# Santosh Kumar Mishra v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 500
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-01
- **Case number:** Writ A No. 26538 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-mishra-v-state-of-u-p-ors-51827
- **Pages:** 10

## Headnote

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules. 1999 - Rule
7(vii)
-
Disciplinary
proceeding
-
Termination - Charge of visiting Bank and
facilitating pensioners for their pension
was leveled against the petitioner, a Peon
- Petitioner denied charges - Inquiry
Officer did not convene any proceedings of
the inquiry, fixing a date, time and venue
-
He
never
called
U.P.on
the
Establishment to produce their evidence -
Effect - Earlier petitioner made complaint
against STO for taking duty of Clerk,
consequently
STO
threatened
for
termination of his services - Relevance -
Held, all the findings have been recorded
on a presumption that the charges, read
together with the documents relied U.P.on
by
the
Establishment,
are
proof
of
themselves
-
If
the
petitioner
was
avoiding appearance before the Inquiry
Officer,
that
did
not
relieve
the
Establishment of the burden to prove the
charges - The kind of procedure the
Inquiry Officer adopted in this case could
never be the lawful procedure to be
followed
in
a
departmental
inquiry,
involving the imposition of a major
penalty. (Para 2, 21, 22, 23 and 27)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

500 INDIAN LAW REPORTS ALLAHABAD SERIES
alternate accommodation and handover
vacant possession of the shop to the
landlord respondents within 4 months from
today i.e. on or before 31st July, 2024. The
petitioner shall continue to deposit the rent
of the premises @ of Rs. 800/- per month
till the date of handing over of the
possession and shall not sublet the shop or
change its nature.

25. Parties to bear their own costs.
----------
(2024) 4 ILRA 500
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2024

BEFORE

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

Writ A No. 26538 of 2014

Santosh Kumar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajesh Kumar Namdev, Sri Anand
Kumar Srivastava

Counsel for the Respondents:
Sri Yashwant Singh (S.C.)

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules. 1999 - Rule
7(vii)
-
Disciplinary
proceeding
-
Termination - Charge of visiting Bank and
facilitating pensioners for their pension
was leveled against the petitioner, a Peon
- Petitioner denied charges - Inquiry
Officer did not convene any proceedings of
the inquiry, fixing a date, time and venue
-
He
never
called
U.P.on
the
Establishment to produce their evidence -
Effect - Earlier petitioner made complaint
against STO for taking duty of Clerk,
consequently
STO
threatened
for
termination of his services - Relevance -
Held, all the findings have been recorded
on a presumption that the charges, read
together with the documents relied U.P.on
by
the
Establishment,
are
proof
of
themselves
-
If
the
petitioner
was
avoiding appearance before the Inquiry
Officer,
that
did
not
relieve
the
Establishment of the burden to prove the
charges - The kind of procedure the
Inquiry Officer adopted in this case could
never be the lawful procedure to be
followed
in
a
departmental
inquiry,
involving the imposition of a major
penalty. (Para 2, 21, 22, 23 and 27)

Writ petition allowed. (E-1)

List of Cases cited:

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

2. Roop Singh Negi Vs P.N.B.& 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 & 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.)

The petitioner, a Class IV employee, a
Peon in the Establishment of the District
Treasury, Budaun, is aggrieved by an order
dated 31.07.1993 passed by the District
Magistrate,
Budaun,
terminating
his
services after disciplinary proceedings, and
the appellate order dated 13.02.2014,
passed by the Commissioner, Bareilly
Division,
Bareilly,
dismissing
his
departmental appeal and affirming the
order of the District Magistrate.
4 All. Santosh Kumar Mishra Vs. State of U.P. & Ors.
501

2. The petitioner was appointed as a
Class IV employee (Peon) with the District
Treasury, Budaun in the year 1975 by the
District Magistrate, Budaun. He was, later
on, confirmed in service. Upon the
establishment of a sub-treasury at Ujhani,
District
Budaun,
the
petitioner
was
transferred from headquarters to the subtreasury at Ujhani on 09.12.1989. It is the
petitioner's case that after rendering a few
years of service at Ujhani, the Sub Treasury
Officer1 passed an order dated 08.11.1991,
providing that the petitioner will discharge
all duties at the sub-treasury relating to
drawing up of accounts, pension vouchers,
clearance of bills, all of which he would do
as in the past, under the STO's oral
directions. The petitioner says he was a
Peon, but the STO illegally and arbitrarily,
passed
the
order
dated
08.11.1991,
directing him to discharge the duties of a
Clerk. It is the petitioner's case that the
STO threatened the petitioner that his
services would be terminated if he did not
carry out his directions, detailed in the
order dated 08.11.1991. The petitioner says
that the order dated 08.11.1991 could never
have been made by the STO, because it was
illegal to take the work of a Clerk from a
Class IV employee.

3. The petitioner wrote a letter to the
Sub Treasury Officer, Budaun with a
request that though a Peon, he had been
directed to undertake the duties of a Clerk,
under the oral directions of the STO; and
therefore, if any mistake occurs on the
petitioner's part, he cannot be held
responsible, for obvious reasons. The STO,
upon coming to know of the letter dated
08.11.1991, passed a further order, which
reads :

श्री सिंतोर् कुमार समश्रा चपरासी के
प्रार्थना पत्र सद० - 8-11-1991 के सम्बन्ध मे
आदेसशत सकया जाता है की उपकोर्ाकार
कायाथलय की असिकता को देखते हुए मेरे
मौखखक बोलने पर ही सभी राजकीय कायथ पूवथ
की भासत रहेंगे।

सजसकी
सिंपूणथ
सजिेदारी
उपकोर्ासिकारी उझानी की होगी।
Sd/- (Illegible)
S.T.O. Ujhani
8-11-91

4. The Treasury Officer, Budaun
issued a show-cause notice dated December
the 14th, 1991 to the petitioner, saying that
the STO vide his memo number 286/कोर्-
111/91-92 dated 09.12.1991, had informed
the Treasury Officer that the petitioner was
absent from duties since the forenoon,
without prior information or permission,
and that according to the report dated
05.12.1991 received from the Branch
Manager, State Bank of India, Ujhani, the
petitioner had collected the scroll for the
4th of December, 1991. The notice further
said that the petitioner, along with the
scroll, had been handed over all the relative
vouchers, but two out of these were
missing. On the aforesaid premise, the
petitioner was required to explain, within
three days, the circumstances in which he
was absent from duty and further, to whom
did he entrust the missing vouchers.

5. The petitioner submitted his
explanation to the show-cause vide his
reply dated 27.12.1991. In his reply, the
petitioner said that on 04.12.1991, he
reached the Sub Treasury Office at Ujhani,
but a short while later, he fell very sick. He,
therefore, made an application for sanction
of Casual Leave, which he handed over to
the Assistant Accountant, Madan Pal Singh
and took leave of him. It was also said that
moments after the petitioner had reached
the Sub Treasury Office on 04.12.1991, the
502 INDIAN LAW REPORTS ALLAHABAD SERIES
Bank Peon arrived, carrying the scroll. At
that time, the petitioner was the only
functionary available at the Sub-Treasury,
and therefore, the scroll was accepted by
him. This was done particularly in view of
the fact that the STO had authorized the
petitioner, under his oral directions, to
discharge clerical duties, of which, receipt
of daily scroll was a part. It was also the
petitioner's defence in the show-cause that
after receiving the scroll, he could not look
into the number of vouchers, because the
STO had instructed him that the scroll
comes attached with a small slip from the
Bank, which mentions the money deposited
and that disbursed on it. This money is
entered in the register on a daily basis. If
the scroll, the money mentioned in the slip
and the bank record register all tally, the
petitioner should receive the scroll. The
petitioner compared the deposited and the
disbursed money figures on the attached
slip and received the scroll. In the past also,
it was precisely this way that the scroll was
being received by the petitioner from the
Bank. The STO had never directed the
petitioner to account for the voucher
numbers, nor did he have any knowledge
about the requirement. Whenever the daily
scroll was received, it would be placed in a
small almirah, that does not have a lock to
secure it. The petitioner would place the
scroll there and the Assistant Accountant,
upon arrival, would take it out and process
it.

6. The petitioner's explanation also
said that on 05.12.1991, he sent a leave
application to the STO through a friend of
his. The petitioner, during this period of
time being indisposed, was under the
treatment of Dr. Parashari, but there was no
relief.
Therefore,
the
petitioner,
on
06.12.1991, went to a certain Gangu Vaidh
(Pandit Ganga Vallabh Mishra) for his
treatment.
He
addressed
his
leave
application to the STO, Ujhani sent by
registered post, bearing number RL-3271
dated 06.12.1991. The said registered cover
was delivered to the STO on 07.12.1991,
but surprisingly, the STO refused to receive
it. This application carried a request for
sanction of Casual Leave of five days.
Since the petitioner did not get relief from
the changed medical treatment that he took,
he moved to Mori Nagar, Ghaziabad,
where he went to Dr. A.K. Dubey's
Nursing Home. He was treated there from
11.12.1991 to 17.12.1991. A medical
certificate was issued in this behalf by Dr.
A.K. Dubey. The petitioner sent a leave
application by registered post to the STO,
Ujhani, annexing therewith the medical
certificate. It is not known to the petitioner
if the STO received the application by
registered post or declined it. Upon his
return home, he received a registered cover,
bearing P.L. No. 3271. The reply to the
show-cause said that his health was
severely impaired and he was not in a
position to discharge his duties. He made a
request that he may be sanctioned medical
leave from 18.12.1991 to 08.01.1992. It
was said in the reply that the petitioner,
upon reporting at the office, would produce
the original medical certificates.

7. On 19.12.1991, the petitioner
received an order of his suspension from
service pending inquiry passed by the
District Magistrate, Budaun. It mentioned a
summary of five charges against him. This
was followed by the Inquiry Officer issuing
a
charge-sheet
dated
31.01.1992/
03.02.1991 to the petitioner, carrying five
charges. The petitioner was given fifteen
days to submit his reply. The last
mentioned charge-sheet was followed by
another charge-sheet dated 15.02.1992, also
issued by the Inquiry Officer, carrying the
4 All. Santosh Kumar Mishra Vs. State of U.P. & Ors.
503
same five charges as those in the earlier
charge-sheet dated 31.01.1992/03.02.1991.

8. The petitioner submitted his reply
to
the
charge-sheet
dated
31.01.1992/03.02.1992,
denying
the
charges. It is the petitioner's case that no
other document was given to the petitioner,
despite several and repeated demands,
except the three annexures to the chargesheet dated 31.01.1992. These were an
application dated 08.01.1992 from a certain
Tikola Devi and an application by one
Bhola Nath dated 05.12.1991/10.01.1992.
There
was
another
complaint
dated
05.12.1991 annexed to the first chargesheet, a handwritten document. It is the
petitioner's case that an inquiry into the
charges was not being concluded on one
hand, and on the other, the petitioner was
suffering suspension and paid 50% of his
pay towards subsistence allowance. The
petitioner, therefore, by his letter dated
20.03.1993,
requested
the
District
Magistrate,
Budaun
to
revoke
his
suspension and permit him to join duties.

9. On 07.04.1993, the Inquiry Officer
informed the petitioner that he would
appear before the Inquiry Officer on
15.04.1993 at 03:00 p.m., On 15.04.1993,
the petitioner appeared before the Inquiry
Officer, but nothing was done that day.
Instead, the Inquiry Officer passed an
order, saying that due to his engagement
that day in an anti-encroachment drive, he
could not take down the statement of the
petitioner's. He further said in his order
that until the conclusion of the petitioner's
evidence, the petitioner would remain
attached to the Inquiry Officer's office. It is
the petitioner's case that the Inquiry Officer
did not record the petitioner's testimony,
nor any further date was fixed, nor the
petitioner informed about any date that the
Inquiry Officer might have fixed. All of a
sudden, the petitioner was surprised to
receive
a
show-cause
notice
dated
09.07.1993 from the District Magistrate,
Budaun saying that a detailed inquiry
report dated 06.07.1993 had been submitted
by
the
Inquiry
Officer,
one
K.K.
Chaudhary,
an
Additional
District
Magistrate at Budaun, where all charges
against him were found proved. He was
required to show cause and submit his
explanation to the Inquiry Report within a
period of 45 days by the District
Magistrate. The petitioner was not supplied
relevant documents and other materials that
were referred to in the show cause.
Therefore,
the
petitioner
made
an
applications
dated
20.07.1993
and
24.07.1993, demanding relevant copies of
documents and further requested time to
show-cause, which he prayed, may be
suitably extended. No information was then
given to the petitioner, nor a reply in
answer to his application dated 20.07.1993
and 24.07.1993. The petitioner was also not
intimated
or
informed
about
any
subsequent date and the matter remained
pending.

10. The petitioner, after waiting for a
substantial period of time, bereft of the
copies of documents that he had requested,
but never given, submitted his reply dated
03.08.1993 to the show-cause notice dated
09.07.1993. The petitioner was served with
the impugned order of termination of
service dated 31.07.1993 passed by the
District Magistrate, Budaun. It is the
petitioner's case that a perusal of the
Inquiry Report would show that no inquiry
was ever held, in the sense that no
proceedings of inquiry were scheduled,
where the Establishment would be required
to produce their evidence to prove the
charges. It is averred in paragraph No. 26
504 INDIAN LAW REPORTS ALLAHABAD SERIES
of the writ petition that no witness was
examined and no document produced by
the Establishment to prove the charges
against the petitioner. It is also averred
that the petitioner was not given any
opportunity to appear before the Inquiry
Officer, nor any relevant document,
which he demanded, was supplied to him.
The petitioner's services were terminated
without a lawful inquiry being held.

11. The petitioner challenged the
impugned order of termination dated
31.07.1993 before this Court by means of
Civil Misc. Writ Petition No. 21681 of
1994. The aforesaid writ petition was
dismissed on ground of availability of a
statutory alternative remedy of appeal
under the service rules. The petitioner,
accordingly, preferred his appeal under
Rule 11 of the Uttar Pradesh Government
Servants (Discipline and Appeal) Rules,
19992 to the Commissioner of the
Division. The Divisional Commissioner,
vide his order dated 13.02.2014, has
dismissed the appeal and affirmed the
order of termination from service passed
by the District Magistrate, Budaun.

12. Disillusioned by the aforesaid
orders, the petitioner has instituted the
present writ petition.

13. A counter affidavit was filed on
behalf
of
the
respondents,
dated
16.07.2014,
to
which,
a
rejoinder
affidavit was filed on 25.07.2016. On
30.11.2023, when the petition came up, it
was
admitted
to
hearing,
which
proceeded
forthwith.
Judgment
was
reserved.

14. Heard Mr. Rajesh Kumar
Namdev, learned Counsel for the petitioner
and Mr. Yashwant Singh, learned Standing
Counsel appearing on behalf of the
respondents.

15. It is argued by the learned
Counsel
for
the
petitioner
that
the
impugned
orders
passed
against
the
petitioner are much flawed by procedural
unfairness, in that, that the inquiry, on the
foot of which the Disciplinary Authority
and
the
Appellate
Authority
have
proceeded to punish the petitioner, is no
inquiry at all. Learned Counsel for the
petitioner
emphasizes
that
in
any
departmental inquiry, where there is the
likelihood of imposition of a major penalty,
inquiry proceedings have to be formal in
nature. In inquires involving the possible
imposition of a major penalty, the Inquiry
Officer has to distance himself from the
Establishment and convene himself as an
impartial Tribunal. It is not that, that the
Inquiry Officer can assume the charges to
be proof of themselves and hold the
delinquent guilty; nor can the delinquent be
held guilty by going through the chargesheet, the delinquent's reply and the
documents supplied by the Establishment,
annexed to the charge-sheet. At a properly
convened inquiry, in all major penalty
matters, the Establishment has to be called
upon by the Inquiry Officer to prove
charges, both by documentary and oral
evidence, that is to say, by producing
witnesses. The production of witnesses is
an imperative in all major penalty matters.
Here, nothing of the kind, according to the
learned Counsel for the petitioner, has been
done and the inquiry has been an extremely
informal affair.

16. On the other hand, Mr. Yashwant
Singh, the learned Standing Counsel has
said that the charges against the petitioner
are very serious and involve defalcation of
funds of the State by practice of forgery
4 All. Santosh Kumar Mishra Vs. State of U.P. & Ors.
505
and manipulation of record. He submits
that the documents enclosed with the
charge-sheet are sufficient by themselves to
bring home the charges, which have been
held established by the Inquiry Officer and
accepted by the Disciplinary Authority as
well as the Appellate Authority. Mr. Singh
says that in these circumstances, it is not a
case where this Court should disturb the
findings recorded by the Inquiry Officer or
the
Disciplinary
and
the
Appellate
Authorities.

17. We have considered the rival
submissions advanced by parties. A perusal
of the Inquiry Report shows that the
charges laid against the petitioner involve
the payment of a sum of ₹65,783 due to
government
pensioners
to
fictitious
persons,
leading
to
defalcation
of
government funds. A perusal of the Inquiry
Report shows that the inquiry proceeded
against the former Sub-Treasury Officer,
Mahesh Babu Saxena, the Accountant,
Tulsi Das, the Sub Treasury Officer Madan
Pal and the petitioner, a Peon. It is not the
province of this Court to go into the merits
of the charges, but we think that we should
venture to refer to so much of the findings
of the Inquiry Officer, with reference to the
crux of the charges, as may enable us to
fathom if the inquiry held was one that is
procedurally fair and according to the
salutary principle governing departmental
inquiries, in matters where a major penalty
may be imposed. The Inquiry Officer says
in support of the charges against the
petitioner, that the evidence appearing
against him is :

1. "आप बैंक जाकर पेंिनर को पेंिन
का भुगतान कराते र्थे ।"

Translated into English, it would
read :

"You would go over to the bank
and facilitate payment of pension to the
pensioners."

2. "आप हदनांक 4.12.1992 को सभी
पेंिनर के सार्थ बैंक गए र्थे ।"

This would read (translated to
English) as follows :

"You went along with all the
pensioners to the Bank on 04.12.1991."

18. Now, the two shortlisted matters,
hereinabove detailed, and said to be
evidence against the petitioner in support of
the charges, are, by no means, evidence of
any kind. These are facts, or may be, some
relevant part of facts that may go to
constitute the charges against the petitioner.
What has been shortlisted as evidence by
the Inquiry Officer is neither documentary
nor oral evidence, or any other kind of
evidence. It is assertion of facts and
nothing more. The Inquiry Officer proceeds
to say that the petitioner obstructed the
proceedings
taken
to
scrutinize
the
vouchers and pressurized the Bank Cashier
to quickly pay off the pensioners.

19. The petitioner signed the vouchers
for the STO, forging his signatures, and
upon a repeat objection by the Bank, the
petitioner fled the Bank along with the
relative voucher and the pensioner. It is
recorded that the petitioner himself forges
the pension vouchers and if he has any
authority from the STO in this behalf, he
must produce the same. These and some
further remarks in the Inquiry Report are
more or less repetition of the charges
against the petitioner, the substance of
which has been indicated hereinabove. It is
then remarked by the Inquiry Officer that in
his reply to the charge-sheet, the petitioner
has denied the charges and said that he has
506 INDIAN LAW REPORTS ALLAHABAD SERIES
not violated any rule or done any act that
may constitute embezzlement. He is a Peon
and has not done any monetary transaction.
The Inquiry Officer has remarked that the
petitioner has blamed the STO, the
Accountant and the others charged at the
inquiry for the embezzlement and said that
he has been made a scapegoat by
threatening two pensioners, who moved
applications against him.

20. The Inquiry Officer then goes on
to remark that answering the evidence
against him, the petitioner has said that he
never went to the Bank to ensure
disbursement
of
pension
to
the
beneficiaries.
The
occurrence
dated
04.12.1991 is incorrect. He never went to
the Bank on the said date, nor did he ask
the cashier to quickly pay off the
pensioners. The Inquiry Officer has also
remarked that the petitioner has said that he
has not drawn up any forged vouchers, nor
has he drawn up additional syaha, or
changed the pensioner's name in the syaha.
The Inquiry Officer goes on to observe that
the pensioner, Smt. Tikola Devi, has said in
her complaint that the petitioner, on
09.07.2011, after she was paid her pension
of ₹1074, took a sum of ₹500 in loan and
had not repaid her so far. There is also a
reference
to
complaint
by
another
pensioner, Bhola Nath, who too says that a
sum of ₹1800, that he had received in
arrears, was taken in loan by the petitioner.
The Inquiry Officer has recorded that on
the basis of details of the forged pension
vouchers
available
on
record,
the
pensioner, Bhola Nath was paid a sum of
₹1908 on 11.11.1991 and a sum of ₹1847
on 05.12.1991. The Inquiry Officer has also
recorded that the Branch Manager, State
Bank of India, Ujhani had written a letter
dated 04.12.1991 to the STO, Ujhani, a
copy of which is available on record. It is
observed that this letter lays a complaint
against the petitioner that he put pressure
on the officials of the Bank to pay off
pension to an imposter, a man called
Rampal, and when the Bank officials
refused to pay, asking the STO to come
over to the Bank, the petitioner, along with
the impostering pensioner, took to their
heels. Upon arrival of the STO, it was
revealed that the petitioner was attempting
to get the pension due to a pensioner by the
name Rampal fraudulently, and by that
date, the said pensioner's bill had not yet
been passed. This discovery led the matter
to be probed, and the embezzlement of a
sum of ₹65,783 came to light, all of which
was paid off to bogus pensioners in place
of the genuine beneficiaries. There are then
findings how all these facts constituting the
charges are proved.

21. It is observed that across the
length and breadth of the Inquiry Report,
one
does
not
find
any
evidence,
documentary or oral, produced before the
Inquiry
Officer
on
behalf
of
the
Establishment in a duly convened inquiry.
All the findings have been recorded on a
presumption that the charges, read together
with the documents relied upon by the
Establishment, are proof of themselves.
The Inquiry Officer has gleaned through
the charge-sheet, the petitioner's reply and
the annexed documents, sitting casually
during the course of his ordinary duties in
the Establishment, and without convening a
formal inquiry, fixing a date, time and
place, where the Establishment would be
first required to produce their evidence,
both documentary and oral, to prove the
charges against the petitioner.

22. It must be remembered for a
salutary principle that in a departmental
inquiry,
the
Inquiry
Officer
cannot
4 All. Santosh Kumar Mishra Vs. State of U.P. & Ors.
507
identify himself with the Establishment
or accord any weightage to the charges,
merely because some documents are
annexed. The Inquiry Officer must start
with a clean slate, placing burden upon
the Establishment, with which he must
distance himself in the role of the Inquiry
Officer, and assume that the charges are
neither proved nor dispelled. He must
then require the Establishment to prove
the
charges
by
formally
producing
evidence, documentary and oral, which
much include witnesses in a case where a
major penalty may be imposed. The
witnesses may give testimony of facts
constituting the charges and also prove
the documents relied upon by the
Establishment. The witnesses must then
be exposed to the delinquent's crossexamination. After this stage is over, the
delinquent can be called upon to produce
evidence in his defence, which, again,
can be both documentary and oral. This is
a salutary principle, and in this case also,
the mandate of Rule 7(vii) of the Rules of
1999. The Inquiry Report, in this case,
reveals that after the petitioner denied the
charges, the Inquiry Officer did not
convene any proceedings of the inquiry,
fixing a date, time and venue. He never
called upon the Establishment to produce
their evidence, which would be done
through a Presenting Officer and include
both documentary evidence and oral, that
is to say, witnesses. This fact, which is
otherwise unmistakably discernible from
the Inquiry Report, is admitted in
paragraph No. 22 of the counter affidavit,
where, in answer to paragraph No. 26 of
the writ petition, it is averred :

22. That the contents of paragraph 26
of the writ petition are denied. It is stated
that when the charge-sheet was given by
the City Magistrate then in support thereof
all the documents were attached, and he
attached the petitioner in his Court till the
written statement but he always absconded
from his court and did not attend for the
statement. It is wrong to say that he was not
given the opportunity.

23. This clinches the issue that no
evidence, whatsoever, was ever produced
by the Establishment, in support of the
charges. It is also to be noted that if the
petitioner was avoiding appearance before
the Inquiry Officer, that did not relieve the
Establishment of the burden to prove the
charges, which they would have to do even
if the inquiry was set down ex-parte. The
furnishing of opportunity to the petitioner
to defend himself does not relieve the
Establishment of their own burden to prove
the charges by evidence, both documentary
and oral, which has not been done in this
case at all.

24. It must also be remarked that a
perusal of the order dated 15.04.1993
shows that on that date, the petitioner was
asked to appear before the Inquiry Officer,
but the proceedings were adjourned,
because the Inquiry Officer was busy with
some anti-encroachment drive. What is
relevant is that the said date was fixed for
recording the petitioner's evidence. It is
surprising that the petitioner's evidence
was
scheduled
to
be
recorded
on
15.04.1993 by the Inquiry Officer in a
proceeding where no evidence was ever
produced on behalf of the Establishment;
no witness was produced to prove the
Establishment's case. The order dated
15.04.1993 shows the understanding of the
Inquiry Officer about the procedure of
holding a departmental proceeding, is
flawed beyond redemption, for reasons that
we have indicated both hereinbefore and
hereinafter.
508 INDIAN LAW REPORTS ALLAHABAD SERIES

25. The Inquiry Officer has sat back
in his office and in the routine of his daily
work,
as
already
remarked,
shuffled
through the charge-sheet, the petitioner's
reply and the documents annexed, which
nobody proved or established the truth of,
and proceeded to hold the charges proved
on a supposition as if the charges were
proof of themselves. It appears that the
Inquiry Officer assumed that the charges
read together with the papers annexed to
the charge-sheet were not explained away
by the petitioner in his reply, and,
therefore, proved.

26. To add to all this is the fact that
the nature and the particulars of the charge
are such that it was imperative for the
Establishment to produce witnesses in the
first
instance
to
prove
it.
If
the
Establishment had to prove that the
petitioner put pressure on Bank officials to
pay off pension to one or the other
pensioners, or to pay off an imposter, it was
necessary to produce officials of the Bank
to prove the allegation in the first instance.
Nothing of the kind of was done.

27. This Court may dare say that the
kind of procedure the Inquiry Officer
adopted in this case could never be the
lawful procedure to be followed in a
departmental
inquiry,
involving
the
imposition of a major penalty. This kind of
procedure could be associated with a
preliminary inquiry or a fact-finding
inquiry, but not one, which was part of
disciplinary proceedings likely to lead to
the imposition of major penalty. The
principle about the manner in which the
inquiry
is
to
be
held,
where
the
Establishment bear the burden of producing
evidence
before
the
Inquiry
Officer,
documentary
and
oral,
particularly
witnesses, is so well established that it can
hardly brook doubt. It is also the mandate
of Rule 7(vii) of the Rules of 1999 that this
principle, as a salutary one, governing the
procedure to be adopted in departmental
inquiries involving the likelihood of
imposition of a major penalty, is to be
followed, is well established, in view of the
holding of the Supreme Court in State of
Uttar Pradesh and others v. Saroj
Kumar Sinha3, Roop Singh Negi v.
Punjab National Bank and others4, State
of Uttaranchal and others v. Kharak
Singh5 and the Bench decisions of this
Court in State of U.P. and another v.
Kishori Lal and another6, Smt. Karuna
Jaiswal v. State of U.P.7 and State of
U.P. v. Aditya Prasad Srivastava and
another8.

28. The Authorities below have
proceeded to pass the impugned orders,
punishing the petitioner on the basis of an
inquiry that is so procedurally flawed that it
is a nullity and no inquiry in the eyes of
law. Therefore, the impugned orders cannot
be sustained.

29. It goes without saying that these
orders
being
flawed
on
account
of
procedural infirmities, in the ordinary
course
of
things, would
entitle
the
respondents to proceed afresh with the
inquiry from the stage of the charge-sheet.
The only distinguishing feature, perhaps, in
this case is that the petitioner was aged 56
years in the year 2014 and would have
reached
the
age
of
superannuation
somewhere in the year 2018. This is a fact
which the respondents would bear in mind
before electing to pursue fresh proceedings
against the petitioner. This Court may not
be understood to say that there is any lack
of jurisdiction with the respondents in
initiating fresh proceedings against the
petitioner, but it would now certainly
4 All. Dev Prakash Tripathi Vs. State of U.P. & Ors.
509
impose some limitations on the punishment
that the respondents can award the
petitioner in case he is again found guilty.

30. In the result, this writ petition
succeeds
and
stands
allowed.
The
impugned order dated 31.07.1993 passed
by the District Magistrate, Budaun and the
Appellate Order dated 13.02.2014 passed
by the Commissioner, Bareilly Division,
Bareilly
are
hereby
quashed.
The
petitioner shall be deemed to be in service
until the date of his superannuation in the
ordinary course. It would be open to the
respondents to resume proceedings against
the petitioner from the stage of the chargesheet, and if they elect so to do, neither
emoluments due to the petitioner until his
superannuation nor any part thereof or
other post-retiral benefits, to which the
petitioner
would
be
entitled
upon
superannuation, would be payable to him,
until
final
orders
are
passed.
The
entitlement of the petitioner to emoluments
until the date of his superannuation and his
post-retiral benefits would be subject to the
outcome of fresh proceedings, if elected to
be pursued. If, however, no proceedings
afresh are elected to be pursued, the
petitioner would be entitled to 50% of his
emoluments
from
the
date
of
the
impugned order passed by the District
Magistrate until his superannuation, and
all other post-retiral benefits would be
payable, as if the orders impugned had
never been made.

31. There shall be no order as to costs.

32. Let the Registrar (Compliance)
communicate this judgment and order to
the
Commissioner,
Bareilly
Division,
Bareilly
and
the District
Magistrate,
Budaun.
----------
(2024) 4 ILRA 509
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.03.2024

BEFORE

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

Writ A No. 41897 of 2014

Dev Prakash Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri N.L. Pandey, Sri V.K. Mishra

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Singh, Sri D.D.
Chauhan

A. Service Law - Termination - Service as
a
Shiksha
Mitra
-
Charges
of
unsatisfactory service and of making off
with Attendance Register were leveled -
No material particular was on record -
Effect - Held, there is nothing said in the
impugned order, even vaguely, apart from
one fact as to how the petitioner's work
and
conduct
were
unsatisfactory
or
obstructive of work in the institution.
Before allegations of this kind can be
sustained, they have to be definitive in the
sense that particulars and facts have to be
set out as to how the petitioner's work is
unsatisfactory, citing instances of it, and
how his conduct is blameworthy - The
District
Magistrate
has
granted
an
approval without application of mind to
any of the glaring infirmities - No act of
the St. or its officials, can be so uncertain
and so full of contradictions. The BSA, who
passed the impugned order and the
District Magistrate, who granted approval
to it on 20.06.2014, shall stand duly
cautioned to be careful in matters dealing
with rights of citizens. (Para 10, 11, 13
and 15)

Writ petition allowed. (E-1)