# Sanjay Sharma v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-08
- **Case number:** Writ-A No. 18272 of 2021
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-sharma-v-state-of-u-p-ors-52252
- **Pages:** 8

## Headnote

Law-Petitioner
dismissed
from
service-except for oral examination no oral
enquiry was held-no departmental witness
was examined-preliminary enquiry report not
proved-St.ment before the committee that
had held preliminary enquiry report was
against procedure prescribed for holding
major rnquiry-aggrieved-document required to
be proved-is to be proved either by person
who have answered it or by one who is
witness while the document being prepared
or examined or executed-any procedure if
not followed in getting a document provedfindings based on such report cannot be
relied-if law requires that something be
done in a particular manner, it must be
done that manner , and in no manner at allimpugned order bad in law-departmental
enquiry was not properly held-remitted for
fresh enquiry.

W.P. allowed. (E-9)

List of Cases cited:

## Text

7 All. Sanjay Sharma Vs. State of U.P. & Ors.
133
(2013) 12 SCC 179 the Hon'ble Supreme
Court held that "it is clear as crystal that
even if the court or tribunal directs for
consideration of representations relating to
a stale claim or dead grievance it does not
give rise to a fresh cause of action. The
dead cause of action cannot rise like a
phoenix. Similarly, a mere submission of
representation to the competent authority
does not arrest time."

22. The aforesaid decision has
been relied upon by the Hon'ble Supreme
Court in State of West Bengal Vs.
Debabrata Tiwari: 2023 SCC OnLine SC
219, where after submitting an application
in the year 2005-06 the petitioners did
nothing further to pursue the matter for a
period of ten years. The Hon'ble Supreme
Court held that such prolonged delay in
approaching the High Court may be
regarded as a waiver of a remedy and such
a delay would disentitle the writ petitioners
to the discretionary relief under Article 226
of the Constitution of India.

23. In view of the aforesaid
discussion, the Writ Petition filed in the
year 2024 claiming payment of difference
in salary for the period June 2006 to 2009,
i.e., that is after expiry of more than 15
years, suffers from latches and the same is
dismissed on this ground alone.
----------
(2024) 7 ILRA 133
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 18272 of 2021

Sanjay Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sr. Advocate

Counsel for the Respondents:
Sri Abhishek Srivastava, Sri Brajesh Pratap
Singh, C.S.C.

Service
Law-Petitioner
dismissed
from
service-except for oral examination no oral
enquiry was held-no departmental witness
was examined-preliminary enquiry report not
proved-St.ment before the committee that
had held preliminary enquiry report was
against procedure prescribed for holding
major rnquiry-aggrieved-document required to
be proved-is to be proved either by person
who have answered it or by one who is
witness while the document being prepared
or examined or executed-any procedure if
not followed in getting a document provedfindings based on such report cannot be
relied-if law requires that something be
done in a particular manner, it must be
done that manner , and in no manner at allimpugned order bad in law-departmental
enquiry was not properly held-remitted for
fresh enquiry.

W.P. allowed. (E-9)

List of Cases cited:

1. St. of Tamil Nadu Vs Pramod Kumar, IPS &
anr. (2018) 17 SCC 677

2. Managing Director ECIL Hyderabad etc. Vs B.
Karunakar etc. AIR 1994 SC 1074

3. Uttar Pradesh & ors. Vs Saroj Kumar Sinha
(2010)2 SCC 772

4. M/s Tata Chemicals Ltd. Vs Commissioner of
Customs (Preventive) Jamnagar (2015) 11 SCC
628 and 2022 8 SCC 713

5. Mahesh Narain Gupta Vs St. of U.P. & ors.
2011 (2) ILR 570

6. St. of U.P. & ors. Vs Kishori Lal & anr., 2018
(9) 397 (DB) (LB)
134 INDIAN LAW REPORTS ALLAHABAD SERIES
7. St. of U.P & ors. Vs Rajit Singh, 2022 (4) ADJ
295

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Ashok Khare, learned
Senior Advocate assisted by Sri Siddharth
Khare, learned counsel for the petitioner
and Sri Abhishek Srivastava, learned
counsel for respondent nos. 2 and 3 and Sri
Brajesh Pratap Singh, learned counsel for
respondent no. 4.

2. The petitioner before this Court
while working as Executive Engineer came
to be suspended on 5.10.2019 setting into
motion a regular disciplinary enquiry. It
transpires from the record that some
preliminary fact finding enquiry report was
submitted by a three member committee
constituted in that regard on 3rd April,
2020 and as a consequence thereof, a
regular
chargesheet
was
issued
on
26.10.2020 to the petitioner which as many
as three articles of charges to which
petitioner submitted a detailed reply on
31.12.2020 denying all the charges.

3. It further transpires that
thereafter an oral enquiry was held as per
chargesheet itself petitioner was issued
with notice by the enquiry officer to appear
before the enquiry committee and get
himself examined. In response to the same
petitioner did appear before the Enquiry
Committee on 15.2.2021 and an oral
statement was recorded, which has come to
be so noted on the order sheet of the
enquiry proceeding as has come to be
annexed alongwith counter affidavit as
Annexure CA-1. It has come further to be
noted therein that petitioner did not ask for
any other witness to be examined, nor did
he file any other document in addition to
what he had already submitted alongwith
reply. It is thereafter that oral enquiry was
stated to have been concluded and the final
enquiry came to be submitted indicting the
petitioner of the charges levelled in the
chargehseet. Soonafter the report was
submitted bringing home the charge by
enquiry committee on 15.2.2021, petitioner
was issued with a show cause notice to
which he submitted reply and finally his
reply having not been found satisfactory, he
was awarded with maximum punishment of
dismissal from service. Upon appeal being
preferred against the said order, it met the
same fate as his explanation offered to the
show cause notice not found satisfactory
and hence this petition.

4. Twin arguments advanced by
learned counsel for Senior Advocate
appearing for the petitioner:

 a. The chargesheet issued to the
petitioner was approved only by Managing
Director and Chairman of the U.P. Power
Corporation being appointing authority and
the disciplinary authority, the chargesheet
ought to have been issued only after
approval of the Chairman under the
relevant regulation. In the circumstances,
therefore, once the chargesheet was not
approved by the competent authority, the
entire enquiry pursuant thereto was taken to
be without lawful authority and resultantly
the order of dismissal from service was also
to be held bad; and

 b. Except for the oral examination
of the petitioner, no oral enquiry was held,
inasmuch, no departmental witness was
examined and enquiry officer instead of
getting preliminary enquiry report proved
before him proceeded to rely upon the same
and the statement made before the
committee that had held preliminary
enquiry report brought home the charge
7 All. Sanjay Sharma Vs. State of U.P. & Ors.
135
which was against procedure prescribed for
holding major enquiry.

5. Learned Senior Advocate has
relied upon the relevant regulations as
contained in 2021 Regulation.

6.

Meeting
the
arguments
advanced by learned Senior Advocate Sri
Abhishek Srivastava, learned counsel for
the respondent submitted that the Board of
Directors of the U.P. Power Corporation
Ltd. had adopted a resolution as back as on
28th April, 2010, by which Managing
Director have been conferred with power of
the disciplinary authority in all matters of
disciplinary proceeding and imposition of
various
penalties
except
penalty
of
dismissal, which power continues to be
vested with Chairman of Corporation. He
has brought on record the consequential
letter issued pursuant to resolution brought
by the Board of Director dated 28th April,
2010. He, therefore, argues that since at the
time of issuance of chargehseet, it could
not have been perceived as to whether
petitioner was to be awarded with major
penalty in the nature of dismissal from
service as it was to depend upon the
outcome of the enquiry report, therefore,
Managing Director was the competent
authority in the matter to approve the
chargesheet to set into motion a regular
disciplinary enquiry.

7. In so far as second argument
advanced by learned Senior Advocate is
concerned, Sri Srivastava has submitted
that from the perusal of the enquiry
report, it does appear that petitioner
demanded and yet no departmental
witness was examined. He, however,
submits before the Court that these pleas
were not taken either in reply to the show
cause notice, nor even at the stage of
enqiury when it was being conducted, nor
at the stage of appeal and so this may not
be open for the petitioner to raise two
issues here before the Court first time
under Article 226 of the Constitution. He
has also submitted that in the matter of
disciplinary enquiry, this Court will be
rarely interfering in exercise of its extra
ordinary jurisdiction of under Article 226
of the Constitution.

8. Meeting the argument, in
rejoinder affidavit, Mr. Khare has placed
the judgment of Supreme Court in the
case of State of Tamil Nadu v. Pramod
Kumar, IPS and Another (2018) 17
SCC 677, in which Supreme Court held
that if there is inherent flaw in framing of
the chargesheet then it goes to the root of
the matter of disciplinary proceeding
being de hors the beyond procedure and
so cannot result in valid imposition of
penalty. It is further submitted that it is
well settled legal proposition that when
rules require a thing to be done in a
particular manner then it should be done
in
that
manner
alone
M/s
Tata
Chemicals Ltd. v. Commissioner of
Customs (Preventive) Jamnagar (2015)
11 SCC 628 and 2022 8 SCC 713

9. Having heard learned counsel
for the respective parties and having
perused the records, I find that first
argument
advanced
by
Mr.
Khare
regarding
incompetent
chargesheet
deserves to be rejected. Under the
relevant rules cited before me the
authority
to
impose
punishment
of
dismissal/removal from service has only
been vested with Chairman and so at the
stage of issuance of charge sheet a
punishment could not have been proved.
However, if authority chooses to impose
punishment of dismissal after enquiry, it
136 INDIAN LAW REPORTS ALLAHABAD SERIES
is at that stage show cause notice should be
issued only by the Chairman.

10. Now coming to the merit of
the case regarding disciplinary proceedings
and action, I find from the perusal of the
chargesheet that in the chargesheet, the
basic document that have been relied upon
are committees' report and statements of
certain consumers and other persons
recorded before the committee specially
constituted that had held preliminary
enquiry. These documents have been relied
upon including besides the bank deposits,
payslip in support of first charge. From the
perusal of the enquiry report, I find that
after referring to the article of charges,
specially charge no. 1, the enquiry
committee proceeded to refer and record
the oral statement made by the petitioner
and thereafter it has proceeded to examine
charge no. 1 on merits and has relied upon
not only preliminary enquiry report, but
also statement of certain outsiders and the
consumers that were recorded before the
preliminary conducting committee. Thus, it
is clear that while holding regular enquiry
committee failed to record statement of
witnesses whose statement was recorded
before the preliminary enquiry conducting
committee so as to ensure that those
statements are proved in departmental
enquiry committee. Those persons were not
at all summoned by enquiry officer to test
the veracity of the findings returned by the
preliminary enquiry report.

11. In the considered view of the
Court any document that is relied upon for
arriving at finding of fact must be strictly
proved. The legal proposition is very sound
to the effect about a document which is
required to be proved, is to to be proved
either by who had answered it or by the
person who is witness while the document
was being prepared or getting examined the
person in whose presence the document was
executed or if examine the person who may
said to be authorized persons to have custody
of the document. Any of the procedures, if
not followed in getting a particular document
proved or even preliminary enquiry report is
also not proved and that is relied upon then in
my considered view finding of fact based
upon such report cannot be relied upon so as
to bring home the charge. I, therefore, find
there to be basic flaw in the entire enquiry
committee report even in respect of charge
nos. 2 and 3. Thus findings returned by the
enquiry committee could not have been
reckoned with by the disciplinary authority
while relied upon the same.

12. In the matter of State of Uttar
Pradesh and Others v. Saroj Kumar Sinha
(2010)2 SCC 772, the Supreme Court has
very categorically held that oral enquiry is
sine qua non in the matters of disciplinary
enquiry when conducted for awarding major
penalty. Vide paragraph 22, the Court has
held thus:

 "34. This Court in the case of
Kashinath Dikshita v. Unionof India, (1986)
3 SCC page 229, had clearly stated the
rationale for the rule requiring supply of
copies of the documents, sought to be relied
upon by the authorities to prove the charges
levelled against a Government servant. In
that case the enquiry proceedings had been
challenged on the ground that non supply of
the statements of the witnesses and copies of
the documents had resulted in the breach of
rules of natural justice. The appellant
therein had requested for supply of the
copies of the documents as well as the
statements of the witnesses at a preliminary
enquiry. The request made by the appellant
was
in
terms
turned
down
by
the
disciplinary authority.
7 All. Sanjay Sharma Vs. State of U.P. & Ors.
137
 35. In considering the importance
of access to documents in statements of
witnesses to meet the charges in an
effective manner this Court observed as
follows:

 "When a government servant is
facing a disciplinary proceeding, he is
entitled to be afforded a reasonable
opportunity to meet the charges against
him in an effective manner. And no one
facing
a
departmental
enquiry
can
effectively meet the charges unless the
copies of the relevant statements and
documents to be used against him are made
available to him. In the absence of such
copies, how can the concerned employee
prepare his defence, cross- examine the
witnesses, and point out the inconsistencies
with a view to show that the allegations are
incredible? It is difficult to comprehend
why the disciplinary authority assumed an
intransigent posture and refused to furnish
the copies notwithstanding the specific
request made by the appellant in this
behalf. Perhaps the disciplinary authority
made it a prestige issue. If only the
disciplinary authority had asked itself the
question: "What is the harm in making
available the material?" and weighed the
pros and cons, the disciplinary authority
could not reasonably have adopted such a
rigid and adamant attitude. On the one
hand there was the risk of the time and
effort invested in the departmental enquiry
being wasted if the courts came to the
conclusion that failure to supply these
materials would be tantamount to denial of
reasonable opportunity to the appellant to
defend himself. On the other hand by
making available the copies of the
documents and statements the disciplinary
authority was not running any risk. There
was nothing confidential or privileged in
it."
 36. On an examination of the
facts in that case, the submission on the
behalf of the authority that no prejudice
had been caused to the appellant, was
rejected, with the following observations:

 "Be that as it may, even without
going into minute details it is evident that
the appellant was entitled to have an access
to
the
documents
and
statements
throughout the course of the inquiry. He
would have needed these documents and
statements in order to cross-examine the 38
witnesses who were produced at the inquiry
to establish the charges against him. So
also at the time of arguments, he would
have needed the copies of the documents.
So also he would have needed the copies of
the documents to enable him to effectively
cross- examine the witnesses with reference
to the contents of the documents. It is
obvious that he could not have done so if
copies had not been made available to him.
Taking an overall view of the matter we
have no doubt in our mind that the
appellant has been denied a reasonable
opportunity of exonerating himself."

13. A division bench of this Court
in the case of Mahesh Narain Gupta v.
State of U.P. and Others 2011 (2) ILR
570 had dealt with this aspect to the fact
held thus:

 "At this stage, we are to observe
that in the disciplinary proceedings against
a delinquent, the department is just like a
plaintiff and initial burden lies on the
department to prove the charges which can
certainly be proved only by collecting some
oral evidence or documentary evidence, in
presence and notice charged employee.
Even if the department is to rely its own
record/document
which
are
already
available, then also the enquiry officer by
138 INDIAN LAW REPORTS ALLAHABAD SERIES
looking into them and by assigning his own
reason after analysis, will have to record a
finding that hose documents are sufficient
enough to prove the charges.

 In no case, approach of the
Enquiry Officer that as no reply has been
submitted, the charge will have to be
automatically proved can be approved.
This will be erroneous. It has been
repeatedly said that disciplinary authority
has a right to proceed against delinquent
employee in ex parte manner but some
evidence will have to be collected and
justification to sustain the charges will
have to be stated in detail. The approach of
the enquiry officer of automatic prove of
charges on account of non filing of reply is
clearly misconceived and erroneous. This
is against the principle of natural justice,
fair play, fair hearing and, thus, enquiry
officer has to be cautioned in this respect."

14. Very recently in the case of
State of U.P. and Others v. Kishori Lal
and Another, 2018 (9) 397 (DB) (LB) the
Court has held that oral enquiry to be
mandatory. Vide paragraph 14, the Court
had held thus:

 "14. Now coming to the question,
what is the effect of non-holding of
domestic/oral inquiry, in a case where the
inquiry officer is appointed, oral inquiry is
mandatory. The charges are not deemed to
be proved suo motu merely on account of
levelling them by means of the charge-sheet
unless the same are proved by the
department before the inquiry officer and
only thereafter it is the turn of delinquent
employee to place his defence. Holding
oral enquiry is mandatory before imposing
a major penalty, as held by Apex Court in
State of U.P. and another v. T.P.Lal
Srivastava, 1997 (1) LLJ 831, as well as by
a Division Bench of this Court in Subhash
Chandra Sharma v. Managing Director
and another, 2000 (1) UPLBEC 541.''

15. The court have followed
recently the judgment of coordinate bench
in the case of Suresh Babu v. State of U.P.
and Others being Writ A No. 12991 of
2023 decided on 19.10.2023.

16. Further in the case of M/s Tata
Chemicals
Ltd.
v.
Commissioner
of
Customs (Preventive) Jamnagar (2015) 11
SCC 628, Supreme Court has held that "if
the law requires that something be done in
a particular manner, it must be done that
manner, and if not done in that manner has
no existence in the eye of the law at all. The
Customs Authorities are not absolved from
following the law depending upon the acts
of a particular assessee. Something that is
illegal cannot convert itself into something
legal by the act of a third person."

17. In view of above, therefore,
the order of punishment which is maximum
penalty in the nature of dismissal cannot be
sustained in law and the same deserves to
be set aside and so also the order of appeal
affirming the same also deserves to be set
aside.

18. At this stage, Mr. Srivastava,
has tried to argue that since petitioner has
been dismissed from service he should not
be directed to be reinstated, in this
connection he has relied upon the judgment
of Supreme Court in the case of State of
U.P and Others v. Rajit Singh, 2022 (4)
ADJ 295. He has heavily relied upon
paragraph 8 of the judgment, which is
reproduced hereunder:

 8. It appears from the order
passed by the Tribunal that the Tribunal
7 All. Sanjay Sharma Vs. State of U.P. & Ors.
139
also observed that the enquiry proceedings
were against the principles of natural
justice in as much as the documents
mentioned in the charge sheet were not at
all supplied to the delinquent officer. As
per the settled proposition of law, in a case
where it is found that the enquiry is not
conducted properly and/or the same is in
violation of the principles of natural
justice, in that case, the Court cannot
reinstate the employee as such and the
matter is to be remanded to the Enquiry
Officer/Disciplinary Authority to proceed
further with the enquiry from the stage of
violation of principles of natural justice is
noticed and the enquiry has to be proceeded
further
after
furnishing
the
necessary
documents mentioned in the charge sheet,
which are alleged to have not been given to
the delinquent officer in the instant case. In
the
case
of Chairman,
Life
Insurance
Corporation of India and Ors. Vs. A.
Masilamani, (2013) 6 SCC 530, which was
also pressed into service on behalf of the
appellants before the High Court, it is
observed in paragraph 16 as under:-

 "16.
It
is
a
settled
legal
proposition, that once the court sets aside an
order of punishment, on the ground that the
enquiry was not properly conducted, the
court cannot reinstate the employee. It must
remit the case concerned to the disciplinary
authority for it to conduct the enquiry from
the point that it stood vitiated, and conclude
the
same.
(Vide
ECIL
v.
B.
Karunakar [(1993) 4 SCC 727], Hiran
Mayee Bhattacharyya v. S.M. School for
Girls [(2002) 10 SCC 293], U.P. State Spg.
Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264]
and Union of India v. Y.S. Sadhu [(2008) 12
SCC 30]).

19. In the case of Managing
Director ECIL Hyderabad etc. v. B.
Karunakar etc. AIR 1994 SC 1074, a
constitution bench judgment, it has been
categorically held while court of law or
Tribunal proceeds to quash the order of
punishment then it should remand matter to
be tried again from that stage where flaw
has occurred and employees states as was
then be retired. The Court has observed
"Where
after
following
the
above
procedure the Courts/Tribunals sets aside
the order of punishment, the proper relief
that should be granted is to direct
reinstatement of the employee with liberty
to the authority, management to proceed
with the inquiry, by placing the employee
under suspension and continuing the
inquiry from the stage of furnishing him
with the report." Since here is a case where
I find that departmental enquiry was not
properly held in the matter, therefore,
matter deserves to be remitted to the stage
of holding enquiry afresh on the basis of
charge sheet issued to the petitioner and
reply already submitted by petitioner.

20. It is also not disputed that
suspension of petitioner was revoked on
4.11.2020 and petitioner was working at
the time when impugned order was passed.

21. Accordingly, while I quash the
orders
dated
09.06.2021
passed
by
Chairman U.P. Power Corporation Ltd.
Lucknow and order dated 21.10.2021
issued by the Board of Director of U.P.
Power Corporation Ltd. with consequential
benefits to the petitioner, I hereby provide
that department shall be holding enquiry
afresh
by
appointing
fresh
enquiry
committee giving full information in that
regard to the petitioner and concluding the
enquiry by holding full fledged oral
enquiry in accordance with the procedure
prescribed within a maximum period of
three months from the date of production of
140 INDIAN LAW REPORTS ALLAHABAD SERIES
certified copy of this order and bring the
disciplinary proceeding itself shall be
concluded within further period of two
months. Petitioner shall be entitled to
current salary only and arrears of salary
shall depend upon the outcome of the result
of the writ petition. Since petitioner was
already reinstated while enquiry was gong
on by revoking suspension order, the
authority may not suspend him again in the
given facts and circumstances of the case.

22.

With
the
aforesaid
observations and directions, this petition
stands allowed.
----------
(2024) 7 ILRA 140
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 26095 of 2018

Altaf Husain ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C., Sri Rafat Raza Khan

Regularisation-U.P.-Regularization claim got
rejected-that on date of enforcement of
regularization rules in 2016-the Petitioner was
not working on daily charge basis-Petitioner
continued to work from 1991 till 2014 when he
was removed and in 2017 he was engaged as
an
outsource
employee-on
the
date
of
enforcement of rules -the Petitioner was not in
employment-no error in the impugned order.

W.P. dismissed. (E-9)

List of Cases cited:

1. Janardan Yadav Vs St. of U.P. & ors., 2008 (1)
UPLBEC 498

2. Arjun Kumar Singh & ors. -Writ - A No. 16819
of 2018

3. Ram Nath Verma & ors. Vs St. of U.P. & ors.,
2017 (7) ADJ 46

(Delivered by Hon'ble Ajit Kumar, J.)

1. In the light of office order dated
02.03.2021 a photocopy of the rejoinder
affidavit is supplied by learned counsel for
the petitioner which is taken on record.

2. Heard Sri Siddharth Khare,
learned counsel for the petitioner and Sri
Rafat Raza Khan, learned counsel for the
contesting respondents.

3. Petitioner before this Court is
aggrieved by the order dated 07.07.2018,
whereby, his claim for regularization as a
Group - D employee has been rejected.

4. Briefly stated facts are that the
petitioner was initially appointed on daily
wage basis on the post of Fitter on
01.02.1999. He claimed to have discharged
his duties as such and was working at the
relevant
point
of
time
when
the
regularization rules dated 12.09.2016 were
brought into force by the State Government
providing for regularization of daily wage/
work charge/ contract employees upon
Group - C and Group - D posts of the
Government
Department
(outside
the
purview of Public Service Commission).
This Government Order though was issued
in respect of Government Department posts
but it is an admitted position to the parties
that this Government Order was adopted by
the
Urban
Development
Department.