# State of U.P. & Ors v. Krishna Gopal & Anr

- **Citation:** (2023) 8 ILRA 983
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-24
- **Case number:** Writ-A No. 19467 of 2021
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-krishna-gopal-anr-50707
- **Pages:** 9

## Headnote

A. Service Law - UP Police Officers of Subordinate Ranks (Punishment and Appeal)
Rules, 1991 - Rule 14 (1) - Disciplinary
proceedings - Dismissal from service -
Charge of absent from duty without
permission
-
Defence
of
medical
treatment was taken - Tribunal quashed
the order of dismissal on the ground
that it was breach of principle of natural
justice;
no
personal
hearing
was
afforded
during
the
course
of
preliminary enquiry; no charge-sheet
was properly served; etc. etc. - Validity
challenged by the St. - Held, the
Tribunal ought to have remitted the case
concerned to the Disciplinary Authority
to conduct the inquiry from the point
that it stood vitiated and to conclude the
same after furnishing the charge-sheet
to the delinquent employee and to give
opportunity to the delinquent to submit
his comments on the charge-sheet.
(Para 22 and 25)
Writ petition partly allowed. (E-1)
List of Cases cited:

## Text

8 All. State of U.P. & Ors. Vs. Krishna Gopal & Anr.
983
----------
(2023) 8 ILRA 983
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 19467 of 2021

State of U.P. & Ors. ...Petitioners
Versus
Krishna Gopal & Anr. ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
Shikhar Anand, Karunanidhi Yadav, Raj Bahadur
Singh Yadav

A. Service Law - UP Police Officers of Subordinate Ranks (Punishment and Appeal)
Rules, 1991 - Rule 14 (1) - Disciplinary
proceedings - Dismissal from service -
Charge of absent from duty without
permission
-
Defence
of
medical
treatment was taken - Tribunal quashed
the order of dismissal on the ground
that it was breach of principle of natural
justice;
no
personal
hearing
was
afforded
during
the
course
of
preliminary enquiry; no charge-sheet
was properly served; etc. etc. - Validity
challenged by the St. - Held, the
Tribunal ought to have remitted the case
concerned to the Disciplinary Authority
to conduct the inquiry from the point
that it stood vitiated and to conclude the
same after furnishing the charge-sheet
to the delinquent employee and to give
opportunity to the delinquent to submit
his comments on the charge-sheet.
(Para 22 and 25)
Writ petition partly allowed. (E-1)
List of Cases cited:
1. Raj Kumar Mehrotra Vs Government of Bihar
& ors.; 2006 SCC (L&S) 679
2. U.O.I. Vs Mohan Lal Kapoor; (1973) 2 SCC
836
3. Kranti Association (P) Ltd. Vs Masood Ahmad
Khan & ors.; (2010) 9 SCC 510
4. G. Valli Kumar Vs Andhra Education Society;
2010 (2) SCC 947
5. Ram Chandra Vs U.O.I. & ors.; 1986 (53)
F.L.R. 1991 (SC)
6. Krishna Kant B. Parmar Vs U.O.I. & ors.;
(2012) 3 SCC 178
7. D.K. Yadav Vs J.M.A. Industries Ltd.; 1993
(3) SCC 259
8. Depot Manager, A.P.S.R.T.C. & anr. Vs
Surendra; 2008 AIR SCW 5446
9. Managing Director, ECIL Vs B. Karunakaran;
1994 SCC Suppl (2) 391
10. St. of U.P. & anr. Vs Manmohan Nath Sinha
& anr.; (2010) 8 SCC 310
11. Karushnakant B. Parmar Vs U.O.I. & anr.;
(2012) 3 SCC 178
12. St. of Uttaranchal Vs Kharak Singh; (2008) 8
SCC 236
13.
Chairman-cum-Managing
Director,
Coal
India Limited & anr. Vs Mukul Kumar Choudhuri
& ors.; (2009) 15 SCC 620
14. Nirmala J. Jhala Vs St. of Guj.; (2013) 4 SCC
301
15. St. of Uttar Pradesh & ors. Vs Rajit Singh;
2022 SCC Online SC 341
16. Chairman, Life Insurance Corporation of
India & ors. Vs A. Masilamani; (2013) 6 SCC 530
(Delivered by Hon'ble Om Prakash Shukla, J.)

 A. INTRODUCTION

(1) This writ petition has been filed by
the State authorities, questioning the
judgment and order dated 09.03.2021
passed by the State Public Services
Tribunal, Lucknow (hereinafter referred to
984 INDIAN LAW REPORTS ALLAHABAD SERIES
as "Tribunal"), whereby Claim Petition
No. 701 of 2018 preferred by the
claimant/respondent no.1 was allowed by
quashing the order of dismissal dated
21.09.2001 as well as appellate order dated
21.03.2018 and further the learned Tribunal
directed the petitioners/State authorities to
grant the following relief to the respondent
No.1:-

I. the claimant/respondent no.1 shall
be reinstated in service with immediate
effect;

II. since claimant/respondent no.1, in
para-6 of his explanation, had mentioned
that he got medical treatment from
Government Hospital w.e.f. 12.09.2000 to
19.09.2000,
therefore,
the
competent
authority,
on
the
basis
of
medical
documents
furnished
by
the
claimant/respondent
no.1,
shall
pass
speaking and reasoned order in case
medical leave for the aforesaid period shall
be granted to claimant/respondent no.1;

III. the claimant/respondent no.1 has
not worked w.e.f. 22.11.2000 to 20.09.2001
and w.e.f. 21.09.2001 till 09.03.2021 (the
date when the Tribunal passed the order),
therefore, the claimant/respondent no.1
would not be entitled to get salary and
allowances for the aforesaid period on the
principle of 'No Work No Pay', however,
the aforesaid period shall be reckoned as
regular services of the claimant/respondent
No.1 for the purposes of pension only; and
IV. the whole direction shall be complied
with within three months from the date of
receipt of a certified copy of this order"

B. FACTUAL MATRIX

(2) The records of the present writ
reveal that the respondent no.1-Krishna
Gopal, while posted as Lansk Nayak
(Constable No. 53557) in 'B' Company,
45th
Battalion,
P.A.C.,
Aligarh,
unauthorizedly
absented
himself
from
12.09.2000 at 20 hours to 19.09.2000 at
11:30 hours. As he was absent from duties
for 7 days 11 hours and 30 minutes without
permission. Further on 19.11.2000, he was
granted leave for two days, however, even
after expiry of leave of two days, he did not
report back for duties. Thus, a preliminary
inquiry was instituted against him, wherein
the
Assistant
Commandant-II,
45th
Battalion P.A.C., Aligarh, after conducting
the preliminary enquiry, recommended for
initiating regular disciplinary proceedings
under Rule 14 (1) of the Uttar Pradesh
Police Officers of Sub-ordinate Ranks
(Punishment and Appeal) Rules, 1991
(hereinafter referred to as 'Rules, 1991')
against the respondent no.1 vide report
dated
01.04.2001.
Thereafter,
final
disciplinary
proceedings
against
the
respondent no.1 was instituted and the
Deputy
Commandant,
45th
Battalion,
P.A.C., Aligarh was assigned the duty to
conduct the disciplinary proceedings in the
matter against the respondent no.1.

(3) Resultantly, a charge-sheet dated
05.07.2001 was issued to the respondent
No.1, levelling charges of his unauthorized
absence from duty during the period from
(i) 12.09.2000 to 19.09.2000 and (ii) with
effect from 22.11.2019 to onward.

(4) According to the petitioners, when
special messenger went to serve the
aforesaid charge-sheet to respondent no.1,
he was not found in his house and his father
refused to receive the same and as such, on
07.07.2001, the aforesaid charge-sheet was
pasted outside the house of the respondent
no.1 in the presence of two witnesses,
namely, Shiv Ram Singh and Kailash Babu.
Thereafter, the aforesaid charge-sheet dated
05.07.2001 was also sent through registered
8 All. State of U.P. & Ors. Vs. Krishna Gopal & Anr.
985
post on 10.07.2001 but even then, the
respondent no.1 had neither reported to the
Enquiry Officer nor submitted any his reply
to the charge-sheet dated 05.07.2001. In
this background, the Enquiry Officer had
proceeded ex parte against the respondent
no.1. Thereafter, the Enquiry Officer, after
adopting due process, conducted the
enquiry and submitted its report dated
18.08.2001 to the Disciplinary Authority,
recommending that (i) the respondent no.1
shall not be paid salary for the period of
unauthorized absent i.e. w.e.f. 12.09.2000
to 19.09.2000 and w.e.f. 22.11.2000 to
onward on the principle of 'No Work No
Pay'; and (ii) the respondent no.1 be
dismissed from service.

(5) The Disciplinary Authority, on
receipt
of
the
enquiry
report dated
18.08.2001, issued a show cause notice
dated 24.08.2001 to the respondent no.1
enclosing a copy of the enquiry report. The
respondent no. 1 had allegedly come
forward this time and tendered his reply
dated 31.08.2001 to the show cause notice
dated 24.08.2001, stating therein that he
was
under
medical
treatment
w.e.f.
12.09.2000 to 19.09.2000 at Government
Hospital, Etawah and medical certificate in
this regard was annexed with the reply to
show cause notice; and for the period w.e.f.
22.11.2000 to onward, he was staying in
residence of Zamanatgir, namely, Mr.
Prashuram Ojha and Mr. Ramashankar
Yadav situated in village and post Karri,
P.S. Chaubiya, District Etawah under
protection of Article 496/497 of the Police
Regulation.

(6) The Disciplinary Authority did not
accept the explanation of the respondent
no.1 and held the respondent guilty and
imposed a punishment of dismissal vide
order dated 21.09.2001, against which, the
respondent no.1 preferred an appeal, which
was however rejected vide order dated
23.05.2002 on the ground that his appeal
was barred by limitation. Thereafter, the
respondent no.1 preferred revision, which
was
also
rejected
vide
order
dated
17.10.2002.

(7) Feeling aggrieved by the aforesaid
order of dismissal dated 21.09.2001,
appellate order dated 23.05.2002 and
revision order dated 17.10.2002, the
respondent no.1 preferred Claim Petition
No. 793 of 2015 before the Tribunal. The
learned
Tribunal,
vide
order
dated
24.11.2017, allowed the claim petition
partly; quashed the appellate order dated
23.05.2002 as well as revision order dated
17.10.2002;
and
further
directed
the
appellate authority to decide the appeal
afresh on merit by a speaking and reasoned
order within three months from the date of
receipt of a certified copy of the order and
the
decision
so
taken
should
be
communicated to the respondent no.1
immediately.

(8) In compliance of the aforesaid
judgment and order dated 24.11.2017, the
appellate authority considered the appeal of
the respondent no.1 afresh and dismissed
the same vide order dated 21.03.2018,
which was served upon the respondent no.1
on 27.03.2018.

(9) Dissatisfied with the appellate
order dated 21.03.2018, the respondent
no.1 preferred Claim Petition No. 701 of
2018 before the Tribunal. The learned
Tribunal,
noting
the
facts
and
circumstances of the case and also placing
reliance upon the decisions of the Apex
Court in Raj Kumar Mehrotra Vs.
Government of Bihar and others : 2006
SCC (L&S) 679, Union of India Vs.
986 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohan Lal Kapoor : (1973) 2 SCC 836,
Kranti Association (P) Ltd. Vs. Masood
Ahmad Khan and others : (2010) 9 SCC
510, G. Valli Kumar Vs. Andhra
Education Society : 2010 (2) SCC 947,
Ram Chandra Vs. Union of India and
others : 1986 (53) F.L.R. 1991 (SC),
Krishna Kant B. Parmar Vs. Union of
India and others : (2012) 3 SCC 178,
D.K. Yadav Vs. J.M.A. Industries Ltd. :
1993 (3) SCC 259, Depot Manager,
A.P.S.R.T.C. and another Vs. Surendra :
2008 AIR SCW 5446, allowed the claim
petition; quashed the order of dismissal
dated 21.09.2001 and appellate order dated
21.03.2018; and a slew of direction as
stated hereinabove in paragraph-1 was also
issued by the Tribunal. It is this order dated
09.03.2021, which has been challenged in
the instant writ petition.

C. SUBMISSIONS

(10) Heard learned Standing Counsel
representing the petitioners/ State and Shri
Karunanidhi
Yadav,
learned
Counsel
representing the respondent no.1/claimant.

(11)

Assailing
the
impugned
judgment/order dated 09.03.2021 passed by
the learned Tribunal, learned Standing
Counsel representing the petitioners/State
has submitted that the learned Tribunal,
while passing the impugned order, has
erred in arriving to the conclusion that the
claimant/respondent no.1 was not afforded
an opportunity of hearing in the enquiry
proceedings and the enquiry officer had
submitted an ex parte report. According to
the
Ld.
Standing
counsel,
the
claimant/respondent
no.1
himself
had
refused to endorse acknowledgment on the
letter/notice on 25.07.2001 and as such the
charge-sheet was duly served upon him by
pasting of the same on his front doors of his
permanent residences. According to him,
despite service of the charge-sheet by
pasting the same in the presence of two
witnesses through special messenger at the
main door of the permanent residence of
the claimant/respondent no.1, he did not
deliberately participate in the enquiry
proceedings nor he turned up to attend his
duties nor even informed the reason behind
his unauthorized absence to the authorities.
He submits that since the respondent no.1
deliberately absented himself from his
duties and he did not participate in the
enquiry, therefore, having no other option
left, the Disciplinary Authority has rightly
passed the order of dismissal dated
21.09.2001 in accordance with law and
there is no infirmity or illegality in the
order of dismissal.

(12) Learned Standing Counsel
representing the petitioners has further
submitted that the learned Tribunal has
erred in appreciating the statement of the
claimant/respondent no.1 made in paras 6
and 7 of his reply to the show cause notice
that he was under treatment of Dr. M.
Singhal in the District Hospital, Etawa
during the period 13.09.2000 to 17.09.2000
i.e. for five days. According to him, the
story
of
medical
treatment
is
an
afterthought and the learned Tribunal has
failed to appreciate the fact that there is
nothing on record to substantiate the said
claim of the claimant/respondent no.1.
According to the Ld. Standing counsel, his
contention is further fortified by the fact
that the respondent No.1 has himself not
able to justify his unauthorized absence
since 22.11.2000 till the passing of the
order of dismissal dated 21.09.2001.

(13) Elaborating his submissions
further, the learned Standing Counsel
representing the petitioners has drawn our
8 All. State of U.P. & Ors. Vs. Krishna Gopal & Anr.
987
attention to the judgment and order dated
24.11.2017 passed by the learned Tribunal
in Claim Petition No. 793 of 2015 filed by
the respondent no.1 earlier and has
submitted that the learned Tribunal, while
passing the order dated 24.11.2017, did not
interfere
with
the
order
of
punishment/dismissal dated 21.09.2021 nor
quashed the same and merely the claim
petition preferred by the petitioner was
partly allowed by quashing the appellate
order as it was passed only on the ground
of limitation and not on merit and as such,
the learned Tribunal directed the appellate
authority to pass the order on merit.
Therefore, it was not proper for the learned
Tribunal while passing the impugned
judgment and order dated 09.03.2021 to
revisit its earlier judgment and order dated
24.11.2017 by quashing the order of
dismissal dated 21.09.2021.

(14) Learned Standing Counsel has
also drawn our attention to the conduct of
the respondent no.1 and has submitted that
earlier in connection with a maar-peet
committed by the respondent no.1 with a
Constable driver at Post Atrauli, District
Aligarh, respondent no.1 was placed under
suspension and an inquiry was initiated
against
him
and
after
due
inquiry,
punishment order dated 29.08.2000 was
also passed against the respondent no.1,
imposing punishment equivalent to 30 days
salary along with leave without pay for 9
days on account of the fact that he
remained unauthorized absent for the
period 01.07.2000 to 09.07.2000. On
14.07.2000, the claimant/respondent no.1
was again suspended by the Commandant,
45th Battalion, P.A.C., Aligarh in respect of
Case Crime No. 6224420000216, under
Section 6 (Kha) of the P.A.C. Act registered
at Police Station Tappal, District Aligarh,
which is still pending in the Court of
Additional District Judge, Room No. 19,
District Aligarh. According to the Ld.
Standing Counsel, the respondent No.1 is a
habitual absentee and has engaged himself
in activities unbecoming of a person in
uniform and therefore, the conduct of the
respondent no.1 is not fit to be in the
disciplined force like Provincial Armed
Constabulary (P.A.C.).

(15) Placing reliance upon the
judgment of the Apex Court in Managing
Director, ECIL versus B. Karunakaran :
1994 SCC Suppl (2) 391 and State of U.P.
and another Vs. Manmohan Nath Sinha
and another : (2010) 8 SCC 310, learned
Standing Counsel has submitted that the
punishment order is detailed, well-reasoned
and specific and as such, it does not suffer
from any infirmity and even if the learned
Tribunal noticed some technical defects in
the enquiry report, it could have very well
remanded the matter to the disciplinary
authority with liberty to proceed from the
stage the defects has been noticed by it.
However, according to him , the learned
Tribunal, while allowing the claim petition,
has erred in not remanding the matter to the
disciplinary authority from the stage the
defects has been noticed by it. Therefore,
the impugned judgment and order passed
by the learned Tribunal is liable to be setaside.

(16) Per contra, learned Counsel
representing the respondent no.1 has
opposed the aforesaid submissions of the
learned State Counsel and has submitted
that
the
charge
sheet
was
not
personally
served
to
the
claimant/respondent no.1,
therefore,
the learned Tribunal had rightly given
a finding that the order of punishment
has been passed in utter violation of
principle of natural justice.
988 INDIAN LAW REPORTS ALLAHABAD SERIES

(17) Learned Counsel for the
respondent no.1 has further submitted that
the allegation of absent w.e.f. 12.09.2000 to
19.09.2000 and again since 21.11.2000
onward was not willful but is bona fide,
therefore, it does not qualify to be termed
as a misconduct. To substantiate this
submission, learned Counsel has submitted
that
for
the
period
12.09.2000
to
19.09.2000,
a
medical
certificate
of
Government
Hospital
Etawah
was
submitted
to
the
Commandant,
45th
Battalion, P.A.C., Etawah where he was
posted and the same was also in his official
record. So far as absent for the period of
22.11.2000 onward, respondent no.1 was
staying
in
residence
of
Zamanatgir
Parashuram Ojha and Ramashankar Yadav
of village and post Karri, Police Station
Chaubiya, District Etawah under Para 496
and 497 of the Police Regulation vide letter
of the respondent no.1 dated 26.11.2000,
letter of Commandant, 45th Battalion, PAC,
Etawah
dated
20.12.2000,
letter
of
Zamanatgir dated 10.01.2001 and letter of
Commandant dated 20.06.2001 contained
in Annexures No. 10 to 14, respectively, to
the claim petition. Thus, it has been
submitted that, since disciplinary authority
has failed to examine the aforesaid facts
while conducting the departmental enquiry
even though the aforesaid facts have been
mentioned by the respondent no.1 in paras
6-7 of his reply to the show cause notice,
the whole disciplinary proceeding was
vitiated. Moreso, the disciplinary authority
has failed to prove that the absence of the
respondent no.1 is willful, hence the
absence of the respondent no.1 for the
aforesaid period cannot be said to be
misconduct. In support of this submission,
he has placed reliance upon the judgment
of the Apex Court in Karushnakant B.
Parmar Vs. Union of India and another:
(2012) 3 SCC 178.

(18) Learned Counsel for the
respondent no.1 has further submitted that
the Enquiry Officer, in its ex parte report
dated 18.08.2001, has recommended the
disciplinary authority for dismissal of the
respondent no.1 from service and also
stopping the salary for the period of absent
from duty on the principle of 'No Work No
Pay'. Learned Counsel has drawn our
attention to the decision of the Apex Court
in State of Uttaranchal Vs. Kharak Singh
: (2008) 8 SCC 236 and has argued that the
Enquiry
Officer
cannot
make
recommendation
for
imposing
of
a
particular punishment as it is for the
punishing/disciplinary authority to impose
appropriate punishment and the Enquiry
Officer has no role in awarding punishment
as it is merely a recommending authority.
Therefore,
according
to
the
learned
Counsel for the respondent No.1, the very
recommendation
of
the
proposed
punishment by the Enquiry Officer is
contrary to law. The learned Tribunal, after
going through the record, has rightly
observed that the punishment order dated
21.09.2001 has
been passed
to
the
respondent no.1 on the basis of the
recommendation of the enquiry officer and
while passing the punishment order dated
2109.2021, the disciplinary authority had
not applied its mind.

(19) Learned Counsel for the
respondent no.1 has next submitted that the
respondent no.1 was dismissed from
service vide punishment order dated
21.09.2001 merely because of his absence
from duty w.e.f. 12.09.2001 to 19.09.2001
i.e. 7 days 11 hours and 30 minute and
w.e.f. 22.11.2000 onward on placing
reliance upon the recommendation of the
Enquiry Officer. Thus, the punishment of
dismissal
dated
21.09.2001
for
the
aforesaid period is too excessive and
8 All. State of U.P. & Ors. Vs. Krishna Gopal & Anr.
989
cannot be said to be proportionate to the
charges levelled against the respondent
no.1. In support of his submission, he relied
upon the judgment of the Apex Court in
Chairman-cum-Managing Director, Coal
India Limited and another Vs. Mukul
Kumar Choudhuri and others : (2009) 15
SCC 620.

(20) Placing reliance upon the
decision of the Apex Court in Nirmala J.
Jhala Vs. State of Gujarat : (2013) 4 SCC
301, learned Counsel for the petitioner has
submitted that in Nirmala J. Jhala
(Supra), the Apex Court has held that
evidence recorded in preliminary enquiry
cannot be used in regular enquiry as
delinquent is not associated with it and
opportunity
to
cross-examine
persons
examined in preliminary enquiry is not
given, therefore, using such evidence
violates principles of natural justice. He
submits that in the instant case, preliminary
enquiry officer and witness no.8 of the final
enquiry is the same person and in the final
enquiry, opportunity
to
cross-examine
witness no.8/preliminary enquiry officer
was not provided to the respondent no.1,
therefore, the Enquiry Officer's report,
finding the guilt of the respondent no.1 on
placing
reliance
upon
the
witness
no.8/preliminary
enquiry,
violates
the
principle of natural justice.

(21) It is, thus, submission of the
respondent no.1 that the learned Tribunal
has rightly allowed the claim petition
preferred by the respondent no.1 vide
impugned order.

D. ANALYSIS AND FINDING

(22)

Having
regard
to
the
rival
submissions advanced by the parties and
going through the record available before
this Court in the instant writ petition, it is
required to be noted that the learned
Tribunal
has
quashed
the
order
of
punishment/dismissal
passed
by
the
Disciplinary Authority on the ground that
the same was in breach of principles of
natural justice, inasmuch as, the respondent
no.1 was not afforded personal hearing
during the course of preliminary enquiry;
charge-sheet was not properly served upon
the respondent no.1; enquiry officer had
submitted its enquiry report ex parte;
enquiry officer submitted its report on
merely
placing
reliance
upon
the
recommendation of the preliminary enquiry
officer; the preliminary enquiry officer was
made as witness in the final enquiry; the
enquiry officer while submitting its report,
had
not
made
its
recommendation
separately in terms of Appendix-I to the
Rules, 1991; the Disciplinary Authority had
passed the order of punishment merely
placing reliance on the recommendation of
the enquiry officer and did not consider the
reply of the respondent no.1 furnished by
him to the show cause notice.

(23) It is to be noted that the
respondent no.1/delinquent was facing the
departmental inquiry with respect to a
charge of unauthorized absence from
duty. Therefore, the learned Tribunal
ought to have remitted the matter back to
the Disciplinary Authority to conduct the
inquiry from the point that it stood
vitiated.

(24) The Apex Court in the case of
State of Uttar Pradesh and Ors. Vs. Rajit
Singh : 2022 SCC Online SC 341, while
considering its earlier decision in the case
of
Chairman,
Life
Insurance
Corporation of India and Ors. Vs. A.
Masilamani, (2013) 6 SCC 530, has held
in paragraph-15 as under :-
990 INDIAN LAW REPORTS ALLAHABAD SERIES

"15. It appears from the order passed
by the Tribunal that the Tribunal also
observed that the enquiry proceedings were
against the principles of natural justice in
as much as the documents mentioned in the
charge sheet were not at all supplied to the
5 delinquent officer. As per the settled
proposition of law, in a case where it is
found that the enquiry is not conducted
properly and/or the same is in violation of
the principles of natural justice, in that
case, the Court cannot reinstate the
employee as such and the matter is to be
remanded
to
the
Enquiry
Officer/
Disciplinary Authority to proceed further
with the enquiry from the stage of violation
of principles of natural justice is noticed
and the enquiry has to be proceeded further
after furnishing the necessary documents
mentioned in the charge sheet, which are
alleged to have not been given to the
delinquent officer in the instant case. In the
case
of
Chairman,
Life
Insurance
Corporation of India v. A. Masilamani,
(2013) 6 SCC 530, which was also pressed
into service on behalf of the appellants
before the High Court, it is observed in
paragraph 16 as under:-

"16. It is a settled legal proposition,
that once the court sets aside an order of
punishment, on the ground that the enquiry
was not properly conducted, the court
cannot reinstate the employee. It must remit
the case concerned to the disciplinary
authority for it to conduct the enquiry from
the point that it stood vitiated, and
conclude the same. (Vide ECIL v. B.
Karunakar [(1993) 4 SCC 727], Hiran
Mayee Bhattacharyya v. S.M. School for
Girls [(2002) 10 SCC 293], U.P. State Spg.
Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264]
and Union of India v. Y.S. Sadhu [(2008) 12
SCC 30])."

(emphasis supplied)

D. CONCLUSION

(25) Applying the law laid down by
the Apex Court in the aforesaid decisions to
the facts of the case on hand, we are of the
firm view that as the order of dismissal has
been quashed by the Tribunal on the ground
that the same was in breach of principles of
natural justice apart from other defects in
the enquiry proceedings, the Tribunal ought
to have remitted the case concerned to the
Disciplinary Authority to conduct the
inquiry from the point that it stood vitiated
and to conclude the same after furnishing
the
charge-sheet
to
the
delinquent
employee and to give opportunity to the
delinquent to submit his comments on the
charge-sheet.

(26) In view of the above and for the
reasons stated above, present writ petition
is allowed partly. The impugned judgment
and order dated 09.03.2021 passed by the
learned Tribunal, punishment order dated
21.09.2001 passed by the Disciplinary
Authority as well as the Appellate Order
dated 21.03.2018 are hereby quashed and
set-aside. However, as the enquiry is found
to be vitiated and is found to be in violation
of the principles of natural justice in as
much as it is alleged that apart from other
defects in the enquiry, charge-sheet was not
served upon the respondent no.1/delinquent
employee and no opportunity to defend
himself by the Enquiry Officer was
afforded by the Enquiry Officer, we remand
the matter to the Disciplinary Authority to
conduct a fresh enquiry from the stage it
stood vitiated, i.e., serve charge-sheet to the
respondent no.1 and to proceed further with
the enquiry after furnishing all the
necessary documents mentioned in the
charge sheet and after following due
principles of natural justice. Since, the
issue relates to the year 2000, the aforesaid
8 All. Vivek Kumar Sharma & Anr. Vs. High Court of Judicature at Allahabad & Ors.
991
exercise shall be completed expeditiously,
preferably within a period of six months
from today.
----------
(2023) 8 ILRA 991
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE VINOD DIWAKAR, J.

Writ-A No. 19678 of 2019

Vivek Kumar Sharma & Anr. ...Petitioners
Versus
High Court of Judicature at Allahabad &
Ors. ...Respondents

Counsel for the Petitioners:
In Person

Counsel for the Respondents:
C.S.C., Sri Ashish Mishra

Civil Law
-
Uttar
Pradesh
Higher
Judicial Service (UPHJS) Examination,
2016 - Challenge to selection process -
Alleged irregularities in interview process -
Moderation
of
marks
-
Eligibility
of
candidates - Postponement of interviews -
Compliance
with
U.P.
Higher
Judicial
Service Rules, 1975.

Held:
No
Illegality
in
Interview
Process:
The
petitioners'
claim
of
inadequate
interview
duration
(8-10
minutes instead of the prescribed 25-30
minutes under Appendix 'G' of the U.P.
Higher Judicial Service Rules, 1975) was
rejected. The court held that the time limit
is
directory,
not
mandatory,
as
no
consequence
is
prescribed
for
noncompliance. The interview boards, as expert
panels,
have
discretion
to
assess
candidates' suitability based on ability,
character, personality, and physique, and
no
evidence
of
unscientific
or
unfair
evaluation was found. Writ dismissed.
Case Law:

1. Sandeep Gupta Vs High Court of Judicature at
Allahabad (Writ Petition No. 594 of 2016,
Supreme Court, 19.07.2018)

2. Dheeraj Mor Vs High Court of Delhi (2020
SCC OnLine SCC 213)

3. Hirandra Kumar Vs High Court of Judicature
at Allahabad (2020) 17 SCC 401

4. Suraj Bali Singh Vs Registrar General, High
Court of Allahabad (Writ-A No. 20708 of 2012,
Allahabad High Court, 08.05.2017)

5. Dalpat Abasaheb Solunke Vs Dr. B.S.
Mahajan (1990) 1 SCC 305

6. Ashok Kumar Yadav Vs St. of Har. (1985) 4
SCC 417

7. Satpal Vs St. of Har. 1995 Supp (1) SCC 206

8. Sardara Singh Vs St. of Pun. (1991) 4 SCC
555

9. St. of Bihar Vs Bihar Rajya Bhumi Vikas Bank
Samiti (2018) 9 SCC 472

10. Topline Shoes Ltd. Vs Corporation Bank
(2002) 6 SCC 33

11. Kailash Vs Nanhku (2005) 4 SCC 480

12. New India Assurance Comp. Ltd. Vs Hilli
Multipurpose Cold Storage Pvt. Ltd. (2015) 16
SCC 20

13. Pranav Verma Vs Registrar General, High
Court of Punjab & Haryana (Writ Petition No.
565 of 2019, Supreme Court, 13.12.2019)

Result: Writ petition dismissed. No costs.

(Delivered by Hon'ble Saumitra Dayal
Singh, J. & Hon'ble Vinod Diwakar, J.)

1. Heard Shri Vivek Kumar Sharma
(petitioner no.1) and Shri Praveen Singh
(petitioner no.2), in person; Shri Ashish