# Veer Singh v. Deputy Registrar Cooperative Socities &Ors

- **Citation:** (2011) 2 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/veer-singh-v-deputy-registrar-cooperative-socities-ors-42680
- **Pages:** 7

## Text

1258 INDIAN LAW REPORTS ALLAHABAD SERIES

12. The record of the Board
establishes that the date of birth of
petitioner no. 2 is 15.12.1996 and that no
certificate to her was issued mentioning
her date of birth as 15.2.1995.

13. The Deputy Secretary, U.P.
Board who has produced record on
examining the original certificate as
produced by learned counsel for the
petitioners states that the certificate is not
genuine as there is a colour difference and
the paper used therein is not stout enough.

14. In view of the above, the original
certificate produced by learned counsel
for the petitioners and the copy as
annexed
with
the
writ
petition
is
apparently forged and fictitious which has
been filed to deceive the Court so as to
obtain favourable order.

15. Accordingly, as the date of birth of
petitioner no. 2 has been established to be
15.12.1996 she is not of a marriageable age and
is a minor. Her marriage with petitioner no. 1
solemnized on 11.5.2013 is void in view of
Section 5 (iii) of the Hindu Marriage Act, 1955.

16. In the above circumstances, the writ
petition is not only dismissed but the
Secretary, High School and Inter Medicate
Examination Board U.P., Allahabad is
directed to lodge a criminal complaint/FIR
against the petitioners for fabricating a false
and fictitious certificate of the Board and to
ensure that the investigation thereof reaches its
logical conclusion. The Secretary of the U.P.
Board is further directed to take effective steps
ensuring that in future no false and fictitious
certificate of the Board is manufactured and is
used to abuse the process of the Court.

17. The petition is dismissed with cost
of Rs. 25,000/- which shall be deposited by
the petitioners within two weeks with the
District Magistrate, Mathura, failing which
the Collector would ensure the recovery of
the said amount as arrears of land revenue.

18. The original record produced is
permitted to be returned.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.34441 of 1996

Veer Singh

 ...Petitioner
Versus
Dy. Registrar Coop. Societies & Ors.

 ...Respondents

Counsel for the Petitioner:
Sri A.B.L. Gour

Counsel for the Respondents:
Sri Abhishek Mishra, Sri K.N. Mishra

U.P.
Cooperative
Societies
Act,
1965Regulation 85- Principle of Natural Justicedismissal
order-without
affording
opportunity
of
oral
hearing-even
if
employee failed to participate in disciplinary
proceeding-employer bound to proved the
charges by oral and documentary evidenceorder-unsustainable quashed.
Held: Para-24
Adverting to the case in hand, it is not in
dispute that the services of petitioner is
governed by Regulations 1975. As the
procedure laid down in Regulation 85
thereof was not followed inasmuch as no
oral
inquiry,
as
prescribed
under
Regulation
85
was
not
held,
the
impugned order cannot sustain and the
writ petition deserves to be allowed.

(B)Disciplinary Authority- being quasijudicial officer-bound to act as an
independent
officer-to
find
truth.
3 All] Veer Singh Vs. Deputy Registrar Cooperative Socities &Ors.
1259
Held: Para-22
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 the enquiry the
department has to establish the charges
against the employee by adducing oral as well
as documentary evidence. In case the charges
warrant major punishment then the oral
evidence by producing the witnesses is
necessary.

Case Law discussed:
(2010) 2 SCC 772; (2009) 2 SCC 570; 2000(1)
UPLBEC 541; 2001(2) UPLBEC 1475; 2010(1)
UPLBEC 216; 2008(3) ESC 1667; (2011) 2 ILR
570; 2012(1) UPLBEC 166; Writ-A No. 43331
of 2000; AIR 1984 SC 273; AIR 1996 SC 1669;
(2009) 10 SCC 32.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri A.B.L.Gaur, learned
counsel for the petitioner and Sri Abishek
Mishra holding brief of Sri K.N.Mishra
learned counsel for the respondent.

2. This writ petition is directed
against the order dated 31.07.1996,
whereby punishment of dismissal has
been given to the petitioner after alleged
departmental enquiry conducted against
him in the matter of certain charges
relating to embezzlement and absence etc.

3. It is contended that no oral enquiry
has been held by the Enquiry Officer/
Enquiry Committee and merely for the
reasons that the petitioner could not attend
proceeding before the committee on the date
fixed. Enquiry Committee/ Officer submitted
report and thereupon the impugned order of
punishment has been passed.

4.

Learned
counsel
for
the
respondent submitted that disciplinary
authority
had
given
opportunity
of
hearing to the petitioner and therefore, it
cannot be said that adequate opportunity
of defence was not given.

5. Admittedly, conditions of services
of petitioner is governed by U.P. Cooperative Societies Employees Service
Regulations,
1975
(for
short
"the
Regulations,1975"), framed in exercise of
power under section 122- A of the U.P.
Co-operative Societies Act,1965 (for
short "Act, 1965"). Regulation 85 of

6. A detailed procedure for
disciplinary proceedings is provided in
Regulation 85. It is apposite at this stage
to set out Rule, so far as material:-

"85. Disciplinary proceedings:- (i)
The disciplinary proceedings against an
employee shall be conducted by the
Inquiry Officer (referred to in Clause (iv)
below) with due observance of the
principles of natural justice for which it
shall be necessary-

(a) The employee shall be served
with a charge-sheet containing specific
charges and mention of evidence in
support of each charge and he shall be
required to submit explanation in respect
of the charges within reasonable time
which shall not be less than fifteen days;

(b) Such an employee shall also be
given an opportunity to produce at his own
cost or to cross examine witnesses in his
defence and shall also be given an opportunity
of being heard in person, if he so desires;
1260 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) If no explanation in respect of
charge sheet is received or the explanation
submitted is unsatisfactory, the competent
authority may award him appropriate
punishment considered necessary.

(ii) xxxx"

7. A close look at the gamut of the
aforesaid Rule instantly brings out that
observance of procedural safe guard is
statutory requirement.

8. A long line of decisions have
settled that even if the statutes are silent
or there are no positive words requiring
observance of Natural Justice, yet it
would
apply
unless
the
statutes
specifically provides its exclusion. In the
case in hand the rule itself has used the
word 'Natural Justice'.

9. It is vehement contention of
learned counsel for the petitioner that as
procedure for major penalty was initiated,
it was mandatory on the part of
respondents authority to hold oral inquiry
in the matter, but no such inquiry was
conducted, therefore, entire proceedings
including punishment order is vitiated.

10. The question that calls for
determination is whether oral inquiry is
necessary when the employer intents to
impose major punishment.

11. I may usefully refer to a discussion
on this issue by a recent judgments of the
Supreme Court and a series of decisions of
this Court. The authorities in abundance are
available of this Court.

12. The Supreme Court in the State
of Uttar Pradesh v. Saroj Kumar Sinha
reported (2010) 2 SCC 772 held that :-

"An inquiry officer acting in a quasijudicial authority is in the position of an
independent adjudicator. He is not supposed
to
be
a
representative
of
the
department/disciplinary
authority/Government. His function is to
examine the evidence presented by the
Department, even in the absence of the
delinquent official to see as to whether the
unrebutted evidence is sufficient to hold that
the charges are proved. In the present case the
aforesaid procedure has not been observed.
Since no oral evidence has been examined the
documents have not been proved, and could
not have been taken into consideration to
conclude that the charges have been proved
against the respondents.

When a departmental enquiry is
conducted against the government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The
inquiry officer has to be wholly unbiased.
The rules of natural justice are required to
be observed to ensure not only that justice
is done but is manifestly seen to be done.
The object of rules of natural justice is to
ensure that a government servant is
treated fairly in proceedings which may
culminate in imposition of punishment
including
dismissal/removal
from
service."

13. Similar view was taken in Roop
Singh Negi v. Punjab National Bank,
(2009) 2 SCC 570:-

"Indisputably,
a
departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasi-judicial
function. The charges levelled against the
delinquent officer must be found to have
been proved. The enquiry officer has a duty
to arrive at a finding upon taking into
3 All] Veer Singh Vs. Deputy Registrar Cooperative Socities &Ors.
1261
consideration the materials brought on record
by the parties. The purported evidence
collected
during
investigation
by
the
investigating officer against all the accused
by itself could not be treated to be evidence
in the disciplinary proceeding. No witness
was examined to prove the said documents.
The management witnesses merely tendered
the documents and did not prove the contents
thereof. Reliance, inter alia, was placed by
the enquiry officer on the FIR which could
not have been treated as evidence."

14. This Court has also taken same
view in Subhas Chandra Sharma v.
Managing
Director
and
another
reported in 2000(1) UPLBEC 541:-

"In our opinion after the petitioner
replied to the charge-sheet a date should have
been fixed for the enquiry and the petitioner
should have been intimated the date, time
and place of the enquiry and on that date the
oral and documentary evidence against the
petitioner should have been led in his
presence and he should have been given an
opportunity to cross-examine the witnesses
against him and also he should have been
given an opportunity to produce his own
witnesses and evidence. If the petitioner in
response to this intimation had failed to
appear for the enquiry then an ex parte
enquiry should have been held but the
petitioner's service should have not been
terminated without holding an enquiry. In the
present case it appears that no regular
enquiry was held at all. All that was done
that after receipt of the petitioner's reply to
the charge-sheet he was given a show-cause
notice and thereafter the dismissal order was
passed. In our opinion this was not the
correct legal procedure and there was
violation of the rules of natural justice. Since
no date for enquiry was fixed nor any
enquiry held in which evidence was led in
our opinion the impugned order is clearly
violative of natural justice.

In Meenglas Tea Estate v. The
workmen., AIR 1963 SC 1719, the Supreme
Court observed "It is an elementary principle
that a person who is required to answer a
charge must know not only the accusation but
also the testimony by which the accusation is
supported. He must be given a fair chance to
hear the evidence in support of the charge and
to put such relevant questions by way to crossexamination as he desires. Then he must be
given a chance to rebut the evidence led against
him. This is the barest requirement of an
enquiry of this character and this requirement
must be substantially fulfilled before the result
of the enquiry can be accepted".

In S.C. Girotra v. United Commercial
Bank 1995 Supp. (3) SCC 212, the Supreme
Court set aside a dismissal order which was
passed without giving the employee an
opportunity of cross-examination. In State of
U.P. v. C. S. Sharma, AIR 1968 SC 158, the
Supreme Court held that omission to give
opportunity to the officer to produce his
witnesses and lead evidence in his defence
vitiates the proceedings. The Court also held
that in the enquiry witnesses have to be
examined in support of the allegations, and
opportunity has to be given to the delinquent
to cross-examine these witnesses and to lead
evidence in his defence. In Punjab National
Bank v. A.I.P.N.B.E. Federation, AIR 1960
SC 160, (vide para 66) the Supreme Court
held that in such enquiries evidence must be
recorded in the presence of the charge-sheeted
employee and he must be given an
opportunity to rebut the said evidence. The
same view was taken in A.C.C. Ltd. v. Their
Workmen, (1963) II LLJ. 396, and in Tata
Oil Mills Co. Ltd. v. Their Workmen,
(1963) II LLJ. 78 (SC).
1262 INDIAN LAW REPORTS ALLAHABAD SERIES

Even if the employee refuses to
participate in the enquiry the employer
cannot straightaway dismiss him, but he
must hold and ex-parte enquiry where
evidence must be led vide Imperial
Tobacco Co. Ltd. v. Its Workmen, AIR
1962 SC 1348, Uma Shankar v.
Registrar, 1992 (65) FLR 674 (All)."

15. The above judgment was
followed by a Division Bench in Subhas
Chandra Sharma v. U.P.Co-operative
Spinning Mills and others reported
2001 (2) UPLBEC 1475 the Court held
thus:

"In cases where a major punishment
proposed to be imposed an oral enquiry is
a must, whether the employee request, for
it or not. For this it is necessary to issue a
notice
to
the
employee
concerned
intimating him date, time and place of the
enquiry as held by the Division Bench of
this Court in Subhash Chandra Sharma
v.
Managing
Director,
(2000)
1
UPLBEC 541, against which SLP has
been dismissed by the Supreme Court on
16-8-2000."

16. One of us (Justice Sudhir
Agarwal) in Rajesh Prasad Mishra v.
Commissioner, Jhansi Division, Jhansi
and others reported in 2010 (1)
UPLBEC 216 observed as under after
detail analysis:

"Now coming to the question, what
is the effect of non-holding of oral
inquiry, I find that, in a case where the
inquiry officer is appointed, oral inquiry
is mandatory. The charges are not deemed
to be proved suo motu merely on account
of levelling them by means of the charge
sheet unless the same are proved by the
department before the inquiry officer and
only thereafter it is the turn of delinquent
employee to place his defence. Holding
oral
enquiry
is
mandatory
before
imposing a major penalty, as held by
Apex Court in State of U.P. & another
Vs. T.P.Lal Srivastava, 1997 (1) LLJ
831 as well as by a Division Bench of this
Court in Subhash Chandra Sharma Vs.
Managing Director & another, 2000 (1)
U.P.L.B.E.C. 541.

17. The question as to whether non
holding of oral inquiry can vitiate the
entire proceeding or not has also been
considered in detail by a Division Bench
of this Court (in which I was also a
member) in the case of Salahuddin
Ansari Vs. State of U.P. and others,
2008(3) ESC 1667 and the Court has
clearly held that non holding of oral
inquiry is a serious flaw which vitiates the
entire disciplinary proceeding including
the order of punishment.

18. The Division Bench of this Court
in the case of Mahesh Narain Gupta v.
State of U.P. and others reported (2011) 2
ILR 570 had also occasion to deal with the
same issue. It held:

"At this stage, we are to observe that in
the disciplinary proceedings against a
delinquent, the department is just like a
plaintiff and initial burden lies on the
department to prove the charges which can
certainly be proved only by collecting some
oral evidence or documentary evidence, in
presence and notice charged employee. Even
if the department is to rely its own
record/document which are already available,
then also the enquiry officer by looking into
them and by assigning his own reason after
analysis, will have to record a finding that
hose documents are sufficient enough to
prove the charges.
3 All] Veer Singh Vs. Deputy Registrar Cooperative Socities &Ors.
1263

In no case, approach of the Enquiry
Officer that as no reply has been
submitted, the charge will have to be
automatically proved can be approved.
This will be erroneous. It has been
repeatedly said that disciplinary authority
has a right to proceed against delinquent
employee in exparte manner but some
evidence will have to be collected and
justification to sustain the charges will
have to be stated in detail. The approach
of the enquiry officer of automatic prove
of charges on account of non filing of
reply
is
clearly
misconceived
and
erroneous. This is against the principle of
natural justice, fair play, fair hearing and,
thus, enquiry officer has to be cautioned
in this respect."

19. In another case in Subhash
Chandra Gupta v. State of U.P.
reported 2012 (1) UPLBEC 166 the
Division Bench of this Court after survey
of law on this issue observed as under:

"It is well settled that when the
statute provides to do a thing in a
particular manner that thing has to be
done in that very manner. We are of the
considered opinion that any punishment
awarded on the basis of an enquiry not
conducted in accordance with the enquiry
rules meant for that very purposes is
unsustainable in the eye of law. We are
further of the view that the procedure
prescribed under the inquiry rules for
imposing major penalty is mandatory in
nature and unless those procedures are
followed, any out come inferred thereon
will be of no avail unless the charges are
so glaring and unrefutable which does not
require any proof. The view taken by us
find support from the judgement of the
Apex Court in State of U.P. & another Vs.
T.P.Lal Srivastava, 1997 (1) LLJ 831 as
well as by a Division Bench of this Court
in Subash Chandra Sharma Vs. Managing
Director
&
another,
2000
(1)
U.P.L.B.E.C. 541."

20. Similar view has been taken in a
recent decision of a Division Bench of
this Court (of which I was also a member)
in Sohan Lal Vs. U.P. Co-operative
Federation Ltd. & Another (WRIT - A
No. 43331 of 2000 decided on 11th
January, 2013).

21. The principle of law emanating
from the above judgments are that initial
burden is on the department to prove the
charges. In case of procedure adopted for
inflicting major penalty, the department must
prove the charges by oral evidence also.

22. 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 the
enquiry the department has to establish the
charges against the employee by adducing
oral as well as documentary evidence. In
case the charges warrant major punishment
then the oral evidence by producing the
witnesses is necessary.

23. I may hasten to add that the a
above mentioned law is subject to certain
exception. When the facts are admitted or
no real prejudice has been caused to
employee or no other conclusion is possible,
in such situation the order shall not be vitiated.
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
Reference may be made to the some of the
decision of Supreme Court in K.L.Tripathi v.
State Bank of India reported AIR 1984 SC
273 ; State Bank of Patiala v. S.K. Sharma
reported AIR 1996 SC 1669 and Biecco
Lawrie Ltd. v. West Bengal reported
(2009) 10 SCC 32.

24. Adverting to the case in hand, it
is not in dispute that the services of
petitioner is governed by Regulations
1975. As the procedure laid down in
Regulation 85 thereof was not followed
inasmuch as no oral inquiry, as prescribed
under Regulation 85 was not held, the
impugned order cannot sustain and the
writ petition deserves to be allowed.

25. In the result, the writ petition is
allowed. The impugned orders dated
31.07.1996 (Annexure-10 to the writ
petition) is hereby quashed. Petitioner shall
get all consequential benefits. However, the
respondents shall be at liberty to pass fresh
order in accordance with law.

26. No order as to costs.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2013

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE MANOJ KUMAR GUPTA, J.

Civil Misc. Writ Petition No.35332 of 2013

Smt. Samya Chaudhary
 ...Petitioner
Versus
The Union of India & Ors. ..Respondents

Counsel for the Petitioner:
Archana Singh
Counsel for the Respondents:
A.S.G.I., Sri Vikas Budhwar
Constitution of India, Art.-226- Doctrine
of promissory Estoppel-explained-petitioner
applied for dealership L.P.G.-on draw of lots
found selected-on spot verification certain
short
comings
highlighted-instead
of
producing regd. lease deed-petitioner given
notary affidavit-if allowed to continueamount to continue illegalities for ever-in
absence of minimum eligibility criteria-no
question of applicability of promissory
estoppel.

Held: Para-31-
In view of above discussion, it transpires
that though ground no. 1 on which
candidature of the petitioner has been
rejected is not sustainable in law, the
second ground is valid and legal and the
candidature of the petitioner has rightly
been cancelled as she did not meet the
minimal eligibility criteria of having a
registered lease on the date of the
application. A fortiori, no exception can be
taken to the ultimate decision of the BPCL
cancelling the candidature of the petitioner.

Case Law discussed:
2008(3)AWC 2987; (2008) 9 SCC 31; (2000)7
SCC 529; (2011) 10 SCC 420; (2012) 11 SCC
1; (2003) 1 SCC 152.

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

1. Aggrieved by order dated
30.5.2013, whereby the petitioner was
informed
by
the
Bharat
Petroleum
Corporation Limited (for short "BPCL")
that
upon
field
verification,
the
information furnished by her in the
application for LPG distributorship was
found to be at variance and, therefore, her
candidature is being rejected, has filed the
instant writ petition for quashing the
aforesaid order and for commanding
BPCL to offer the LPG distributorship in
question to the petitioner.

2. During pendency of the writ
petition, the petitioner came to know that