# Vibhuti Prasad Mishra v. State of U.P. and others

- **Citation:** (2003) 3 ILRA 647
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-23
- **Case number:** Civil Misc. Writ Petition No. 21941 of 2000
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vibhuti-prasad-mishra-v-state-of-u-p-and-others-40146
- **Pages:** 11

## Headnote

Constitution
of
India
Article
226
Principle of Natural Justice Disciplinary
proceedings without charge sheet etc.
without
any
information
to
the
petitioner-Whether valid? Held-No.

Held- Para 14

In the present case, it appears that
proper efforts was not made to convey
the intimation of suspension, charge
sheet,
disciplinary
inquiry
being
conducted against the writ petitioner by
means
of
communication
of
the
registered letter or by publishing the
same in the newspaper, only one mode
has been adopted by affixing all the
information to the door of the house of
the petitioner which was not sighted
without asserting that the petitioner was
residing at the place or not? No notice of
suspension and charge sheet and day,
time and place was ever communicated
or served personally to the petitioner.
Cases referred to:
(i) 1998 (7) SCC 569, (ii) (2002) 1 UPLBEC
425, (iii) (2000) 1 UPLBEC 275, (iv) (2003) 1
UPLBEC 224, (v) (2000) 7 S.C.C. 90, (vi) 2001
(1) UPLBEC 908, (vii) 2002 UPLBEC 1321, (viii)
1994 (2) SCC 746, (ix) 1994 Supp. (2) SC 256,
(x) 1999 (4) AWC 3227, (xi) AIR 1963 SC
1719, (xii) 1995 Supp. (3) SCC 212, (xiii) AIR
1960 SC 160, (xiv) 1963 II LLJ 396, (xv) 1962
II LLJ 78 SC, (xvi) (2001) 2 UPLBEC 1676

## Text

3 All] Vibhuti Prasad Mishra V. State of U.P. and others
647

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eagxkbZ HkRrk vkfn Hkh fn;k tk;sxkA

budh fu;qfDr fuEu 'krksZa ij dh tkrh gS A

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uksfVl nsdj lekIr dh tk ldrh gS vkSj ;g uksfVl muds
}kjk fu;qfDr vf/kdkjh dks fn;k tk;sxk ;k fQj fu;qfDr
vf/kdkjh }kjk budks fn;k tk,xkA
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fn;k tk;sxk ;k muds }kjk vf/kdkjh dks fn;k tk;sxk ,d
ekg gksxhA izfrcU/k ;g gksxk fd ;fn vf/kdkjh pkgs rks
uksfVl ds iwoZ ,d ekg dh vof/k ds LFkku ij osru ns nsaA
bl ckr dh fu;qfDr vf/kdkjh dks NwV gksxh fd ;g fcuk
uksfVl ds dk;Z ls eqDr djsa ;k de vof/k dk uksfVl u nsus
ij mudks dqN Hkh gjtkuk ugha nsuk gksxk A
1⁄431⁄2 budh fu;qfDr ds dk;ZHkkj xzg.k djus gsrq dksbZ ;k=k
HkRrk ns; ugha gksxk A
1⁄441⁄2 budh lsok ;ksX; fpfdRlk vf/kdkjh ds izek.k i= eq[;
fpfdRlk vf/kdkjh ds }kjk izkIr djds dk;Z xzg.k djus ds
le; izLrqr gksxkA
1⁄451⁄2 budh lsok ftys ds fdlh Hkh Hkkx esa LFkkukUrfjr dh
tk ldrh gS A
1⁄461⁄2 ;g vLFkkbZ in gSA
1⁄4g0 vkj0ds0 tSu1⁄2
vf/k'kklh vfHk;Urk]
izkUrh; [k.M lk0fu0fo0]
cqyUn'kgjA
10-3-89"
5.

Learned
counsel
for
the
respondents states that the appointment of
the petitioner was temporary and that he
had not been able to establish that his
appointment
on Group-D
post was
permanent and before 5th November,
1985, as such, he is not entitled to the
benefit of the G.O. dated 28.7.1987. He
further contends that the petitioner has not
disputed that he was appointed on
11.3.1988. He is not entitled to get any
retrial benefits treating him to be retired at
the age of 60 years pursuant to the
aforesaid G.O. dated 28.7.1987.

6. From the records the petitioner
has not been able to conclusively prove
that he was a permanent Beldar working
in permanent capacity on a permanent
post. The appointment of the petitioner
being 11.3.1988, which is undisputed, the
petitioner is not entitled to any relief.

7. For all the reasons stated above,
the petitioner is not entitled to the benefit
of the G.O. dated 28.7.1987 and he has
rightly been retired on attaining the age of
58 years.

The petition is dismissed.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.5.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 21941 of 2000

Vibhuti Prasad Mishra
...Petitioner
Versus
State of U.P. and others ...Respondents

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648 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Counsel for the Petitioner:
Sri Arun Tandon
Sri Dhananjai Rai
Sri Rajesh Nath Tripathi
Ekta Kour

Counsel for the Respondents:
S.C.

Constitution
of
India
Article
226
Principle of Natural Justice Disciplinary
proceedings without charge sheet etc.
without
any
information
to
the
petitioner-Whether valid? Held-No.

Held- Para 14

In the present case, it appears that
proper efforts was not made to convey
the intimation of suspension, charge
sheet,
disciplinary
inquiry
being
conducted against the writ petitioner by
means
of
communication
of
the
registered letter or by publishing the
same in the newspaper, only one mode
has been adopted by affixing all the
information to the door of the house of
the petitioner which was not sighted
without asserting that the petitioner was
residing at the place or not? No notice of
suspension and charge sheet and day,
time and place was ever communicated
or served personally to the petitioner.
Cases referred to:
(i) 1998 (7) SCC 569, (ii) (2002) 1 UPLBEC
425, (iii) (2000) 1 UPLBEC 275, (iv) (2003) 1
UPLBEC 224, (v) (2000) 7 S.C.C. 90, (vi) 2001
(1) UPLBEC 908, (vii) 2002 UPLBEC 1321, (viii)
1994 (2) SCC 746, (ix) 1994 Supp. (2) SC 256,
(x) 1999 (4) AWC 3227, (xi) AIR 1963 SC
1719, (xii) 1995 Supp. (3) SCC 212, (xiii) AIR
1960 SC 160, (xiv) 1963 II LLJ 396, (xv) 1962
II LLJ 78 SC, (xvi) (2001) 2 UPLBEC 1676

(Delivered by Hon'ble R.B. Misra, J.)

Heard Sri Rajesh Nath Tripathi and
Ekta Kour learned counsel for the
petitioner as well as learned counsel for
the respondents.

2. In this petition prayer has been
made for issuance of writ of certiorari to
quash the order dated 7.4.2000 passed by
respondent no. 2 Inspector General of
Police, Lucknow Zone, Lucknow and
order dated 8th November, 1989 passed by
respondent no.3 Deputy Inspector General
of Police, Lucknow Zone, Lucknow.
Further prayer has been made for writ of
mandamus commanding the respondents
to treat the petitioner in continuous
service even after 8th November, 1989 and
to pay full salary to the petitioner. Further
prayer has also been made for seeking
direction to the respondents to pay the
difference of salary for the period
between 6th October, 1987 till 8th
November, 1989 and for payment of the
interest at the rate of 24% on the arrears
of salary and the difference of salary
unpaid to the petitioner.

3.

Brief
facts
necessary
for
adjudication of the writ petition was that
the petitioner was appointed as Subinspector in U.P. Police in the year 1987
and when he was posted as Sub-inspector
in Special Investigation Cell Sahkarita
Mukhyalaya, Sitapur the petitioner left the
place of posting on 5.10.1987 after
recording his lefting at serial no. 3 in G.D.
of the office at 9.00 p.m. on 5.10.87 for
recording his evidence before Special
Investigation Cell Sahkarita Mukhyalaya,
Lucknow for 5.10.87 as such the
petitioner was on duty on 5.10.87 and
6.10.87.

4. The information of recording his
evidence was intimated to the petitioner
by the Superintendent of Police, Sitapur,
as such the permission was already
granted, however without waiting the
return of the petitioner, the petitioner was
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3 All] Vibhuti Prasad Mishra V. State of U.P. and others
649
placed under suspension on the charge
that
the
petitioner
had
not
taken
permission prior to leave the office on
5.10.87. In the suspension order the
petitioner was not attached to any place or
posted to any office. As contended by the
petitioner no charge sheet was served to
the petitioner neither any inquiry officer
was appointed nor the petitioner was
intimated
with
regard
to
the
any
disciplinary proceeding or departmental
inquiry being conducted against the
petitioner till 8.11.89, no information was
given to the petitioner, however the
petitioner when unofficially gathered
information
about
the
disciplinary
proceeding, he immediately moved an
application before the D.I.G. for supply of
notice and charge sheet so that he may
participate in the alleged inquiry. After
five months the petitioner's service was
dismissed on the ground of unauthorised
absence for a period of 28 days i.e. from
7.10.87 to 4.11.87. One charge for
unauthorised absence is for a period of
5.10.87 and 6.10.87 for which the
petitioner was on duty for recording the
evidence before Investigation Cell. The
petitioner has been visiting the police
office for receiving substantial amount
even then no charge sheet was served to
the petitioner and no notice was ever
given to the petitioner before passing of
the dismissal order.

5. The petitioner has also submitted
that he was never served charge sheeted
and he was not afforded opportunity to
file the reply and no opportunity was
afforded to him for adducing evidence or
cross
examine
the
witnesses.
The
documents relied upon by the respondents
have not been furnished to him and no
date, time and place of inquiry was
intimated to him and by paper work the
respondents have endeavoured to show
that the intimations were sent to the
petitioner by way of affixing the notice at
the residential address of the petitioner.
According to the petitioner no inquiry
report or any show cause notice in respect
of the dismissal was also intimated to the
petitioner. According to the petitioner the
dismissal order is illegal and the appeal of
the petitioner has been dismissed by nonapplication of mind.

6. The counter affidavit has been
filed. According to the respondents the
order of suspension dated 6.10.1987 was
served by the Superintendent of Police,
Sitapur to the petitioner and it was the
prime duty of the petitioner to remain
present during the period of suspension to
give full cooperation in disciplinary
proceeding against him. According to the
respondents efforts were made to serve
the charge sheet by Special Messenger
and when the petitioner did not receive,
the same was pasted at the house of the
petitioner. According to the respondents
the information about the suspension and
disciplinary
proceedings
were
communicated
to
him
through
the
Superintendent of Police, Deoria on
29.12.1987 as he was continuously absent
from the District Headquarters, Sitapur.
Effort was made to serve the copy of the
show cause notice to the petitioner
through Sub Inspector Om Shankar
Shukla, District Sitapur and when the
petitioner could not be traced out the said
Sub Inspector pasted a copy of show
cause notice at the residence of the
petitioner on 22.4.89 in presence of two
witnesses.
The
respondents
have
contended in the counter affidavit that all
the notices and orders were served to the
petitioner residence by paste.

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650 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
7. According to the petitioner the
contents of para 22,23,24,25,26 and 30 of
the writ petition that no notice nor any
chargesheet nor the information of the
appointment of the inquiry officer was
ever served upon the petitioner or the
petitioner was never informed the date,
place and time of enquiry by the inquiry
officer for the purpose of his participation
and no letter about the disciplinary
proceedings were ever sent by registered
post to the petitioner and the entire
proceedings were taken behind the back
without
involving
the
petitioner
in
violation of para 490 of the Police
Regulation. According to the petitioner
the averments made in the above
paragraphs of the writ petition were not
emphatically denied and reply was given
only by para 19,20,22 and 25 of the
counter affidavit by admitting that they
have not sent the notices, charge sheet or
information
with
regard
to
the
disciplinary proceeding by registered post
or by publishing the same in the news
paper, as such the endeaverance of the
respondents in respect of communication
about
the
disciplinary
proceedings
including the notices were in violation of
the decision of the Supreme Court in
Union of India Vs. Deena Nath, Sant
Ram reported in 1998 (7) SCC 569 as
followed by this Court in the judgement
dated 8.12.1999 decided in the case of
Shobh Nath Goutam Vs. State of U.P.
and others.

8. I have heard learned counsel for
the petitioner and perused the documents

9. In (1998) 7 Supreme Court
Cases 569 Union of India and others
Vs. Dinanath Shantaram Karekar and
others, the respondent was appointed as
an
unskilled
labour
in
the
Naval
Armament Deport, Bombay. He was
subsequently promoted to the post of Gun
Repair Labourer Grade I. He was
removed from the service which was
challenged before the Services Tribunal
on the grounds that neither the charge
sheet nor the show cause notice were ever
served upon him, therefore, the entire
proceedings were vitiated. The tribunal
found that the charge sheet issued to the
petitioner by registered post was returned
with the postal endorsement 'not found',
while
the
show
cause
notice was
published straightaway in Dainiki Sagar,
Navshakti. The Tribunal found the service
of the charge-sheet and the show cause
notice on the respondent as insufficient
and, therefore, set aside the order of
dismissal by which the respondent was
removed from service. In Special Leave
petition preferred by the Union of India it
was contended that the respondent-writ
petitioner has been absented himself from
the office unauthorisedly and the service
of charge sheet sent to him by registered
post should be treated as sufficient. The
Supreme
Court
Dinanath
Shantaram
Karekar (Supra) has observed as below:

"3. The
respondent
was
an
employee of the appellants. His personal
file and the entire service record was
available in which his home address also
had been mentioned. The charge-sheet
which was sent to the respondent was
returned with the postal endorsement "not
found". This indicates that the chargesheet was not tendered to him even by the
postal authorities. A document sent by
registered post can be treated to have
been served only when it is established
that it was tendered to the addressee.
Where the addressee was not available
even to the postal authorities, and the
registered cover was returned to the
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3 All] Vibhuti Prasad Mishra V. State of U.P. and others
651
sender with the endorsement "not found",
it cannot be legally treated to have been
served. The appellant should have made
further efforts to serve the charge-sheet
on the respondent. A single effort, in the
circumstances of the case, cannot be
treated as sufficient. That being so, the
very
initiation
of
the
departmental
proceedings was bad. It was Ex parte
even from the stage of the charge sheet
which, at no stage, was served upon the
respondent.

4. So far as the service of show-cause
notice is concerned, it also cannot be
treated to have been served. Service of
this notice was sought to be effected on
the respondent by publication in a
newspaper without making any earlier
effort
to
serve
him
personally
by
tendering the show-cause notice either
through the office peon or by registered
post. There is nothing on record to
indicate that the newspaper in which the
show-cause notice was published was a
popular newspaper which was expected to
be read by the public in general or that it
had a wide circulation in the area or
locality where the respondent lived. The
show-cause notice cannot, therefore, in
these circumstances, be held to have been
served on the respondent. In any case,
since the very initiation of the disciplinary
proceedings was bad for the reason that
the charge-sheet was not served, all
subsequent steps and stages, including the
issuance of the show-cause notice would
be bad.

5. Lastly, in order to save the lost
battle, a novel argument was raised by the
learned counsel for the appellant. He
contended that since the charge-sheet as
also the show-cause notice, at different
stages of the disciplinary proceedings,
were despatched and had been sent out of
the office so that no control to recall it
was retained by the Department, the same
should be treated to have been served on
the respondent. It is contended that it is
the communication of the charge-sheet
and the show-cause notice which is
material and not its actual service upon
the delinquent. For this proposition,
reliance had been placed on the decision
of this Court in State of Punjab Vs. Balbir
Singh (1976) 3 SCC 242 : 1976 SCC
(L&S) 411 : AIR 1977 SC 629.

7. As would appear from the perusal
of that decision, the law with regard to
"communication" and not "actual service"
was laid down in the context of the order
by which services were terminated. It was
based on a consideration of the earlier
decisions in State of Punjab Vs. Khemi
Ram (1969) 3 SCC 28 : AIR 1970 SC 214,
Bacchittar Singh Vs. State of Punjab AIR
1963 SC 395 : 1962 Supp (3) SCR 713,
State of Punjab Vs. Amar Singh Harika
AIR 1966 SC 1313 : (1966) 2 LLJ 188
and S. Partap Singh Vs. State of Punjab
AIR 1964 SC 72 : (1964) 4 SCR 733 :
(1966) 1 LLJ 458. The following passage
was quoted from S. Partap Singh
judgment:

"It will be seen that in all the
decisions cited before us it was the
communication of the impugned order
which was held to be essential and not its
actual receipt by the officer concerned
and such communication was held to be
necessary because till the order is issued
and actually sent out to the person
concerned the authority making such
order would be in a position to change its
mind and modify it if it thought fit. But
once such an order is sent out, it goes out
of the control of such an authority, and
therefore, there would be no chance
whatsoever of its changing its mind or
modifying it. In our view, once an order is
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652 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
issued and it is sent out to the government
servant concerned, it must be held to have
been communicated to him, no matter
when he actually received it."

9. Where the services are terminated,
the status of the delinquent as a
government servant comes to an end and
nothing further remains to be done in the
matter. But if the order is passed and
merely kept in the file, it would not be
treated to be an order terminating
services nor shall the said order be
deemed to have been communicated.

10.Where
the
disciplinary
proceedings are intended to be initiated
by issuing a charge-sheet, its actual
service is essential as the person to whom
the charge-sheet is issued is required to
submit his reply and, thereafter, to
participate
in
the
disciplinary
proceedings. So also, when the showcause notice is issued, the employee is
called upon to submit his reply to the
action proposed to be taken against him.
Since in both the situations, the employee
is given an opportunity to submit his
reply, the theory of 'communication'
cannot be invoked and "actual service"
must be proved and established. It has
already been found that neither the
charge-sheet nor the show-cause notice
were ever served upon the original
respondent,
Dinanath
Shantaram
Karekar.
Consequently,
the
entire
proceedings were vitiated.

10. In {(2002) 1 UPLBEC 425}
K.K. Dutta Vs. Managing Director,
U.P.
Cooperative
Spinning
Mills
Federation Ltd., Kanpur and another,
dismissal was set aside in reference to
non-communication of the date of inquiry
or for recording evidence and the day,
time and place of inquiry following the
judgement of Subhash Chandra Sharma
Vs. Managing Director and others, (2000)
1 UPLBEC 541.

11. In (2000) 1 UPLBEC 275
Shobh Nath Gautam Vs. State of U.P.
and others, dismissal of the Sub
Inspector of Police was set aside in
reference
to
the
non-compliance
Regulation
490
of
U.P.
Police
Regulations and for non-compliance of
mandatory provisions of the procedure
prescribed in Regulation 490 and in the
circumstances when notice of show cause
was not served upon the petitioner
directly and for violation of principles of
natural justice and depriving the writ
petitioner to defend himself the High
Court in Shobh Nath Gautam has
observed as below :

"12. Regulation 490 specifically
provides that in the departmental trial of
a police officer, after the preliminary
enquiry, charge-sheet shall be framed,
copy of which shall be given to the
delinquent, Police Officer shall be asked
to submit his reply, it should be oral or in
writing.. If the Officer accepts the charge,
no further evidence will be required to be
record, the orders may be passed on the
basis of the same but in case of denial,
evidence will have to be produced to
prove the charge/charges. It further
provides that the delinquent Police
Officer, if the evidence is produced by the
prosecution, shall be allowed to crossexamine the witnesses. He shall also be
allowed to inspect the record of the case.
The documents mentioned in the chargesheet shall also be supplied to him.
Officer shall be at liberty to make his
defence and produce such witnesses, he
desires, in his defence. After the evidence
is concluded, Superintendent of Police
shall
record
findings
taking
into
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3 All] Vibhuti Prasad Mishra V. State of U.P. and others
653
consideration the evidence on the record.
If he intends to award any major penalty
i.e., dismissal, removal or reduction in
rank, the Officer charged shall be
supplied copy of the findings and shall be
called upon to show cause as to why said
penalty be not awarded to him. After
receipt of the reply, papers are required
to be forwarded, in cases of major
penalty, to the D.I.G. Police through
District Magistrate for final orders. The
D.I.G. on receipt of the papers, is
required to supply copy of the findings
recorded by the Superintendent of Police,
to the Officer charged simultaneously
calling upon him to show cause against
the imposition of punishment. On receipt
of the explanation of the Officer charged,
he may pass order of punishment. Clause
II of the Regulation 490 provides that in
any case in which Superintendent of
Police
considers
that
special
circumstances justify a departure from
any of these rules, he should record
reasons for him decision act in any such
case, it will be for the Superintendent of
Police to show in his finding that the
Officer charged has not been prejudiced
by
this
departure
from
the
usual
procedure. In the present case, no reasons
have been recorded by the Superintendent
of Police for deviation from the normal
procedure under the aforesaid Regulation
and the orders have been passed against
the petitioner without following the
procedure prescribed under the said
Regulation and in contravention thereof.

15. Even if the petitioner was
evading service of charge-sheet and show
cause notice issued by the department of
the inquiry officer, if does not give any
licence to the respondents to proceed ex
parte against the petitioner. A reference
in this regard may be made to the
decisions in Dr. Ramesh Chandra Tyagi
Vs. Union of India & others, (1994) 2
SCC 116, and Union of India & others Vs.
Dinanath Shantaram Karekar & others,
(1998) 7 SCC 569, wherein it has been
ruled by the Apex Court that notice
charge sheet should be served personally,
and if they are not served, they should be
send under registered cover. Even if
service is not effected they may be
published in the newspapers."

12. In (2003) 1 UPLBEC 224 Raj
Bahadur
Singh
Vs.
Director
of
Agriculture, U.P. at Lucknow and
others, this court has observed as below :

The petitioner has placed reliance on
the decision Jagdamba Prasad Shukla
Vs. State of U.P. and others (2000)7
S.C.C.90 para 8

"where the Supreme Court has held
that
the
payment
of
subsistence
allowance, in accordance with the Rules,
to an employee under suspension is not a
bounty. It is a right. An employee is
entitled to be paid the subsistence
allowance, No justifiable ground has been
made out for non payment of the
subsistence allowance all through the
period of suspension i.e. from suspension
till removal. One of the reasons for not
appearing in inquiry as intimated to the
authorities was the financial crunch on
account of non payment of subsistence
allowance and the other was the illness of
the appellant. The appellant in reply to the
show cause notice stated that even if he
was to appear in inquiry against medical
advice, he was unable to appear for want
of funds on account of non payment of
subsistence allowance. It is a clear case of
breach of principles of natural justice on
account of the denial of reasonable
opportunity to the appellant to defend
himself in the departmental enquiry.
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654 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Thus, the departmental enquiry and the
consequent order of removal from service
are quashed."
The petitioner has also placed
reliance on A.I.R.l999 S.C.l4l6 para 33
Capt. M. Paul Anthony Vs. Bharat Gold
Mines Ltd. and another "Where employee
was
not
provided
any
subsistence
allowance during the period of suspension
and the adjournment prayed for by him on
account of his illness, duly supported by
medical certificates, was refused resulting
in ex-parte proceedings against him, the
appellant has been punished in total
violation of the principles of natural
justice and he was literally not afforded
any opportunity of hearing. Moreover, on
account of his penury occasioned by non
payment of subsistence allowance, during
pendency of departmental proceedings he
could not undertake a journey to attend
the disciplinary proceedings from his
home town, the findings recorded by the
inquiry Officer at such proceedings,
which were held ex parte, stand vitiated.

"The petitioner also placed reliance
on the judgements of this High Court
200l(l) U.P.L.B.E.C. 908 K.P. Giri Vs.
State of U.P. and others Para 7 and 8 as
well as on (2002 U.P.L.B.E.C.l32l
Bajrang Prasad Srivastava Vs. U.P.
Pariyojana
Prabandha
U.P.
State
Bridge corporation Ltd. and others. It
was held in the case of K.P. Giri (Supra)

"even in the absence of any reply
submitted by the petitioner to the chargesheet, it was incumbent upon the enquiry
officer to fix the date in the enquiry and to
intimate the petitioner about the same
which has not been done in the present
case.. Moreover, from a perusal of the
order of dismissal dated 20.3.98 it will be
seen that the management had produced
the evidence in support of the charges
levelled against the petitioner had been
accepted by the enquiry officer without
making any effort to confront the same to
the
petitioner.
Thus,
the
entire
proceedings have been conducted in gross
violation of equity, fair play and is in
breach of the principles of natural
justice."

In respect of change of inquiry
officer the petitioner has further placed
reliance on l994(2) S.C.C. 746 page l2
(Registrar of Co-operative Societies
Madras
and
another
Vs.
F.X.
Farnando) where it was held that justice
must not only be done but must be seen to
be done, therefore, the Supreme Court has
directed that an another enquiry officer be
appointed in order to remove any
apprehension of bias on the part of the
respondent. In l994 Supp.(2) S.C. 256
Para 5 Indrani Bai (Smt.) Vs. Union of
India and others. The Supreme Court
has held that

"it is seen that right through, the
delinquent officer had entertained a doubt
about the impartiality of the enquiry to be
conducted by the enquiry officer. When
he made a representation at the earliest,
requesting to change the enquiry officer,
the authorities should have acceded to the
request and appointed another enquiry
officer, other than the one whose
objectivity was doubted."

The petitioner has placed reliance on
l999(4) A.W.C.3227 Para 5 Subhash
Chand Sharma Vs. M.D. U.P. Co-Op.
Spg. Mills Fed. Ltd. In this judgment of
this Court in which one of us Hon'ble Mr.
Justice M. Katju was part has expressed
that

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3 All] Vibhuti Prasad Mishra V. State of U.P. and others
655

"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.
Workmen A I R 1963 S.C. l719,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
byway
of
cross
examination 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 the requirement must be
substantially fulfilled before the result of
the enquiry can be accepted."

In
S.C.
Girotra
Vs.
United
Commercial Bank l995 Supp.(3) SCC
2l2 the supreme Court set aside the
dismissal order which was passed without
giving the employee an opportunity of
cross examination. In Punjab National
Bank AIPNBE Federation, AIR l960
S.C. l60(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
ACC Ltd. Vs. Their Work Man l963 II
LLJ 396 and in Tata Oil Mills Co. Ltd.
Vs. Their Workmen l963 II LLJ 78 S.C.

In the case of Radhey Shyam Pandey
Vs. The Chief Secretary, State of Uttar
Pradesh, Lucknow and others {(2001) 2
UPLBEC 1676} this court (D.B.) has held
that:-

"The respondents have not conducted
the inquiry according to the proper
procedure prescribed under Rule 99. No
specific date, time and place of inquiry
was fixed oral and documentary evidence
against the petitioner should have been
adduced 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. A dismissal order is a major
punishment having serious consequences
and hence should be passed only after
complying with the rules of natural
justice. Since in the present case no
regular and proper inquiry was held nor
was subsistence allowance paid, hence in
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656 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
these circumstances, it is clear cause that
the petitioner had not been afforded a fair
opportunity much less a reasonable
opportunity to defend himself that has
resulted in violation of principal of natural
justice and fair play. The ex- parte inquiry
is illegal and the order of dismissal dated
27.3.2001 is quashed."

In Raj Bahadur Singh (supra) this
court has observed in para 12 as below :

"(12) I have heard learned counsel
for the petitioner and perused the
pleadings of both the writ petitions and
also I have heard learned Standing
Counsel for the respondents and I find
that proper procedure for making the
disciplinary
inquiry
has
not
been
followed. The petitioner has not been
given subsistence allowance and taking
into consideration only the explanation
of petitioner, the dismissal order has
been passed, and no date and time place
has been fixed while making an inquiry.
The petitioner has not been afforded
opportunity to adduce the evidence and
cross examination the witnesses which
indicates that the principle of nature
justice has not been observed, therefore
for lack of opportunity of hearing to the
petitioner the dismissal in question based
on is illegal and erroneous disciplinary
inquiry could not be sustained. The
dismissal order dated 2.7.1991 is set
aside and petitioner is directed to be reinstated in service with all consequential
benefits however keeping in view the
gravity of charges alleged against the
petitioner it is open to the employer after
giving charge sheet to hold a fresh proper
inquiry in accordance with law. With
these observation the writ petition is
allowed".

13. It was held in (2001) 2 UPLBEC
1676/para 25 (Radhey Shyam Pandey
Vs. The Chief Secretary, State of Uttar
Pradesh, Lucknow and others) that the
respondents have not conducted the
inquiry according to the proper procedure
prescribed under Rule 99. No specific
date, time and place of inquiry was fixed.
Oral and documentary evidence against
the petitioner should have been adduced
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.
A dismissal order is a major punishment
having serious consequences and hence
should be passed only after complying
with the rules of natural justice. Since in
the present case no regular and proper
inquiry was held nor was subsistence
allowance
paid,
hence
in
these
circumstances, it is clear cause that the
petitioner had not been afforded a fair
opportunity much less a reasonable
opportunity to defend himself that has
resulted in violation of principle of natural
justice and fair play. The ex-parte enquiry
is illegal and the order of dismissal dated
27.3.2001 was quashed.

14. In the present case, it appears
that proper efforts was not made to
convey the intimation of suspension,
charge sheet, disciplinary inquiry being
conducted against the writ petitioner by
means of communication of the registered
letter or by publishing the same in the
newspaper, only one mode has been
adopted by affixing all the information to
the door of the house of the petitioner
which was not sighted without asserting
that the petitioner was residing at the
place or not? No notice of suspension and
charge sheet and day, time and place was
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3 All] Vibhuti Prasad Mishra V. State of U.P. and others
657
ever communicated or served personally
to the petitioner. The petitioner has not
been afforded to adduce evidences or
allowed opportunity to cross examine the
witnesses. The documents relied by the
respondents have also not been furnished
or was shown to the petitioner. In the
present case notice of charge sheet and
inquiry was neither served personally nor
sent by the registered post nor the same
were published in the news papers even
the petitioner was not given proper
attachment order in respect of the place
and the office in the suspension order
consequently the charge sheet, notice for
disciplinary inquiry cannot be deemed or
held to have been served upon the
petitioner. If the petitioner was evading
service of notice or charge sheet issued by
the police department or any of the
information of the inquiry officer, it does
not give any licence to the respondents to
proceed ex parte against the petitioner.
Here this is a glaring case where the
petitioner has been dismissed from
service without adopting the proper
procedure for dismissal on the aspects of
the lack on the procedure and by not
providing
the
petitioner
proper
opportunity of hearing, the dismissal
order and the appellate order both are in
violation of the principles of the natural
justice and cannot legally be sustained.

15. The allegations against the
petitioner was not irrespective of the
moral or in respect of the financial
irregularities
or
embezzlement,
the
charges are mainly for absence from duty,
therefore, this court cannot think even in
the present facts and circumstances to
allow the respondents to initiate to give
charge sheet afresh to initiate the
disciplinary proceeding because it is irony
of fate of the petitioner that since the
appointment from the year 1964 as Sub
inspector, he could not visualise fortunate
comfortable days in his service career and
has been only dragged under inquiry for
frivolous
allegations
for
which
the
respondents have not even bothered to
conduct the inquiry in accordance with
law.

16. In these circumstances, the
orders dated 8th November, 1989, 7th
April, 2000 and 17th February, 1994
passed by respondents no. 3, 1 and 2
respectively are set aside and the
petitioner is directed to be treated into
service and shall be allowed to be given
75% of the back wages only. The
petitioner
is
reinstated
without
consequential benefits of back wages as
well as increments. All the benefits to be
given to the petitioner consequent upon
this order to be finalised within three
months from this order.

The writ petition is allowed.

No order as to costs.

Certified copies of the judgements
delivered
today
where
the
State
Government is party may be given to Sri
M.C. Chaturvedi, Addl. Chief Standing
counsel free of cost.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2003

BEFORE
THE HON'BLE S.P. SRIVASTAVA, J.
THE HON'BLE K.N. OJHA, J.

Special Appeal No. 363 of 2003

Committee of Management ...Appellant
Versus
Regional Deputy Director of Education
(Basic) Meerut & others ...Respondents
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