# State of U.P. & Ors v. Girijesh Narayan Pathak & Ors

- **Citation:** (2024) 1 ILRA 7
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-21
- **Case number:** Special Appeal No. 335 of 2023
- **Bench:** Manoj Kumar Gupta, A.C.J. Donadi Ramesh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-girijesh-narayan-pathak-ors-50948
- **Pages:** 12

## Headnote

Single Judge's order setting aside disciplinary
actions for procedural lapses - Held, the Enquiry
Officer's failure to conduct an oral enquiry,
examine witnesses, or allow the respondent to
cross-examine witnesses violated Rule 7 of the
U.P. Government Servants (Discipline and
Appeal) Rules, 1999, and principles of natural
justice, rendering the enquiry invali (Paras 8,
12, 13, 19, 25)

Procedure under Rule 7 of 1999 Rules -
Mandatory Requirements - The respondent, a
retired Marketing Inspector, faced charges of
stock shortages and financial losses - Held, Rule
7 mandates recording witness St.ments and
allowing cross-examination when charges are
denied, even in ex parte proceedings; noncompliance vitiated the enquiry. (Paras 11, 14,
15, 19)

Plea of Non-Prejudice and Waiver -
Inapplicability - The petitioners argued the
respondent waived objections by not raising
prejudice
during
the
enquiry
-
Held,
fundamental procedural defects, such as nonexamination of witnesses, were not curable by
waiver or lack of prejudice plea, as they
undermined the enquiry's validity. (Paras 9, 20,
22, 23, 25)

Article 351-A of Civil Service Regulations -
Procedural Compliance - Disciplinary action
continued post-retirement under Article 351-A,
forfeiting gratuity and withholding pension -
Held, Article 351-A requires adherence to Rule 7
procedures; non-compliance invalidated the
punishment orders. (Paras 1, 11, 19)

Remittance for Fresh Enquiry - Futility -
The Single Judge declined to remit the matter
for fresh enquiry due to the respondent's death
in 2014 - Held, remitting the case after the
respondent's demise would be futile, justifying
quashing of punishment orders and granting
consequential benefits to the respondent's
widow. (Paras 8, 25, 26)

Appeal Dismissed - Single Judge's Order
Upheld

List of Cases cited:

## Text

_Characters 0–39,661 of 41,021. This is a partial read: ask again with offset=39661 for what follows._

1 All. State of U.P. & Ors. Vs. Girijesh Narayan Pathak & Ors.
7
(2024) 1 ILRA 7
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA,
A.C.J.
THE HON'BLE DONADI RAMESH, J.

Special Appeal No. 335 of 2023

State of U.P. & Ors. ...Petitioners
Versus
Girijesh Narayan Pathak & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Rama Nand Pandey, Sri Manish Goyal
(Addl. A.G.)

Counsel for the Respondents:
Sri Gulrez Khan, Sri Javed Husain Khan

Disciplinary Proceedings - Violation of
Natural Justice - The petitioners challenged the
Single Judge's order setting aside disciplinary
actions for procedural lapses - Held, the Enquiry
Officer's failure to conduct an oral enquiry,
examine witnesses, or allow the respondent to
cross-examine witnesses violated Rule 7 of the
U.P. Government Servants (Discipline and
Appeal) Rules, 1999, and principles of natural
justice, rendering the enquiry invali (Paras 8,
12, 13, 19, 25)

Procedure under Rule 7 of 1999 Rules -
Mandatory Requirements - The respondent, a
retired Marketing Inspector, faced charges of
stock shortages and financial losses - Held, Rule
7 mandates recording witness St.ments and
allowing cross-examination when charges are
denied, even in ex parte proceedings; noncompliance vitiated the enquiry. (Paras 11, 14,
15, 19)

Plea of Non-Prejudice and Waiver -
Inapplicability - The petitioners argued the
respondent waived objections by not raising
prejudice
during
the
enquiry
-
Held,
fundamental procedural defects, such as nonexamination of witnesses, were not curable by
waiver or lack of prejudice plea, as they
undermined the enquiry's validity. (Paras 9, 20,
22, 23, 25)

Article 351-A of Civil Service Regulations -
Procedural Compliance - Disciplinary action
continued post-retirement under Article 351-A,
forfeiting gratuity and withholding pension -
Held, Article 351-A requires adherence to Rule 7
procedures; non-compliance invalidated the
punishment orders. (Paras 1, 11, 19)

Remittance for Fresh Enquiry - Futility -
The Single Judge declined to remit the matter
for fresh enquiry due to the respondent's death
in 2014 - Held, remitting the case after the
respondent's demise would be futile, justifying
quashing of punishment orders and granting
consequential benefits to the respondent's
widow. (Paras 8, 25, 26)

Appeal Dismissed - Single Judge's Order
Upheld

List of Cases cited:

1. St. of U.P. Vs Saroj Kumar Sinha, (2010) 2
SCC 772

2. Sur Enamel and Stamping Works Lt Vs The
Workmen, (1964) 3 SCR 616

3. St. of Uttaranchal Vs Kharak Singh, (2008) 8
SCC 236

4. Brij Bhushan Maurya Vs St. of U.P., 2021 SCC
OnLine All 652

5. Smt. Mazda Begum Vs St. of U.P., 2014 SCC
OnLine All 16503

6. Ghanshyam Das Varshney Vs St. of U.P.,
2018 SCC OnLine All 4964

7. P. Agrawal Vs St. Bank of India, (2006) 8 SCC
776

8. Union of India Vs Alok Kumar, (2010) 5 SCC
349

9. St. of U.P. Vs C.S. Sharma, AIR 1968 SC 158
8 INDIAN LAW REPORTS ALLAHABAD SERIES
10. S.L. Kapoor Vs Jagmohan, (1980) 4 SCC 379

(Delivered by Hon'ble Manoj Kumar
Gupta, A.C.J.)

1. The instant intra-court appeal is
directed against the judgement of learned
Single Judge dated 20.09.2022 by which
the writ petition1 filed by the non-appellant
(hereinafter referred to as 'the petitioner')
was
allowed
and
the
orders
dated
15.01.2009, 4.11.2011 and 16.12.2011 were
set aside. By order dated 15.01.2009,
permission was granted by the Governor
under Article 351-A of Civil Service
Regulations to continue the disciplinary
proceedings against the petitioner after he
had attained the age of superannuation. By
order dated 4.11.2011, the State Public
Service Commission granted its approval to
the proposed action against the petitioner
and by order dated 16.12.2011, the Special
Secretary, Government of U.P. has forfeited
the entire gratuity of the petitioner and had
directed for withholding of pension until
the pecuniary loss allegedly suffered by the
Government is recovered.

FACTS

2. The petitioner was appointed as
Marketing Inspector in the Civil Supplies
Department of Government of U.P. in
1972-73. In 1998, he was promoted to the
post of Senior Marketing Inspector. In the
year 2004, he was suspended and was
served
with
a
charge
sheet
dated
22.09.2004 levelling four charges. The first
charge related to shortage in stock of sugar,
wheat and rice; the second charge related to
6-8 months' delay in submitting bank draft
of PDS Khadyan Nirgaman resulting in loss
of interest to the Government; the third
charge related to transferring stock of sugar
and rice from Sikandarpur Centre to
Pandah Centre; and the fourth charge
related to dispatch of sugar from Pandah
Centre to Account Office during the year
2001-02, the receipt of which was not
being confirmed by the Account Office.

3. The suspension of the petitioner
was revoked by order dated 1.08.2005, but
the
departmental
proceedings
were
continued. The petitioner submitted his
reply on 10.10.2005 denying all the
charges. In reply to charge no.1, he took the
defence that Deputy Senior Marketing
Officer took the charge in his absence. He
specifically pleaded that in fact, the stocks
when compared with daily stock register
would reveal that there was no shortage but
only storage losses. In respect of charge
no.2, he took specific defence that he
alongwith guard went to Azamgarh to
deliver the cheque to concerned clerk, but
he demanded bribe and did not accept the
cheque. The petitioner also stated that he
made a complaint in this respect to the
Assistant Marketing Inspector, but no heed
was paid to the same. He consequently sent
the cheque by registered post and as such,
charge no.2 relating to delay in handing
over the cheque and consequent loss of
interest was wholly baseless. In respect of
third charge, he explained that Sikandarpur
and Pandah godowns were in same
building at the time of his transfer. Physical
verification of the stock would have taken
several hours and would have delayed
handing over of charge. Therefore, under
due intimation to Regional Food Controller
and Deputy Regional Food Officer, the
stock was transferred to the stock of
Pandah and this facilitated immediate
handing over of charge of Sikandarpur
godown. It had not resulted in any loss to
the Government. In respect of charge no.4,
the explanation was that entire sugar sent to
Account Office was duly received and DTS
1 All. State of U.P. & Ors. Vs. Girijesh Narayan Pathak & Ors.
9
between 1.11.2001 to 31.03.2001 were sent
to Regional Accounts Officer (Foods),
Azamgarh. Entry of the said transaction
duly finds place in the records of Pandah
Centre which can be easily obtained to
verify the stand of the petitioner.

4. According to the petitioner, he was
not being supplied with the documents on
which reliance was placed in the charge
sheet. The petitioner was compelled to file
Writ Petition No.14105 of 2007 before this
Court for supplying him the documents
mentioned in the charge sheet. The said
writ petition was disposed of by order dated
15.03.2007 directing the respondents to
supply the documents to the petitioner
within six weeks, but according to the
petitioner, even thereafter, the documents
were not supplied to him.

5. The enquiry was conducted by one
Arvind
Kumar
Dwivedi,
Sambhagiya
Khadya Niyantrak, Varanasi. He did not
hold any oral enquiry nor examined any
witness. He also did not give any
opportunity to the petitioner to place his
defence and in great hurry, submitted
enquiry report dated 19.05.2007, as the
petitioner was due to retire on 31.05.2007.
The specific case of the petitioner before
the Writ Court was that the Enquiry Officer
fixed 11.12.2006 for cross-examination of
the then District Food Marketing Officer,
Mau. On that day, the petitioner remained
present, but the District Food Marketing
Officer
did
not
appear
for
crossexamination. As the petitioner was due to
retire on 31.05.2007, another date was not
fixed for cross-examination and straight
away enquiry report was submitted on
19.05.2007.

6. After almost two years of
submission of enquiry report, the petitioner
was issued a show cause notice dated
15.01.2009 seeking his explanation in
respect of the enquiry report. He gave a
detailed reply mentioning therein how the
findings returned by the Enquiry Officer
were not correct. It seems that thereafter
approval from Public Service Commission
was obtained on 13.07.2009 followed by
passing of the punishment order dated
16.12.2011.

7. The respondents filed counter
affidavit before the Writ Court and in
paragraph 23 thereof, it was admitted that
the Enquiry Officer fixed 11.12.2006 for
cross-examination of the then District Food
Marketing Inspector, Mau. However, his
cross-examination could not take place, as
he remained absent, while the petitioner
was present. Thereafter, without fixing any
further date in the enquiry, it was
concluded, as the petitioner was due to
retire on 31.05.2007.

8. The Writ Court held that although
charges were serious but they were
specifically denied by the petitioner and,
therefore, it was incumbent for the
employer to have examined the witnesses
to prove the charges and also afford
opportunity to the petitioner to crossexamine the witnesses. However, that was
not done and in tearing hurry, as the
petitioner was due to retire shortly, the
Enquiry Officer concluded the enquiry
proceedings and submitted his report dated
19.12.2006. It has been held that although
in disciplinary enquiry, strict rules of
evidence do not not apply but principles of
natural justice demanded that the petitioner
should have been given opportunity to
cross-examine the witnesses. Moreover, it
was the burden of the employer to have
examined witnesses to prove the charges.
No such course was adopted and, therefore,
10 INDIAN LAW REPORTS ALLAHABAD SERIES
it resulted in the enquiry getting vitiated
and the said inherent defect was not a
curable one. The fact that the petitioner was
given opportunity to submit reply in
response to the enquiry report, was not
sufficient to cure the defect which had
occurred at the initial stages of the enquiry
proceedings. Accordingly, the enquiry was
held to be invalid and non-est in the eyes of
law and the punishment order was quashed.
The Writ Court also held that since the
petitioner had died on 27.02.2014 and,
therefore, no purpose would be served in
remitting the matter back to the stage of
enquiry. The widow of the petitioner, who
came to be substituted in place of the
petitioner,
was
held
entitled
to
all
consequential benefits accruing in favour of
the deceased petitioner as a result of setting
aside of the order dated 16.12.2011.

CONTENTIONS

9. Sri Manish Goyal, learned
Additional Advocate General assisted by
Sri Ramanand Pandey, learned Additional
Chief Standing Counsel made the following
submissions:-

(a) The petitioner in his reply to
the enquiry report did not raise any plea of
prejudice having been caused to him
because of non-examination of witnesses or
denial of opportunity of cross-examination.
It proves that the same had not resulted in
any prejudice to him. In any case, he had
waived the said rights and, therefore,
learned Single Judge erred in going into the
said aspect and in setting aside the
disciplinary proceedings. In support of his
submission, he has placed reliance on P.D.
Agrawal Vs. State Bank of India2, Union
of India and others Vs. Alok Kumar3,
Smith Vs. Mcknight4 and the Covington
Virginian Vs. Woods5.

(b) The learned Single Judge
erred in not remitting the matter back for
holding enquiry from the stage it stood
vitiated.

10. Per contra, learned counsel for the
petitioner submitted that the petitioner,
while replying to show cause notice issued
to him alongwith the enquiry report, stated
in great detail how the findings recorded by
the Enquiry Officer are not sustainable in
law. He specifically pointed out to various
documents which, if considered, would
have
proved
that
the
charges
were
incorrect. It was implicit in his reply that
had the petitioner been given opportunity
during course of enquiry to produce
evidence and cross-examine witnesses, he
would have successfully countered the
charges. Moreover, it was incumbent upon
the employer to have followed the
procedure prescribed under Rule 7 of the
U.P. Government Servants (Discipline and
Appeal) Rules, 1999 (hereinafter referred
to as '1999 Rules') which mandates that
even if enquiry is being held exparte, the
Enquiry Officer shall record the statement
of witnesses to bring home the charges.
Therefore, the plea of waiver is not
sustainable in law.

ANALYSIS

11. The petitioner was a government
servant. The Government had passed the
order for withholding his gratuity and
recovery of losses from him, in exercise of
power under Article 351-A of the Civil
Service Regulations. Thereunder, it is
specifically provided that the "procedure
applicable to proceedings on which an
order of dismissal from service may be
made" is to be followed for taking action
under Article 351-A. Consequently, the
procedure
stipulated
under
the
U.P.
1 All. State of U.P. & Ors. Vs. Girijesh Narayan Pathak & Ors.
11
Government
Servants
(Discipline
and
Appeal), Rules, 1999 was applicable. Rule
7 of the 1999 Rules stipulates that:

"7. Procedure for imposing major
penalties-Before
imposing
any
major
penalty on a Government servant, an
inquiry shall be held in the following
manner:

(i) The disciplinary authority may
himself inquire into the charges or appoint
an authority subordinate to him as Inquiry
Officer to inquire into the charges.

(i) The facts constituting the
misconduct on which it is proposed to take
action shall be reduced in the form of
definite charge or charges to be called
charge-sheet. The charge-sheet shall be
approved by the disciplinary authority:

Provided
that
where
the
appointing authority is Governor, the
charge-sheet may be approved by the
Principal Secretary or the Secretary; as the
case may be, of the concerned department.

(iii) The charges framed shall be
so precise and clear as to give sufficient
indication to the charged Government
servant of the facts and circumstances
against him. The proposed documentary
evidence and the name of the witnesses
proposed to prove the same alongwith oral
evidence, if any, shall be mentioned in the
charge-sheet.

(iv) The charged Government
servant shall be required to put in a written
statement of his defence in person on a
specified date which shall not be less than
15 days from the date of issue of chargesheet and to state whether he desires to
cross-examine any witness mentioned in
the charge-sheet and whether desires to
give or produce evidence in his defence. He
shall also be informed that in case he does
not appear or file the written statement on
the specified date, it will be presumed that
he has none to furnish and Inquiry Officer
shall proceed to complete the inquiry ex
parte.

(v) The charge-sheet, alongwith
the copy of the documentary evidences
mentioned therein and list of witnesses and
their statements, if any, shall be served on
the charged Government servant personally
or by registered post at the address
mentioned in the official records. In case
the charge-sheet could not be served in
aforesaid manner, the charge-sheet shall be
served by publication in a daily newspaper
having wide circulation:

Provided
that
where
the
documentary
evidence
is
voluminous,
instead of furnishing its copy with chargesheet, the charged Government servant
shall be permitted to inspect the same
before the Inquiry Officer.

(vi)
Where
the
charged
Government servant appears and admits the
charges, the Inquiry Officer shall submit his
report to the disciplinary authority on the
basis of such admission.

(vii)
Where
the
charged
Government servant denies the charges, the
Inquiry Officer shall proceed to call the
witnesses proposed in the charge-sheet and
record their oral evidence in presence of the
charged Government servant who shall be
given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidence, the Inquiry Officer shall call and
record the oral evidence which the charged
Government servant desired in his written
statement to be produced in his defence:

Provided that the Inquiry Officer
may for reasons to be recorded in writing
refuse to call a witness.

(viii) The Inquiry Officer may
summon any witness to give evidence or
require any person to produce documents
before
him
in
accordance
with
the
provisions
of
the
Uttar
Pradesh
12 INDIAN LAW REPORTS ALLAHABAD SERIES
Departmental Inquiries (Enforcement of
Attendance of Witnesses and Production of
Documents) Act, 1976.

(ix) The Inquiry Officer may ask
any question he pleases, at any time of any
witness or from person charged with a view
to discover the truth or to obtain proper
proof of facts relevant to charges.

(x)
Where
the
charged
Government servant does not appear on the
date fixed in the inquiry or at any stage of
the proceeding in spite of the service of the
notice on him or having knowledge of the
date, the Inquiry Officer shall proceed with
the inquiry ex parte. In such a case the
Inquiry Officer shall record the statement
of witnesses mentioned in the charge-sheet
in absence of the charged Government
servant.

(xi) The disciplinary authority, if
it considers it necessary to do so, may, by
an order appoint a Government servant or a
legal
practitioner,
to
be
known
as
"Presenting Officer" to present on its behalf
the case in support of the charge.

(xii) The Government servant
may take the assistance of any other
Government servant to present the case on
his behalf but not engage a legal
practitioner for the purpose unless the
Presenting
Officer
appointed
by
the
disciplinary authority is a legal practitioner
of the disciplinary authority having regard
to the circumstances of the case so permits:

Provided that this rule shall not
apply in following cases:

(i) Where any major penalty is
imposed on a person on the ground of
conduct which has led to his conviction on
a criminal charge; or

(ii)
Where
the
disciplinary
authority is satisfied that for reason to be
recorded by it in writing, that it is not
reasonably practicable to hold an inquiry in
the manner provided in these rules; or

(iii) Where the Governor is
satisfied that, in the interest of the security
of the State, it is not expedient to hold an
inquiry in the manner provided in these
rules."

12. In State of Uttar Pradesh and
others vs. Saroj Kumar Sinha6, the
Supreme Court while considering the 1999
Rules held that failure on part of the
Enquiry Officer to fix date for appearance
of the delinquent to answer the charges
would vitiate the proceedings. It has also
been observed that even when the enquiry
is proceeding ex parte, the Enquiry Officer
is under mandate to record the statement of
witnesses.
In
such
a
situation,
the
delinquent being absent would loose the
benefit
of
cross-examination
but
nonetheless in order to establish the
charges, the department is required to
produce necessary evidence before the
Enquiry Officer. The relevant observations
are as follows:

"A bare perusal of the aforesaid
sub-rule shows that when the respondent
had failed to submit the explanation to the
charge sheet it was incumbent upon the
inquiry officer to fix a date for his
appearance in the inquiry. It is only in a
case when the Government servant despite
notice of the date fixed failed to appear that
the enquiry officer can proceed with the
inquiry
ex
parte.
Even
in
such
circumstances, it is incumbent on the
enquiry officer to record the statement of
witnesses mentioned in the charge sheet.
Since the Government servant is absent, he
would clearly lose the benefit of cross
examination
of
the
witnesses.
But
nonetheless in order to establish the charges
the department is required to produce the
necessary evidence before the enquiry
officer. This is so as to avoid the charge
1 All. State of U.P. & Ors. Vs. Girijesh Narayan Pathak & Ors.
13
that the enquiry officer has acted as a
prosecutor as well as a judge."

13. Again, in Sur Enamel and
Stamping Works Ltd. v. The Workmen7,
the Supreme Court emphasised on the
importance of giving opportunity to the
delinquent to cross-examine witnesses. It
has been held as follows:

"An enquiry cannot be said to
have been properly held unless (i) the
employee proceeded against has been
informed clearly of the charges levelled
against him, (ii) the witnesses are examined
- ordinarily in the presence of the employee
- in respect of the charges, (iii) the
employee is given a fair opportunity to
cross-examine witnesses, (iv) he is given a
fair opportunity to examine witnesses
including himself in his defence if he so
wishes on any relevant matter, and (v) the
enquiry officer records his findings with
reasons for the same in his report.".....

In State Of Uttar Pradesh & Anr
v. Sri C.S. Sharma, AIR 1968 SC 158, the
apex
court
took
the view
that
an
opportunity has to be given to the chargesheeted employee to produce his witnesses
or to lead evidence in defence in absence
whereof, the entire disciplinary proceeding
gets vitiated....."

14.

The
Supreme
Court
has
summarized the legal principles in respect
of the procedure to be followed in
departmental
enquiries
in
State
of
Uttaranchal & others vs. Kharak Singh8.
Relevant part of the judgment is extracted
below:

"From the above decisions, the
following principles would emerge:

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

(ii) If an officer is a witness to
any of the incidents which is the subject
matter of the enquiry or if the enquiry was
initiated on a 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.

(iii)
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.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply a
copy of the enquiry report and all
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any."

15. A Division Bench of this Court in
Brij Bhushan Maurya vs. State of U.P.
and another9, again emphasised the
importance of fixing date for an oral
enquiry and also held that failure to fix a
date in this behalf would vitiate the enquiry.
Paragraph-18 of the Law Report wherein
the said aspect has been dealt with is
extracted below:

"A conspectus of the decisions
noticed above would show that where, in a
major penalty enquiry, after service of the
charge-sheet, the charge-sheeted employee
14 INDIAN LAW REPORTS ALLAHABAD SERIES
in his reply to the charge-sheet does not
admit the charge or refutes the charge, it is
mandatory to fix a date for an oral enquiry.
Failure to fix a date for the oral enquiry in
such circumstances would vitiate the
enquiry and the consequential order of
punishment. It is not necessary for the
charge-sheeted officer to pray for an oral
enquiry inasmuch as the moment the
charge-sheeted officer does not admit the
charge or refutes the charge, an oral
enquiry is required not only to comply with
the provisions of the 1999 Rules but also
the principles of natural justice. In a
disciplinary enquiry, even if evidence is in
the form of documents, the documents
would have to be produced and their
authenticity certified either by production
of a witness or on the basis of an admission
of the charge-sheeted employee made by
him after receipt of those documents or
production of those documents before him
in the inquiry. After the department has led
its evidence, the charge-sheeted employee
is to be given opportunity to lead evidence
in defence. Defence evidence may be oral
or documentary depending upon the nature
of the evidence which the defence wishes
to rely on."

16. In the same judgment, the
Division Bench also considered the plea of
non-prejudice taken by the employer and
repelled the same holding as follows:

"In the instant case, the appellant
had not admitted the charges. He had
pleaded not guilty. In these circumstances,
he had a right to lead evidence in defence
in the inquiry. Not holding an inquiry in
these circumstances most certainly was
prejudicial to his defence more so when the
reversion order dated 01.10.2020 recites
that the appellant had not led any evidence
to substantiate his defence. The view taken
by the learned Single Judge that the writ
petitioner (the appellant herein) had failed
to demonstrate as to what prejudice was
caused to him by not holding an oral
enquiry, in our considered view, is not
correct."

17. Another Division Bench in Smt.
Mazda Begum and others vs. State of
U.P. and others10, after considering a
number of precedents both of Supreme
Court and this Court, observed as follows:

"It
is
trite
law
that
the
departmental proceedings are quasi judicial
proceedings. The Inquiry Officer functions
as quasi judicial officer. He is not merely a
representative of the department. He has to
act as an independent and impartial officer
to find out the truth. The major punishment
awarded to an employee visit serious civil
consequences and as such the departmental
proceedings ought to be in conformity with
the principles of natural justice. Even if, an
employee prefers not to participate in
enquiry the department has to establish the
charges against the employee by adducing
oral as well as documentary evidence. In
case charges warrant major punishment
then the oral evidence by producing the
witnesses is necessary."

18. Another judgment on which the
petitioner
has
placed
reliance
is
in
Ghanshyam Das Varshney v. State of
U.P. and others11, wherein also a Division
Bench of this Court held that where the
procedure under Rule 7 of the 1999 Rules
is not followed, it would vitiate the entire
enquiry. The relevant paragraph is extracted
below:

"A perusal of the enquiry report
ipso facto reveals that in his reply to the
charge sheet the petitioner had not only
1 All. State of U.P. & Ors. Vs. Girijesh Narayan Pathak & Ors.
15
denied the charges but had also denied the
verification reports to be correct and in
accordance with the spot position. The
reply to show cause notice given by the
petitioner to the disciplinary authority, copy
of which is annexure 6 to the petition also
reveals that in it also he had reiterated his
denial. We are thus unable to accept the
contention of learned Additional Chief
Standing Counsel that since the imputing
facts had not been denied by the petitioner
there was no necessity for the Enquiry
Officer to record any oral evidence. In our
opinion it was clearly not a case covered by
the provisions of Rule 7 (vi) of the Rules.
Instead it was a case covered by the
provisions of Rule 7(vii) of the Rules
wherein the Enquiry Officer in view of the
denial of charges was under a statutory
obligation to record oral evidence of the
witnesses
to
whom
the
department
proposed to summon in order to prove the
documentary evidence relied upon by it.

Even if a delinquent employee
does not request for personal hearing, the
burden of proving charges is upon the
department. Under the rules, it is obligatory
for the Enquiry Officer to fix a date for
such an enquiry and also to inform about
the same to the delinquent employee. The
Enquiry Officer is also under statutory
obligation to examine the documentary as
well as oral evidence, if any, adduced in
support of the charges. In case, the
delinquent employee does not participate in
the enquiry, even then, the Enquiry Officer
is under statutory duty to discharge his
obligation as an Enquiry Officer to
ascertain the truth in respect of the charges
levelled against the delinquent employee on
the basis of the evidence and to come to the
conclusion as to whether the said charges
are proved against the delinquent employee
or not. Even if the delinquent employee has
not demanded the opportunity of personal
hearing or does not give the list of names of
the witnesses with a brief note indicating
the points on which he desires to examine
or
cross-examine
the
witnesses,
the
Enquiry Officer is still statutory bound to
fix a date of enquiry and to intimate the
said date to the delinquent employee and in
case, the delinquent employee does not
appear on the date fixed or moves an
application for adjournment, the Enquiry
Officer may, in his discretion, either
adjourn the enquiry to some other date or to
proceed ex-parte against the delinquent
employee."

19. In the instant case, concededly the
petitioner had filed a detailed reply to the
charge-sheet traversing each and every
charge levelled against him. In the charge
sheet, the appellants had relied on various
documents and records to prove the
charges. The charges were required to be
proved as the petitioner had specifically
refuted all the charges. He also requested
for summoning the Deputy Regional
Marketing Officer during course of enquiry
to controvert the charges levelled against
him. He also annexed various documents
along with his reply in support of his case.
The Enquiry Officer, having regard to the
defence set up by the petitioner, directed
the then District Food Marketing Officer,
Mau to appear on 19.12.2006 for crossexamination
by
the
petitioner.
The
petitioner was also informed about the
same. Admittedly, the petitioner appeared
before the Enquiry Officer on 19.12.2006
for cross-examining the District Food
Marketing Officer, Mau. It is admitted in
paragraph-23 of the counter affidavit that
the District Food Marketing Officer, Mau
did not appear and therefore on that date,
the petitioner was deprived of his right to
cross-examine him. Thereafter, for almost
five months no effort was made to get him
16 INDIAN LAW REPORTS ALLAHABAD SERIES
cross-examined. Since the petitioner was
due to superannuate on 31.05.2007, the
Enquiry Officer without holding any
further enquiry submitted his report dated
19.05.2007. It is, thus, evident that the
procedure prescribed under Rule 7 of the
1999 Rules was not followed. The
department did not prove the documents
nor led any oral evidence to bring home the
charges. The petitioner was deprived of
valuable
right
to
cross-examine
the
witnesses and to lead evidence in support
of his defence.

20. The disciplinary enquiry in the
facts and circumstances noted above, was
only an eyewash. No legal sanctity could
be accorded to such an enquiry. The
question which now arises is whether the
petitioner could be non-suited on basis of
the doctrine of "non prejudice" and by
setting up "plea of waiver".

21. Before we dwell on the above
submissions, we would first advert to the
judgments cited on behalf of the appellants.
In P.D. Agrawal (supra), the issue was
regarding delay in initiation of disciplinary
proceedings. It was held in the aforesaid
context that where the employee did not
raise any objection in respect of delay in
initiation of proceedings during course of
enquiry, in appeal and before High Court
nor could show any prejudice, the sanctity
of
the
enquiry
cannot
be
doubted.
Paragraph-17, on which reliance has been
placed, is extracted below:

"The validity of the disciplinary
proceeding and/or justifiability thereof on
the ground of delay or otherwise had never
been raised by the appellant before any
forum. It was not his case either before the
Appellate Authority or before the High
Court that by reason of any delay in
initiating the disciplinary proceeding he
had been prejudiced in any manner
whatsoever. It may be true that delay itself
may be a ground for arriving at a finding
that enquiry proceeding was vitiated in the
event it is shown that by reason thereof the
delinquent officer has been prejudiced, but
no such case was made out."

22. The facts of the instant case as
noted above are completely different. In
case of delay in initiation of disciplinary
proceedings undoubtedly the delinquent
should raise the plea at the first opportunity.
However, the same principle would not
apply to the facts of the instant case where
the enquiry itself was found to be faulty
and held in complete violation of the
procedure prescribed under the Statute. The
lacuna in the enquiry, in the facts of the
instant case, goes to the root of the matter
whereas the plea of delay was only relevant
for determining the issue of prejudice
which if not pleaded was definitely not
fatal.

23. Again, in Union of India and
others vs. Alok Kumar (supra), it was held
that a very hyper technical approach should
not be adopted to frustrate departmental
enquiries if upon admitted or indisputable
facts only one conclusion was possible. The
infraction of principles of natural justice is
in itself not sufficient unless prejudice is
proved. It was held that every case should
be examined on its own merits. Paragraph85 on which reliance has been placed is
extracted below:

"Doctrine of de facto prejudice
has been applied both in English as well as
in Indian Law. To frustrate departmental
inquiries on a hyper technical approach has
not found favour with the Courts in the
1 All. State of U.P. & Ors. Vs. Girijesh Narayan Pathak & Ors.
17
recent times. In S.L. Kapoor v. Jagmohan,
(1980) 4 SCC 379, a three-Judge Bench of
this Court while following the principle in
Ridge v. Baldwin, 1964 AC 40:(1963) 2
WLR 935:(1963) 2 All ER 66 (HL) stated
that if upon admitted or indisputable facts
only one conclusion was possible, then in
such a case that principle of natural justice
was in itself prejudice would not apply.
Thus, every case would have to be
examined on its own merits and keeping in
view the statutory rules applying to such
departmental proceedings. The Court in
S.L. Kapoor held as under:

"18. In Ridge v. Baldwin [1964
AC 40 at p. 68 : All ER at p. 73] one of
the arguments was that even if the
appellant had been heard by the Watch
Committee nothing that he could have
said could have made any difference.
The House of Lords observed at (p. 68):

"It may be convenient at this
point to deal with an argument that, even
if as a general rule a watch committee
must hear a constable in his own defence
before dismissing him, this case was so
clear that nothing that the appellant
could have said could have made any
difference. It is at least very doubtful
whether that could be accepted as an
excuse. But, even if it could, the watch
committee would, in my view, fail on the
facts. It may well be that no reasonable
body of men could have reinstated the
appellant. But at between the other two
courses open to the watch committee the
case is not so clear. Certainly on the
facts, as we know them, the watch
committee
could
reasonably
have
decided to forfeit the appellant's pension
rights, but I could not hold that they
would have acted wrongly or wholly
unreasonably if they had in the exercise
of their discretion decided to take a more
lenient course."

24. In Covington Virginian (supra),
the theory of waiver has been explained
and the established principle that for waiver
to
apply
there
must
be
intentional
relinquishment of a known right, was
reiterated. Again, the first principles
governing the theory of waiver, have been
noted. It has been observed as follows:

"A waiver such as is claimed here
may be generally defined as a voluntary
abandonment of some known legal right,
advantage, or privilege, or such conduct as
warrants an inference of the abandonment
of such right, or the intentional doing of an
act inconsistent with claiming it, all of
which is usually dependent upon the
peculiar circumstances of the case."

25. In the instant case, as already
noted, the disciplinary enquiry held by the
appellants was for namesake only. They
had not examined any witness nor proved
any document in support of their case. The
petitioner was not given any opportunity to
cross-examine the witnesses. Merely on
basis of the charge-sheet and reply, enquiry
report was submitted. Thereafter, once
again on basis of reply submitted by the
petitioner challenging the correctness of the
finding recorded in the enquiry report, the
appellants have proceeded to pass the order
for withholding gratuity and deduction
from pension. The instant case is clearly
distinguishable from the cases where
procedure prescribed was substantially
followed but the delinquent employee
comes up with some technical plea to assail
the enquiry proceedings and in such a case,
undoubtedly he has to prove prejudice.
Moreover, the plea has to be raised at the
first available opportunity, otherwise he
would be deemed to have waived the plea.
The same would not apply to the facts of
the instant case. Mere fact that the
18 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner did not raise the plea of not being
given opportunity to cross-examine the
witnesses or to lead evidence in his reply to
the enquiry report, would not infuse life
into the proceedings which as noted above
were non est in the eyes of law. The
appellants in fact failed to bring home the
charges, in absence of oral enquiry. The
illegality was not a curable one so as to
sustain the plea of 'non-prejudice' and
'waiver'. We are in complete agreement
with the learned Single Judge that the
inherent defects in the enquiry had
rendered the same vulnerable in law. We
also find no good ground to interfere with
the order of learned Single Judge insofar it
declines to remit the matter for fresh
enquiry as the petitioner had died long back
and holding enquiry in his absence at this
distance in time would not only be a futile
but a sham exercise.

26. In view of foregoing discussion,
we find no merit in the instant appeal. It is,
accordingly, dismissed.
----------
(2024) 1 ILRA 18
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Special Appeal No. 681 of 2023

Lal Mani ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Rahul Agarwal, Sri Abhishek Kumar
Saroj

Counsel for the Respondents:
C.S.C., Sri Ramesh Chandra Dwivedi, Sri
Shivendu Ojha, Sri R.K. Ojha (Sr. Advocate)

Civil Law - Statutory Scheme under U.P.
Secondary Education Service Selection
Board Act, 1982 - The appellant, an L.T.
Grade teacher, claimed seniority as a Lecturer
based on Government Orders granting higher
pay-scale and designation after 10 years of
service - Held, seniority on the post of Lecturer
is governed by Regulation 3 of the U.P.
Intermediate Education Act, 1921, and requires
substantive appointment or promotion under
Section 16 of the Act of 1982; mere grant of
pay-scale or designation under Government
Orders does not confer substantive appointment
or seniority, as per Dr. Rashmi Srivastava Vs
Vikram University. (Paras 7, 9, 15, 17, 19)