# Shashi Prakash Shukla v. State of U.P. & Ors

- **Citation:** (2011) 2 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashi-prakash-shukla-v-state-of-u-p-ors-45342
- **Pages:** 12

## Text

8 All. Shashi Prakash Shukla Vs. State of U.P. & Ors.
63
where the error sought to be corrected
was about an unclaimed reservation
category, in Writ - A No.4552 of 2020,
Deepti Singh vs. State of U.P. and 2
others, decided on 23.06.2020. In
Deepti Singh (supra), it was held:

"This Court has keenly considered
the matter. It is true that the mistake on the
petitioner's part of not mentioning her
horizontal reservation category may be
inadvertent but the terms and conditions in
the form do not permit the petitioner to
reform the same lateron, once she has filled
up and submitted the examination form,
without claiming something as important as a
reservation category. A reservation category
is one that places the petitioner in a special
selection pool of 2% candidates. Once the
recruitment process has gone ahead, a
selectee in that pool whose result has been
declared or on way would be disturbed
because the petitioner now makes her claim,
if permitted. This kind of a late reform of the
petitioner's candidature entitling her to seek
selection under a reservation category cannot
be permitted in the opinion of this Court."

64. In view of what has been said
above, this Court does not find any good
ground to interfere.

65. In the result, these writ petitions
fail and are dismissed. There shall be no
order as to costs.
----------
(2020)08ILR A63
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ A No. 8379 of 2003

Shashi Prakash Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.S. Misra, Sri Arun Kumar

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Uttar
Pradesh
Government Servant (Discipline and
Appeal) Rules, 1999: Rule 7, 9(4) - -
Departmental Enquiry - Non holding of
oral inquiry before imposing major
penalty and removal would vitiate the
entire proceeding including order of
punishment - Initial burden is on the
department to prove charges. In case of
procedure
adopted
for
inflicting
major
penalty, department must prove charges by
oral evidence also. In the present case, the
charges are such which have to be proved by
evidence otherwise mere leveling of charge
cannot be said to be self-proved and no
reverse onus can be placed upon employee to
disprove the charge. (Para 12, 25, 26, 31)

B. Punishment not prescribed in Rules
cannot be imposed upon a delinquent
employee as a result of departmental
enquiry. (Para 32, 33)

Writ petition allowed. (E-4)

Precedent followed:

1. Meenglas Tea Estate Vs The Workmen, AIR
1963 SC 1719 (Para 13)

2. St. of U.P. Vs C.S. Sharma, AIR 1968 SC
158 (Para 14)

3. P.N.B. Vs A.I.P.N.B.E. Federation, AIR 1960
SC 160 (Para 15)

4. A.C.C. Ltd. Vs Their Workmen, (1963) II
LLJ. 396 (Para 15)

5. Tata Oil Mills Co. Ltd. Vs Their Workmen,
(1963) II LLJ. 78 (SC) (Para 15)
64 INDIAN LAW REPORTS ALLAHABAD SERIES
6. S.C. Girotra Vs United Commercial Bank
1995 Supp. (3) SCC 212 (Para 16)

7. Subhas Chandra Sharma Vs Managing
Director & anr., 2000 (1) UPLBEC 541 (Para
17)

8. Subhas Chandra Sharma Vs U.P. Cooperative Spinning Mills & ors. 2001 (2)
UPLBEC 1475 (Para 18)

9. St. of U.P. Vs Saroj Kumar Sinha (2010) 2
SCC 772 (Para 19)

10. Roop Singh Negi Vs P.N.B., (2009) 2 SCC
570 (Para 20)

11. Rajesh Prasad Mishra Vs Commissioner,
Jhansi Division, Jhansi & ors. 2010 (1)
UPLBEC 216 (Para 21)

12. Subhash Chandra Gupta Vs St. of U.P.,
2012 (1) UPLBEC 166 (Para 22)

13. Imperial Tobacco Co. Ltd. Vs Its
Workmen, AIR 1962 SC 1348, Uma Shankar
Vs. Registrar, 1992 (65) FLR 674 (All.) (Para
23)

14. Mahesh Narain Gupta Vs St. of U.P. &
ors., (2011) 2 ILR 570 (Para 24)

15. S.B.I. & ors. Vs. T.J. Paul, 1999 (3) JT
385 (Para 32)

16. Vijay Singh Vs St. of U.P. & ors., JT 2012
(4) SC, 105 (Para 32)

Petition
challenges
order
dated
01.04.2002,
passed
by
Additional
Commissioner (Administration) Trade
Tax,
U.P.,
Lucknow.
Order
dated
07.05.2002. Order dated 12.11.2002
passed by Commissioner Trade Tax,
U.P., Lucknow.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Arun Kumar, learned
counsel
for
petitioner
and
learned
Standing Counsel for State of U.P.

2. This writ petition under Article
226 of Constitution of India has been
filed by sole petitioner Shashi Prakash
Shukla assailing order dated 01.04.2002
(Annexure-26 to writ petition) passed by
Additional
Commissioner
(Administration)
Trade
Tax,
U.P.,
Lucknow,
imposing
punishment
of
temporarily stoppage of five increments;
Censure and non-posting of petitioner on
any sensitive post for five years; order
dated 07.05.2002 (Annexure-29 to writ
petition) rejecting petitioner's application
for review of aforesaid punishment order,
and lastly, order dated 12.11.2002
(Annexure-33 to writ petition) passed by
Commissioner
Trade
Tax,
U.P.
Lucknow,
rejecting
petitioner's
representation against punishment order.

3. Facts, in brief, giving rise to
present writ petition are that petitioner
was appointed as Junior Clerk on ad hoc
basis on 28.02.1977 in the Department of
Sales Tax (now known as 'Department of
Trade Tax'). Subsequently, he was
appointed as Clerk on temporary basis
vide order dated 13.03.1979, issued by
Assistant Commissioner (Administration)
Sales
Tax,
Gorakhpur
Region,
Gorakhpur. He was regularized in 1983
on the post of Clerk. He was promoted
and transferred as Senior Clerk in
October, 1993 and posted as Accounts
Clerk. While working in the capacity of
Accounts
Clerk,
petitioner
noticed
anomalies in the payment of salary to
staff and reported those irregularity to
Deputy Collector (Collection), Sales Tax,
Gorakhpur. This caused annoyance to
Senior Officers. Petitioner fell ill on
30.03.1994 and sought casual leave but it
was rejected by respondent-7. Petitioner
was directed to handover charge of
Accounts Clerk to Head Clerk Tabarak
8 All. Shashi Prakash Shukla Vs. State of U.P. & Ors.
65
Ali. Aforesaid order was not served upon
petitioner and instead report was lodged
at Police Station Cantt. Gorakhpur on
31.03.1994 under Section 409 IPC
alleging that petitioner had fled away
with record and cash of Rs.1500/- from
office. Report was registered as Case
Crime No.359 of 1994. Petitioner joined
office on 31.03.1994 but was not
informed about above incident. On
02.04.1994, petitioner got information of
registration of FIR against him from a
news item of local newspaper. Thereafter
he applied for bail in the Court of Chief
Judicial Magistrate, Gorakhpur. Vide
order
dated
18.04.1994,
Magistrate
directed petitioner to handover charge of
Accounts Clerk to Deputy Collector
(Collection) Sales Tax, Gorakhpur by
22.04.1994 and granting interim bail to
petitioner, he fixed 23.04.1994 for bail.
Petitioner submitted an application dated
19.04.1994 requesting Deputy Collector
(Collection) Sales Tax, Gorakhpur to
take charge of Accounts Clerk from him
but
the
then
Deputy
Collector
(Collection)
Sales
Tax,
Gorakhpur
avoided to take charge from petitioner.
Ultimately he could handover charge of
Accounts Clerk to Sri Tabarak Ali, Head
Clerk on 27.04.1994. Petitioner's bail
application
was
rejected
by
Chief
Judicial Magistrate, Gorakhpur vide
order
dated
12.05.1994.
Thereafter
petitioner was enlarged on bail by
District Judge, Gorakhpur vide order
dated 13.05.1994. In Case Crime No.359
of 1994, Investigating Officer submitted
final
report
before
Magistrate
on
29.06.1994.

4. In the first week of June, 1994,
petitioner
was
transferred
from
Gorakhpur to the Office of Deputy
Commissioner (Collection) Sales Tax,
Faizabad
and
therefrom
he
was
transferred to Sales Tax Office-A,
Bahraich.

5. While serving at Bahraich,
petitioner received a charge-sheet dated
07.10.1994 containing nine charges as
under:-

^^vkjksi la[;k&1

fMIVh dysDVj 1⁄4laxzg1⁄2 O;kikj dj
dk;kZy; esa mik;qDr 1⁄4'kk01⁄2 O;kikj dj
xksj[kiqj ds vkns'k }kjk LFkkukUrfjr gq, Fks
ijUrq yEcs le; rd fpfdRlk vodk'k ij
tkucw>dj pys x;s] ftlls ljdkjh dk;Z esa
ck/kk mRiUu gqvkA lk{; ds :i esa vkns'k dh
izekf.kr izfr layXu gSA^^

"Charge No. 1

Under the order of the Deputy
Commissioner
(Sha.)
Trade
Tax,
Gorakhpur, you were transferred to the
Office
of
the
Deputy
Collector
(Collection)
Trade
Tax
but
you
proceeded on long medical leave, which
caused obstruction in official duties. A
certified copy of the order is enclosed as
evidence."

^^vkjksi la[;k&2

vkids fMIVh dysDVj 1⁄4laxzg1⁄2 O;kikj
dj xksj[kiqj ds vkns'k la0 365 fnukad 3-11-93
}kjk ys[kk rFkk LFkkiuk iVy dk pktZ Jh c`t
fd'kksj ik.Ms; uk0r0 }kjk izkIr djk;k x;k Fkk
fdUrq pktZ esa dksbZ gLrk{kj djds izkIr ugha
djk;h x;h gSA lk{; ds :i easa i=kad 365
fnukad 30-11-93 dh izekf.kr izfr layXu gSA^^

"Charge No. 2

Under order no. 365 dated
03.11.1993 issued from the Office of the
Deputy Collector (Collection) Trade Tax,
you were given the charge of Accounts
and Establishment Counter by Shri Brij
Kishore Pandey, Na.T. but the said
charge has not been received with
signature. A certified copy of letter no.
66 INDIAN LAW REPORTS ALLAHABAD SERIES
365 dated 30.11.1993 is enclosed as
evidence."

^^vkjksi la[;k&3

vki izk;% dk;kZy; nsj ls vkrs jgsA
fnukad 4] 7] 17 o 22-3-94 dks mifLFkr
iaftdk ij vuqifLFkr fd;k x;k Fkk] fdUrq
vki }kjk vksoj jkbZfVax djds gLrk{kj cuk
fn;k x;k] tks vfu;fer gSA lk{; ds :i esa
mifLFkfr iaftdk dh izekf.kr izfr layXu gSA^^

"Charge No. 3

You often reported late to
office. On 4, 7, 17 and 22.03.1994, you
were marked absent in the attendance
register but you made your signatures by
overwriting there, which is irregular. A
certified copy of the attendance register
is enclosed herewith as evidence."

^^vkjksi la[;k&4

vkidks pktZ ds :i esa :0 1500
dS'k fuEu izdkj ls fn;k x;k Fkk] ijUrq fnukad
30-3-94 dks tkap ds le; mDr uksV ugha ik;k
x;k%&

:0 100 x 12 = 1200-00

:0 50 x 5 = 250-00

:0 10 x 4 = 40-00

:0 5 x 2 = 10-00

&&&&&&&&&&

;ksx 1500-00

&&&&&&&&&&&

lk{; ds :i esa rFkk ,Q0vkbZ0vkj0
dh izekf.kr izfr layXu gSA^^

"Charge No. 4

In the charge, you were given
cash in the following denominations but
the said notes were not found on
30.03.1994 during inquiry:

Rs. 100 x 12 = 1200.00

Rs. 50 x 5 = 250.00

Rs. 10x x 4 = 40.00

Rs. 5 x 2 =
10.00

Total 1500.00

A certified copy of FIR is
enclosed as evidence."

^^vkjksi la[;k&5

vkidks ys[kk iVy ls gVk dj pktZ
eq[; fyfid dks nsus ds fy;s funsZ'k gq;s Fks]
fdUrq vkius pktZ ugha fn;k tks vkns'kksa dh
vogsyuk gS rFkk deZpkjh vkpj.k fu;ekoyh ds
fu;e&3 ds fo:) gSA vkns'kksa dh izekf.kr izfr
layXu gSA^^

"Charge No. 5

You
were
removed
from
accounts counter and were directed to
give its charge to the Head Clerk but you
did not do so, which is violation of the
orders and is against Rule 3 of Servant
Conduct Rules. Certified copy of the
orders is attached herewith."

^^vkjksi la[;k&6

vki thi lEcU/kh dqN dkxtkr
rFkk fcy dk;kZy; ls ysdj Qjkj gks x;sA
vUrr% fnukad 31-3-94 dks vkids fo:) izFke
lwpuk fjiksVZ ntZ djk;h x;h] ftldh izekf.kr
izfr layXu gSA i=okgd }kjk vkns'k ysdj
gLrk{kj ugha fd;k x;kA c;ku dh izekf.kr
izfr layXu gSA^^

"Charge No. 6

You absconded from the office
with some papers and bill related to jeep.
Finally, on 31.03.94, first information
report against you was lodged, the
certified copy of which is attached.
Having
received
order
from
the
messenger, no signature was made
thereon, the certified copy of which is
attached."

^^vkjksi la[;k&7

vki }kjk Jh ,l0ih0flag fo0d0v0
1⁄4laxzg1⁄2 xksj[kiqj dk ekg Qjojh] 1994 dk
osru le; ls Hkqxrku ugha fd;k x;kA Jh flag
}kjk fyf[kr i= dh izekf.kr izfr lk{; ds :i
esa layXu gSA^^

"Charge No. 7

No payment of salary for the
month of February, 1994 was made by
you to Shri SP Singh, Sales Tax Officer
(Collection), Gorakhpur. The certified
copy of the letter written by Shri Singh is
attached herewith as evidence."
8 All. Shashi Prakash Shukla Vs. State of U.P. & Ors.
67

^^vkjksi la[;k&8

mik;qDr 1⁄4'kk01⁄2 O;kikj dj xksj[kiqj
}kjk Hkh fnukad 13-4-94 dks vkidks funsZ'k fn;k
x;k Fkk fd vkyekjh dk pktZ izR;sd n'kk esa
eq[; fyfid dks izkIr djk nsa] fdUrq vki }kjk
pktZ ugha fn;k x;kA lk{; ds :i esa i=kad
14 fnukad 13-4-94 dh izekf.kr izfr layXu
gSA^^

"Charge No. 8

Deputy Commissioner (Sha.),
Trade Tax, too, instructed you on
13.04.1994 to hand over the charge of
the almirah to Chief Clerk in any case,
but you did not hand over the charge. As
evidence, the certified copy of the letter
no. 14 dated 13.04.1994 is attached
herewith."

^^vkjksi la[;k&9

vki fnukad 12-5-94 dks mifLFkr
iaftdk ij gLrk{kj dj izkr% 11-00 cts
dk;kZy; ls fcuk fdlh lwpuk ds xk;c gks
x;sA bl lEcU/k esa vkidk Li"Vhdj.k i=kad
eseks fnukad 18-5-94 }kjk ekaxk x;k Fkk] fdUrq
vki }kjk dksbZ mRrj ugha fn;k x;kA Kkr
djus ij ;g ik;k x;k fd vki fnukad 12-594 dks dksVZ esa eqdnesa ds flyflys esa mifLFkr
Fks ,oa mDr fnukad dks dkjkxkj esa vo:) gks
x;s Fks ,oa fnukad 13-5-94 rFkk 14-5-94 dks
fcuk fdlh lwpuk rFkk vodk'k izkFkZuk i= ds
xk;c jgsA v/kh{kd Js.kh&A ftyk e.My
dkjkxkj] xksj[kiqj ds fjiksVZ fnukad 23-5-94 ds
vuqlkj vki dkjkxkj esa fnukad 12-5-94 rd
jgsA lk{; ds :i esa dkjkxkj v/kh{kd xksj[kiqj
}kjk izekf.kr i= dh Nk;k izfr layXu gSA**

"Charge No. 9

You, having made signature on
the attendance register on 12.05.94 at
11:00 a.m., were absent from the office
without any information. In this regard,
you were asked to give explanation
through the memo dated 18.05.94, but
you did not give any reply. On being
probed, it was found that you were
present in a court on 12.05.94 in relation
to a case, and on the said date you were
detained in the jail. On 13.05.94 and
14.05.94, you remained absent without
any
information
and
casual
leave
application. As per the report dated
23.05.94 of the Superintendent-1, District
Divisional
Jail,
Gorakhpur,
you
remained in the jail till 12.05.94. As
evidence, photocopy of the letter certified
by Jail Superintendent, Gorakhpur is
attached herewith."

(Emphasis added)

(English Translation by Court)

6. Petitioner for the purpose of
defence, sought inspection of record and
submitted application dated 31.01.1995
to Assistant Commissioner (Assessment)
Trade Tax, Faizabad and thereafter sent
reminders dated 28.12.1995, 01.01.1936,
18.01.1996 and 02.04.1996.

7. Chief
Judicial
Magistrate,
Gorakhpur vide order dated 30.10.2000
accepted final report dated 29.06.1994 in
Case Crime No.359 of 1994.

8. Applications submitted by
petitioner for inspection of record were
not replied and no inspection was
allowed. Having no option, petitioner
submitted reply to charge-sheet on
29.11.2001. No further enquiry was held
as petitioner had no information from
Enquiry Officer. Instead he received a
letter dated 24.01.2002 under Rule 9(4)
of Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999
(hereinafter referred to as "Rules, 1999")
accompanied by enquiry report dated
16.01.2002.
Enquiry
Officer
held
charges-1, 2, 4 and 7 not proved;
charges-3, 5, 8 and 9 proved and charge6 partly proved. Petitioner submitted
68 INDIAN LAW REPORTS ALLAHABAD SERIES
application dated 19.02.2002 requesting
Disciplinary Authority to grant one
month's further time to file reply to
enquiry report. However, he could not
submit reply even within one month and
in
the
meantime,
respondent-3
(Disciplinary Authority) passed order of
punishment dated 01.04.2002 imposing
punishment of withholding of five
increments temporarily; Censure and
non-posting of petitioner on a sensitive
place for five years.

9. Thereafter, petitioner submitted
an application dated 08.04.2002 for recall
of punishment order dated 01.04.2002
which was rejected vide order dated
07.05.2002 passed by respondent-3.
Petitioner
preferred
Writ
Petition
No.29159 of 2002 which was disposed of
vide order dated 26.07.2002 with a
direction that petitioner himself avail
remedy
of
appeal.
Consequently,
petitioner preferred an appeal which has
been dismissed by respondent-2 vide
order dated 12.11.2002.

10. Learned counsel for petitioner
contended
that
punishment
of
withholding
of
five
increments
temporarily and Censure though minor
punishment but it is not the ultimate
punishment which will decide procedure
for enquiry, inasmuch as, while issuing
charge-sheet to petitioner, Authorities
have to follow procedure for enquiry
necessary for imposing even major
penalty. That is why, Enquiry Officer
was appointed, charge-sheet was given
but Enquiry Officer did not afford
adequate opportunity of defence to
petitioner, inasmuch as, despite repeated
letters, inspection of documents was not
allowed to petitioner even copies of
documents were not supplied to him
which were the evidence relied in support
of charge-sheet, no oral enquiry was
conducted; no date, time or place was
fixed wherein Department could have
adduced evidence to prove charges and
thereafter no date, time or place was
fixed to give opportunity of defence to
petitioner. Therefore, entire proceedings
are illegal and in violation of procedure
prescribed in Rule 7 of Rules, 1999 and
impugned order is liable to be set aside.

11. A counter affidavit has been
filed by respondents wherein it is
admitted in para-17 that after considering
petitioner's reply to the charge-sheet,
Enquiry Officer submitted report, thus, in
effect, it is admitted that no date, time or
place was fixed by Enquiry Officer for
holding oral enquiry. It is only on the
basis of charge-sheet and reply submitted
by petitioner, Enquiry Report has been
submitted.
Such
procedure
is
not
consistent with the procedure prescribed
in Rule 7 of Rules, 1999. In such cases,
oral enquiry is mandatory wherein
Department is under an obligation to
prove charge and thereafter Enquiry
Officer is under obligation to give
opportunity to delinquent employee to
submit his defence.

12. Now the sole question up for
consideration is "whether non holding of
oral inquiry before imposing major
penalty and removal would vitiate the
entire proceeding including order of
punishment."

13. In Meenglas Tea Estate v. The
workmen., AIR 1963 SC 1719, Supreme
Court observed "It is an elementary
principle that a person who is required to
answer a charge must know not only the
accusation but also the testimony by
8 All. Shashi Prakash Shukla Vs. State of U.P. & Ors.
69
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 to
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 before the result of
the enquiry can be accepted.

14. In State of U.P. v. C. S. Sharma,
AIR 1968 SC 158, Court held that omission
to give opportunity to the officer to produce
his witnesses and lead evidence in his
defence vitiates the proceedings. Court also
held that in the enquiry, witnesses have to be
examined in support of the allegations, and
opportunity has to be given to the delinquent
to cross-examine these witnesses and to lead
evidence in his defence.

15. In Punjab National Bank v.
A.I.P.N.B.E. Federation, AIR 1960 SC
160, (vide para 66), Court held that in
such enquiries evidence must be recorded
in
the
presence
of
charge-sheeted
employee and he must be given an
opportunity to rebut the said evidence.
Same view was taken in A.C.C. Ltd. v.
Their Workmen, (1963) II LLJ. 396,
and in Tata Oil Mills Co. Ltd. v. Their
Workmen, (1963) II LLJ. 78 (SC).

16. In S.C. Girotra v. United
Commercial Bank 1995 Supp. (3) SCC
212, Court set aside a dismissal order
which
was
passed
without
giving
employee an opportunity of crossexamination.

17. This Court in Subhas Chandra
Sharma v. Managing Director and
another, 2000(1) UPLBEC 541, said:-

"In our opinion after the
petitioner replied to the charge-sheet a
date should have been fixed for the
enquiry and the petitioner should have
been intimated the date, time and place
of the enquiry and on that date the oral
and documentary evidence against the
petitioner should have been led in his
presence and he should have been given
an opportunity to cross-examine the
witnesses against him and also he
should have been given an opportunity
to produce his own witnesses and
evidence. If the petitioner in response to
this intimation had failed to appear for
the enquiry then an ex parte enquiry
should have been held but the petitioner's
service should have not been terminated
without holding an enquiry. In the
present case it appears that no regular
enquiry was held at all. All that was
done that after receipt of the petitioner's
reply to the charge-sheet he was given a
show-cause notice and thereafter the
dismissal order was passed. In our
opinion this was not the correct legal
procedure and there was violation of the
rules of natural justice. Since no date
for enquiry was fixed nor any enquiry
held in which evidence was led in our
opinion the impugned order is clearly
violative of natural justice."

(emphasis added)

18. The above judgment was
followed by another Division Bench in
Subhas Chandra Sharma v. U.P. Cooperative Spinning Mills and others
reported 2001 (2) UPLBEC 1475 where
Court held:

"In cases where a major
punishment proposed to be imposed an
oral enquiry is a must, whether the
70 INDIAN LAW REPORTS ALLAHABAD SERIES
employee request, for it or not. For this
it is necessary to issue a notice to the
employee concerned intimating him date,
time and place of the enquiry as held by
the Division Bench of this Court in
Subhash Chandra Sharma v. Managing
Director, (2000) 1 UPLBEC 541, against
which SLP has been dismissed by the
Supreme Court on 16-8-2000."

(emphasis added)

19. In State of Uttar Pradesh v.
Saroj Kumar Sinha reported (2010) 2
SCC 772, Court said :-

"An inquiry officer acting in a
quasi-judicial authority is in the position
of an independent adjudicator. He is not
supposed to be a representative of the
department/
disciplinary
authority/
Government. His function is to examine
the
evidence
presented
by
the
Department, even in the absence of the
delinquent official to see as to whether
the unrebutted evidence is sufficient to
hold that the charges are proved. In the
present case the aforesaid procedure has
not been observed. Since no oral
evidence
has
been
examined
the
documents have not been proved, and
could
not
have
been
taken
into
consideration to conclude that the
charges have been proved against the
respondents.

When a departmental enquiry
is conducted against the government
servant it cannot be treated as a casual
exercise. The enquiry proceedings also
cannot be conducted with a closed mind.
The inquiry officer has to be wholly
unbiased. The rules of natural justice are
required to be observed to ensure not
only that justice is done but is manifestly
seen to be done. The object of rules of
natural justice is to ensure that a
government servant is treated fairly in
proceedings which may culminate in
imposition
of
punishment
including
dismissal/removal from service."

(emphasis added)

20. Similar view was taken in Roop
Singh Negi v. Punjab National Bank,
(2009) 2 SCC 570, where Court said:

"Indisputably, a departmental
proceeding
is
a
quasi-judicial
proceeding. The enquiry officer performs
a quasi-judicial function. The charges
levelled against the delinquent officer
must be found to have been proved. The
enquiry officer has a duty to arrive at a
finding upon taking into consideration
the materials brought on record by the
parties. The purported evidence collected
during investigation by the investigating
officer against all the accused by itself
could not be treated to be evidence in the
disciplinary proceeding. No witness was
examined to prove the said documents.
The
management
witnesses
merely
tendered the documents and did not
prove the contents thereof. Reliance,
inter alia, was placed by the enquiry
officer on the FIR which could not have
been treated as evidence."

(emphasis added)

21. In Rajesh Prasad Mishra v.
Commissioner, Jhansi Division, Jhansi
and others reported 2010 (1) UPLBEC
216, this Court observed, as under, after
detail analysis of authorities on the
subject:

"Now coming to the question,
what is the effect of non-holding of oral
8 All. Shashi Prakash Shukla Vs. State of U.P. & Ors.
71
inquiry, I find that, 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. & another
Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831
as well as by a Division Bench of this
Court in Subhash Chandra Sharma Vs.
Managing Director & another, 2000 (1)
U.P.L.B.E.C. 541."

22. In another case in Subhash
Chandra Gupta v. State of U.P., 2012
(1) UPLBEC 166, a Division Bench of
this Court, after survey of law on this
issue, observed as under:

"It is well settled that when the
statute provides to do a thing in a
particular manner that thing has to be
done in that very manner. We are of the
considered opinion that any punishment
awarded on the basis of an enquiry not
conducted
in
accordance
with
the
enquiry rules meant for that very
purposes is unsustainable in the eye of
law. We are further of the view that the
procedure prescribed under the inquiry
rules for imposing major penalty is
mandatory in nature and unless those
procedures are followed, any out come
inferred thereon will be of no avail
unless the charges are so glaring and
unrefutable which does not require any
proof. The view taken by us find support
from the judgement of the Apex Court in
State of U.P. & another Vs. T.P.Lal
Srivastava, 1997 (1) LLJ 831 as well as
by a Division Bench of this Court in
Subash Chandra Sharma Vs. Managing
Director
&
another,
2000
(1)
U.P.L.B.E.C. 541.

A Division Bench decision of
this Court in the case of Salahuddin
Ansari Vs. State of U.P. and others, 2008
(3) ESC 1667 held that non holding of
oral inquiry is a serious flaw which can
vitiate
the
order
of
disciplinary
proceeding including the order of
punishment has observed as under:-

" 10....... Non holding of oral
inquiry in such a case, is a serious matter
and goes to the root of the case.

11. A Division Bench of this
Court in Subash Chandra Sharma Vs.
Managing Director & another, 2000 (1)
U.P.L.B.E.C.
541,
considering
the
question as to whether holding of an oral
inquiry is necessary or not, held that if
no oral inquiry is held, it amounts to
denial of principles of natural justice to
the delinquent employee. The aforesaid
view was reiterated in Subash Chandra
Sharma Vs. U.P.Cooperative Spinning
Mills & others, 2001 (2) U.P.L.B.E.C.
1475 and Laturi Singh Vs U.P.Public
Service Tribunal & others, Writ Petition
No.
12939
of
2001,
decided
on
06.05.2005."

(emphasis added)

23. Even if employee refuses to
participate in the enquiry, employer
cannot straightaway dismiss him, but he
must hold an ex-parte enquiry where
evidence must be led as held in Imperial
Tobacco Co. Ltd. v. Its Workmen, AIR
1962 SC 1348, Uma Shankar v.
Registrar, 1992 (65) FLR 674 (All).

24. A Division Bench of this Court
in Mahesh Narain Gupta v. State of
72 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P. and others, (2011) 2 ILR 570 had
also occasion to deal with the same issue.
It has held:

"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 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 exparte 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."

(emphasis added)

25. The principal of law emanates
from the above judgments are that initial
burden is on the department to prove
charges. In case of procedure adopted for
inflicting major penalty, department must
prove charges by oral evidence also.

26. In the present case, I have
quoted the charges above and a perusal
thereof clearly shows that charges are
such which have to be proved by
evidence otherwise mere leveling of
charge cannot be said to be self-proved
and no reverse onus can be placed upon
employee to disprove the charge.

27. For example, in charge-1,
allegation is that petitioner proceeded on
medical leave deliberately. Evidence
relied is the order of transfer. Transfer by
itself is not a charge and charge is that
petitioner has proceeded on medical
leave deliberately for a long time and
caused obstruction in official duty.
"Whether petitioner was actually ill or
not" is a question of fact which has to be
proved by Department to prove the
charge that petitioner was not actually ill
but absented deliberately for a long time.
Neither such evidence is referred to nor
relied nor it is the case of respondents
that it was adduced before Enquiry
Officer.

28. Charge-2 states that document
dated 03.11.1993 was meant to receive
by Brij Kishore Pandey, Naib Tehsildar
but petitioner did not put his signature.
The fact that said document was actually
meant to receive to petitioner has to be
proved by person who alleged to have
got it received by petitioner but not such
witness has been examined. Hence,
charge-2 is also not proved at all.

29. Charge-3 states that petitioner
used to come late. On 4, 7, 17 and
8 All. Shashi Prakash Shukla Vs. State of U.P. & Ors.
73
22.03.1994, he was marked absent but by
overwriting
he
signed
attendance
register. The fact that petitioner was
actually
made
overwriting
on
the
attendance register is a question of fact
which has to be proved by some
evidence, not by mere overwriting but by
some person who has to prove that
overwriting was done by petitioner and
none else. No such evidence in this
regard was adduced.

30. Charge-4 says that certain notes
of particular denomination constituting
Rs.1500/- in cash was given to petitioner
but said denomination was not found. It
is not clear "whether there is some
deficiency in cash count or no cash was
found at all". If mere denomination was
changed but amount of cash, as handed
over, was available, then there is no
misconduct at all. In this respect, no
evidence has been produced except FIR
which admittedly resulted in final report
accepted by Magistrate and mere FIR
even otherwise is no evidence at all.

31. Similar is the position in respect
of other charges. I am not discussing the
same in detail but suffice it to mention
that Authorities in this case have
conducted disciplinary proceeding in
absolutely illegal and vexatious manner.
It appears that Authorities are not at all
either aware as to how Departmental
Enquiry has to be conducted or have no
idea of Service Rules and Law on the
subject of departmental enquiry and,
therefore, proceedings in question are
nothing but a sheer harassment to
petitioner.

32. Moreover, in the present case,
one of the punishment that petitioner
shall not be posted on any sensitive post
for five years is not the punishment
prescribed in Rules and, therefore,
imposition of said punishment is wholly
without
jurisdiction.
Counsel
for
petitioner placed reliance on Supreme
Court's decision in State Bank of India
and others Vs. T.J. Paul, 1999(3) JT
385 and a recent decision in Vijay Singh
Vs. State of U.P. and others, JT
2012(4) SC 105, wherein Court has said
that punishment not prescribed in Rules
cannot be imposed upon a delinquent
employee as a result of departmental
inquiry. Court in para 11 of the
judgement in Vijay Singh (supra) said:

"11. The issue involved herein
is required to be examined from another
angle
also.
Holding
departmental
proceedings and recording a finding of
guilt
against
any
delinquent
and
imposing the punishment for the same is
a
quasi-judicial
function
and
not
administrative one. (Vide: Bachhittar
Singh v. State of Punjab & Anr., AIR
1963 SC 395; Union of India v. H.C.
Goel, AIR 1964 SC 364; Mohd. Yunus
Khan v. State of U.P. & Ors., (2010) 10
SCC 539; and Chairman-cum-Managing
Director, Coal India Ltd. & Ors. v.
Ananta Saha & Ors., (2011) 5 SCC 142).

Imposing the punishment for a
proved delinquency is regulated and
controlled
by
the
statutory
rules.
Therefore, while performing the quasijudicial functions, the authority is not
permitted to ignore the statutory rules
under which punishment is to be
imposed. The disciplinary authority is
bound to give strict adherence to the said
rules.

Thus, the order of punishment
being outside the purview of the statutory
rules is a nullity and cannot be enforced
against the appellant."
74 INDIAN LAW REPORTS ALLAHABAD SERIES

33. Despite repeated query, learned
Standing Counsel could not dispute about
the fact that punishment imposed upon
petitioner
for
non-posting
on
any
sensitive post for five years is not a
punishment prescribed in Rules.

34. In the circumstances, impugned
order cannot be sustained and writ
petition has to be allowed.

35. Accordingly, writ petition is
allowed.
Impugned
orders
dated
01.04.2002, 07.05.2002 and 12.11.2002
are hereby set aside. Petitioner shall be
entitled for all consequential benefits.
----------
(2020)08ILR A74
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2020

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 20396 of 2019
&
Writ-A No. 21469 of 2019
&
Writ-A No. 162 of 2019

Manoj Kumar & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Radha Kant Ojha, Sri Shivendu Ojha

Counsel for the Respondents:
C.S.C., Sri A.K.S. Parihar

A. Service Law- The Uttar Pradesh
Secondary Education Services Selection
Rules, 1998: Rule 12(3)- U.P. Secondary
Education Service Selection Boards Act,
1982-
Sections
3,
9,
34(2),
35-
Recruitment/Selection - Bonafide and
unintentional mistake, in absence of any
statutory prohibition; cannot disentitle
the petitioners from evaluation of their
answers to questions in Part-II of the
two subjects opted by them in Part-I of
the OMR answer sheet. (Para 16)

The petitioners have opted two subjects in
Part-I and marked answers to questions of
those subjects in the respective sections in
Part-II. Inadvertently and unintentionally,
they also marked one or two circles in
another section/subject in Part-II. This can
only be described as human error. The
petitioners should have been careful, but a
little inadvertence like the present one cannot
deprive them from evaluation of their answers
to questions of the subject opted, particularly
when there is no statutory prohibition u/R 12
of the Rules, 1998. (Para 10, 18)

In view of Rule 12(3) of the Rules, 1998, the
Board cannot refuse to evaluate answer sheet
of a candidate (even if it is assumed that the
instructions as printed on the OMR answer
sheets have been lawfully framed by the
Board and have statutory force), if there is no
defect in Part-I of the OMR answer sheet
which relates to identity of candidate and
subject opted etc. and the answer paper does
not suffer from any major defect. (Para 15)

B. The instructions given in the OMR
answer sheets cannot be made basis to
refuse to evaluate answer sheets of the
petitioners merely on the ground that
they marked circles of one or two
questions of a subject other than the
two subjects opted by them in Part -I of
the OMR answer sheet. The mistake
committed by petitioners is a minor human
error. They are merely claiming for evaluation
of answers to the questions of the two
subjects opted by them in Part-I of the OMR
answer sheet. The answers marked by them
in
one
or
two
circles
of
another
section/subject (other than the opted two
subject), can neither be evaluated nor the
petitioners are claiming its evaluation which
are merely liable to be ignored. (Para 19, 20)

Writ
petitions
disposed
off
with
directions.
(E-4)