# Sharma v. Managing Director, 1999 (4)

- **Citation:** (2004) 2 ILRA 551
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-07-23
- **Case number:** Civil Misc. Writ Petition No. 27737 of 2004
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharma-v-managing-director-1999-4-40423
- **Pages:** 2

## Text

http://www.allahabadhighcourt.nic.in
2 All] M.D., U.P. State Ware Housing Cor. & another V. Sri Radhey Shyam & others
551
enquiry officer, copy of which is
Annexure 28 to the writ petition. A
perusal of the enquiry report shows that
all that is stated therein is that since
several opportunities were given to the
writ petitioner for replying to the charge
sheet but he did not do so, hence it would
be deemed that he has accepted the
charges against him. Thereafter a show
cause notice was issued to the petitioner
on 10.8.1999 to which he gave a reply and
thereafter the impugned dismissal order
dated 14.2.2000 was passed. Against that
order the writ petition was filed in this
Court which has been allowed by the
learned Single Judge.

4. From the above facts it is evident
that in fact on enquiry was held against
the writ petitioner after giving him the
charge sheet.

5. The facts of the case are covered
by the decision of the Supreme Court in
the Imperial Tobacco company of India
Ltd. vs. Its workmen, AIR 1962 SC 1348
which has been followed by a Division
Bench of this Court in Subhash Chandra
Sharma vs. Managing Director, 1999 (4)
AWC 3227. The Division Bench of this
Court has held that after the charge sheet
is given the date, time and place of the
enquiry should be intimated to the
employee and on that date the oral and
documentary
evidence
against
the
petitioner should be led in his presence
and he should be given opportunity of
cross examination. If despite intimation
the employee fails to appear in the
enquiry then an exparte enquiry should be
held, but the employee's service cannot be
terminated without holding an enquiry,
the enquiry officer must hold an exparte
enquiry in which the evidence must be led
against the employee.

6. In the present case a perusal of the
enquiry report (Annexure 28 to the writ
petition) shows that merely because the
petitioner did not reply to the charge sheet
it was deemed that he accepted the
charge. This is not legally correct as held
in Subhash Chandra Sharma's case
(supra).

7. For the reasons given above there
is no force in this appeal and it is
dismissed.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.7.2004

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 27737 of 2004

Ram Prasad and another

...Petitioners
Versus
Moti Singh and others
 ...Respondents

Counsel for the Petitioners:
Sri D.V. Jaiswal

Counsel for the Respondents:
S.C.

Code of Civil Procedure-O.IX R. 13- Ex
parte decree- order of restoration and
condonation of delay by appellate court
by common order, held, not illegal,
where ground for restoration of suit and
condonation of delay is same.

Held: Para 5

After
hearing
learned
counsel
for
petitioners and considering materials on
record, I am of the view that as reasons
disclosed for non-appearance on the
date fixed in the suit and delay in filing
restoration
application
are
same,
appellate
court
rightly
allowed
restoration application after condoning
delay.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
552
Case law discussed:
(2002) 3 SCC 156

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Heard learned counsel for
petitioners.

This writ petition is directed against
the judgment and order dated 18.3.2004
passed by Special Judge, J.P. Nagar in
Civil Misc. Appeal No. 52 of 2002.

2. From perusal of record it
transpires that by an ex parte decree dated
9.5.1997 plaintiff- petitioners' suit was
decreed by Civil Judge (J.D.), Hasanpur,
Moradabad. Applications for restoration
of suit and for condoning delay supported
by an affidavit were rejected by trial court
by order dated 22.5.2002. The judgment
and order passed by appellate court in
appeal is impugned in the present writ
petition.

3. By the impugned judgment,
appellate
court
allowed
restoration
application and condoned delay, ex parte
decree dated 9.5.1997 was set aside at the
cost of Rs.1,000/- and suit was restored to
its original number.

4. Learned counsel for petitioners
urged that trial court passed an order on
the question of delay only and did not
pass any order so far as restoration
application is concerned. He further urged
that appellate court erred in law while
allowing the restoration application also
and order impugned is vitiated in law on
this ground.

5. After hearing learned counsel for
petitioners and considering materials on
record, I am of the view that as reasons
disclosed for non-appearance on the date
fixed in the suit and delay in filing
restoration application are same, appellate
court
rightly
allowed
restoration
application after condoning delay.

6. Where ground for restoration of
the suit as well as condonation of delay is
the same, order restoring the suit and
condoning delay could be passed by one
and common order and in case restoration
application is allowed, delay shall be
deemed to be condoned.

My view is supported by a judgment
of Apex Court reported in (2002) 3SCC
156 Devinder Pal Sehgal and another Vs.
Pratap Steel Rolling Mills Pvt. Limited.

7. There is no error of law in the
impugned order. It was rightly passed in
accordance with law. Now parties get full
opportunity of hearing.

Writ petition lacks merits and is
dismissed.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.7.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 33892 of 1999

Hira Prasad

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Sankatha Rai
Sri A.K. Singh

Counsel for the Respondents:
S.C.
Essential
Commodities
Act-
Seeds
Control Order, 1983 - R. 3 (i)-