# Sandeep Kumar Pathak v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-20
- **Case number:** Writ-A No. 18432 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-kumar-pathak-v-state-of-u-p-ors-51978
- **Pages:** 8

## Headnote

(A) Service Law - Disciplinary case against
an employee - Inquiry officer did not
conduct a proper inquiry - no evidence led
by establishment to prove charges against
petitioner - instead merely juxtaposing the
charges and the employee's defense -
establishment failed to prove the charges
through evidence, both documentary and
oral - inquiry officer assumed the charges
to
be
true
without
requiring
the
establishment to prove them - In a
disciplinary case involving a major penalty,
the Establishment must prove the charges
by leading both documentary and oral
evidence in a formally convened inquiry
and cannot assume the charges to be true
without evidence.(Para - 7, 8, 13,21,23)

HELD: - Impugned orders are vitiated and
must be quashed. Proceedings must be taken
again from the stage of the charge-sheet if the
respondents desire to pursue them. Orders the
reinstatement of the petitioner in service
immediately. Directs the payment of current
salary
to
the
petitioner
regularly.
If
respondents pursue fresh proceedings, the
issue of arrears will be decided based on the
outcome of those proceedings. If respondents
do not pursue fresh proceedings, the petitioner
will be entitled to 50% of the arrears of their
emoluments for the period they were out of
service.(Para - 23 to 25)

Writ Petition Allowed. (E-7)

List of Cases cited:

## Text

5 All. Sandeep Kumar Pathak Vs. State of U.P. & Ors.
1141
CEO recording his decision on the
petitioner's claim.

17. There shall be no order as to
costs.

18. The Registrar (Compliance) is
directed to communicate this order to the
Assistant General Manager, Bank of
Baroda, Regional Office, Fatehpur, the
Regional Head, Bank of Baroda, Fatehpur
Region, Fatehpur and the Senior Branch
Manager, Bank of Baroda, Branch Khaga,
District Fatehpur.
----------
(2024) 5 ILRA 1141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 18432 of 2023

Sandeep Kumar Pathak ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Akhilesh Chandra Srivastava, Sr. Advocate

Counsel for the Respondent:
C.S.C.

(A) Service Law - Disciplinary case against
an employee - Inquiry officer did not
conduct a proper inquiry - no evidence led
by establishment to prove charges against
petitioner - instead merely juxtaposing the
charges and the employee's defense -
establishment failed to prove the charges
through evidence, both documentary and
oral - inquiry officer assumed the charges
to
be
true
without
requiring
the
establishment to prove them - In a
disciplinary case involving a major penalty,
the Establishment must prove the charges
by leading both documentary and oral
evidence in a formally convened inquiry
and cannot assume the charges to be true
without evidence.(Para - 7, 8, 13,21,23)

HELD: - Impugned orders are vitiated and
must be quashed. Proceedings must be taken
again from the stage of the charge-sheet if the
respondents desire to pursue them. Orders the
reinstatement of the petitioner in service
immediately. Directs the payment of current
salary
to
the
petitioner
regularly.
If
respondents pursue fresh proceedings, the
issue of arrears will be decided based on the
outcome of those proceedings. If respondents
do not pursue fresh proceedings, the petitioner
will be entitled to 50% of the arrears of their
emoluments for the period they were out of
service.(Para - 23 to 25)

Writ Petition Allowed. (E-7)

List of Cases cited:

1. St. of U.P. & ors. Vs Saroj Kumar Sinha, (2010)
2 SCC 772

2. Roop Singh Negi Vs Punj. National Bank & ors.,
(2009) 2 SCC 570

3. St. of Uttaranchal & ors. Vs Kharak Singh,
(2008) 8 SCC 236

4. St. of U.P. & anr. Vs Kishori Lal an anr., 2018
(9) ADJ 397 (DB)(LB)

5. Smt. Karuna Jaiswal Vs St. of U.P., 2018 (9)
ADJ 107 (DB)(LB)

6. St. of U.P. Vs Aditya Prasad Srivastava & anr.,
2017 (2) ADJ 554 (DB)(LB)

(Delivered by Hon'ble J.J. Munir, J.)

1. his writ petition is directed
against an order of the Cane Commissioner,
U.P.,
Lucknow
dated
16.06.2023,
dismissing the petitioner, a Junior Clerk
from service after disciplinary proceedings.
Also impugned is an appellate order of the
State
Government
dated
18.09.2023
affirming the Disciplinary Authority.
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
2. The facts, giving rise to this writ
petition, are that the petitioner's father
Bhanu Dutt Pathak was employed as a Cane
Supervisor with the Sugarcane Department
of the State. He died in harness. The
petitioner
applied
for
compassionate
appointment, and after consideration of his
candidature, was appointed a Junior Clerk
by the Deputy Cane Commissioner, Eastern
Region, Gorakhpur, vide his order of the
13th March, 2008. The petitioner joined
service immediately and has been rendering
it, as he says, steadfastly. The petitioner also
asserts that his work and conduct has been
satisfactory and no occasion arose for
anyone to complain against, either his work
or conduct.

3.
On 09.01.2022,
the
Chief
Development Officer, Basti
issued a
communication to the Heads of different
departments of the District for sparing two
Clerks/Computer Assistant on 10.01.2022
for their presence at, something described by
the petitioner, as Integrated Command and
Control Centre, Vikas Bhawan, Basti (for
short, the 'ICCC'), in deference to the
directions issued by the District Magistrate
for the purpose of effective instruction in
vaccination details pertaining to the CoViD19 Omicron Variant. The Senior Cane
Development Inspector, by an order dated
10.01.2022, directed the petitioner to be
present at the ICCC, Vikas Bhawan. In
compliance, the petitioner reported at the
ICCC, Vikas Bhawan and discharged all
assigned work to him until 26.03.2022. On
26.03.2022, the Chief Development Officer,
Basti passed an order to the effect that for
the present CoViD-19 was almost not there
and proceeded to relieve all the employees
attached at the ICCC, Vikas Bhawan for
resuming their normal duties. Upon being
relieved, the petitioner submitted his joining
report before the Senior Cane Development
Inspector on 28.03.2022. On 28.03.2022
itself, the Senior Cane Development
Inspector also issued orders to the petitioner
allocating
him
work.
The
petitioner
continued to discharge his duties and it was
business as usual.

4. On the 5th of April, 2022, the
petitioner fell ill. An intimation of the fact
was given by the petitioner by an application
dated 06.04.2022. The application aforesaid
was also accompanied by his medical report
and prescription. The petitioner, however,
did not regain health immediately and
remained under constant medical treatment.
In support of the fact, he has placed on
record his medical reports and prescriptions
of successive dates between 20.04.2022 to
20.06.2022.

5. On 06.05.2022, departmental
proceedings were instituted against the
petitioner and the District Cane Officer,
Gonda was appointed the Inquiry Officer.
The aforesaid order was followed by a
departmental charge-sheet. Pending the
aforesaid
proceedings,
the
Cane
Commissioner proceeded to pass an order
dated 07.12.2022, placing the petitioner
under suspension pending inquiry. The
petitioner was in the first instance issued a
charge-sheet dated 15.06.2022, carrying
four charges. Subsequently, another chargesheet was issued on 22.06.2022 carrying two
charges.
The
petitioner
submitted
a
composite reply to the two charge-sheets
dated 15.06.2022 and 22.12.2022, on
11.01.2023, denying the charges and raising
pleas in defence. While submitting his reply
to the charge-sheets, the petitioner requested
for an oral hearing. On 13.01.2023, the
Inquiry Officer issued a notice fixing
20.01.2023 as the date of hearing. However,
information of the aforesaid date was sent to
the petitioner on 20.01.2023, which was the
5 All. Sandeep Kumar Pathak Vs. State of U.P. & Ors.
1143
date fixed. It is on this account that the
petitioner was not able to participate in the
scheduled hearing on 20.01.2023.

6. The petitioner made an
application
dated
20.01.2023
seeking
adjournments of the inquiry proceedings.
The petitioner's request was accepted and
the inquiry adjourned to 25.01.2023. On
25.01.2023, the petitioner appeared before
the Inquiry Officer.

7. It is averred in paragraph no. 23
that the Inquiry Officer did not hold any kind
of inquiry on the said date. No evidence of
any kind was led by the Establishment to
prove the charges against the petitioner. No
oral testimony was given to prove any of the
documents sought to be relied upon against
the petitioner. In paragraph no. 24, it is
averred that the Inquiry Officer on
25.01.2023 put certain questions to the
petitioner and required him to answer the
same. And that was all.

8. The Inquiry Officer, without
holding an inquiry in accordance with
salutary principles in a matter, where a
major penalty may be imposed, proceeded to
hold all the six charges proved by his report
dated 03.02.2023. On 15.03.2023, the Cane
Commissioner issued a notice to the
petitioner along with a copy of the inquiry
report, granting him time to file his
objections. On 22.04.2022, the petitioner
filed his objections to the inquiry report and
also requested a de novo inquiry through an
unbiased
Inquiry
Officer.
No
action
whatsoever was taken on the basis of the
petitioner's reply to the second show cause.
Instead, the Commissioner issued a notice
dated 26.05.2023 scheduling 08.06.2023 as
the date for personally hearing the petitioner.
Upon receipt of the said notice, the
petitioner filed a further representation dated
30.05.2023. However, no action was taken
on the petitioner's representation last
mentioned.
On
16.06.2023,
the
Commissioner proceeded to pass the
impugned order dismissing the petitioner
from service. The petitioner challenged the
order passed by the Cane Commissioner, his
Disciplinary Authority by filing an appeal to
the State Government on 06.07.2023. The
appeal
lay
dormant
with
the
State
Government.

9. Accordingly, the petitioner
moved this Court by means of Writ-A No.
1279 of 2023, seeking a direction to the
State Government to decide the appeal. The
writ petition filed by the petitioner was
disposed of vide order dated 17.08.2023,
ordering
the
Principal
Secretary,
Department of Sugar Industries and Cane
Development,
Government
of
U.P.,
acting for the State Government, to
decide the petitioner's pending appeal by
a reasoned and speaking order within a
month and communicate the result to the
petitioner within a week of recording the
order made.

10. In compliance with the orders of
this Court dated 17.08.2023, the State
Government rejected the petitioner's appeal
vide order dated 18.09.2023. Aggrieved by
the orders dated 16.06.2023 and 18.09.2023,
the petitioner has instituted this petition
under Article 226 of the Constitution.

11. A notice of motion was issued
on 08.11.2023 and a counter affidavit filed
on behalf of respondent nos. 2, 3 and 4 on
05.12.2023. Learned Counsel for the
petitioner waived his opportunity to file a
rejoinder.
Parties
having
exchanged
affidavits, this petition was admitted to
hearing,
which
proceeded
forthwith.
Judgment was reserved.
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Heard Mr. Akhilesh Chandra
Srivastava,
learned
Counsel
for
the
petitioner and Ms. Monika Arya, learned
Additional
Chief
Standing
Counsel
appearing on behalf of the respondents.

13. In answering the case of the
petitioner that no evidence, oral or
documentary
was
produced
by
the
Establishment to prove the charges, no
inquiry was held worth the name and that the
Inquiry officer did nothing more than
interrogate the petitioner as pleaded in
paragraph nos. 23 and 24 of the writ petition,
the respondents have pleaded in paragraph
no. 14 of the counter affidavit as follows:

"14. That the contents of paragraph
nos. 20, 21, 22, 23, and 24 of the writ
petition are not admitted in the manner
stated hence denied, in reply thereto, it is
submitted that enquiry officer, District Cane
Officer, Gonda vide his letter dated
13.01.2023 fixed the date for personal/oral
hearing of the petitioner on 20.01.2023 and
directed the petitioner to be present on the
date fixed but petitioner did not come on the
date fixed for oral hearing on 20.1.2023
rather vide his letter dated 20.01.2023 which
was received in the office on 23.01.2023
informed that he got the information of the
oral hearing on 20.01.2023 at 11.00 A.M.
and in such situation it is not possible for
him to reach on the fixed date so he may be
granted a week time. Petitioner was again
directed to be present for oral hearing on
25.01.2023 vide letter dated 20.01.2023.
Petitioner was present on the date fixed for
oral hearing on 25.01.2023 and replied in
writing to the questions asked that, "he has
to say nothing except his reply dated
12.01.2023". True copy of the letters dated
13.01.2023 and 20.01.2023 are being
collectively annexed herewith and marked
as Annexure CA-9 to this counter affidavit."
14. The six charges against the
petitioner, four carried in the charge-sheet
dated 15.06.2022, read thus:

"आरोप सांख्यर-1
आरोप है दक ज्येष् गन्नर दवकरस दनरीक्षक बस्ती के पत्
सांख्यर 467-68 दिनरांक 21.03.2022, जो दजिर गन्नर
अदिकररी, बस्ती को सम्बोदित तथर अपर गन्नर आयुक्त (प्रशरसन)
को पृष्रांदकत है, र्ें आपको आई.सी.सी.सी. दवकरस िवन सिरगरर
र्ें कोदवड-19 (वैररयन्ट ओर्ीिोन) के प्रिरवी रोकथरर् हेतु
वैदलसनेशन सम्बन्िी करयम सर्रप्त हो जरने तथर दविरन सिर सरर्रन्य
दनवरमचन-2022 सम्पन्न हो जरने के उपररन्त िी आप गन्नर दवकरस
पररषि, बस्ती के करयरमिय र्ें उपदस्थत नहीं हुए तथर पररषि करयरमिय
र्ें अनुरदक्षत उपदस्थत पांदजकर पर अपनर हस्तरक्षर िी नहीं दकयर।
आरोप सांख्यर-2
आरोप है दक अपर गन्नर आयुक्त प्रशरसन करयरमिय
आयुक्त, गन्नर एवां चीनी, उ.प्र. िखनऊ के आिेश सांख्यर
160/सो/1974/स्थर./दिदपक/दिनरांक 11.04.2022 द्वररर
आपको गन्नर दवकरस पररषि बस्ती से स्वतः करयमर्ुक्त करते हुए
कन्रोि रूर् टोि फ्री, र्ुख्यरिय से आबद्ध दकयर गयर। उक्त आिेश
के िर् र्ें ज्येष् गन्नर दवकरस दनरीक्षक, बस्ती के पत् सांख्यरः13/सी,
दिनरांक 11.04.2022 द्वररर आपको नव तैनरती/आबद्धीकरण
स्थरन पर योगिरन करने हेतु दनिेदशत दकयर गयर। ज्येष् गन्नर दवकरस
दनरीक्षक बस्ती द्वररर आपको व्हरट्सएप र्ोबरइि पर वरतरम कर बस्ती
दस्थत स्थरनीय आवरस पर नोदटस चस्पर तथर स्थरयी पते पर पांजीकृत
डरक के र्रध्यर् से दिनरांक 05.04.2022 से उपयुमक्त आिेश के
तत्करि अनुपरिन हेतु आपको सांसूदचत दकयर गयर, परन्तु आपने
आिेश कर परिन नहीं दकयर। पयरमप्त सर्य व्यतीत हो जरने के उपररन्त
आप द्वररर दिनरांक 18.04.2022 को डरक के र्रध्यर् से दिनरांक
05.04.2022 से ज्येष् गन्नर दवकरस दनरीक्षक को अचरनक
तदबयत खररब होने कर दचदकत्सर अवकरश कर प्ररथमनर पत् पूणम स्वस्थ
होने तक प्रेदषत दकयर गयर। स्वरस्थ खररब होने की सूचनर आपको
ज्येष् गन्नर दवकरस दनरीक्षक को र्ोबरइि अथवर अन्य सम्पकम सूत्
द्वररर िेनी चरदहए थी, परन्तु आप द्वररर ऐसर नहीं दकयर गयर। आपने
प्ररथमनर पत् र्ें दिनरांक 05.04.2022 से स्वरस्थ खररब होने की
सूचनर पांजीकृत पत् दिनरांक 18.04.2022 को प्रेदषत की गयी, जो
करफी दविम्ब से िी गयी है।
आरोप सांख्यर-3
ज्येष् गन्नर दवकरस दनरीक्षक, बस्ती द्वररर दिनरांक
31.03.2022 को पररषि करयरमिय कर दनरीक्षण करने के िौररन
पूवरमन्ह 10.20 बजे आप अनुपदस्थत परये गये। उक्त दतदथ को आप
5 All. Sandeep Kumar Pathak Vs. State of U.P. & Ors.
1145
अपररन्ह 02.00 बजे आकर उपदस्थत पांदजकर पर पूवरमन्ह 10.25
कर सर्य अांदकत कर र्नर्रने ढांग से हस्तरक्षर बनरयर गयर। इसके पूवम
िी ज्येष् गन्नर दवकरस दनरीक्षक, बस्ती के द्वररर दिदखत व र्ौदखक
रूप से दिये गये दनिेशों के उपररन्त िी आप करयरमिय सर्य से न
आने तथर उपदस्थदत पांदजकर पर र्नर्रने ढांग से हस्तरक्षर करने के
सम्बन्ि र्ें आपसे स्पिीकरण की र्रांग की गयी, परन्तु आप द्वररर अपने
करयम प्रणरिी र्ें कोई सुिरर नहीं िरयर गयर।
आरोप सांख्यरः-4 उत्तर प्रिेश सरकररी आचरण
दनयर्रविी 1956 कर उल्िांघन करनर।
आपके उपयुमक्त कृत्यों से दविरगीय शुदचतर खदण्डत हुई
तथर आर् जनर्रनस र्ें दविरग की छदव खररब हुई। इस प्रकरर आप
दविरगीय दनयर्ों/दनिेशों की अवहेिनर करने, अपने कृत्यों/िरदयत्वों
कर र्खौि उडरने अपने पिीय कतमव्यों कर परिन न करने कर आरोप
है।"

15. Likewise, in the supplementary
charge-sheet
dated
22.12.2022,
the
following two charges figure thus:

"आरोप सांख्यर-1
जरांच अदिकररी/दजिर गन्नर अदिकररी, गोण्डर के स्तर
से दनगमत आरोप पत् को अनेकों बरर आपके स्थरनीय/स्थरयी आवरस
पर प्ररप्त कररये जरने, व्हरट्सएप पर सूदचत दकये जरने, स्थरनीय एवां
स्थरयी आवरस पर पांजीकृत डरक से प्रेदषत दकये जरने, आपके आवरस
पर आरोप पत् को चस्पर कर सांसूदचत दकये जरने के बरवजूि िी आप
द्वररर आरोप पत् प्ररप्त नहीं कर आिेश की अवहेिनर करते हुए
जरबूझकर ररजकीय करयम को बरदित करने, स्वरस्थ परीक्षण हेतु र्ुख्य
दचदकत्सर अदिकररी, बस्ती के सर्क्ष उपदस्थत होने हेतु दनगमत पत् को
प्ररप्त नहीं करने कर आरोप अपचररी करदर्मक पर है।
आरोप सांख्यर-2
अपचररी करदर्मक पर दजिर गन्नर अदिकररी, बस्ती के
पत् सांख्यरः1402/स्थर., दिनरांक 23.08.2022 द्वररर प्रित्त सूचनर
के अनुसरर ऊांचे रसूख के बि पर दवगत कई वषों से करयरमिय र्ें
र्नर्रने ढांग से उपदस्थत रहने व दविरगीय करयम न करने, कई बरर
र्ौदखक एवां दिदखत रूप से दनयर्रनुसरर दविरगीय करयम करने हेतु
सचेत दकये जरने के उपररन्त िी अपनी आित र्ें कोई सुिरर न करते
हुए करयरमिय सर्य से न आने, उपदस्थदत पांदजकर पर जबरिस्ती
हस्तरक्षर कर चिे जरने, सरकररी सेवर दनयर्ों कर परिन नहीं करने
एवां उच्चरदिकरररयों के आिेशों कर उल्िांघन करने, सरदजशन एवां
प्रदतशोिवश अपने व्यदक्तगत र्ोबरइि नां. 7007064009 कर
उपयोग कर छद्म व्यदक्त के नरर् से आई.जी.आर.एस. करके दविरग
की छदव िूदर्ि दकये जरने एवां कर्मचररी आचरण दनयर्रविी 1956
के दवरूद्ध करयम करने कर आरोप है।"

16. A perusal of the charges shows
that the first charge is about presence of the
petitioner in the ICCC, Vikas Bhawan
during the Covid control programme and the
ensuing Assembly elections, which the
petitioner says he attended and the
respondents charged him with unauthorized
absence. The second charge is about the
petitioner being attached to the headquarters
and it says that the petitioner was conveyed
the orders by the Senior Cane Development
Inspector vide his memo dated 11.04.2022.
It says that the Senior Cane Development
Inspector conveyed the petitioner the order
of his attachment to headquarters on a
Whatsapp call and via a mobile phone call,
besides conveying it through registered post.
The charges that the petitioner did not
comply with the order and join headquarters,
where he was attached by citing ill-health.
The third charge is about the petitioner's
absence from the Board office during
inspection done by the Senior Cane
Development Inspector on 31.03.2022, and
later on, the petitioner came back to the
office and signed the attendance register at 2
O'Clock. The charge is one about not
attending the office on time and petitioner
having his way with signing the attendance
register. In the supplementary charge-sheet,
the charge is about not acknowledging
service of a copy of the charge-sheet at his
local address and despite being called by the
District Cane Officer over Whatsapp, the
petitioner deliberately avoided receiving a
copy of the charge-sheet. The second charge
in the supplementary charge-sheet is about
his indifferent presence in the office and not
undertaking departmental duties despite
being warned in writing and orally in this
regard. It is also said that in the last charge
that there is no improvement in the
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner's ways of nonchalance towards
official duties. Part of the last charge is also
an allegation regarding forcibly signing the
attendance register.

17. Upon hearing the learned
Counsel for parties and perusing the
charges, this Court is of opinion that nature
of the charges are such that it would be
imperative
to
prove
them
for
the
Establishment not just by producing
documents, but examining witnesses. Even
otherwise, in a case involving the imposition
of a major penalty, the salutary principle is
that the Establishment must prove the
charge before the Inquiry Officer in a duly
constituted inquiry by producing evidence
through a Presenting Officer. The Inquiry
Officer must distance himself from the
Establishment, which he otherwise serves
and act as an impartial arbiter. He must not
believe or think that the charges in the
charge-sheet are proof of themselves.
Instead, he must know that it is the burden
of the Establishment, the employer, who
brings the charges to prove them in the first
instance
by
producing
documentary
evidence and examining witnesses. After
this burden is discharged through the agency
of
a
Presenting
Officer,
producing
documentary
and
oral
evidence,
the
chargesheeted employee has a right to crossexamine the Establishment's witnesses.
Once the Establishment have gone through
with their evidence, the Inquiry Officer must
give opportunity to the chargesheeted
employee to lead his defence evidence,
which can again be both documentary and
oral, that is to say, witnesses.

18. A perusal of the inquiry report
shows that all that the Inquiry Officer has
done is to juxtapose the charges and the
petitioner's defence in his reply and then
gleaning through idle papers on record,
recording findings on each of the charges.
There has been no evidence led before the
Inquiry Officer, at a duly constituted inquiry,
by the Establishment, to prove their case.
The oral inquiry of which the Inquiry
Officer speaks was no more than an
interrogation of the petitioner with the
Inquiry Officer putting him questions with
reference to the charges. An Inquiry officer
may
question
the
delinquent
at
an
appropriate stage, but if this is the only
exercise done in an inquiry, it is, in fact, no
inquiry in the eyes of law, on the basis of a
major penalty may be imposed. If the
Inquiry Officer, placing the charge-sheet
and the delinquent's reply together, puts
questions in the inquiry to the delinquent
and does nothing more, it shows that the
fundamental principle of a fair inquiry is
breached. It shows that the Inquiry Officer
assumes the charges to be correct and
requires the delinquent or the chargesheeted
employee to come up with a defence that
may dispel the charges. This cannot be the
procedure
to
be
adopted
in
formal
proceedings of a departmental inquiry,
involving the possible imposition of a major
penalty, as the case here. Here, the Inquiry
Officer has indeed done nothing to require
the Establishment to prove the charges. He
has held the charges proved because he has
assumed them to be true.

19. The nature of the charges here,
for instance about the petitioner forcibly
signing the attendance register, is something
which cannot be held proved because an
officer has complained in this regard against
the petitioner. If the charge is to be proved
on a written complaint of the officer, who
saw the petitioner forcibly or deviously
mark his attendance creating false record,
the fundamentals of a fair inquiry would
require that the author of the complaint must
be examined as a witnesses before the
5 All. Sandeep Kumar Pathak Vs. State of U.P. & Ors.
1147
Inquiry Officer and made available to the
delinquent for cross-examination. If this
charge is based on the oral evidence of other
employees
or
officers
reporting
the
petitioner forcibly marking his attendance,
the employees ought to have been produced
as witnesses before the Inquiry Officer
through a Presenting Officer and the
employee given an opportunity to crossexamine them.

20. Likewise, the charge about
absconding
from
the
ICCC
meeting
unauthorizedly, which the petitioner utterly
denies and says that he was throughout
present, also requires proof through the
testimony of some witness; not just the
written reports made by one or the other
officer.

21.
 The
principle
that
the
Establishment have to prove the charge in
the first instance in a matter involving the
imposition of a major penalty by leading
both documentary and oral evidence before
an inquiry formally convened, is well
established, going by the holding of the
Supreme Court in State of Uttar Pradesh
and others v. Saroj Kumar Sinha, (2010)
2 SCC 772, Roop Singh Negi v. Punjab
National Bank and others, (2009) 2 SCC
570, State of Uttaranchal and others v.
Kharak Singh, (2008) 8 SCC 236 and the
Bench decisions of this Court in State of
U.P. and another v. Kishori Lal an
another, 2018 (9) ADJ 397 (DB)(LB), Smt.
Karuna Jaiswal v. State of U.P., 2018 (9)
ADJ 107 (DB)(LB) and State of U.P. v.
Aditya Prasad Srivastava and another,
2017 (2) ADJ 554 (DB)(LB)

22. A perusal of the Inquiry
Officer's
report,
the
Disciplinary
Authority's
order
and
the Appellate
Authority's order as well, shows that all
singularly fall foul of the principle that
requires the Establishment to prove the
charges by producing evidence, both
documentary and oral. The Inquiry Officer
has committed a breach of this principle
himself by hardly holding an inquiry worth the
name and the Disciplinary Authority and the
Appellate Authority have committed a grave
error of law in not noticing this fundamental
flaw in the inquiry conducted by the Inquiry
Officer. Even if this point was not raised by the
delinquent, who is a layman, this fundamental
principle governing a departmental inquiry
where a major penalty may be imposed ought
to have been in the Disciplinary Authority and
the Appellate Authority's ken, who would
know the procedure to hold an inquiry,
involving a major penalty, much more than the
petitioner.

23. In the circumstances, this Court
is of opinion that the impugned orders are
vitiated, as also the inquiry report. The result
would be that proceedings would have to be
taken again, if the respondents desire to
pursue them from the stage of the chargesheet. Everything beyond the charge-sheet
has to be nullified.

24. In the result, this petition
succeeds and is allowed. The impugned
orders dated 16.06.203 passed by the
Commissioner,
Department
of
Sugar
Industries and Cane Development, U.P.,
Lucknow and the appellate order dated
18.09.2023 passed by the State Government
acting through the Principal Secretary,
Department of Sugar Industries and Cane
Development, U.P., Lucknow are hereby
quashed. The petitioner is ordered to be
reinstated in service forthwith and paid his
current salary regularly.

25. The question of arrears would
depend upon the respondents election to
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
pursue fresh proceedings against the
petitioner. If the respondents elect to pursue
fresh proceedings, the issue of arrears would
be for the respondents to decide dependent
upon the event in fresh proceedings to be
taken. If however, the respondents do not
elect to pursue fresh proceedings, the
petitioner would be entitled to 50% of the
arrears of his emoluments for the period that
he has remained out of service. If fresh
proceedings are pursued by the respondents,
it goes without saying that these would be
concluded expeditiously with which the
petitioner shall cooperate.

26. There shall be no order as to
costs.
----------
(2024) 5 ILRA 1148
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 19131 of 2023

Prem Chand ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Abhishe Pandey

Counsel for the Opp. Parties:
C.S.C., Rajiv Sharma

(A) Constitution Of India - Article 226 -
Scope of - does not apply to private
registered societies - which are not
governed by any statute or subject to State
control - Maintainability - The Uttar
Pradesh Khadi and Village Industries Board
Act, 1960 - The Uttar Pradesh Cooperative. Societies Act, 1965 - U.P. Cooperative Societies Employees Service
Regulations, 1975 - writ petition is not
maintainable against a private registered
society
(like
Kshetriya
Shri
Gandhi
Ashram) which is not an instrumentality of
the State and does not discharge any public
functions,
in
respect
of
employment
matters governed by its own rules and
regulations (such Khadi Ashram Seva
Niyamawali) - Article 12 - State or
Authority. (Para - 12 to 15)

Petitioner, a Supervisor at Kshetriya Shri Gandhi
Ashram - transferred after filing a complaint
against Ashram - for alleged forgery and misuse
of funds - inquiry was conducted, and bank
accounts were frozen - petitioner faced threats -
eventually dismissed without an inquiry - asked
to vacate official quarters - preliminary objection
- writ petition not maintainable - Khadi Ashram
Seva Niyamawali not a set of statutory rules that
can be enforced by a writ petition.
(Para -1 to
8)

HELD: - Preliminary objection raised by
respondents upheld. No violation of a public duty
or public obligation cast upon Kshetriya Shri
Gandhi Ashram. Writ petition not maintainable
against a private registered society (Kshetriya
Shri
Gandhi
Ashram),
which
is
not
an
instrumentality of the State and does not
discharge any public functions. (Para - 16)

Writ
Petition
Dismissed
as
not
maintainable. ( E-7)

List of Cases cited:

1. U.P. St. Cooperative Land Development Bank
Ltd. Vs Chandra Bhan Dubey & ors., (1999) 1 SCC
741

2. Vijay Bihari Srivastava Vs U.P. Postal Primary
Co-operative Bank Ltd., 2002 (5) AWC 308

3. Air India Statutory Corpn. Vs United Labour
Union, (1997) 9 SCC 377: 1997 SCC (L&S) 1344

4. LIC Vs Escorts Ltd., (1986) 1 SCC 264

5. M.C. Mehta Vs U.O.I., (1987) 1 SCC 395: 1987
SCC (L&S) 37

6. S.S. Rana Vs Registrar, Coop. Societies & anr.,
(2006) 11 SCC 634