# Shiv Lal Sonker Inre552 (S/S) 93 v. State of U.P

- **Citation:** (2014) 2 ILRA 925
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-26
- **Case number:** Special Appeal No. 185 of 2004
- **Bench:** Rajiv Sharma, Mahendra Dayal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-lal-sonker-inre552-s-s-93-v-state-of-u-p-43036
- **Pages:** 6

## Headnote

C.S.C., Smt. T. Somvanshi

U.P.
Police
Regulation-Regulation
490dismissal on involvement of marpit under
influence of liquor with police officer-without
investigation without giving opportunity to
cross-examine-without following procedure
of Rules-enquiry concluded which held
vitiated dismissal-order considering long
period of harassment-and improper enquiryreinstated
with
50%
of
salary-period
consumed in litigation shall be treated in
service.

Held: Para-21
Taking the holistic view of the matter,
we have no hesitation in saying that the
inquiry has been conducted in utter
disregard to the principles of natural
justice. Since the impugned order has
been passed on the basis of the inquiry
report, which suffers from procedural
illegality and violative of principles of
natural justice, it vitiates the order of
punishment.

Case Law discussed:
AIR 1961 SC 751; (1986) 3 SCC 229; [2003]
(21) LCD 610; JT 2008 (9) 205; [(2010) 2
SCC 722]; AIR 1968 SC 158; 1995(Supp) 3
SCC 212; (2010) 10 SCC 539.

## Text

2 All]. Shiv Lal Sonker Inre 552(S/S) 93 Vs. State of U.P.
925
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.08.2014

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE MAHENDRA DAYAL, J.

Special Appeal No. 185 of 2004

Shiv Lal Sonker Inre552 (S/S) 93. Appellant
Versus
State of U.P. . ..Respondent

Counsel for the Appellant:
Sri Vidhu B. Kalia

Counsel for the Respondents:
C.S.C., Smt. T. Somvanshi

U.P.
Police
Regulation-Regulation
490dismissal on involvement of marpit under
influence of liquor with police officer-without
investigation without giving opportunity to
cross-examine-without following procedure
of Rules-enquiry concluded which held
vitiated dismissal-order considering long
period of harassment-and improper enquiryreinstated
with
50%
of
salary-period
consumed in litigation shall be treated in
service.

Held: Para-21
Taking the holistic view of the matter,
we have no hesitation in saying that the
inquiry has been conducted in utter
disregard to the principles of natural
justice. Since the impugned order has
been passed on the basis of the inquiry
report, which suffers from procedural
illegality and violative of principles of
natural justice, it vitiates the order of
punishment.

Case Law discussed:
AIR 1961 SC 751; (1986) 3 SCC 229; [2003]
(21) LCD 610; JT 2008 (9) 205; [(2010) 2
SCC 722]; AIR 1968 SC 158; 1995(Supp) 3
SCC 212; (2010) 10 SCC 539.

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard learned counsel for the
appellant, Shri S.K. Kalia, learned Senior
Advocate, assisted by Shri Ankit Pandey
and learned Additional Chief Standing
Counsel.

2. This Special Appeal has been
preferred against the judgment and order
dated 22.3.2002, passed in Writ Petition
No. 552 (SS) of 1993 and the judgment
and order dated 22.4.2004, passed in
Review Petition No.72 o 2002. By the
judgment and order dated 22.3.2002, the
learned Single Judge dismissed the writ
petition preferred by the appellant against
the order of dismissal. Thereafter the
petitioner filed a Review Petition, which
was also dismissed by the judgment and
order dated 22.4.2004.

3. Bereft of unnecessary details, in
short the facts of the case are that the
appellant while working as constable and
posted at Police Station Khairabad, District
Sitapur, was subjected to disciplinary
proceedings. The disciplinary proceedings
ultimately culminated in passing an order of
dismissal, which was assailed in the writ
petition on the ground that the disciplinary
proceedings were not only conducted in
blatant disregard of the principles of natural
justice but relevant documents such as copy
of the Medical Report, copy of the enquiry
report etcetra which were utilized against
him in the enquiry, were never supplied to
him. It has also been contended that in
disciplinary proceedings he was not only
denied the opportunity to cross examine the
Station Officer but provisions of Paras 486
and 490 of the Police Regulations were also
not followed, causing serious prejudice.

4. Learned counsel for the appellant
has contended that it is the case of the
respondents that the appellant misbehaved
926 INDIAN LAW REPORTS ALLAHABAD SERIES
with the public including one Shri Bakridi
and entered into 'Mar-Peet' with them
under the influence of the alcohol, while
on duty. The alleged misconduct amounts
to commission of a cognizable offence
under Sections 323, 504, 506 IPC as such
as per Para 486 of the U.P. Police
Regulations, it was incumbent upon the
opposite parties to have first made the
police
investigation
regarding
the
commission of such offence and only
thereafter the proceedings under Section 7
of the Police Act could have been
initiated against the appellant.

5. Learned counsel for the appellant
submitted that Para 490 of the U.P. Police
Regulations provides procedure for the
departmental trial of a subordinate Police
Officer. Para 490 makes it incumbent
upon the Enquiry Officer to record the
statement of the witnesses in his own
hand writing which was not done in the
present case.

6. It has also been asserted that the
learned Single Judge while deciding the
writ petition failed to appreciate that the
Enquiry
Officer
conducted
the
departmental enquiry in most illegal and
arbitrary
manner
without
affording
regular opportunity of hearing to the
appellant as he was not provided a copy
of the preliminary enquiry report ,
medical report of the Medical Officer, in
which it is stated that the petitioner was
under intoxication as held by the Enquiry
Officer. The learned Single Judge also
failed to appreciate that the Enquiry
Officer had relied upon the preliminary
enquiry report and overlooked the fact
that the same has not been supplied to
him. Lastly, it has been contended that the
learned Single Judge erred in not
appreciating the fact that there was no
reason or justification for the Competent
Authority to disagree with the punishment
of the reduction in pay scale as proposed by
the Enquiry Officer and awarding extreme
punishment of dismissal from service.

7. On the other hand, learned
Standing Counsel has submitted that the
disciplinary proceedings were initiated
against the appellant under the provision
of Section 7 of the Police Regulation Act
and on 18.3.1991 a charge sheet was
issued to him, to which reply was
submitted by the appellant on 9.4.1991
denying the charges levelled against him.
After denial of the charges, witnesses of
the case were examined in presence of the
appellant and ultimately after completing
due procedure, the Enquiry Officer
reached to the conclusion that the charges
levelled against the appellant were found
proved and the appellant is guilty for the
same. On 13.4.1992 a show cause notice
was issued to the appellant by the
Superintendent
of
Police
with
the
direction to submit reply in respect of
proposed punishment of dismissal from
service. As the reply given by the
appellant was not found satisfactory, the
Disciplinary
Authority
passed
the
impugned order of dismissal dated
31.10.1992. Being dis-satisfied with the
order of dismissal dated 31.10.1992 the
appellant filed Writ Petition No. 552 of
1993
(S/S),
which
was
ultimately
dismissed, as averred above. The review
petition filed by the appellant was also
rejected. The learned Single Judge did not
find any violation of principle of natural
justice or any defect as alleged by the
appellant. The judgments and orders
passed by the learned Single Judge are
perfectly justified and legal, therefore, the
instant Special Appeal deserves to be
dismissed.
2 All]. Shiv Lal Sonker Inre 552(S/S) 93 Vs. State of U.P.
927

8. After considering the material on
record, it comes out that the alleged
misconduct as disclosed in the charge
sheet, amounts to commission of a
cognizable offence under Sections 323,
504, 506 IPC read with Section 34 of the
Police Act, 1861. As per provisions of
para 486 of the U.P. Police Regulations, it
was incumbent upon the authorities to
have got the alleged offence investigated
first and only thereafter the competent
authority, i.e., Superintendent of Police
should have taken a decision as to
whether a Departmental action under
Section 7 of the Police Act was liable to
be taken against the appellant or not. It
was mandatory on the part of the opposite
parties to have first got the alleged
misconduct, which amounts to cognizable
offence, investigated and only thereafter
any departmental action could have been
taken as held by the Hon'ble Supreme
Court in the case of State of U.P. vs. Babu
Ram Upadhyay (AIR 1961 SC 751).
However, in the present case no Police
investigation was done which is contrary
to para 486 of the Police Regulation.

9. It is relevant to point that the
learned Single Judge while deciding the
writ petition failed to appreciate that the
Enquiry
Officer
conducted
the
Departmental Enquiry in a most illegal
and arbitrary manner without affording
reasonable opportunity of hearing to the
appellant as he was not provided copy of
the
preliminary
enquiry
report
and
medical report of the medical officer in
which he was found to be under
intoxication, as held by the Enquiry
Officer.

10. At this juncture,it would be
useful to refer few decisions of the Apex
Court rendered with regard to procedure
to
be
adopted
during
disciplinary
proceedings. In Kashinath Dikshita versus
Union of India and others; (1986)3 SCC
229
the
Hon'ble
Supreme
Court
emphasized that the delinquent employee
facing a departmental enquiry cannot
effectively meet the charges unless the
copies of the relevant statements and
documents to be used against him are
made available to him. In the absence of
such copies the concerned employee
cannot prepare his defence, cross examine
the
witnesses
and
point
out
the
inconsistencies with a view to show that
the allegations are incredible. Observance
of natural justice and due opportunity has
been held to be an essential ingredient in
disciplinary proceedings.

11. A Division Bench of this Court
in
Radhey
Kant
Khare
vs.
U.P.
Cooperative Sugar Factories Federation
ltd. [2003](21) LCD 610 held that after a
charge-sheet is given to the employee an
oral enquiry is a must, whether the
employee requests for it or not. Hence a
notice should be issued to him indicating
him the date, time and place of the
enquiry. On that date so fixed the oral and
documentary
evidence
against
the
delinquent employee should first be led in
his presence. Thereafter the employer
must adduce his evidence first. The
reason for this principle is that the chargesheeted employee should not only know
the charges against him but should also
know the evidence against him so that he
can properly reply to the same. The
person who is required to answer the
charge 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.
928 INDIAN LAW REPORTS ALLAHABAD SERIES

12. In State of Uttaranchal & ors. V.
Kharak Singh, JT 2008(9) SC 205, the
Apex Court has enumerated some of the
basic principles to be observed while
conducting the departmental inquiries and
consequences in the event, if these basic
principles are not adhered to, the order is
to be quashed. The principles enunciated
are reproduced herein:

(a) The inquiries must be conducted
bona fide and care must be taken to see
that the inquiries do not become empty
formalities.

(b) If an officer is a witness to any of
the incident which is the subject matter of
the enquiry or if the enquiry was initiated
on the report of an officer, then in all
fairness he should not be the Enquiry
Officer. If the said position becomes
known after the appointment of the
Enquiry Officer, during the enquiry, steps
should be taken to see that the task of
holding an enquiry is assigned to some
other officer.

(C)
In
an
enquiry,
the
employer/department should take steps
first
to
lead
evidence
against
the
workman/ delinquent charged, give an
opportunity to him to cross-examine the
witnesses
of
the
employer.
Only
thereafter, the workman/delinquent be
asked whether he wants to lead any
evidence
and
asked
to
give
any
explanation about the evidence led against
him. [emphasis supplied]

13. In State of U.P. and others v.
Saroj Kumar Sinha [(2010) 2 SCC 772]
the
Apex
Court
reiterated
that
departmental enquiry conducted against
the Government servant cannot be treated
as a casual exercise. The enquiry
proceedings also cannot be conducted
with a closed mind. The enquiry officer
has to be wholly unbiased. The Supreme
Court further observed that 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.

14. 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.

15. In S.C.Givotra v. United
Commercial Bank 1995 (Supp) (3) SCC
212, the Supreme Court set aside the
dismissal order which was passed without
giving the employee an opportunity of
cross-examination.

16. In Mohd. Yunus Khan v. State
of U.P. & Ors. reported in (2010) 10 SCC
539, the Hon'ble Supreme Court has held
that enquiry is to be conducted fairly and
reasonably and enquiry report must
contain
reasons
for
reaching
the
conclusion that charge framed against
delinquent stood proved against him. It
cannot be ipse dixit of enquiry officer.
Punishment for misconduct can be
imposed in consonance with statutory
rules and principles of natural justice.

17. At this juncture it is relevant to
point out that some of the documents
which were demanded by the petitioner
were not supplied to him. The law is well
settled that if a document has been
utilized against a delinquent employee
without furnishing the copy of the same to
him,
it
would
vitiate
the
entire
disciplinary proceedings. Moreover, such
lapse would vitiate the departmental
2 All]. Shiv Lal Sonker Inre 552(S/S) 93 Vs. State of U.P.
929
proceedings unless it was shown and
established as a fact that non-supply of
copies of those documents had not caused
any prejudice to the delinquent in his
defence.

18. Having considered the material
on records, we are of the view that the
learned Single Judge has committed error
apparent on the face of record while
coming to the conclusion that the medical
report, a copy of which was not supplied
to the appellant, was not proposed as
evidence. In fact in the charge-sheet no
document was proposed as evidence and
only a list of witnesses was submitted
with the charge sheet. While recording the
statement of the witnesses the documents
such as, medical report and preliminary
enquiry report, were relied by the
witnesses which were accepted by the
Enquiry Officer. Thus, the procedure
adopted during the course of inquiry is
totally defective and it is a drastic
deviation from the established procedure
generally
adopted
in
departmental
inquiries.

19. It may be added that preliminary
enquiry report was submitted by the
Station
Officer-in-Charge
who
has
reported that the appellant was found
drunk while on duty but apellant was not
allowed to cross examine him, which
vitiates the disciplinary proceedings.
There is no dispute to the fact that the
Enquiry
Officer
recommended
for
reduction in pay scale but Superintendent
of Police, Sitapur Shri R.N. Singh, against
whom the appellant has alleged malafides,
did not agree with the recommendation of
the Enquiry Officer and enhanced the
punishment into an order of dismissal. No
cogent reasons have assigned by the
Superintendent of Police Sitapur for
enhancing the order of quantum of
punishment. This is also a defect which
vitiates the order of dismissal.

20. We are of the considered opinion
that the observations in the cases, referred
to above, are fully applicable in the facts
and circumstances of this case. Nonsupply of documents demanded by the
petitioner and the copy of the inquiry
report have a potential to cause prejudice
to an employee in the enquiry proceedings
which would clearly be denial of a
reasonable opportunity to submit a
plausible and effective rebuttal to the
charges being inquired into against the
employee/officer.

21. Taking the holistic view of the
matter, we have no hesitation in saying
that the inquiry has been conducted in
utter disregard to the principles of natural
justice. Since the impugned order has
been passed on the basis of the inquiry
report, which suffers from procedural
illegality and violative of principles of
natural justice, it vitiates the order of
punishment.

22. In the result, the impugned
judgements
dated
22.3.2002
and
22.4.2004 and the order of punishment
dated 31.10.1992 are hereby quashed. The
appellant shall be reinstated in service
forthwith. However, it is clarified that the
appellant would be entitled for 50% of the
backwages from the date of date of
dismissal to the date of reinstatement but
the period from the date of dismissal to
the date of reinstatement shall be treated
as period rendered in service for the
purposes of pensionary benefits. As the
punishment order was passed way back in
1992 and since the petitioner has
undergone a series of harassments on
930 INDIAN LAW REPORTS ALLAHABAD SERIES
account of long drawn litigation, we are
not inclined to give any liberty to the
department for initiating fresh inquiry as
it would amount to further harassment of
the petitioner, who either would be at the
fag end of his service or might have
attained
the
age
of
superannuation
recently.

23. The Special Appeal, Review
Petition and writ petition shall stand
allowed in above terms.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.08.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Special Appeal No. 467 of 2014

Radhey Lal Verma & Ors. 3743(S/S) 2014
 ..Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Indu Prakash Singh, Sri Deepak Singh

Counsel for the Respondents:
C.S.C., Sri Chandra Shekhar Pandey

Constitution
of
India,
Art.-226-Writ
jurisdiction-practice
&
procedureidentical
writ
petitions
challenging
validity of clause (3) of G.O. 24.07.2012pending-Single Judge can not single out
and
dismiss
the
petition-without
considering merit of case-held-order not
sustainable-set-a-side-with direction to
decide this petition along with identical
other bunch cases.

Held: Para-11
Admittedly, a bunch of Writ Petitions is
pending wherein validity of Clause-3 of the
impugned Government Order dated 24th
July, 2012 has been challenged. In the
instant case also, the petitioners-appellants
have challenged validity of Clause-3 of the
Government Order. In any case, dismissal
of Writ Petition at this stage, without
adjudicating the controversy involved, and
without recording a finding in terms of
reliefs claimed, seem to be unjustified.

Case Law discussed:
1995 Supp (1) SCC 461.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard Sri I.P. Singh, learned
counsel appearing for the appellants and
Sri Abhinav N. Trivedi, learned Standing
Counsel.

2. With the consent of learned
counsel for the parties, we dispose of the
Appeal at the admission stage itself.

3. The question with regard to
retrospective effect of Government Order
dated
24th
July
2012
is
pending
adjudication before learned Single Judge,
whereby Clause-3 of the said Government
Order, has been impugned. In view of
Clause-3 of the Government Order, the
State Government has given effect to
Government Order with regard to age of
superannuation with prospective effect.

4. According to appellants' learned
counsel, attention of learned Single Judge
was invited to the fact that a bunch of writ
petitions are pending whereby Clause-3 of
the said Government Order has been
impugned.

5. A perusal of order dated 25th July
2014 passed by learned Single Judge in
Writ Petition No. 3743 (S/S) of 2014
reveals that the learned Single Judge has
declined to apply Government Order