# The State of U.P. & Ors v. Sunny Yadav & Anr

- **Citation:** (2024) 3 ILRA 448
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-01
- **Case number:** Special Appeal Defective No. 742 of 2023
- **Bench:** Ashwani Kumar Mishra, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-ors-v-sunny-yadav-anr-51653
- **Pages:** 5

## Headnote

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 -
Departmental
enquiry
-
No
oral
or
documentary evidence was produced or
taken note of - No date was fixed in the
enquiry - Effect - Held, the enquiry officer
acts as a quasi-judicial authority and has
3 All. The State of U.P. & Ors. Vs. Sunny Yadav & Anr.
449
to independently decide the issue of
misconduct
upon
consideration
of
evidence led by either side. It is in this
context that the procedure laid down in
the Rules of 1999 has to be followed. In
the event, enquiry officer is not satisfied
with
the
reply
submitted
by
the
delinquent officer, the enquiry officer will
have to proceed with the enquiry by fixing
a date, time and place and conduct the
enquiry. (Para 7)

B. Service Law - Departmental enquiry -
Writ court issued direction to hold fresh
enquiry and release of arrears of salary as
well
-
Permissibility
-
Held,
while
extending the liberty to the employer to
conduct a fresh enquiry, a direction is
simultaneously issued to release the
arrears of salary also, which was clearly
impermissible - In the event, charges
were found serious, it would have to be
left to the discretion of the employer
either to take work from the employee
concerned
or
to
place
him
under
suspension. (Para 10 and 11)

Appeal disposed of. (E-1)

List of cases cited :-

## Text

448 INDIAN LAW REPORTS ALLAHABAD SERIES

59. Learned counsel for opposite
party no. 5 has also adverted to judgment
and order dated 05.08.2022 passed by this
Court in Writ-A No. 10967 of 2022,
Arshad Javed Khan versus State of U.P
and others. However, a perusal of
aforesaid judgment also makes it evident
that the same pertained to a substantively
appointed teaching staff of a Madarsa and
action against him had been taken in terms
of Regulation 16 of the Regulations and not
under Regulation 11.

60. It is also a relevant fact that the
aspect of whether procedure indicated
under Regulation 11 of Part III of the
Regulations was followed or not is not an
aspect to be considered in this petition
since
the
termination
order
dated
30.07.2023 is not under challenge at the
behest of opposite party no. 5.

61. In view of what has been held
hereinabove, it is evident that the Registrar
had absolutely no jurisdiction whatsoever
to interfere with the order dated 30.07.2023
passed by petitioner institution terminating
services of opposite party no. 5.

62. It is also evident that the order
dated 01.01.2024 imposing single hand
operation has been issued by the Registrar
only on account of the fact that name of
opposite party no. 5 was not being included
by the management in salary bills.

63. In view of what has been held
hereinabove, the impugned orders dated
09.11.2023 and 01.01.2024 are hereby
quashed by issuance of a writ in the nature
of certiorari.

64. In view of Regulation 15 of Part II
of the Regulations of 2016, there is no
occasion for this Court to interfere with the
impugned
order
dated
20.05.2023.
However, in view of specific provisions of
Regulation 15 of the regulations of 2016 it
is
held
that
the
draft
scheme
of
administration submitted by the institution
in question received by the Board on
08.08.2021 shall hereby stand approved.

65. An application for impleadment
was filed on behalf of one Mohd. Mazhar
Khan indicating himself to be an Assistant
Teacher in the Institution. He is neither a
necessary
nor
a
proper
party.
The
application is therefore rejected.

66. Resultantly, the petition succeeds
and is allowed. Parties to bear their own
cost.
----------
(2024) 3 ILRA 448
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2024
BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal Defective No. 742 of 2023

The State of U.P. & Ors. ...Appellants
Versus
Sunny Yadav & Anr. ...Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Sri Om Prakash Tripathi, Sri Ashok Khare
(Sr. Advocate)

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 -
Departmental
enquiry
-
No
oral
or
documentary evidence was produced or
taken note of - No date was fixed in the
enquiry - Effect - Held, the enquiry officer
acts as a quasi-judicial authority and has
3 All. The State of U.P. & Ors. Vs. Sunny Yadav & Anr.
449
to independently decide the issue of
misconduct
upon
consideration
of
evidence led by either side. It is in this
context that the procedure laid down in
the Rules of 1999 has to be followed. In
the event, enquiry officer is not satisfied
with
the
reply
submitted
by
the
delinquent officer, the enquiry officer will
have to proceed with the enquiry by fixing
a date, time and place and conduct the
enquiry. (Para 7)

B. Service Law - Departmental enquiry -
Writ court issued direction to hold fresh
enquiry and release of arrears of salary as
well
-
Permissibility
-
Held,
while
extending the liberty to the employer to
conduct a fresh enquiry, a direction is
simultaneously issued to release the
arrears of salary also, which was clearly
impermissible - In the event, charges
were found serious, it would have to be
left to the discretion of the employer
either to take work from the employee
concerned
or
to
place
him
under
suspension. (Para 10 and 11)

Appeal disposed of. (E-1)

List of cases cited :-

1. Managing Director, ECIL, Hyderabad & ors.
Vs B. Karunakar & ors., reported in (1993) 4
SCC 727

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)

In Ref: Delay Condonation
Application.

1. Reasons for delay in filing the
special appeal have been satisfactorily
explained. Delay Condonation Application
is consequently allowed.

2. Office is directed to treat the appeal
as having been filed within time. Regular
Number would be allotted to the appeal.

Order on Appeal

1. Heard Sri Ajit Kumar Singh,
learned Additional Advocate General for
the State and Sri Ashok Khare, learned
Senior Counsel assisted by Sri Om Prakash
Tripathi,
learned
counsel
for
the
respondents

2. This appeal is directed against the
judgment and order passed by the learned
Single Judge dated 22.3.2023 as corrected
on 11.04.2023, whereby the punishment
order
dated
13.07.2020
against
the
petitioner has been set aside. Learned
Single Judge has returned a finding that the
procedure required to be followed for
conduct of departmental enquiry i.e. U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999 has not been adhered
to. The enquiry report has been perused by
learned Single Judge and it is recorded that
after considering petitioner's reply no oral
or
documentary
evidence
has
been
produced or taken note of, nor any such
evidence has been proved. Learned Single
Judge
therefore
has
arrived
at
the
conclusion that order of dismissal based
upon such defective enquiry held in
violation of the Rules of 1999 cannot be
sustained. An opportunity has been given to
the appellants to proceed against the
petitioner, by holding a fresh enquiry, in
accordance with applicable Rules. A further
direction has been issued to pay subsistence
allowance to the petitioner. The judgment
has been corrected later and the petitioner
has been held entitled to arrears of salary
also in addition to the subsistence amount.

3. Sri Ajit Kumar Singh, learned
Additional Advocate General for the State
contends that the finding of the Writ Court
with regard to non adherence to the
procedure stipulated in Rule 7 of 1999
450 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules is unsustainable inasmuch as enquiry
has been conducted strictly as per law. It is
also argued that since the Writ Court has
granted liberty to the employer to hold a
fresh enquiry. Therefore, the direction to
release arrears of salary is impermissble.

4. Reliance is placed upon the
judgment of the Supreme Court in
Managing Director, ECIL, Hyderabad &
others Vs. B. Karunakar & others,
reported in (1993) 4 SCC 727. It is urged
that in the event punishment order was
interfered
with
on
the
ground
that
procedure for enquiry has not been
followed, the limited relief that could have
been granted was to allow reinstatement for
the purposes of holding of enquiry and
option ought to have been given to place
the employee under suspension for the
purposes of holding of enquiry. Submission
is that the course suggested by the Writ
Court is completely at variance with the
law laid down in Managing Director,
ECIL, Hyderabad (supra), and therefore,
the judgment of the learned Single Judge
cannot be sustained.

5. Sri Ashok Khare, learned Senior
Counsel assisted by Sri Om Prakash
Tripathi,
learned
counsel
for
the
respondents, on the other hand submits that
the liberty granted by the Writ Court vide
order dated 22.3.2023 has not been availed
by the employer and in such circumstances
this Court ought not to interfere in the
order. It is further submitted that period of
three months was sufficient to hold a fresh
enquiry. It is also contended that the
direction to release financial benefits is in
accordance with law. It is also argued that
the
charges
against
the
respondent
petitioner are otherwise not serious enough
so as to warrant any major punishment.

6. We have heard Sri Ajit Kumar
Singh,
learned
Additional
Advocate
General for the State and Sri Ashok Khare,
learned Senior Counsel assisted by Sri Om
Prakash Tripathi, learned counsel for the
respondents and perused the material
available on record.

7. So far as the holding of
departmental
enquiry
against
the
respondents is concerned, we find from a
perusal of the enquiry report that after
noticing the charges levelled against the
employee concerned and his reply he has
proceeded to return his findings. There is
no reference in the enquiry report to any
oral or documentary evidence furnished
before the enquiry officer. The enquiry
officer acts as a quasi-judicial authority and
has to independently decide the issue of
misconduct upon consideration of evidence
led by either side. It is in this context that
the procedure laid down in the Rules of
1999 has to be followed. In the event,
enquiry officer is not satisfied with the
reply submitted by the delinquent officer,
the enquiry officer will have to proceed
with the enquiry by fixing a date, time and
place and conduct the enquiry. There is
nothing on record to show that any date
was fixed in the enquiry or any evidence
was led, oral or documentary, before
returning a finding of guilt against the
delinquent employee. Whether the charges
were serious enough so as to warrant any
major punishment has also not been dealt
with.

8. In such view of the matter, we find
no error in the view taken by the learned
Single Judge in allowing the writ petition
on the ground of failure to adhere to the
provision of the enquiry Rules. Challenge
to the judgment of learned Single Judge on
this ground fails.
3 All. The State of U.P. & Ors. Vs. Sunny Yadav & Anr.
451

9. The other part of appellants'
submission is with regard to course of
action which ought to have been made open
for the appellants when the punishment
order was interfered with on the ground
that the enquiry has not been conducted in
accordance with the procedure specified in
the Rules. The issue with regard to the
course available to the employer in the
above circumstances has been elaborately
laid down in para 31 of the judgment of
Hon'ble Supreme Court in Managing
Director, ECIL, Hyderabad & others Vs.
B.
Karunakar
&
others,
which
is
reproduced hereinbelow:

"Hence, in all cases where the
Inquiry Officer's report is not furnished to
the delinquent employee in the disciplinary
proceedings, the courts and Tribunals
should cause the copy of the report to be
furnished to the aggrieved employee if he
has not already secured it before coming to
the Court! Tribunal, and give the employee
an opportunity to show how his or her case
was prejudiced because of the non-supply
of the report. If after hearing the parties,
the Court. Tribunal comes to the conclusion
that the non-supply of the report would
have made no difference to the ultimate
findings and the punishment given, the
Court/Tribunal should not interfere with
the order of punishment.

The Court/Tribunal should not
mechanically set aside the order of
punishment on the ground that the report
was not furnished as is regrettably being
done at present. The courts should avoid
resorting to short-cuts. Since it is the
Courts/ Tribunals which will apply their
judicial mind to the question and give their
reasons for setting aside or not setting
aside the order of punishment, (and not any
internal appellate or revisional authority),
there would be neither a breach of the
principles of natural justice nor a denial of
the reasonable opportunity. It is only if the
Courts/ Tribunals find that the furnishing of
the report would have made a: difference to
the result in the case that should set aside
the order of punishment Where after
following
the
above
procedure
the
Courts/Tribunals sets aside the order of
punishment, the proper relief that should be
granted is to direct reinstatement of the
employee with liberty to the authority,
management to proceed with the inquiry, by
placing the employee under suspension and
continuing the inquiry from the stage of
furnishing him with the report. The
question whether the employee would be
entitled to the back-wages and other
benefits from the date of his dismissal to the
date of his reinstatement if ultimately
ordered should invariably be left to be
decided
by
the
authority
concerned
according to law, after the culmination of
the proceedings and depending on the final
outcome. If the employee succeeds in the
fresh inquiry and is directed to be
reinstated, the authority should be at liberty
to decide according to law how it will treat
the period from the date of dismissal till the
reinstatement and to what benefits, if any
and the extent of the benefits, he will be
entitled. The reinstatement made as a result
of the setting aside of the inquiry for failure
to furnish the report should be treated as a
reinstatement for the purpose of holding the
fresh inquiry from the stage of furnishing
the report and no more, where such fresh
inquiry is held. That will also be the correct
position in law."

10. The judgment of the learned
Single Judge would reveal that while
extending the liberty to the employer to
conduct a fresh enquiry a direction is
simultaneously issued to release the arrears
of
salary
also
which
was
clearly
452 INDIAN LAW REPORTS ALLAHABAD SERIES
impermissible in view of the observations
made by the Hon'ble Supreme Court in the
case
of
Managing
Director,
ECIL,
Hyderabad (supra).

11. We are of the considered opinion
that for the limited purposes of enabling the
employer to conduct proper enquiry a
direction ought to have been issued to
reinstate the respondent-petitioner for the
purposes of conduct of enquiry. In the
event, charges were found serious, it would
have to be left to the discretion of the
employer either to take work from the
employee concerned or to place him under
suspension. The proceedings of enquiry
would have to be restored to the stage from
where it had gone bad. Question of paying
arrears of salary ought to have been
deferred to be decided on the basis of the
fresh enquiry. Since such course has not
been followed by the learned Single Judge,
therefore to that extent, we are inclined to
interfere in the judgment of the learned
Single
Judge
and
consequently
the
direction issued by the Writ Court stands
modified to such extent. We are informed
that subsistence allowance has already been
paid to the respondent petitioner. We,
therefore, provide that till conclusion of
fresh enquiry in Rule 7, the appellant
employer shall continue to pay subsistence
allowance in case they opt to place the
respondent petitioner under suspension. We
also provide that the enquiry proceedings
would be undertaken expeditiously and
concluded within a period of four months
from today. The respondent undertakes to
co-operate in the enquiry.

12. In light of the above
observations
and
subject
to
the
modification made in the judgment of
learned Single Judge, this special appeal
stands disposed of.

13. Lastly we are informed that
contempt proceedings have been initiated
by the respondent for enforcement of the
judgement of the Writ Court in which 4th
March of 2024 is the date fixed for
personal appearance of officers. Since we
have modified the judgment of the learned
Singe Judge it shall be open for the
appellants to inform the contempt court
about the order passed today and seek
appropriate protection.
----------
(2024) 3 ILRA 452
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2024
BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal No. 1131 of 2018

Ashika Prasad Shukla ...Appellant
Versus
The District Inspector of Schools & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Shivendu Ojha, Sri Radha Kant Ojha

Counsel for the Respondents:
C.S.C., Sri Satyendra Chandra Tripathi

A. Service Law - UP Secondary Education
Service Selection Boards Act, 1982 - UP
Secondary education Services Commission
(Removal of Difficulties) Second Order,
1981 - Cl. 2 (3) (ii) and (iii) - Post of
Assistant Teacher - Payment of salary -
Appointment against short term vacancy -
Papers was sent for approval, but no
communication of decision on approval
was intimated to the Committee within a
period of seven days or even after expiry
of seven days - Issuance of appointment
letter before approval - Effect - Principle
of deemed approval - Applicability - Held,
learned Single Judge is not justified in