# Smt. Krishna Kant Gupta v. State of U.P. & Ors

- **Citation:** (2025) 5 ILRA 531
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-14
- **Case number:** Writ A No. 49169 of 2010
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-krishna-kant-gupta-v-state-of-u-p-ors-53402
- **Pages:** 7

## Headnote

A. Service Law - Service Jurisprudence -
Disciplinary Proceedings - Uttar Pradesh
Government
Servant
(Discipline
and
Appeal)
Rules,
1999,
Rule
7(3)
-
Prolonged
Unauthorized
Absence
-
Principle of "Test of Prejudice" in Service
Jurisprudence
-
Even
if
procedure
prescribed is not strictly followed to
award major punishment, the delinquent
has to show how he is prejudiced -
Punishment order is not vitiated unless
the
delinquent
shows
prejudice
in
defending
himself
properly
and
effectively,
and
if
no
prejudice
is
established, no interference is called for.
(Para 11)

B. Petitioner, an Assistant Teacher,
charge-sheeted
for
prolonged
unauthorized absence for a period of 5
years,
without
any
information
or
application
for
leave
-
In
inquiry
petitioner was not able to produce any
document
which
could
explain
his
absence - Major penalty of dismissal
was passed - Petitioner argued that no
inquiry report was submitted - State
argued that petitioner did not submit
any reply to charge-sheet or showcause notice despite publication in
newspaper, and no explanation for
absence was provided. Held: Even if
procedure prescribed was not strictly
followed, the delinquent has to show
how he is prejudiced. It is not a case
where oral evidence was required, the
only requirement was that petitioner
had to submit her explanation and
reasons for her absence of 1220 days -
Petitioner did not deny the allegation;
there was substantial compliance with
the principle of natural justice as she
was given opportunity to submit her
reply, however, no reply was submitted
despite publication in newspaper
-
Petitioner did not deny her absence of
1220 days even vaguely, no document
such as sanction of leave or application
for leave or medical certificate was
placed on record, therefore, there was
no
prejudice
caused
to
her
-
Punishment
not
disproportionate,
considering the nature of allegation.
(Para 12, 13)

Dismissed. (E-5)

## Text

5 All. Smt. Krishna Kant Gupta Vs. State of U.P. & Ors.
531
----------
(2025) 5 ILRA 531
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2025

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 49169 of 2010

Smt. Krishna Kant Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ashok K. Jaiswal, Ashok Khare, Shesh
Kumar Srivastava

Counsel for the Respondents:
C.S.C., S.K. Verma

A. Service Law - Service Jurisprudence -
Disciplinary Proceedings - Uttar Pradesh
Government
Servant
(Discipline
and
Appeal)
Rules,
1999,
Rule
7(3)
-
Prolonged
Unauthorized
Absence
-
Principle of "Test of Prejudice" in Service
Jurisprudence
-
Even
if
procedure
prescribed is not strictly followed to
award major punishment, the delinquent
has to show how he is prejudiced -
Punishment order is not vitiated unless
the
delinquent
shows
prejudice
in
defending
himself
properly
and
effectively,
and
if
no
prejudice
is
established, no interference is called for.
(Para 11)

B. Petitioner, an Assistant Teacher,
charge-sheeted
for
prolonged
unauthorized absence for a period of 5
years,
without
any
information
or
application
for
leave
-
In
inquiry
petitioner was not able to produce any
document
which
could
explain
his
absence - Major penalty of dismissal
was passed - Petitioner argued that no
inquiry report was submitted - State
argued that petitioner did not submit
any reply to charge-sheet or showcause notice despite publication in
newspaper, and no explanation for
absence was provided. Held: Even if
procedure prescribed was not strictly
followed, the delinquent has to show
how he is prejudiced. It is not a case
where oral evidence was required, the
only requirement was that petitioner
had to submit her explanation and
reasons for her absence of 1220 days -
Petitioner did not deny the allegation;
there was substantial compliance with
the principle of natural justice as she
was given opportunity to submit her
reply, however, no reply was submitted
despite publication in newspaper
-
Petitioner did not deny her absence of
1220 days even vaguely, no document
such as sanction of leave or application
for leave or medical certificate was
placed on record, therefore, there was
no
prejudice
caused
to
her
-
Punishment
not
disproportionate,
considering the nature of allegation.
(Para 12, 13)

Dismissed. (E-5)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Heard Sri Shesh Kumar Srivastava,
learned counsel for petitioner and Sri Lal
Mani, learned Standing Counsel for State.

2. The petitioner, an Assistant
Teacher, was served with a charge-sheet
that from 01.07.2004 to 18.05.2009 i.e. in a
period of 5 years, she remained absent for
1220 days without any information or
application for leave. An inquiry was
conducted and since petitioner was not able
to produce any document which could
explain his absence, a major penalty of
dismissal was passed by an order dated
02.06.2010 by District Basic Education
Officer, Jalaun, impugned in present case.
532 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Learned counsel for petitioner
has vehemently submitted that procedure
prescribed to award major punishment in
terms of Rule 7(3) of Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rule, 1999, was not followed.
Learned counsel further submitted that no
inquiry report was submitted to petitioner.
No oral evidence was recorded and
petitioner was not given any opportunity
for cross-examination of any witness.
Learned counsel referred a recent judgment
passed by Supreme Court in case of
Satyendra Singh Vs. State of Uttar
Pradesh and Another, 2024 SCC OnLine
SC 3325 and its relevant paragraph Nos. 17
and 18 are reproduced hereinafter :-

 "17. Thus, even in an ex-parte
inquiry, it is sine qua non to record the
evidence of the witnesses for proving the
charges. Having tested the facts of the case
at hand on the touchstone of the Rules of
1999, and the law as expounded by this
Court in the cases of Roop Singh Negi Vs.
Punjab National Bank and others, (2009) 2
SCC 570 and Nirmala J. Jhala Vs. State of
Gujarat and Another, (2013) 4 SCC 301,
we are of the firm view that the inquiry
proceedings
conducted
against
the
appellant pertaining to charges punishable
with major penalty, were totally vitiated
and non-est in the eyes of law since no oral
evidence whatsoever was recorded by the
department in support of the charges.

18. As a consequence, thereof, the
High Court fell into grave error of law
while interfering in the well-reasoned
judgment
rendered
by
the
Tribunal
whereby, the Tribunal had quashed the
order
imposing
penalty
upon
the
appellant."

4. Per contra, learned Standing
Counsel for State submitted that petitioner
remained absent in aforesaid period of 5
year for 1220 days, without information,
permission or sanction of leave, even
thereafter also petitioner remained absent
and since there was no requirement of any
oral evidence as well as petitioner has not
able to produce any document, that leave
was
sanctioned,
therefore,
major
punishment was awarded after substantial
compliance of procedure prescribed in
aforesaid rules.

5. In present case, a charge-sheet
dated
27.10.2010
was
issued
upon
petitioner, wherein it was specifically
stated that she remained absent without any
permission or sanction of leave between
01.07.2004 to 18.05.2009 for about 1220
days. The details of period of absence and
days as mentioned in charge-sheet are
reproduced hereinafter :-

अनुपण्स्र्त नतथर्

ददनांक की संख्या

1- 01.07.2004 से 13.12.2004 तक
184
2- 01.01.2005 से 24.04.2005 तक
114
3- 09.11.2005 से 31.12.2005 तक
53
4- 01.01.2006 से 31.12.2006 तक
365
5- 01.01.2007 से 01.07.2007 तक
182
6- 02.07.2008 से 18.05.2009 तक
322

6. Petitioner has not submitted any
reply to the charge-sheet though it is a case
of petitioner that charge-sheet was never
served. In absence of any explanation, an
inquiry report was submitted to Basic
Education Officer, Jalaun who issued a
notice to petitioner along with inquiry
report, wherein charges were found to be
proved.

7. The petitioner has not submitted
any reply to show-cause notice despite
notice was published in newspaper and,
therefore,
since
no
document
was
5 All. Smt. Krishna Kant Gupta Vs. State of U.P. & Ors.
533
submitted by petitioner to explain his
absence of 1220 days, therefore, a major
punishment was awarded.

8. It may be a case where procedure
prescribed in above referred Rules was not
strictly followed that the copy of inquiry
report was not submitted though an
opportunity was granted to petitioner to
submit his reply and a publication was
published in a newspaper.

9. It is not a case where oral
evidence
was
required.
The
only
requirement was that petitioner has to
submit his explanation and reasons for his
absence of 1220 days in a period of 5 years.
There is no material that petitioner has
denied the allegation. The writ petition is
also silent on any explanation to such long
absence.

10. In the aforesaid circumstances,
the Court takes note of a judgment passed
by Supreme Court in Union of India and
others Vs. Dilip Paul, 2023 SCC OnLine
SC 1423, wherein principle of test of
prejudice in service, jurisprudence was
considered.

11. The Court is of view that in
such cases, even if procedure prescribed
was not strictly followed to award major
punishment, the delinquent has to show
how he is prejudiced so much as that she
was denied to submit explanation for long
absence. The relevant paragraph Nos. 59
and 60 of Union of India and others
(supra) is reproduced hereinafter :-

"i)
Principle
of
"Test
of
Prejudice" in Service Jurisprudence

59. The "test of prejudice" is a
well settled canon of law that may be
applied where any procedural impropriety
or violation of rule of audi alteram is
alleged. This Court in State Bank of Patiala
v. S.K. Sharma, (1996) 3 SCC 364 held that
the test is to ascertain whether the violation
of such procedure or process resulted in a
prejudice being caused or a loss of fair
hearing. The relevant observations are
reproduced below:-

"11. ... Does it mean that any
and every violation of the regulations
renders the enquiry and the punishment
void or whether the principle underlying
Section 99 CPC and Section 465 CrPC is
applicable in the case of disciplinary
proceedings as well. In our opinion, the test
in such cases should be one of prejudice, as
would be later explained in this judgment.
But this statement is subject to a rider. The
regulations may contain certain substantive
provisions, e.g., who is the competent
authority
to
impose
a
particular
punishment
on
a
particular
employee/officer. Such provisions must be
strictly complied with. But there may be
any number of procedural provisions which
stand on a different footing. We must
hasten to add that even among procedural
provisions, there may be some provisions
which are of a fundamental nature in the
case of which the theory of substantial
compliance may not be applicable. For
example, take a case where a rule expressly
provides
that
the
delinquent
officer/employee
shall
be
given
an
opportunity to produce evidence/material
in support of his case after the close of
evidence of the other side. If no such
opportunity is given at all in spite of a
request therefor, it will be difficult to say
that the enquiry is not vitiated. But in
respect of many procedural provisions, it
would be possible to apply the theory of
substantial compliance or the test of
prejudice, as the case may be. The position
can be stated in the following words : (1)
534 INDIAN LAW REPORTS ALLAHABAD SERIES
Regulations which are of a substantive
nature have to be complied with and in
case of such provisions, the theory of
substantial compliance would not be
available. (2) Even among procedural
provisions, there may be some provisions of
a fundamental nature which have to be
complied with and in whose case, the
theory of substantial compliance may not
be available. (3) In respect of procedural
provisions other than of a fundamental
nature,
the
theory
of
substantial
compliance would be available. In such
cases, complaint/objection on this score
have to be judged on the touchstone of
prejudice, as explained later in this
judgment. In other words, the test is : all
things
taken
together
whether
the
delinquent officer/employee had or did not
have a fair hearing. We may clarify that
which provision falls in which of the
aforesaid categories is a matter to be
decided in each case having regard to the
nature and character of the relevant
provision.

xxxxxxxxx

28. ... In our respectful opinion,
the principles emerging from the decided
cases can be stated in the following terms
in relation to the disciplinary orders and
enquiries : a distinction ought to be made
between violation of the principle of
natural justice, audi alteram partem, as
such and violation of a facet of the said
principle. In other words, distinction is
between "no notice"/"no hearing" and
"no adequate hearing" or to put it in
different words, "no opportunity" and "no
adequate opportunity". To illustrate -
take a case where the person is dismissed
from
service
without
hearing
him
altogether (as in Ridge v. Baldwin [[1964]
A.C. 40 : [1963] 2 All ER 66 : [1963] 2
WLR 935]). It would be a case falling
under the first category and the order of
dismissal would be invalid - or void, if
one chooses to use that expression (Calvin
v. Carr [[1980] A.C. 574 : [1979] 2 All ER
440 : [1979] 2 WLR 755, PC]). But where
the person is dismissed from service, say,
without supplying him a copy of the enquiry
officer's report (Managing Director, ECIL
v. B. Karunakar [(1993) 4 SCC 727 : 1993
SCC (L&S) 1184 : (1993) 25 ATC 704]) or
without affording him a due opportunity of
cross-examining a witness (K.L. Tripathi
[(1984) 1 SCC 43 : 1984 SCC (L&S) 62]) it
would be a case falling in the latter
category - violation of a facet of the said
rule of natural justice - in which case, the
validity of the order has to be tested on the
touchstone of prejudice, i.e., whether, all in
all, the person concerned did or did not
have a fair hearing. It would not be correct
- in the light of the above decisions to say
that for any and every violation of a facet
of natural justice or of a rule incorporating
such facet, the order passed is altogether
void and ought to be set aside without
further enquiry. In our opinion, the
approach and test adopted in B. Karunakar
[(1993) 4 SCC 727 : 1993 SCC (L&S) 1184
: (1993) 25 ATC 704] should govern all
cases where the complaint is not that there
was no hearing (no notice, no opportunity
and no hearing) but one of not affording a
proper hearing (i.e., adequate or a full
hearing) or of violation of a procedural
rule or requirement governing the enquiry;
the complaint should be examined on the
touchstone of prejudice as aforesaid.
xxxxxxxxx

33. We may summarise the
principles
emerging
from
the
above
discussion. (These are by no means
intended to be exhaustive and are evolved
keeping in view the context of disciplinary
enquiries
and
orders
of
punishment
imposed
by
an
employer
upon
the
employee):
5 All. Smt. Krishna Kant Gupta Vs. State of U.P. & Ors.
535

(1) An order passed imposing a
punishment on an employee consequent
upon a disciplinary/departmental enquiry
in
violation
of
the
rules/regulations/statutory
provisions
governing such enquiries should not be set
aside automatically. The Court or the
Tribunal should enquire whether (a) the
provision violated is of a substantive nature
or (b) whether it is procedural in
character.

(2) A substantive provision has
normally to be complied with as explained
hereinbefore and the theory of substantial
compliance or the test of prejudice would
not be applicable in such a case.

(3) In the case of violation of a
procedural provision, the position is this :
procedural provisions are generally meant
for affording a reasonable and adequate
opportunity
to
the
delinquent
officer/employee.
They
are,
generally
speaking,
conceived
in
his
interest.
Violation of any and every procedural
provision cannot be said to automatically
vitiate the enquiry held or order passed.
Except cases falling under - "no notice",
"no opportunity" and "no hearing"
categories, the complaint of violation of
procedural provision should be examined
from the point of view of prejudice, viz.,
whether such violation has prejudiced the
delinquent officer/employee in defending
himself properly and effectively. If it is
found that he has been so prejudiced,
appropriate orders have to be made to
repair and remedy the prejudice including
setting aside the enquiry and/or the order
of
punishment.
If
no
prejudice
is
established to have resulted therefrom, it is
obvious, no interference is called for. In
this connection, it may be remembered that
there may be certain procedural provisions
which are of a fundamental character,
whose violation is by itself proof of
prejudice. The Court may not insist on
proof of prejudice in such cases. As
explained in the body of the judgment, take
a case where there is a provision expressly
providing that after the evidence of the
employer/government is over, the employee
shall be given an opportunity to lead
defence in his evidence, and in a given
case, the enquiry officer does not give that
opportunity in spite of the delinquent
officer/employee
asking
for
it.
The
prejudice is self-evident. No proof of
prejudice as such need be called for in such
a case. To repeat, the test is one of
prejudice, i.e., whether the person has
received a fair hearing considering all
things. Now, this very aspect can also be
looked at from the point of view of
directory and mandatory provisions, if one
is so inclined. The principle stated under
(4) hereinbelow is only another way of
looking at the same aspect as is dealt with
herein and not a different or distinct
principle.

(4)(a) In the case of a procedural
provision which is not of a mandatory
character, the complaint of violation has to
be examined from the standpoint of
substantial compliance. Be that as it may,
the order passed in violation of such a
provision can be set aside only where such
violation has occasioned prejudice to the
delinquent employee.

 (b) In the case of violation of a
procedural provision, which is of a
mandatory
character,
it
has
to
be
ascertained whether the provision is
conceived in the interest of the person
proceeded against or in public interest. If it
is found to be the former, then it must be
seen whether the delinquent officer has
waived
the
said
requirement,
either
expressly or by his conduct. If he is found
to have waived it, then the order of
punishment cannot be set aside on the
536 INDIAN LAW REPORTS ALLAHABAD SERIES
ground of the said violation. If, on the other
hand, it is found that the delinquent
officer/employee has not waived it or that
the provision could not be waived by him,
then the Court or Tribunal should make
appropriate directions (include the setting
aside of the order of punishment), keeping
in mind the approach adopted by the
Constitution Bench in B. Karunakar
[(1993) 4 SCC 727 : 1993 SCC (L&S) 1184
: (1993) 25 ATC 704]. The ultimate test is
always the same, viz., test of prejudice or
the test of fair hearing, as it may be called.

(5) Where the enquiry is not
governed by any rules/regulations/statutory
provisions and the only obligation is to
observe the principles of natural justice -
or,
for
that
matter,
wherever
such
principles are held to be implied by the
very nature and impact of the order/action
- the Court or the Tribunal should make a
distinction between a total violation of
natural justice (rule of audi alteram
partem) and violation of a facet of the said
rule, as explained in the body of the
judgment. In other words, a distinction
must be made between "no opportunity"
and no adequate opportunity, i.e., between
"no notice"/"no hearing" and "no fair
hearing". (a) In the case of former, the
order passed would undoubtedly be invalid
(one may call it 'void' or a nullity if one
chooses to). In such cases, normally, liberty
will be reserved for the Authority to take
proceedings afresh according to law, i.e.,
in accordance with the said rule (audi
alteram partem). (b) But in the latter case,
the effect of violation (of a facet of the rule
of audi alteram partem) has to be examined
from the standpoint of prejudice; in other
words, what the Court or Tribunal has to
see is whether in the totality of the
circumstances,
the
delinquent
officer/employee did or did not have a fair
hearing and the orders to be made shall
depend upon the answer to the said query.
[It is made clear that this principle (No. 5)
does not apply in the case of rule against
bias, the test in which behalf are laid down
elsewhere.]

 (6) While applying the rule of
audi alteram partem (the primary principle
of
natural
justice)
the
Court/Tribunal/Authority must always bear
in mind the ultimate and overriding
objective underlying the said rule, viz., to
ensure a fair hearing and to ensure that
there is no failure of justice. It is this
objective which should guide them in
applying the rule to varying situations that
arise before them.

(7) There may be situations
where the interests of State or public
interest may call for a curtailing of the rule
of audi alteram partem. In such situations,
the Court may have to balance public/State
interest with the requirement of natural
justice and arrive at an appropriate
decision."
(Emphasis supplied)

60. In the case of State of U.P. v.
Harendra Arora, (2001) 6 SCC 392, this
Court further expanded the applicability of
the "Test of Prejudice" to even procedural
provisions which are fundamental in nature
with the following relevant observations
being reproduced below:-

"13. The matter may be examined
from another viewpoint. There may be
cases where there are infractions of
statutory provisions, rules and regulations.
Can it be said that every such infraction
would make the consequent action void
and/or invalid? The statute may contain
certain substantive provisions, e.g., who is
the competent authority to impose a
particular punishment on a particular
employee. Such provision must be strictly
complied with as in these cases the theory
of substantial compliance may not be
5 All. Alakh Prasad @ Alakh Dev & Ors. Vs. State of U.P. & Ors.
537
available. For example, where a rule
specifically provides that the delinquent
officer shall be given an opportunity to
produce evidence in support of his case
after the close of the evidence of the other
side and if no such opportunity is given, it
would not be possible to say that the
enquiry was not vitiated. But in respect of
many procedural provisions, it would be
possible to apply the theory of substantial
compliance or the test of prejudice, as the
case may be. Even amongst procedural
provisions, there may be some provisions of
a fundamental nature which have to be
complied with and in whose case the theory
of substantial compliance may not be
available, but the question of prejudice may
be material. In respect of procedural
provisions other than of a fundamental
nature,
the
theory
of
substantial
compliance would be available and in such
cases objections on this score have to be
judged on the touchstone of prejudice. The
test would be, whether the delinquent
officer had or did not have a fair hearing.
..."
(Emphasis supplied)"

12. In the above background, the
Court takes note that in writ petition, the
petitioner has not denied his absence of
1220 days even vaguely. No document
such as sanction of leave or application for
leave or medical certificate was placed on
record, therefore, the Court is of view that
since there was substantial compliance of
principle of natural justice that she was
given opportunity to submit her reply,
however, no reply was submitted despite
publication in newspaper, she has not
appeared, therefore, the Court takes note
that even this matter is remitted back to
conduct the inquiry from the stage where
procedure was not strictly followed would
have no effect since petitioner has no
explanation to her long absence of 1220
days, therefore, there is no prejudice caused
to her. Petitioner's case has failed in 'test of
prejudice'. It will also not be in the interest
of justice since in present case, in the writ
petition, petitioner has not made even a
statement of denial of charge. No document
was placed on record which could support
her defence or contradict the allegations.

13. In the aforesaid circumstances,
since the Court is of view that absence of
1220 days, between 2004 to 2009 remained
absolutely unexplained, therefore, there is
no need to interfere with punishment which
is not disproportionate, considering the
nature of allegation, this writ petition is
accordingly, dismissed.
----------
(2025) 5 ILRA 537
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2025

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 371 of 2025

Alakh Prasad @ Alakh Dev & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Narayan Dutt Shukla, Rituvendra Singh
Nagvanshi

Counsel for the Respondents:
Murli Dhar Mishra, Sachinda Nand Tiwari,
Anuj Srivastava, C.S.C.

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Sections 5, 12, 11(1) & 48 -
U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950 - Section 157-A -
Jurisdiction of consolidation authorities -