# Sankata Prasad v. State Of U.P. & Ors - **Citation:** (2016) 3 ILRA 414 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-31 - **Case number:** Service Single No. 7182 of 2005 - **Bench:** Dr. Devendra Kumar Arora - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sankata-prasad-v-state-of-u-p-ors-43546 - **Pages:** 10 ## Text 414 INDIAN LAW REPORTS ALLAHABAD SERIES ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 31.03.2016 BEFORE THE HON'BLE DR. DEVENDRA KUMAR ARORA, J. Service Single No. 7182 of 2005 Sankata Prasad ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Shri P.K. Srivastava Counsel for the Respondents: C.S.C. Held - Introduction and Background 1. Parties and Grievance: The petitioner, a former Lekhpal, challenged orders dated 2004 and 2005 which imposed a major punishment (withholding five annual increments and an adverse entry). 2. Sequence of Events: The petitioner was suspended in 2003, charge-sheeted in 2004, and submitted a reply denying the charges. Subsequently, an Inquiry Officer submitted a report, and the Disciplinary Authority issued the punishment order. Petitioner and Respondent Submissions 1. Petitioner's Argument: The main contention was that the Inquiry Officer never fixed a date, time, or place for an oral inquiry. The punishment was based solely on paperwork without a regular departmental hearing. 2. Respondent's Admission: The Standing Counsel (representing the State) conceded that proper procedures were not followed and no reasonable opportunity for a hearing was afforded to the petitioner. Legal Framework (Rules 6, 7, and 8) 1. The 1999 Rules: The court cited the U.P. Government Servant (Discipline and Appeal) Rules, 1999. 2. Rule 7 (Procedure): This rule mandates that if charges are denied, the Inquiry Officer must call witnesses, record oral evidence in the presence of the employee, and allow for cross-examination. 3. Rule 8 (Report): Requires the Inquiry Officer to submit a report based on evidence and findings for each charge. Court's Analysis and Judicial Precedents 1. Natural Justice: The court emphasized that communicating the date, time, and place of an inquiry is mandatory. Without this, the right to a defense is hollow. 3 All. Sankata Prasad Vs State Of U.P. & Ors. 415 2. Case Law Citations: The court referenced several Supreme Court and High Court rulings (e.g., C.S. Sharma, Meenglas Tea Estate, and Kharak Singh) which establish that: A. Omission to give an opportunity to produce witnesses vitiates the proceeding. B. An employee must know the testimony supporting the accusations. C. A "written reply" to a charge-sheet is not a substitute for a formal oral inquiry. Findings and Conclusion 1. Procedural Lapse: The court found that the Inquiry Officer failed to conduct any actual inquiry after receiving the petitioner's reply. No witnesses were examined, and no date was fixed. 2. Appellate Failure: The Appellate Authority was criticized for rejecting the appeal in a "cursory manner" without applying an independent mind. Final Order 1. Orders Quashed: The court quashed the punishment order, the inquiry report, and the appellate orders. 2. Relief: The respondents were directed to release all withheld service benefits within three months. 3. Remand: The authorities are permitted to restart the inquiry from the point it became flawed (after the petitioner's initial reply). Petition Allowed. List Of Cited Case Laws: State of U.P. v. C.S. Sharma, AIR 1968 SC 158 Meenglas Tea Estate v. Their Workmen, AIR 1963 SC 1719 Subhash Chandra Sharma v. Managing Director, U.P. Co-operative Spinning Mills Federation Ltd. Kanpur, 1999 AWC 3227 State of Uttaranchal v. Kharak Singh, 2008 (118) F.L.R. 1112 Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and another, 1999 (81) FLR 475 (SC) Chairman, Life Insurance Corporation of India v. A. Masilamani, 2013 (1) ADJ 64 (Delivered by Hon'ble Dr. Devendra Kumar Arora, J.) 1. Heard learned Counsel for the petitioner and learned Standing Counsel. 2. Aggrieved by the inflictment of major punishment, the petitioner has filed the instant writ petition questioning veracity/correctness of orders dated 16.7.2005, 3.11.2004 and 27.5.2004 passed by different authorities. 3. According to the petitioner, while he was working as Lekhpal in Tehsil, Sidhauli, District Sitapur, the Sub-Divisional Officer, Sitapur, vide order dated 30.12.2003, placed him under suspension in contemplation of inquiry. A charge-sheet dated 7.2.2004 was issued, which was received by the petitioner on 22.2.2004. In response to the charge-sheet, the petitioner had submitted his reply on 25.2.2004, denying the charges levelled against him. Thereafter, Enquiry Officer has submitted his report dated 31.3.2004 to the SubDivisional Officer, Sidhauli, Sitapur, who, in turn, required the petitioner to submit his reply to the enquiry report dated 31.3.2004. On receipt of the enquiry report, the petitioner submitted his reply dated 22.4.2004. Thereafter, the Sub-Divisional Officer, Sitapur, vide order dated 27.5.2004, awarded major punishment of withholding five annual increments on 416 INDIAN LAW REPORTS ALLAHABAD SERIES permanent basis and further directed to make an adverse entry in his character roll of the petitioner. 4. Not being satisfied with the award of punishment, the petitioner filed an appeal dated 3.8.2004 before the Collector/District Magistrate, Sitapur, which was dismissed vide order dated 3.11.2004. Feeling aggrieved, the petitioner preferred second departmental appeal before the Commissioner, Lucknow Region, Lucknow, who, vide order dated 16.7.2005, dismissed the appeal as not maintainable. 5. Hence the instant writ petition. 6. Submission of the learned Counsel for the petitioner is that after submission of reply by the petitioner, at no point of time, inquiry officer has proceeded to fix any date, time and place for holding inquiry and straightaway he has proceeded to form an opinion on the basis of record that charges stood substantiated and the disciplinary authority thereafter, had proceeded to issue show cause notice to which petitioner had responded. Thereafter, without considering the reply, the disciplinary authority awarded punishment, as averred above. The punishment order has been passed without undertaking any regular departmental enquiry, thus, the entire enquiry is nothing but merely paperwork and the order of punishment based on the same, as such is equally bad, and accordingly writ petition be allowed. 7. Learned Standing Counsel, while defending the orders seriously during the course of arguments, has fairly conceded that as per record, after submission of the reply by the petitioner, proper procedure as per norms has not been adopted by the Inquiry Officer and no reasonable opportunity was afforded. 8. Having considered the submissions advanced by the parties, I deem it proper to refer the procedure with regard to initiation of inquiry. The procedure with regard to initiation of departmental proceedings against a Government employee has been laid down in Rules 6, 7 and 8 of the U.P. Government Servant (Discipline and Appeal) Rues, 1999, which are necessary to be looked into, and for ready reference, they are being quoted below: "6. Disciplinary Authority.- The appointing authority of a Government servant shall be his Disciplinary Authority who, subject to the provisions of these rules, may impose any of the penalties specified in Rule 3 on him. Provided that no person shall be dismissed or removed by an authority subordinate to that by which he was actually appointed. Provided further that the Head of the Department notified under the Uttar Pradesh Class II Services (Imposition of Minor Punishments) Rules, 1973 subject to the provisions of these Rules shall be empowered to impose minor penalties mentioned in Rule 3 of these rules. 3 All. Sankata Prasad Vs State Of U.P. & Ors. 417 Provided also that in the case of a Government servant belonging to Group 'C' and 'D' posts, the Government, by a notified order, may delegate the power to impose any penalty, except dismissal or removal from service under these rules, to any Authority subordinate to the Appointing Authority and subject to such conditions as may be prescribed therein. 7. Procedure for imposing major penalties.- Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner- (i). The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges. (ii). The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority: Provided that where the Appointing Authority is Governor, the charge-sheet may be approved by the Principal Secretary or the secretary, as the case may be, of the concerned department. (iii). The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the charge-sheet. (iv). The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte. (v). The charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner the charge-sheet shall be served by publication in a daily newspaper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer. 418 INDIAN LAW REPORTS ALLAHABAD SERIES (vi). Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission. (vii). Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence; Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii). The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before his in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witness and Production of Documents) Act 1976. (ix). The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x). Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on his or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the chargesheet in absence of the charged Government servant. (xi). The Disciplinary Authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge. (xii). The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary Authority having regard to the circumstances of the case so permits. Provided that this rule shall not apply in following cases: (i). Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or 3 All. Sankata Prasad Vs State Of U.P. & Ors. 419 (ii). Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably impracticable to hold an inquiry in the manner provided in these rules; or (iii).Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules. 8. Submission of enquiry report.- When the inquiry is complete, the Inquiry Officer shall submit its inquiry report to the Disciplinary Authority along with all the records of the inquiry. The Inquiry report shall contain a sufficient record of brief facts, the evidence and statement of the findings on each charge and the reasons thereof. The Inquiry Officer shall not make any recommendation about the penalty." 9. A bare perusal of the aforesaid Rules would show that full fledged procedure has been provided for making departmental enquiry, being in consonance with principle of natural justice and rule of fair play. 10. It is no doubt true that in cases arising out of disciplinary proceedings culminating in punishment of an employee, scope of judicial review is somewhat restricted in the sense that it is a decision making process which is up for judicial review and not the decision itself. The Court does not sit in appeal. If the procedure prescribed is followed strictly in accordance with rules and the delinquent employee has been given adequate opportunity of defence, the disciplinary authority by assessing record has reached to a conclusion which a person of ordinary prudence in a given set of circumstances may arrive, this Court shall not interfere with the order of punishment, if any, unless it is shown that the same is without jurisdiction or is otherwise bad on account of mala fide etc. 11. It is not in dispute that the disciplinary proceedings were initiated against the petitioner under the U.P. Government Servant (Discipline and Appeal) Rules,1999 in which there is a complete mechanism for conducting the disciplinary proceeding. Here in the present case, the major penalty of removal from service has been inflicted upon the petitioner, therefore, it would be imperative for this Court to ensure, before coming to ultimate conclusion of the writ petition that as to whether the procedure prescribed for imposing major penalty under Rule 7 (v), (vii) and 7(x) has been followed or not. 12. From the perusal of the Sub Rule 7 (vii) & (x) of the 1999 Rule, it reflects that if the charged Government servant denies the charges then in that eventuality the Inquiry Officer is under an obligation to call the witnesses proposed in the charge-sheet and record their oral statements in presence of the charged employee, who shall be given an opportunity to cross-examine such witnesses. After recording the aforesaid statements, the Inquiry Officer is required to record the oral statements of the witnesses of charged Government servant if any, in case he desires to produce them in his defence. 13. After going through the provisions as provided under sub rule (vii) and (x) of 7 of Rules 1999, as noticed that in the event of denial of charges, the Inquiry Officer is under a 420 INDIAN LAW REPORTS ALLAHABAD SERIES legal obligation to call the witnesses and provide an opportunity to the charged Government servant to cross-examine the inquiry witnesses, enjoins a duty upon the Inquiry Officer to inform the charged employee about the date, place and time for holding the enquiry, as unless the charged employee is made aware of the date, place and time of the enquiry proceeding, he cannot make himself available to participate in the inquiry. It would further reveal that mere recording the statements of the witnesses will not be sufficient to submit an inquiry report unless each and every charge levelled against the charged employee is discussed separately and is proved or not proved after considering the material available on record including the oral statements given by the witnesses and their cross examination, if any. 14. From the aforesaid provisions, it is crystal clear that the communication of date, time and place of inquiry to the delinquent employee is mandatory other wise he would be deprived of his vital right to defend himself or put his version before the Inquiry Officer. 15. In catena of cases, the Apex Court has reiterated about the following principle of natural justice in the matter of disciplinary proceedings. 16. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. 17. In Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719 the Supreme Court observed "it is an elementary principle that a person who is required to answer the 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 cross-examination 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, if the result of the enquiry is to be accepted. 18. A Division Bench of this Court in the case of Subhash Chandra Sharma v. Managing Director, U.P. Co-operative Spinning Mills Federation Ltd. Kanur, 1999 AWC 3227, has taken the view that for enquiry, date, time and place has to be fixed. Relevant paragraph 4 of the said judgement is being quoted below: "4. Several points have been raised in the petition, but this petition deserves to be allowed on one ground alone, and it is not necessary to go into the other grounds. In paragraph 5 of the petition, it has been stated that no enquiry was held nor any date for holding the enquiry was intimated to the petitioner nor was any evidence led in the said enquiry. The reply to paragraph 5 of the petition is contained in paragraph 5 of the counter affidavit. There is no denial in paragraph 5 of the counter affidavit to the allegation in paragraph 5 of the writ petition that no date for enquiry was fixed nor any evidence led in the said enquiry. All that has been said in paragraph 5 of the counteraffidavit is that in the charge-sheet fifteen days' time was given to the petitioner to 3 All. Sankata Prasad Vs State Of U.P. & Ors. 421 submit his reply, and thus the date in the enquiry was fixed. In our opinion, this does not mean that the date for the enquiry was fixed. The charge-sheet is Annexure-3 to the writ petition and a perusal of the same shows that no date was fixed for the enquiry in the same nor was any date fixed in the supplementary charge-sheet. Thus, the allegation in paragraph 5 of the writ petition that neither the date for the enquiry was fixed nor evidence led in the same stands unrebutted. In paragraph 5 of the counteraffidavit, it has been alleged that petitioner had asked for some documents, but he was only allowed to see the documents. We are of the opinion this again does not mean that any date for the enquiry was fixed nor was any oral evidence led in the enquiry. In fact it has been admitted in paragraph 5 of the petition that no oral evidence was produced by the management." 19. Hon'ble Apex Court in the case of State of Uttaranchal vs. Kharak Singh, 2008 (118) F.L.R. 1112, as to in what way and manner domestic enquiry is to be concluded, has given guidelines. Relevant portion of the said judgment is being quoted below: ".............It is necessary to emphasise that in the domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry." ".......Article 311 (2) says that the employee shall be given "reasonable opportunity of being heard in respect of the charges against him". The finding on the charges given by a third person like the enquiry officer, particularly, when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311 (2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and conclusion of such reply by the disciplinary authority also constitute an integral part of such inquiry. Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt of innocence of 422 INDIAN LAW REPORTS ALLAHABAD SERIES the employee with regard to the charges leveled against him. That right is part of the employee's right to defend himself against the charges leveled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice....." 8. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. And another, 1999 (81) FLR 475 (SC), it was held: "34. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases." 20. On scrutiny of record, the fact remains is that the Enquiry Officer has not undertaken any enquiry worth name, inasmuch as, after receiving reply submitted by petitioner on 25.2.2004, no date, time or place has been fixed. The enquiry report, as submitted on 31.3.2004, in absence of any proper enquiry, it vitiates all consequential action. 21. Apex Court in the case of Chairman, Life Insurance Corporation of India Vs. A. Mariahlamani 2013 (1) ADJ 64A has taken the view that once the Court set aside an order of punishment of an employee on the ground that the enquiry was not properly conducted, then the Court cannot reinstate the employee and it must remit the concerned case to the Disciplinary Authority for it to conduct the enquiry from the point that it stood vitiated and conclude the same. 22. Taking the holistic view of the matter, I have no hesitation in saying that the inquiry has been conducted in utter disregard to the principles of natural justice. Even if it is assumed that the petitioner did not make any prayer for oral hearing, in view of the aforesaid legal proposition, the Inquiry Officer/Disciplinary Authority was under the obligation to afford opportunity of oral hearing by fixing proper date, time and place in this regard. Not doing so, vitiates the impugned order. The Appellate Authority has also not dealt with the pleas raised by the petitioner but rejected the appeal in a cursory manner. The Appellate Authority ought to have applied its independent mind and should have recorded reasons for rejecting the pleas/submissions raised by the petitioner in his appeal. 3 All. M/S Maya Press Pvt. Ltd. & Anr. Vs The Union Of India & Ors. 423 23. For the reasons aforesaid, the impugned punishment order dated 27.5.2004, enquiry report dated 31.3.2004 and appellate orders dated 3.11.2004 and 16.7.2005 are hereby quashed. Respondents are directed to release the amount and service benefits which were withheld due to impugned punishment order within a period of three months. It is made open to the authorities to start the enquiry, from the stage it is vitiated i.e. from the stage, after petitioner has submitted his reply. 24. With these observations and directions, the writ petition is allowed. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 31.07.2015 BEFORE THE HON'BLE SUNEET KUMAR, J. Writ- C No. 39655 of 2015 M/S Maya Press Pvt. Ltd. & Anr. ...Petitioners Versus The Union Of India & Ors. ...Respondents Counsel for the Petitioners: Shri Krishna Mohan Counsel for the Respondents: A.S.G.I., Ms. Harshita Rani, Shri Sachindra Upadhyay Held - The Case: M/s Maya Press (P) Ltd. And its Director filed a writ petition seeking to quash a recovery notice for approximately Rs. 71.81 lakhs issued under the Employees' Provident Fund (EPF) Act. The petitioners claimed this was their first petition regarding this cause of action. The Deception: The respondents revealed that the petitioners had previously filed a writ petition in 2009 for the same issue. In that earlier case, the Court had ordered the petitioners to deposit Rs. 20 lakhs, which they failed to do. They then filed a Special Appeal, which was dismissed. By filing the current petition, they concealed this entire litigation history to obtain a fresh stay. The Court's Finding: When caught, the petitioners tried to withdraw the case, claiming the "pairokar" (litigation assistant) was unaware of previous cases. The Court rejected this, noting that the same pairokar had signed the affidavits in the earlier proceedings. The Court characterized this as fraud on the court, noting that truth is the foundation of justice and dishonest litigants deserve no relief.