# The Chairman U.P. State Bridge Ltd. Lko & Anr v. Subhash Pratap Bagri & Ors

- **Citation:** (2019) 2 ILRA 979
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-04
- **Case number:** Service Bench No. 30518 of 2018
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-chairman-u-p-state-bridge-ltd-lko-anr-v-subhash-pratap-bagri-ors-44831
- **Pages:** 11

## Headnote

980 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service Law - Natural Justice - enquiry
officer failed to conduct Regular Enquiry
- The Court held that the principles of
natural justice has to be followed in
departmental/ disciplinary proceedings

The Regular enquiry has to be conducted and
principles of natural justice has to be followed in
the disciplinary proceedings by the enquiry
officer, which includes an opportunity to the
employee
to
examine
the
witnesses
of
department, those are required to prove the
charges and documents relied upon in the
charge sheet, as also an opportunity to produce
his witnesses in his defence and an opportunity
of being heard in person. (Para 17)

Writ petition partly allowed (E-10)
Cases Cited:-

## Text

2 All. The Chairman U.P. State Bridge Ltd. Lko & Anr. Vs Subhash Pratap Bagri & Ors.
979
nature, be attracted as it is well known
that law leans in favour of those who are
alert and vigilant. The relief of equality
should be made within a reasonable time.

36. In the opinion of this Court,
there is no period of limitation provided
for filing a writ petition under Article 226
of the Constitution of India, yet ordinarily
a writ petition should be filed within a
reasonable time. In the present case, the
selection proceeding was initiated in
pursuance to an advertisement issued in
the year 2001 and completed in the year
2004. The petitioners did not raise their
grievances before appropriate forum at
any level in regard to curtailment of
vacancies from 49 to 10 and this writ
petition has been filed after a long delay
of almost 15 years.

37. This Court takes into account
that there is inordinate delay and latches
on the part of the petitioners in
approaching to this Court. It is well
settled that power to issue a writ is
discretionary. One of the ground for
refusing the relief under Article 226 of the
Constitution of India is that the petitioners
are guilty of delay and latches. Inordinate
delay in making the motion for a writ will
indeed be a good ground for refusing to
exercise such discretionary jurisdiction, as
the object of this Court is not to
encourage agitation of stale claims, which
have already been settled or where the
rights of third parties have accrued in the
meantime.

38. This Court while considering the
issue of parity and discrimination has
considered the judgment relied upon by
learned counsel for the petitioners and has
recorded that discrimination would not in
a situation of the present nature be
attracted, as it is well known that law
leans in favour of those, who are alert
and vigilant. The relief of equality
should be made within reasonable time.
Thus, in the opinion of this Court, the
judgments relied upon by learned
counsel for the petitioners are not
applicable
to
the
facts
and
circumstances of the present case.

39. This Court, on perusal of the
material on record, is satisfied that the
petitioners are not vigilant of their rights
and acquiesce with the situation claiming
relief, as prayed for in the present writ
petition and waited for 15 years, thus, this
Court refuses to exercise discretionary
jurisdiction under Article 226 of the
Constitution of India.

40. Accordingly, the writ petition
lacks merit and is hereby dismissed.
----------

(2019)10ILR A 979

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.09.2019

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 30518 of 2018

The Chairman U.P. State Bridge Ltd.
Lko & Anr. ...Petitioners
Versus
Subhash Pratap Bagri & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Nishant Shukla

Counsel for the Respondents:
C.S.C., Sri Ashok Shukla
980 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service Law - Natural Justice - enquiry
officer failed to conduct Regular Enquiry
- The Court held that the principles of
natural justice has to be followed in
departmental/ disciplinary proceedings

The Regular enquiry has to be conducted and
principles of natural justice has to be followed in
the disciplinary proceedings by the enquiry
officer, which includes an opportunity to the
employee
to
examine
the
witnesses
of
department, those are required to prove the
charges and documents relied upon in the
charge sheet, as also an opportunity to produce
his witnesses in his defence and an opportunity
of being heard in person. (Para 17)

Writ petition partly allowed (E-10)
Cases Cited:-

1. Raj Kumar Mehrotra vs. St. of Bihar (2006)
SCC (L&S) 679

2. Chairman, LIC and others vs. Masilamani
(2013) 6 SCC 530

3. St. of U.P. Vs. Deepak Kumar Writ Petition
No. 34093 (S/B) of 2018

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Nishant Shukla, learned
counsel for the petitioners, learned
Standing Counsel for the opposite party
nos.2 and 3 and Shri Ashok Shukla,
learned counsel for the claimant-opposite
party no.1.

2. By means of the present writ
petition, the petitioners have challenged the
judgment and order dated 01.08.2018 passed
by the State Public Services Tribunal,
Lucknow (in short "Tribunal") in the Claim
Petition No.58 of 2016 (Subhash Pratap
Bagri vs. State of U.P. & Ors.).

3. Facts in brief of the present case
are that opposite party no.1/Subhash
Pratap Bagri was appointed and joined as
Assistant Engineer on 12.06.1989 and
thereafter was promoted to the post of
Deputy Project Manager on 30.06.1998.
While the opposite party no.1 was posted as
Unit In-charge in the Construction Unit,
Gorakhpur during the period between
04.01.2005 to 12.08.2005, he was found
responsible for gross negligence in the
construction of Bridge over river Burhi
Rapti. The charge sheet was issued on
11.03.2011 which was served on the
opposite party no.2. The charge against the
opposite party no.1 was that the curves
found on the pillars were not made on
correct place, as a result of which, there was
a variation/gap between the concerned
pillars from 28.25 meter to 31.79 meter and
24.6 meter respectively. However, the
opposite party no.1 continued the work
without taking correct measurement and
without getting approval of revised drawing
from his superiors and this act of the
opposite party resulted in heavy additional
expenditure. The opposite party no.1
submitted a reply to the charge sheet dated
11.03.2011 on 02.06.2011. Thereafter, in
the matter in question, an enquiry was
conducted and vide order dated 06.02.2015,
disciplinary authority awarded a censure
entry to the opposite party no.1 and also
directed to recover a sum of Rs.13,27,000/-
from him.

4. Aggrieved by the order dated
06.02.2015, the opposite party no.1 had
filed a Claim Petition No.58 of 2016
before the Tribunal.

5. The Tribunal interfered in the
order of punishment dated 06.02.2015 on
the following grounds.

(i) The Enquiry Officer failed to
conduct the Regular Enquiry by fixing
2 All. The Chairman U.P. State Bridge Ltd. Lko & Anr. Vs Subhash Pratap Bagri & Ors.
981
date, time and place for proving the
charges and documents relied upon.
Witnesses were not examined. The
Enquiry Officer only on the basis of the
reply of the charged employee and
statement of cane operator submitted the
enquiry report and based on the same, the
order of punishment has been passed.

6. On the aforesaid, the Tribunal
considered
Rule
7
of
the
U.
P.
Government Servants (Discipline and
Appeal) Rules, 1999 and judgments on
issue.

7. After considering the material on
record, particularly the enquiry report, the
Tribunal, in its order dated 01.08.2018, on
the procedure adopted by the Enquiry
Officer, observed as under :

"मेरे द्वारा पत्रावली पर उपलब्ध
िााँच आख्या का भलीभािंजत अवलोकन जकया
गया जि े स्पष्ट होता है जक िााँच अजधकारी
द्वारा याची को ुनवाई हेतु मय, थथान व
जतजथ जनयत नहीिं जकया गया और न ही उ को
 ाजक्षयोिं े परीक्षण/प्रजतपरीक्षण करने का
अव र जदया गया तथा मात्र याची द्वारा जदये
गये आरोप पत्र के स्पष्टीकरण एविं क्रेन
ऑपरेटर के कथन के आधार पर िााँच
अजधकारी द्वारा िााँच पूणचकर िााँच आख्या
दण्डाजधकारी के मक्ष प्रस्तुत की गयी है |
अतः स्पष्ट है जक िााँच अजधकारी द्वारा की गयी
िााँच जनयम जवरुद्ध है और जनयम जवरुद्ध िााँच
आख्या के आधार पर पाररत दण्डादेश स्वतः
जनरस्त होने योग्य है |"

(ii) The order of punishment
dated 06.02.2015 is unreasoned and nonspeaking order.

8. On this aspect, the Tribunal after
considering the judgment of the Hon'ble
Apex Court in the case of Raj Kumar
Mehrotra vs. State of Bihar reported in
2006 SCC (L&S) 679 and the order dated
06.02.2015 came to the conclusion that
order dated 06.02.2015 is a non-speaking
and unreasoned order. The observation of
Tribunal in this regard reads as under.

"उपरोक्त के म्बन्ध में प्रश्नगत
दण्डादेश के अवलोकन े स्पष्ट है जक
दण्डाजधकारी ने दण्डादेश में याची को जनगचत
आरोप पत्र एविं िािंच अजधकारी द्वारा दी गयी
िााँच आख्या के कथनोिं का उल्लेख करते हुए
मात्र यह कहा है जक "िािंच अजधकारी द्वारा
प्रेजर्त आख्या एविं िााँच आख्या पर प्राप्त
अपचारी
के
अभ्यावेदन
पर
 म्यक
जवचारोपराि श्री ए पी बागडी के वेतन
/देयकोिं में े जकये िाने के आदेश एतद्द्वारा
पाररत जकये िाते है " जि े जक ी भी प्रकार े
 कारण आदेश के अभाव में पाररत जकया गया
दण्डादेश जवजध के अिंतगचत मान्य नहीिं है तथा
जनरस्त जकये िाने योग्य है |

इ तरह उपरोक्त जववेचना के
आधार पर यह स्पष्ट है जक याची के जवरुद्ध लगाये
गये लापरवाही व जवदुजर्त कायच प्रणाली के
आरोप के म्बन्ध में िााँच अजधकारी द्वारा न तो
कोई ाक्ष्य जदया गया और न ही उ े दोर्ी पाया
गया है परिु दण्डाजधकारी द्वारा जबना जक ी
 ाक्ष्य के आधार पर अपना मत ल्दथथर करके
शा कीय क्षजत का स्वतः जनधाचरण करते हुए
याची के जवरुद्ध जबना कोई नोजट जनगचत जकये
व ूली का आदेश पाररत कर जदया गया िो मेरे
जवचार े प्राकृजतक न्याय के ज द्धािंतोिं के जवपरीत
है | ऐ ी दशा में प्रश्नगत दण्डादेश जनयम जवरुद्ध
होने के कारण जनरस्त जकये िाने योग्य है |
तदनु ार याजचका स्वीकार जकये िाने योग्य है |"

9. After recording specific findings,
as stated herein above, by means of the
order dated 01.08.2018, the Tribunal
982 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed the claim petition with the
following direction :-

"याजचका स्वीकार की िाती है | आलोच्य
दण्डादेश जदनािंजकत 06.02.2015 ( िंलग्नक . -ए
-1) जनरस्त जकया िाता है | याची मस्त
पाररणाजमक ेवा लाभ पाने का अजधकारी है िो
इ आदेश द्वारा रोके गये हो | जवपक्षीगण को यह
जनदेजशत जकया िाता है जक यजद उक्त आदेश के
क्रम में याची े कोई व ूली की िा चुकी हो तो
उ े इ जनणचय की त्यप्रजतजलजप प्राल्दप्त के तीन
माह के अन्दर वाप करना ुजनजित करें |

10. Assailing the order dated
01.08.2018, it is submitted by learned
counsel for the petitioner that the Model
Conduct, Discipline and Appeal Rules For
Public Undertakings are applicable in the
present case and the Tribunal wrongly
considered the Rules known as U.P.
Government
Servants
(Discipline
&
Appeal) Rules, 1999 and as such the order
dated 01.08.2018 based on the Rules of
1999 is unsustainable.

11. The learned counsel for the
petitioner further submitted that the
impugned order dated 01.08.2018 passed
by the State Public Service Tribunal,
Lucknow is contrary to law laid down by
Hon'ble the Apex Court in the case of
Chairman, Life Insurance Corporation of
India and others vs. A. Masilamani,
(2013) 6 SCC 530, wherein it has been,
held as under :-

"15. In view of the issues raised
by the learned Counsel for the parties, the
following
questions
arise
for
our
consideration:

15.1 When a court/tribunal sets
aside the order of punishment imposed in
a disciplinary proceeding on technical
grounds, i.e., non-observance of statutory
provisions, or for violation of the
principles of natural justice, then whether
the
superior
court,
must
provide
opportunity to the disciplinary authority,
to take up and complete the proceedings,
from the point that they stood vitiated ;
and

15.2 If the answer to question
No. 1 is, that such fresh opportunity
should be given, then whether the same
may be denied on the ground of delay in
initiation, or in conclusion of the said
disciplinary proceedings.

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 concerned
case to the disciplinary authority, for it to
conduct the enquiry from the point that it
stood vitiated, and conclude the same.
(Vide:
Managing
Director,
ECIL,
Hyderabad etc. etc. v. B. Karunakar etc.,
AIR 1994 SC 1074; Hiran Mayee
Bhattacharyya v. Secretary, S.M. School
for Girls and Ors. : (2002) 10 SCC 293;
U.P. State Spinning C. Ltd. v. R.S. Pandey
and Anr., (2005) 8 SCC 264; and Union
of India v. Y.S. Sandhu, Ex-Inspector, AIR
2009 SC 161).

17.
The
second
question
involved herein, is also no longer res
integra. Whether or not the disciplinary
authority should be given an opportunity,
to complete the enquiry afresh from the
point that it stood vitiated, depends upon
the gravity of delinquency involved. Thus,
the court must examine, the magnitude of
misconduct alleged against the delinquent
employee. It is in view of this, that
2 All. The Chairman U.P. State Bridge Ltd. Lko & Anr. Vs Subhash Pratap Bagri & Ors.
983
courts/tribunals, are not competent to
quash the charge-sheet and related
disciplinary proceedings, before the same
are concluded, on the aforementioned
grounds.

18. The court/tribunal should
not generally set aside the departmental
enquiry, and quash the charges on the
ground
of
delay
in
initiation
of
disciplinary proceedings, as such a power
is de hors the limitation of judicial review.
In the event that, the court/tribunal
exercises such power, it exceeds its power
of judicial review at the very threshold.
Therefore, a charge-sheet or show cause
notice, issued in the course of disciplinary
proceedings,
cannot
ordinarily
be
quashed by court. The same principle is
applicable, in relation to there being a
delay
in
conclusion of
disciplinary
proceedings. The facts and circumstances
of the case in question, have to be
examined, taking into consideration the
gravity/magnitude of charges involved
therein. The essence of the matter is that
the court must take into consideration, all
relevant facts and to balance and weigh
the same, so as to determine, if it is infact
in the interest of clean and honest
administration,
that
the
judicial
proceedings are allowed to be terminated,
only on the ground of delay in their
conclusion. (Vide: State of U.P. v. Brahm
Datt Sharma and Anr. AIR 1987 SC 943;
State of Madhya Pradesh v. Bani Singh
and Anr. AIR 1990 SC 1308; Union of
India and Anr. v. Ashok Kacker : 1995 (1)
SCC 180; Secretary to Government,
Prohibition & Excise Department v. L.
Srinivasan (1996) 3 SCC 157; State of
Andhra Pradesh v. N. Radhakishan AIR
1998 SC 1833; M.V. Bijlani v. Union of
India and Ors. AIR 2006 SC 3475; Union
of
India
and
Anr.
v.
Kunisetty
Satyanarayana AIR 2007 SC 906; and
The Secretary, Ministry of Defence and
Ors. v. Prabash Chandra Mirdha AIR
2012 SC 2250)."

12. Per contra learned counsel for
the claimant/respondent, on the basis of
the record, submitted that order of
Tribunal is not liable to be interfered as
the same is perfectly valid being passed
after considering the material available on
record. The Tribunal after considering the
order dated 06.02.2015 and judgment on
the issue of requirement of reasonsed
order recorded specific finding that the
order dated 06.02.2015 is a non speaking
order and this is evident from the same.
The finding on the procedure of holding
the enquiry is also perfectly valid and
requires not interference. In this regard he
placed reliance of paras 4.5 and 4.6 of the
claim petition and reply to the same given
in para 8 of written statement. Further
submitted that the matter is old and no
fruit full purpose would be served in
remanding the matter, in facts of the case.
Prayer to dismiss the writ petition.

13. The reasons and findings given
by the Tribunal on the issue to the effect
that the order of punishment dated
06.02.2015
is
a
non-speaking
and
unreasoned order, have not been assailed
by the counsel for the petitioner.

14. We have learned counsel for the
parties and gone through the records.

15. On the findings of the Tribunal
which has been assailed by the petitioner,
on the issues of holding the proper regular
enquiry and applicability of Rules of
1999, we have considered the Rules of
1999 and Model Conduct Rules. We find
that Model Conduct Rules are applicable.
984 INDIAN LAW REPORTS ALLAHABAD SERIES

16. For the purposes of adjudication
for present case, we would like to refer
the relevant Rule/Clause i.e. Rule/Clause
35 of the Model Conduct Rules, the same
on reproduction reads as under :

"Rule/Clause 35 (1) No order
imposing any of the major penalties
specified in Clauses (e), (f) and (g) of
Rule 33 shall be made except after an
inquiry is held in accordance with this
rule.

2. Whenever the disciplinary
authority is of the opinion that there are
grounds for inquiring into the truth of any
imputation of misconduct or misbehaviour
against an employee, it may itself enquire
into, or appoint any public servant
(hereinafter
called
the
inquiring
authority) to inquire into the truth thereof.

3. Where it is proposed to hold
an inquiry, disciplinary authority shall
frame definite charges on the basis of the
allegations against the employee. The
charges, together with a statement of the
allegations, on which they are based, a
list of document by which and a list of
witnesses by whom, the articles of charge
are proposed to be sustained, shall be
communicated in writing to the employee,
who shall be required to submit within
such time as may be specified by the
Disciplinary Authority (not exceeding 15
days), a written statement whether he
admits or denies any of or all the articles
of charge.

Explanation--It
will
not
be
necessary to show the documents listed
with the charge-sheet or any other
document to the employee at this stage.

4. On receipt of the written
statement of the employee, or if no such
statement is received within the time
specified, an enquiry may he held by the
Disciplinary Authority itself, or by any
other public servant appointed as an
Inquiring Authority under Sub-clause (2)
:

Provided that it may not be
necessary to hold an enquiry in respect of
the charges admitted by the employee in
his written statement. The disciplinary
authority shall, however, record its
findings on each such charge.

(5)
Where
the
disciplinary
authority itself inquires or appoints an
inquiring authority for holding an inquiry,
it may, by an order appoint a public
servant to be known as the 'Presenting
Officer' to present on its behalf the case in
support of the articles of charge.

(6) The employee may take the
assistance of any other public servant but
may not engage a legal practitioner for
the purpose.

(7) On the date fixed by the
inquiring authority, the employee shall
appear before the Inquiring Authority at
the time, place and date specified in the
notice. The Inquiring Authority shall ask
the employee whether he pleads guilty to
any of the articles of charge the inquiring
authority shall record the plea, sign the
record and obtain the signature of the
employee
concerned
thereon.
The
inquiring Authority shall return a finding
of guilt in respect of those articles of
charge to which the employee concerned
pleads guilty.
2 All. The Chairman U.P. State Bridge Ltd. Lko & Anr. Vs Subhash Pratap Bagri & Ors.
985

(8) If the employee does not
plead guilty, the inquiring authority shall
adjourn the case to a later date not in
exceeding thirty days after recording an
order that the employee may for the
purpose of preparing his defence :-

(i) inspect the document listed
with the charge-sheet ;

(ii) submit a list of additional
documents and witnesses that he wants to
examine ;

(iii) be supplied with the copies
of the statements of witnesses, if any listed
the charge-sheet.

Relevancy of the additional
documents and the witnesses referred to
in sub-clause D (ii) above will have to be
given by the employee concerned and the
documents and the witnesses shall be
summoned if the Inquiring Authority is
satisfied about their relevance to the
charges, under inquiry.

(9) The Inquiring Authority
shall ask the authority in whose custody
or possession the documents are kept, for
the production of the documents on such
date as may be specified.

(10) The authority in whose
custody or possession the requisitioned
documents are, shall arrange to produce
the same before the inquiring authority on
the date place and time specified in the
requisition.

Provided that the authority
having the custody or possession of the
requisitioned
documents
may
claim
privilege if the production of such
documents will be against the public
interest
or
the
interest
of
the
Corporaton/Company. In that event, it
shall inform the inquiring authority
accordingly.

(11) On the date fixed for the
inquiry, the oral and documentary evidence
by which the articles of charge are proposed
to be proved shall be produced by or on
behalf of the disciplinary authority. The
witnesses shall be examined by or on behalf of
the Presenting Officer and may be crossexamined by or on behalf of the employee.
The Presenting Officer shall be entitled tore-
examine the witnesses on any points on which
they have been cross-examined, but not on a
new matter, without the leave of the Inquiring
Authority. The Inquiring Authority may also
put such questions to the witnesses as it thinks
fit.

(12) Before the close of the
prosecution case, the inquiring authority
may, in its discretion, allow Presenting
Officer to produce evidence not included
in the charge-sheet or may itself call for
new evidence or recall or re-examine any
witness. In such case the employee shall
be given opportunity to inspect the
documentary evidence before it is taken
on record ; or to cross-examine a witness,
who has been so summoned.

(13) When the case for the
disciplinary authority is closed, the employee
may be required to state his defence, orally
or in writing, as he may refer. If the defence
is made orally, it shall be recorded and the
employee shall be required to sign the
record. In either case a copy of the statement
of defence shall be given to the Presenting
Officer, if any, appointed.

(14) The evidence on behalf of
the employee shall then be produced. The
986 INDIAN LAW REPORTS ALLAHABAD SERIES
employee may examine himself or take the
assistance of another employee as given
in rule 32 (6) to examine on his behalf if
he so prefers. The witnesses produced by
the employee shall then be examined and
shall be liable to cross-examination, reexamination and examination by the
inquiring authority according to the
provision applicable to the witnesses for
the disciplinary authority.

(15) The Inquiring Authority
may, after the employee closes his case,
and shall, if the employee has not
examined himself, generally question him
on the circumstances appearing against
him in the evidence for the purposes of
enabling the employee to explain any
circumstances appearing in the evidence
against him.

(16) After the completion of the
production of the evidence, the employee
and the Presenting Officer may file
written briefs of their respective cases
within 15 days of the date of completion
of the production of evidence.

(17) If the employee does not
submit the written statement of defence
referred to in sub-rule 93) or before the
date specified for the purpose or does not
appear in person, or through the assisting
offer or otherwise fails or refuses to
comply with any of the provisions of those
rules, the inquiring authority may hold
the enquiry ex parte.

(18) Whenever any inquiring
authority,
after
having
heard
and
recorded the whole or any part of the
evidence in an inquiry ceases to exercise
jurisdiction therein, and is succeeded by
another inquiry authority which has and
which exercise, such jurisdiction, the
inquiring authority so succeeding may act
on the evidence so recorded by its
predecessor, or partly recorded by its
predecessor and partly recorded by itself.

Provided that if the succeeding
inquiring authority is of the opinion that
further examination of any of the
witnesses whose evidence has already
been recorded is necessary in the interest
of justice, it may recall, examine, crossexamine
and
re-examine
and
such
witnesses as here in before provided.

(19) (i) After the conclusion of
the enquiry, report shall be prepared and
it shall contain -

(a) a gist of the articles of
charge
and
the
statement
of
the
imputations
of
misconduct
or
misbehaviour ;

(b) a gist of the defence of the
employee in respect of each article of
charge ;

(c)
an
assessment
of
the
evidence in respect of each article of
charge ;

(d) the findings of each article
of charge and the reasons therefore.

Explanation :- If in the opinion
of the inquiring authority the proceedings
of the inquiry establish any article of
charge different from the original articles
of the charge, if any record its findings on
such article of charge ;

Provided that the findings on
such articles of charge shall not be
recorded unless the employee has either
admitted the facts on which such article of
2 All. The Chairman U.P. State Bridge Ltd. Lko & Anr. Vs Subhash Pratap Bagri & Ors.
987
charge is based or has had a reasonable
opportunity of defending himself against
such article of charge.

(ii) The enquiring authority,
where it is not itself the disciplinary
authority,
shall
forward
to
the
disciplinary authority the records of
inquiry which shall include :-

(a) The report of the inquiry
prepared by it under sub-clause (i) above
;

(b) The written statement of
defence, if any submitted by the employee
referred to in sub-rule (13) ;

(c) The oral and documentary
evidence produced in the course of the
inquiry ;

(d) Written briefs referred to in
sub-rule (16), if any ; and

(e) The orders, if any, made by
the
disciplinary
authority
and
the
inquiring authority in regard to the
inquiry."

17. The above quoted provision
speaks that regular enquiry has to be
conducted and principles of natural justice
have to be followed in the disciplinary
proceedings by the enquiry officer, which
includes an opportunity to the employee
to examine the witnesses of department,
those are required to prove the charges
and documents relied upon in the charge
sheet, as also an opportunity to produce
his witnesses in his defence and an
opportunity of being heard in person.

18. In what manner the principles of
natural justice have to be followed in the
departmental/disciplinary proceedings has
already explained by the Apex Court as
well as by this Court.

19. The Division Bench of this
Court, after considering the catena of
judgments on the issue of holding the
disciplinary enquiry i.e. a regular enquiry,
in the judgment dated 28.11.2018 passed
in Writ Petition No.34093 (S/B) of 2018
(State of U.P. v. Deepak Kumar) has
observed asunder:-

"It is settled by the catena of
judgments that it is the dutyof Enquiry
Officer
to
hold
''Regular
Enquiry'.
Regularenquiry means that after reply to
the charge-sheet theEnquiry Officer must
record oral evidence with anopportunity
to the delinquent employee to crossexaminethe
witnesses
and
thereafter
opportunity
should
be
given
tothe
delinquent
employee
to
adduce
his
evidence in defence.The opportunity of
personal
hearing
should
also
begiven/awarded
to
the
delinquent
employee. Even if thecharged employee
does
not
participate/co-operate
in
theenquiry, it shall be incumbent upon the
Enquiry Officer toproceed ex-parte by
recording
oral
evidence.
For
regularenquiry, it is incumbent upon the
Enquiry Officer to fixdate, time and place
for examination and cross-11S.A. No. 175
of 2005examination of witnesses for the
purposes of proving ofcharges and
documents, relied upon and opportunity
todelinquent employee should also be
given to produce hiswitness by fixing
date, time and place. After completion
ofenquiry the Enquiry Officer is required
to submit its report,stating therein all the
relevant facts, evidence andstatement of
findings on each charge and reasons
thereof,and thereafter, prior to imposing
988 INDIAN LAW REPORTS ALLAHABAD SERIES
any punishment, the copyof the report
should be provided to charged officer for
thepurposes of submission of his reply on
the same. Thepunishment order should be
reasoned and speaking andmust be passed
after
considering
entire
material
on
record.(vide: Jagdish Prasad Vs. State of
U.P. 1990 (8) LCD 486;Avatar Singh Vs.
State of U.P. 1998 (16) LCD 199;
TownArea
Committee,
Jalalabad
Vs.
Jagdish Prasad 1979 Vol. ISCC 60;
Managing
Director,
U.P.
Welfare
HousingCorporation Vs. Vijay Narain
Bajpai 1980 Vol. 3 SCC459; State of U.P.
Vs.
Shatrughan Lal 1998
(6)
SCC
651;Chandrama Tewari Vs. Union of India
and others AIR1998 SC 117; Anil Kumar
Vs. Presiding Officer and othersAIR 1985
SC 1121; Radhey Kant Khare Vs. U.P. Cooperative Sugar Factories 2003 (21) LCD
610; RoopSingh Negi Vs. Punjab National
Bank and others (2009) 2SCC 570; M.M.
Siddiqui Vs. State of U.P. and others
2015(33) LCD 836; Moti Ram Vs. State of
U.P. and others 2013(31) LCD 1319;
Kaptan Singh Vs. State of U.P. and
others2014 (4) ALJ 440."

20. Taking into account the relevant
provision i.e. Rule/Clause 35 of Model
Conduct Rules and principles settled on
the issue of holding of departmental
enquiry, we find from the record,
particularly para 4.5 & 4.6 of claim
petition and reply to the same given in
para 8 of the written statement of the
petitioner filed before the Tribunal as well
as as enquiry report on record, that
Enquiry Officer failed to conduct the
regular enquiry and thus enquiry report is
vitiated and being so subsequent order
based on the same are unsustainable.

21. In regard to the finding of the
Tribunal to the effect that order dated
06.02.2015 is a non-speaking order,
though not assailed by the learned counsel
for the petitioner, we have perused the
order dated 06.02.2015 and we find that
reasons for coming to the conclusion have
not
mentioned
in
the
order
dated
06.02.2015, order of punishment and
being so the finding of the Tribunal in this
regard is perfectly valid. The relevant
portion of order dated 06.02.2015 reads as
under :-

"अतः िााँच अजधकारी द्वारा प्रेजर्त
आख्या एविं िााँच आख्या पर प्राप्त अपचारी के
अभ्यावेदन पर म्यक जवचारोपराि श्री ए . पी.
बागड़ी। उप पररयोिना प्रबन्धक (ज जवल ) को
पररजनल्दन्दत करते हुये शा कीय क्षजत रू. 13. २७
लाख (तरह लाख त्ताई हिार मात्र ) की व ूली
श्री ए . पी. बागड़ी, के वेतन /देयको में े जकये
िाने के आदेश एतद्द्वारा पाररत जकये िाते है |"

22. Considering the facts of the case
including the contents of charge sheet and
finding recorded by the Tribunal as well
as by us in the preceeding paras and the
law laid down by the Hon'ble Apex Court
in the case of Chairman, Life Insurance
Corporation of India (supra), we are of
the considered opinion that the order
dated 01.08.2018 passed by the Tribunal
is contrary to law and being is liable to be
partly set aside/modified.

23. For the foregoing reasons, writ
petition is partly allowed and the
impugned order dated 01.08.2018 passed
by
State
Public
Service
Tribunal,
Lucknow is set aside to the extent it
provides
consequential
benefits
and
refund of amount recovered. The matter is
remanded back to the opposite party no.2
to conduct the enquiry afresh from the
stage of submitting the charge sheet dated
11.03.2011.
Issue
of
providing
2 All. Atul Kumar Singh Vs State of U.P. & Ors.
989
consequential benefits and refund of
amount
would
considered
by
the
appointing authority after conclusion/final
outcome of the enquiry proceeding.

24. Further, till the passing of the
final order in the matter in question by the
disciplinary authority, no recovery shall
be made from the claimant/opposite party
no.1 and the amount recovered from the
opposite party no.1, in pursuance to the
order dated 06.02.2015, shall be subject to
outcome of the final order passed by the
disciplinary authority.

25. The disciplinary authority is
directed to conclude the entire proceeding
within six months from the date of receipt
of a certified copy of this order.
----------

(2019)10ILR A 989

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2019

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 567 of 2012

Atul Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.P. Singh, Sri S.P. Singh.

Counsel for the Respondents:
C.S.C., Sri Amit Dwivedi, Sri Manik Sinha,
Sri Manish Sinha, Sri Sameer Kalia, Sri
Uttam Kumar Verma

A. Service Jurisprudence - appointment -
petitioner's services stand terminated when
regular selection was to be made on the post
of
Manager,
Printing
Press
-
he
was
alternatively adjusted against the post of
Research Assistant in the Department of Dairy
and Animal Husbandry - appointment under
challenge
-
petitioner
lacks
requisite
qualification for the post of Research Assistant

Held:- The submissions of the petitioner that
due opportunity to defend his case was not
accorded to him is covered under the phrase
"Useless Formality Theory" as the petitioner do
not possess required qualification for the post
of Research Assistant. (Para 19)
The principle of Negative Equality envisaged in
State of Orissa Vs. Mamta Mohanty wherein it
was observed that if similarly situated persons
were granted some benefit inadvertently or by
mistake, that order do not confer any legal
right on the petitioner to get some relief.
However, under such circumstance, the court
is duty bound to rectify the mistake rather
than perpetuate the same. (Para 20).

Writ Petition dismissed (E-10)

Cases Cited:-

1. Ajay Singh Vs St of U.P. (2011) SCC OnLine
All 2201

2. St of Orissa Vs Mamta Mohanty (2011) 3 SCC 436

3. Aligarh Muslim University Vs Mansoor Ali
Khan (2000) 7 SCC 529

4. St of Bihar & ors Vs Kameshwar Prasad
Singh & anr AIR (2000) SC 2306

5. U.O.I. & anr Vs International Trading Co. &
anr AIR (2003) SC 3983

6. Lalit Mohan Pandey Vs Pooran Singh & ors
AIR (2004) SC 2303

7. M/s Anand Buttons Ltd. Etc. Vs St of Har &
ors AIR (2005) SC 5565

8. Kastha Niwarak G.S.S. Maryadit, Indor Vs
President, Indore Development Authority AIR
(2006) SC 1142