# Singh v. Mandaliya Balika Nirikshak

- **Citation:** (2012) 2 ILRA 887
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012
- **Case number:** Civil Misc. Writ Petition No. 23347 of 1995
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-v-mandaliya-balika-nirikshak-42197
- **Pages:** 7

## Headnote

Constitution
of
India,
Article
226Dismissal
from
service-petitioner
working as a clerk in M.G. Palika Inter
College-placed
under
suspension
for
three allegations-three enquiry officers
conducted enquiry without indicating
date time and place-first allegation of
filing counter affidavit without narrativestand baseless in view of authority
letters of executive officer-other two
allegations of embezzlement without
supported documents, without giving
opportunity of cross examination-not
sustainable more than 19 years have
gone-considering
unnecessary
harassment and of charges without
supporting document-no useful purpose
to
remand
for
fresh
disciplinary
proceeding-dismissal order quashed with
all consequential benefits.

Held: Para 24 and 25

However, since I have already recorded
a finding that on both the charges there
was no evidence to substantiate the
charges and it was a case of no evidence,
therefore, I am not remitting back the
matter to the enquiry officer for holding
a fresh enquiry. Even otherwise the
charge sheets were issued in the year
1994 and more than 18 years have
already lapsed and the petitioner has
suffered enough and it would not be in
the interest of justice to remit the matter
back to the disciplinary authority to
enable him to sift and search for fresh
evidence to prove the guilt of the
petitioner.

Therefore, keeping strictly within the
parameters laid down for exercise of
power of judicial review in departmental
enquiries, from the above facts and
circumstances the irresistible conclusion
is that both the charges against the
petitioner are based on no evidence and
the finding recorded by the enquiry
officer are such which no man of
ordinary
prudence
or reason would
arrive at.
Case law discussed
(1947) 2 All E.R. 680; (1983) I.A.C. 768;
(1996) 7 SCC 509; (1999) 8 SCC 90; (1999) 2
SCC 10; (2001) 2 SCC 386; (2003) 3 SCC 583;
(2006) 13 SCC 1; (1983) I.A.C. 768

## Text

2 All] Shiv Shanker V. The Commissioner, Bareilly Division, Bareilly & Others
887
was shocking to the conscience of the
Court.

8. Accordingly the writ petition fails
and is hereby dismissed. The interim
order, if any, stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.212

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 23347 of 1995

Shiv Shanker

 ...Petitioner
Versus
The
Commissioner,
Bareilly
Division,
Bareilly & Others
 ...Respondents

Counsel for the Petitioner:
Sri Ravi Kant
Sri Mohd Arif
Sri Abhijeet Mukherjee

Counsel for the Respondents:
C.S.C.
Sri Prem Chandra
Sri P.N. Saxena

Constitution
of
India,
Article
226Dismissal
from
service-petitioner
working as a clerk in M.G. Palika Inter
College-placed
under
suspension
for
three allegations-three enquiry officers
conducted enquiry without indicating
date time and place-first allegation of
filing counter affidavit without narrativestand baseless in view of authority
letters of executive officer-other two
allegations of embezzlement without
supported documents, without giving
opportunity of cross examination-not
sustainable more than 19 years have
gone-considering
unnecessary
harassment and of charges without
supporting document-no useful purpose
to
remand
for
fresh
disciplinary
proceeding-dismissal order quashed with
all consequential benefits.

Held: Para 24 and 25

However, since I have already recorded
a finding that on both the charges there
was no evidence to substantiate the
charges and it was a case of no evidence,
therefore, I am not remitting back the
matter to the enquiry officer for holding
a fresh enquiry. Even otherwise the
charge sheets were issued in the year
1994 and more than 18 years have
already lapsed and the petitioner has
suffered enough and it would not be in
the interest of justice to remit the matter
back to the disciplinary authority to
enable him to sift and search for fresh
evidence to prove the guilt of the
petitioner.

Therefore, keeping strictly within the
parameters laid down for exercise of
power of judicial review in departmental
enquiries, from the above facts and
circumstances the irresistible conclusion
is that both the charges against the
petitioner are based on no evidence and
the finding recorded by the enquiry
officer are such which no man of
ordinary
prudence
or reason would
arrive at.
Case law discussed
(1947) 2 All E.R. 680; (1983) I.A.C. 768;
(1996) 7 SCC 509; (1999) 8 SCC 90; (1999) 2
SCC 10; (2001) 2 SCC 386; (2003) 3 SCC 583;
(2006) 13 SCC 1; (1983) I.A.C. 768

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. This writ petition has been filed by
the petitioner challenging the show cause
notice dated 25.11.1994, order dated
29.11.1994 dismissing him from service
and the appellate order dated 31.3.1995
rejecting his appeal.

2. The facts of the case, in brief, are
that while the petitioner was working on the
888 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
post of clerk in the Mahatama Gandhi
Palika
Inter
college,
Ujhani
District
Budaun, he was placed under suspension by
order dated 7.5.1992. A charge sheet was
issued to him on 30.5.1994 wherein the
allegation was that in a pending writ
petition no.37002 of 1993 (Smt. Pratibha
Singh Vs. Mandaliya Balika Nirikshak,
Bareilly, he filed an affidavit without
obtaining any narrative or legal opinion or
sanction
from
the
Manager
of
the
Committee of Management in writing and
swore paragraphs 10,11 and 12 of the said
affidavit on personal knowledge and thus a
wrong and false affidavit was filed in the
High Court.

3. Another charge sheet was issued to
the petitioner on 27.7.1994 alleging that the
petitioner in collusion with one Shri Hodil
Prasad Sharma, the then Incharge Principal
and some others embezzled an amount of
Rs. 31,587.15/- being cash in hand and 17
funds of the Institution amounting to Rs. 5
lacs.

4. With regard to charge no. 1, the
petitioner submitted his reply, which is filed
as Annexure-4 to the writ petition,
requesting therein that the copy of the
alleged counter affidavit in which he is said
to have sworn paragraphs 10.11 and 12 on
personal knowledge be provided to him. He
submitted
another
reply,
which
is
Annexure-5 to the writ petition, wherein he
has stated that on 5.11.1993 he was given
directions
in
writing
by
the
President/Manager, Nagar Palika Asharfi
Devi Kanya Inter College, Ujhani District
Budaun to proceed to Allahabad with
immediate effect and meet Shri Ravi Kant,
Advocate and get the counter affidavit
prepared and file the same at the earliest.
The petitioner has also filed copy of the said
letter dated 5.11.1993 which is at page 54 of
the paper book.

5. With regard to charge no. 2, the
petitioner submitted his reply on 18.8.1994
wherein he requested that the copy of the
alleged report of the Principal dated
9.7.1994 which is marked as relied upon
document in the charge sheet, be provided
to him and unless the same is provided to
him it would not be possible for him to
submit any concrete reply in respect of the
allegation of embezzlement of 17 funds and
cash in hand of Rs. 31,587.15/-.

6. In respect of charge no. 2 the
petitioner submitted another reply on
30.8.1994 in which he alleged that one
Ramesh Chandra Sharma, Clerk was
responsible for receipt of all the fees in the
College and same was also deposited in the
Bank by him and therefore, if there was any
cash in hand as mentioned in the charge
sheet it was only Ramesh Chandra Sharma
who could give any information about the
same.
As
regard
the
allegation
of
embezzlement in respect of 17 funds
amounting to Rs. 5 lacs in collusion with
Shri Hodil Prasad, the petitioner submitted
in his reply that the allegation itself was
vague and in any case the copy of the
alleged complaint dated 9.7.1994 and
13.7.1994 submitted by Uma Nath Bajpai
do not contain any particulars which would
show as to what amount was alleged to be
embezzled. He further submitted that the
power to withdraw money from Boys Fund
vested exclusively in the Principal and
therefore, only the Principal could give
proper explanation as to why the funds were
withdrawn by him at all and the petitioner
has only issued cheques on the direction of
the Principal and it is not for the petitioner
to question the Principal as to why the
amounts are being withdrawn.
2 All] Shiv Shanker V. The Commissioner, Bareilly Division, Bareilly & Others
889

7. An enquiry was held and enquiry
officer was appointed and he submitted his
report on 7.9.1994. Both the charges were
held to be proved against the petitioner. The
copy of the enquiry report was supplied to
the petitioner under covering letter dated
9.9.1994 requiring the petitioner to submit
his reply thereto within one week. The
petitioner submitted his reply on 24.9.1994,
filed as Annexure-15 to the writ petition.

8. The petitioner in his reply
contended that during the course of enquiry,
two enquiry officers were changed of which
no information was given to him and,
therefore, he had no opportunity to appear
before the enquiry officers. He further
contended that the persons who allegedly
en-cashed the cheques from the Bank, their
list was also not provided to him and,
therefore, he had no occasion to cross
examine them as witness. It was further
contended that no evidence whatsoever was
recorded of the persons who were alleged to
be involved in the act of embezzlement. The
statement of Ramesh Chand, Clerk, Shri
Uma Nath Bajpai, Principal and Shri Hodil
Prasad Sharma, Incharge Principal were
neither recorded nor they were called in the
enquiry and therefore, the petitioner had no
opportunity to cross examine them. He was
not allowed to examine the payment
receipts, guide file or the Accounts records
(Bahi) or the pass books. At any stage of the
enquiry no date was fixed or at-least no date
was intimated to him on which the enquiry
may be said to be held nor was he called in
the enquiry on any date and, therefore, he
had no opportunity to defend himself and
there was gross violation of principles of
natural justice.

9.

The
disciplinary
authority
considered the enquiry report and the reply
of the petitioner dated 24.9.1994 and
thereafter passed the impugned order dated
29.11.1994 removing the petitioner from
service.

10. Aggrieved by the order of removal
dated 29.11.1994 the petitioner filed writ
petition no. 39290 of 1994, which was
disposed of by this court by order dated
7.12.1994 with a direction that the petitioner
has an alternative remedy by way of an
appeal before the appellate authority and if
such an appeal is preferred the appellate
authority shall decide the appeal within
three months. In pursuance of the order of
this
court,
the
petitioner
preferred
departmental appeal before the appellate
authority which was rejected by the
Commissioner, Bareilly Division, Bareillyrespondent no. 1 by his order dated
15/31.3.1995.

11. I have heard Shri Abhijeet
Mukherjee, learned counsel appearing for
the petitioner and Shri P.N. Saxena, learned
senior counsel assisted by Shri Prem Chand,
appearing for the respondent nos. 2 and 3 as
well as learned standing counsel appearing
for the State respondents.

12. From the records it will be seen
that two charge sheets were issued to the
petitioner, one on 30.5.1994 alleging that
the petitioner had filed an affidavit in the
High Court in writ petition no. 37002 of
1993 without obtaining any narrative or
legal opinion or even a written permission
from the Manager of the Committee of
Management and in the said affidavit
paragraphs 10, 11 and 12 were sworn from
personal knowledge as a result of which a
false and wrong affidavit came to be filed in
the High Court. The second allegation
against the petitioner was that he alongwith
Incharge Principal Shri Hodil Prasad
Sharma and some other persons embezzled
890 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
from the Boys Fund and Rs. 31,587.15/-
cash in hand amounting to Rs. 5 lacs.

13. Taking the first charge sheet,
learned counsel for the petitioner submitted
that the petitioner was directed by the
President/Manager, Nagar Palika Asharfi
Devi Kanya Inter College, Ujhani District
Budaun to proceed to Allahabad with
immediate effect and meet Shri Ravi Kant,
Advocate and get the counter affidavit
prepared and file the same at the earliest.
The petitioner has also filed a copy of the
said letter dated 5.11.1993 which is at page
54 of the paper book. This document was
also filed by the petitioner before the
enquiry officer but the enquiry officer has
rejected the same as being a false and
fraudulent document. However, from the
discussion of the enquiry officer it will be
seen that no witness was called in evidence
to prove the document/authority letter dated
5.11.1993 much less the author of the
document.

14. In paragraph 10 of the counter
affidavit, filed on behalf of the respondent
nos. 2 and 3, only this much is stated that no
instructions
were
issued
by
the
Chairman/Manager of the Committee of
Manager.
However,
the
letter
dated
5.11.1993 has not been specifically denied.
It is not disputed that the Chairman is the
ex-officio Manager of the Government
Colleges and the letter dated 5.11.1993 was
issued by one Shri Yadav Krishna Goel as
Adhyaksha/Manager,
Adhyapika,
Nagarpalika Asharfi Devi, Kanya Inter
College, Ujhani District Budaun. The said
authority was not called as a witness in the
enquiry and he was the only person who
could have admitted or denied the document
dated 5.11.1993.

15. Moreover, a perusal of the letter
dated 5.11.1993 would show that a direction
was issued to the petitioner to proceed to
Allahabad and to meet Shri Ravi Kant,
Advocate, High Court and prepare a counter
affidavit and file the same at the earliest.
The letter does not mention whether the
counter affidavit was to be prepared by the
learned counsel on the basis of a narrative
or otherwise. The direction to the petitioner
further was to file the counter affidavit at
the earliest. It does not mention any where
that the petitioner was to prepare a draft
counter affidavit and get it approved by the
Chairman/Manager, Nagarpalika Ujhani,
Budaun. In the circumstances in view of the
clear cut direction given in the letter dated
5.11.1993 to the petitioner to proceed to
Allahabad
and
meet
the
Advocate
concerned and file the counter affidavit at
the earliest and in the absence of any denial
by the respondents that the letter dated
5.11.1993
was
ever
issued
by
the
Chairman/Manager, Nagarpalika Asharfi
Devi Kanya Inter College, Ujhani Budaun,
it cannot be said that the petitioner in
swearing and filing the counter affidavit
exceeded his brief and the directions given
to him. Thus the charge no. 1 itself fails on
the ground of being a case of no evidence.

16. As regard the charge no. 2, the
allegation against the petitioner is that he
acting in collusion with Shri Hodil Prasad
Sharma, Incharge Principal, embezzled
funds from the 'Boys Fund' and cash in
hand of Rs.31,587.15/-, amounting to Rs. 5
lacs. In the enquiry report the enquiry
officer has only brought a finding of guilt
against the petitioner by accepting the report
of the Principal dated 5.7.1994. What was
contained in that report has not been
disclosed. It has also not been disclosed as
to whether in the said report dated 9.7.1994
there was any evidence pointing the needle
2 All] Shiv Shanker V. The Commissioner, Bareilly Division, Bareilly & Others
891
of suspicion towards the petitioner. The
enquiry officer has also not disclosed as to
what was the material contained in the
report of the Principal on the basis of which
the Principal arrived at his finding that there
was an embezzlement of funds. The
Principal's report dated 5.7.1994 by itself is
not 'the' evidence. It is the material on
which the report has been based which is
'the' evidence. In the absence of any
discussion of the evidence in the enquiry
report dated 9.7.1994 by the enquiry officer
it cannot be said that there was any evidence
to bring home the finding of guilt against
the petitioner regarding embezzlement of
funds from the 'boys funds' or from cash in
hand.

17. There is another factor which
needs to be noted. The petitioner through
out, in his reply to the charge sheet kept
asking for the relied upon documents
namely, Account records (Bahi), reference
of pass books of persons who may be
alleged to have en-cashed the cheques and
other relied upon documents. The only
document that was supplied to him was the
report of the Principal dated 9.7.1994. There
is no finding of the enquiry officer
anywhere that other than the report of the
Principal any other documentary evidence
was supplied to the petitioner. Even Shri
Hodil Prasad Sharma and Shri Ram
Chandra were never called in the enquiry as
witness or their statement recorded or any
opportunity given to the petitioner to cross
examine them in-spite of the petitioner
requesting that they may be called.

18. It may be mentioned that the
report of the Principal dated 9.7.1994 has
been shown as a relied upon document but
the report itself does not constitute the
evidence. It is contents of the report which
may disclose the evidence available against
the petitioner to bring home the charge of
embezzlement. As already noted above, the
enquiry officer has only relied upon the
report of the Principal but has not disclosed
the contents thereof and has not stated as to
which finding in the report points or leads
toward the guilt of the petitioner. In the
circumstances this is not only a case where
there was no evidence in either of the
charge sheet to establish the guilt of the
petitioner but this was also a case of gross
violation of principles of natural justice.

19. Another factor to be noted is that
no date was fixed in the enquiry, no
presenting officer was appointed nor was
the petitioner given any opportunity to
nominate a Defence Assistant. Three
enquiry officers were appointed. The
petitioner's specific case is that when first
two enquiry officers were changed, it was
never disclosed to him since he was never
called to appear before any of the enquiry
officer and it is only the third and the last
enquiry officer who submitted the report,
therefore, he also raises the question as to
whether the departmental enquiry report is
of the third enquiry officer or the third
enquiry has based his report on the findings
recorded by the first two enquiry officers, in
which case it cannot be said to be the report
of third enquiry officer and it cannot be said
to a discussion of the facts or the evidence
by the third enquiry officer.

20. The law in this regard is well
settled in a number of cases, which are as
under:

1.(1947) 2 All E.R. 680 (Associated
Provincial Picture Houses Vs. Wednesbury
Corporation);
892 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

2.(1983) I.A.C. 768 (Council for Civil
Services Union Vs. Minister of Civil
Services;

3.(1996) 7 SCC 509 (State of T. N. Vs.
S. Subramaniam);

4.(1999) 8 SCC 90 (R.S. Saini Vs.
State of Punjab and others);

5.(1999) 2 SCC 10 (Kuldeep Singh
Vs. Commissioner of Police);

6.(2001) 2 SCC 386 (Om Prakash Vs.
Union of India);

7.(2003) 3 SCC 583 (Lalit Popli Vs.
Canara Bank);

8.(2006) 13 SCC 1 (Government of
India Vs. George Philip).

21. It is a well settled principle of law
known as the Wednesbury principle that the
High Court while examining the report of
the enquiry officer in a departmental
proceedings
and
the
order
of
the
disciplinary
authority
and
appellate
authority will not sit as a court of appeal and
re-apprise the evidence as an appellate
court. However, it also does not mean that
the High Court has no powers to interfere
with the finding of an enquiry officer within
certain limited parameters. The parameters
within which the High Court may interfere
with the findings recorded in a disciplinary
enquiry in exercise of power of judicial
review are as follows:

1.Whether the conclusion is based on
evidence on record and supports the finding
or whether the conclusion is based on no
evidence;

2.The order was contrary to law;

3.The Rules of procedure were not
followed ;

4.Irrelevant factors were taken into
consideration;

5.The decision was one which no
reasonable person could have taken;

6.Where the penalty imposed is
shockingly
disproportionate
to
the
misconduct alleged; and

7.Where the departmental proceedings
were motivated by malafides and the order
impugned would be tainted by malice.

22.

The
genesis
of
judicial
interference by exercising powers of
judicial review was first enunciated in the
celebrated case reported in (1947) 2 All
E.R. 680 (Associated Provincial Picture
Houses Vs. Wednesbury Corporation),
wherein Lord Greene, M.R. Held as under:

"...........the
court
is
entitled
to
investigate the action of the local authority
with a view to seeing whether it has taken
into account matters which it ought not to
take into account, or, conversely, has
refused to take into account or neglected to
take into account matters which it ought to
take into account. Once that question is
answered in favour of the local authority, it
may still be possible to say that the local
authority nevertheless, have come to a
conclusion
so
unreasonable
that
no
reasonable authority could ever have come
to it. In such a case, again, I think the court
can interfere. The power of the court to
interfere in each case is not that of an
appellate authority to override a decision of
the local authority, but is that of a judicial
authority
which
is
concerned,
and
concerned only, to see whether the local
2 All] Lalta Prasad Singh V. State of U.P. and others
893
authority have contravened the law by
acting in excess of the powers which
Parliament has confided in it. ......."

23. This celebrated principle known as
the Wednesbury principle of law was
thereafter relied upon in (1983) I.A.C. 768
(Council for Civil Services Union Vs.
Minister of Civil Services) and which has
thereafter been consistently followed by the
Supreme Court of India and various High
Courts.

24. However,since I have already
recorded a finding that on both the charges
there was no evidence to substantiate the
charges and it was a case of no evidence,
therefore, I am not remitting back the matter
to the enquiry officer for holding a fresh
enquiry. Even otherwise the charge sheets
were issued in the year 1994 and more than
18 years have already lapsed and the
petitioner has suffered enough and it would
not be in the interest of justice to remit the
matter back to the disciplinary authority to
enable him to sift and search for fresh
evidence to prove the guilt of the petitioner.

25. Therefore, keeping strictly within
the parameters laid down for exercise of
power of judicial review in departmental
enquiries, from the above facts and
circumstances the irresistible conclusion is
that both the charges against the petitioner
are based on no evidence and the finding
recorded by the enquiry officer are such
which no man of ordinary prudence or
reason would arrive at.

26. In the circumstances the show
cause
notice
dated
25.11.1994,
the
impugned orders dated 29.11.1994 and
15/31.3.1995 are quashed.

27. The writ petition is allowed. The
petitioner will be reinstated in service with
all consequential benefits.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2012

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 25441 of 2012

Lalta Prasad Singh

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

Counsel for the Petitioner:
Sri Lallan Chaubey

Counsel for the Respondents:
C.S.C.
Sri Vipin Sinha

Code of Civil Procedure-Order 39 Rule 2
(2) (g) as amended U.P. Amendment Act
1976-Injunction-against
state
from
realizing certain amount towards loanadmittedly Agricultural loan for purchase
of
Tractor
advanced
on
default
in
payment
recovery
certificate
issued
under
Public
money
recovery
Actinjunction suit itself not maintainableWrit Court can not adjudge its validity
setting
as
Appellate
Court-petition
dismissed.

Held: Para 8

Secondly, the jurisdiction under Article
226 or 227 of the Constitution of India
can not be exercised like an appellate
authority by indulging in re-appreciation
of evidence to correct errors of fact or
law. It is exercisable only to correct
jurisdictional errors if the courts below
have acted without jurisdiction or in
flagrant violation of the principles of
natural
justice
or
where
there
is
manifest or patent error apparent on the
face of record.