O.C. on the basis of consent-petitioner
has
been
given
more
excess
land
consequent to low valuation-variation of
valuation not more than 25%-revision
against consent order-not maintainableunless the consent challenged before the
same
Court-petitioner
can
not
be
allowed
to
raise
technical
plea-Dy.
Director
rightly
refused
to
exercise
revisional power.

Held: Para 10
The less valuation plot having been
given, the petitioners' area has been
increased but it is relevant to note that
variation is not of more than 25% in the
original
area
of
the
petitioners
as
compared
to
the
area,
which
was
allotted in pursuance of the order of
Settlement Officer of Consolidation. Thus
the increase of the area by Settlement
Officer
of
Consolidation
of
the
petitioners and allotment of the less
valuation plot does not violate the
provisions
of
Section
19
of
U.P.
Consolidation of Holdings Act, 1953
moreso when the petitioners consented
that their chak on Plot No.1267 be
removed and the valuation be added on
Plot No.1170. The petitioners' father was
aware
of
the
consequence
because
valuation of the plot was already fixed
on the record. When the chaks were
modified by consent, the petitioners'
submission that their good quality land
was taken away and they were given
less valuation land cannot be heard.
Case law discussed:
1999(90) R.D. 212, AIR 1982 S.C. 1249, AIR
2003 Supreme Court 2418.

(Delivered by Hon'ble Ashok Bhushan. J.)

1. Heard Sri A.P. Tiwari, learned
counsel for the petitioners and Sri R.C.
Singh, learned counsel appearing for the
contesting respondents.