# Vinod v. State of U.P. & Ors. 1450 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 8 ILRA 1449
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-11
- **Case number:** Writ-A No. 11930 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-v-state-of-u-p-ors-1450-indian-law-reports-allahabad-series-50547
- **Pages:** 6

## Headnote

Subject: Service Law - Dismissal from Service
- Safai Karmchari - Procedural Irregularities in
Disciplinary Inquiry - Violation of Principles of
Natural Justice - Rein Statement - Back Wages,
Disciplinary
Inquiry,
Natural
Justice,
Unauthorized
Absence,
Dismissal,
Rein
Statement, Back Wages, Proportionality of
Punishment.
The petitioner, a Safai Karmchari with Nagar
Nigam, Allahabad, was dismissed from service
vide order dated 15.10.2005 by the Nagar
Ayukt,
upheld
by
the
Commissioner
on
12.03.2007, for alleged unauthorized absence
and misconduct. The dismissal was challenged
on grounds of procedural irregularities in the
disciplinary inquiry. The inquiry was vitiated due
to failure to fix and communicate the date, time,
and place of inquiry to the petitioner, and the
absence of oral evidence or opportunity for
cross-examination
of
witnesses,
violating
principles of natural justice. The charge of
unauthorized absence and alleged misconduct
was trivial, and the punishment of dismissal was
shockingly disproportionate. The opportunity to
respond to the show cause notice post-inquiry
did not cure the fundamental flaws in the
inquiry process.

Writ petition allowed.

Case Law Cited:

St. of U.P. Vs Saroj Kumar Sinha, (2010) 2 SCC
772

## Text

8 All. Vinod Vs. State of U.P. & Ors.
1449
the High Court placed reliance, was not
applicable to the case of compass-ionate
appointments,
as
the
amendment
in
Akkamahadevamma came as a result of the
existing rule being declared to be ultra vires
Articles 14 and 16 of the Constitution."

28. Here, there is no issue that in the
Scheme in question, there is no provision at
all
about
consideration
of
pending
applications
for
compassionate
appointment made prior to the introduction
of the Scheme w.e.f. 15th March, 2019.
This is logically so because the present case
is not one where there was apparently an
older scheme granting some kind of limited
right to a consideration for compassionate
appointment in force or a right to an exgratia payment, whereunder an application
could be made by the dependent of a
deceased employee. What appears from the
facts here is that prior to 15th March, 2019,
there was no scheme at all in the
establishment of the respondent Bank in
force extending any kind of a right to
compassionate
appointment,
howsoever
limited or circumscribed. The right to
compassionate
appointment
upon
introduction of the Scheme w.e.f. 15th
March, 2019 was a new found right. In the
absence, therefore, of any provision in the
Scheme for whatever reason to provide
rights for dependents of an employee, who
died prior to its introduction, asking for
compassionate appointment, there could be
no right to compassionate appointment. It
has already been pointed out that the right
to compassionate appointment is not an
inherent right, but one that flows from a
Rule or Scheme being in force at the time
of the death of an employee in harness.
There could be more reason to supply in
aid of that interpretation. Once it is held
that the right to compassionate appointment
is not inherent, but the creature of a Rule,
the right of whatever kind it is, originates
and culminates on the date of death of the
employee in harness. There is no fact
surviving the death of an employee in
harness on the foot of which, a Scheme or
Rule
for
compassionate
appointment
introduced at a later date, may afford the
dependent a right to consideration. Of
course, that kind of a right may arise if the
Scheme provides for that right on its own
terms. Here, the words employed in Clause
8.1, or for that matter Clause 8.2 of the
Scheme, do not envisage cognizance of
cases of dependents, where death of an
employee in harness has taken place before
the Scheme was enforced in the Bank. The
employment of the expression in Clause 8.1
"normally be considered upto five years
from the date of death" refers to the period
of five years of death on a date when the
Scheme was already in force in the Bank;
not five years or a little short of that time
antedating the introduction of the Scheme.

29. In the opinion of this Court,
therefore, no case for interference with the
order impugned is made out.

30. This petition fails and is
dismissed.

31. There shall be no order as to costs.
----------
(2023) 8 ILRA 1449
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 11930 of 2014

Vinod ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1450 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri N.K. Maurya, Sri Rajesh Singh, Sri S.K.
Maurya

Counsel for the Respondents:
C.S.C., Sri S.K. Gupta

Subject: Service Law - Dismissal from Service
- Safai Karmchari - Procedural Irregularities in
Disciplinary Inquiry - Violation of Principles of
Natural Justice - Rein Statement - Back Wages,
Disciplinary
Inquiry,
Natural
Justice,
Unauthorized
Absence,
Dismissal,
Rein
Statement, Back Wages, Proportionality of
Punishment.
The petitioner, a Safai Karmchari with Nagar
Nigam, Allahabad, was dismissed from service
vide order dated 15.10.2005 by the Nagar
Ayukt,
upheld
by
the
Commissioner
on
12.03.2007, for alleged unauthorized absence
and misconduct. The dismissal was challenged
on grounds of procedural irregularities in the
disciplinary inquiry. The inquiry was vitiated due
to failure to fix and communicate the date, time,
and place of inquiry to the petitioner, and the
absence of oral evidence or opportunity for
cross-examination
of
witnesses,
violating
principles of natural justice. The charge of
unauthorized absence and alleged misconduct
was trivial, and the punishment of dismissal was
shockingly disproportionate. The opportunity to
respond to the show cause notice post-inquiry
did not cure the fundamental flaws in the
inquiry process.

Writ petition allowed.

Case Law Cited:

St. of U.P. Vs Saroj Kumar Sinha, (2010) 2 SCC
772

(Delivered by Hon'ble J.J. Munir, J.)

1. In this case, notice was issued on
07.01.2020, granting time to the learned
Standing Counsel appearing on behalf of
respondent nos. 1 and 2 and to Mr. S.K.
Gupta, learned Counsel appearing on
behalf of respondent nos. 3 to 8 to file
counter affidavits. No counter affidavit has
been filed either on behalf of the State or
on behalf of respondent nos. 3 to 8. This
Court vide order dated 07.01.2020 has
condoned the latches in filing the petition.

2. Admit.

3. Heard forthwith.

4. Heard Mr. Rajesh Singh, learned
Counsel for the petitioner and Mr. Girijesh
Kumar Tripathi, learned Additional Chief
Standing Counsel appearing on behalf of
respondent nos. 1 and 2.

5. No one appears on behalf of
respondent nos. 3 to 8.

6. This writ petition is directed
against an order dated 15.10.2005 passed
by the Nagar Ayukt, Nagar Nigam,
Allahabad dismissing the petitioner, a Safai
Karmchari from service. This order has
been
upheld
in
appeal
by
the
Commissioner,
Allahabad
Division,
Allahabad vide order dated 12.03.2007.
Both these orders are impugned in the
present writ petition.

7. The petitioner's case is that he was
appointed as a Safai Karmchari with the
Nagar Nigam, Allahabad by the Nagar
Ayukt in the year 1992. He was later on
made a permanent employee. It is the
petitioner's case that there was a marriage
in the family and he submitted a leave
application on 04.05.2005, before the
Nagar Ayukt and the Nagar Swasthya
Adhikari, Nagar Nigam, seeking ten days'
leave. This application was forwarded to
the Nagar Ayukt on 09.05.2005. The Nagar
Swasthya
Adhikari
appears
to
have
submitted a report to the Apar Nagar
Ayukt, saying that the petitioner is already
8 All. Vinod Vs. State of U.P. & Ors.
1451
on medical leave, and, therefore, it is not
possible to sanction ten days' leave to him.
This report was communicated to the Nagar
Ayukt. The petitioner was never intimated
about it. The petitioner was also not
intimated of the orders made on his leave
application dated 04.05.2005.

8. According to the petitioner, seven
months passed by, with no decision being
taken on his leave application. It is the
petitioner's case that on a complaint
submitted by the Nagar Swasthya Adhikari,
the Nagar Ayukt decided to initiate
disciplinary action against the petitioner for
being absent without sanction of leave. The
decision
to
initiate
disciplinary
proceedings, according to the petitioner,
was taken relying on the report of the
Nagar Swasthya Adhikari and without
calling for an explanation from the
petitioner. The petitioner was placed under
suspension pending inquiry vide order
dated 30.06.2005. A charge-sheet dated
30.06.2005 was served upon the petitioner
to which the petitioner submitted a reply
dated 14.07.2005.

9. It is the petitioner's case that the
Inquiry Officer did not fix any date, time or
place of inquiry nor intimated the petitioner
at any point of time, in any manner, about
the proceedings of the inquiry. It is pleaded
that in the proceedings of the inquiry, the
petitioner was neither informed by the
Inquiry Officer nor was he called upon to
adduce oral evidence. The Inquiry Officer
concluded the inquiry and made a report
dated 24.09.2005. The petitioner was
issued
a
show
cause
notice
dated
30.09.2005. The petitioner submitted a
reply to the show cause notice.

10. The Nagar Ayukt, thereafter,
proceeded to pass the impugned order,
dismissing the petitioner from service. The
petitioner challenged the said order before
this Court vide Civil Misc. Writ Petition
No. 20517 of 2006, but it was dismissed on
the ground of availability of an alternative
remedy vide order dated 17.04.2006. Post
dismissal of the earlier writ petition, the
petitioner preferred an appeal under Rule
35 of the U.P. Nagar Mahapalika Sewa
Niyamawali,
1962
before
the
Commissioner
of
the
Division.
The
Commissioner,
by
an
order
dated
12.03.2007, dismissed the appeal and
affirmed the order dismissing the petitioner
from service.

11. Aggrieved, this petition has been
instituted.

12. The submission of the learned
Counsel for the petitioner is, as already
noticed, that the inquiry is a farce, given
the fact that the charge was one which upon
establishment could lead to a major
penalty. It is urged that no date, time or
place of inquiry was fixed. It is further
urged that no witnesses on behalf of the
establishment were examined to support the
charges.

13. Since, no one appears on behalf of
the Nagar Nigam, there is no stand in
rebuttal. The learned Additional Chief
Standing Counsel, however, says that the
order is in accordance with law and has
supported the same.

14. A perusal of the charge-sheet
shows that the charge against the petitioner
is solitary. It reads as follows:

"1- सफाई एवं खाद्य निरीक्षक की निप्पणी 2706-2005 से स्पष्ट है नक आप नदिांक 05-05-2005 से
15-05-2005 तक का अवकाश प्रार्थिा पत्र देकर अवकाश
1452 INDIAN LAW REPORTS ALLAHABAD SERIES
स्वीकृत ि नकए जािे के बावजूद अपिी ड्यूिी से नदिांक 26-0605 तक बगैर नकसी पूवथ सूचिा के अिुपनस्र्त रहे और नदिांक
27-06-2005 को अपिी ड्यूिी हेतु उपनस्र्त होकर सफाई एवं
खाद्य निरीक्षक से श्री सानदक अली व श्री राम कुमार नतवारी सफाई
िायक के सामिे अपिा अनजथत अवकाश स्वीकृत करािे के सम्बन्ध
में अभद्रता नकया तर्ा उन्हें गानलयााँ दी एवं जाि से मारिे की धमकी
दी । इस प्रकार आप बगैर अवकाश स्वीकृनत एवं नबिा पूवथ सूचिा
के अपिे कायथ से अिुपनस्र्त रहें नजसके कारण क्षेत्र में गन्दगी व्याप्त
रही और आपके इस कृत्य से आपके क्षेत्र प्रचुर मात्रा में गन्दगी व्याप्त
रही नजसके कारण िागररको को सफाई ि होिे के कारण कनििाइयों
का सामिा करिा पडा | इस प्रकार आपका यह कृत्य अपिे कतथव्यो
के प्रनत घोर लापरवाही, अिुशासिहीिता, स्वच्छन्द आचरण तर्ा
कमथचारी आचरण नियमावली के नवरूद्ध एवं उदण्डता का पररचायक
है जो आपकी सत्यनिष्ठा पर प्रनतकूल प्रभाव डालता है |"

15. The evidence in support of the
charge cited in the charge-sheet is to the
following effect:

"1 उक्त आरोपों की पुनष्ट में निम्िनलनखत साक्ष्य
प्रस्तानवत है :-

1- सफाई एवं खाद्य निरीक्षक की निप्पणी नदिांक
27-06-2005 की छायाप्रनत ।

2- आपका सफाई एवं खाद्य निरीक्षक को नदया गया
प्रार्थिा पत्र नदिांक 4-05-05 की छायाप्रनत ।"

16. A perusal of the inquiry report,
where the Nagar Swasthya Adhikari was
the Inquiry Officer, shows that the evidence
that was considered in support of the
charge is a note by the Sanitary and Food
Inspector dated 27.06.2005, in fact, a
photostat copy of it and the other evidence,
an application dated 04.05.2005, also made
by the Sanitary and Food Inspector, and
again, a photostat copy of the document.

17. A perusal of the inquiry report
also shows that the petitioner, in his written
statement, has denied the charge. The
inquiry report further records that the
petitioner was called to the office of the
Inquiry Officer on 30.08.2008, in order to
produce evidence in defence and have his
say against the charges. It is remarked that
despite opportunity being given to the
petitioner and the charges explained to him,
all that the petitioner said was that the
Sanitary and Food Inspector and the Safai
Havildar had demanded bribe in the sum of
Rs. 1,000/- and Rs. 500/- respectively, but
no witness or written documents in support
of this charge was produced.

18. The inquiry report further records
that on 29.08.2005, the concerned Sanitary
Inspector, Uttam Kumar was called to
testify about the incident dated 27.06.2005
and the other witness Sadik Ali, Safai
Nayak was also called. It is recorded that
Sadik Ali testified before the Inquiry
Officer on 29.08.2005 that on 27.06.2005,
at 1.20 p.m., the petitioner came to the
office and abused the Sanitary and Food
Inspector in vulgar language and threatened
him with death. With so much said, the
Inquiry Officer has returned a finding that
the charge is well founded.

19. A perusal of the inquiry report
does not at all show that a proper inquiry
was convened, wherein date, time and
place of inquiry was scheduled, with
intimation to both sides. It is the
requirement of law that a date, time and
venue of inquiry should be fixed by the
Inquiry Officer, particularly, when the
inquiry is about a serious charge. The date,
time and venue of inquiry is to be intimated
to both parties and the others concerned.
This has not been done at all. The other
requirement of a valid inquiry is that oral
testimony on behalf of the establishment
has to be recorded in support of the charge
in the first instance, with opportunity to the
delinquent to cross examine the witnesses
produced on behalf of the establishment.
8 All. Vinod Vs. State of U.P. & Ors.
1453
Here, something very piquant has been
done, much to the prejudice of the
petitioner, and, again, adopting a procedure
absolutely impermissible in law.

20. On 29.08.2005, two witnesses for
the establishment, which includes Sadik
Ali, the star witness, were called to his
office by the Inquiry Officer and their
evidence, of whatever sort, was recorded
behind the petitioner's back. The petitioner
was asked to appear before the Inquiry
Officer
on
the
following
day
i.e.
30.08.2005. Therefore, oral testimony, of
whatever kind, and, in whatever manner led
on behalf of the establishment, was not
done in the petitioner's presence, with
opportunity to him to cross examine the
establishment's witnesses. This flaw goes to
the root of the matter and vitiates the
conclusion
of
the
Inquiry
Officer.
Surprisingly, on the foot of such a slipshod
inquiry, the Disciplinary Authority and the
Appellate Authority both have passed the
orders impugned, dismissing the petitioner
from service.

21. The position of law, that oral
testimony has to be recorded on behalf of
the establishment in support of the charges,
with opportunity to the delinquent to cross
examine the witnesses in order to constitute
a valid inquiry in matters involving
imposition of a major penalty, is evident
from what has been expounded in State of
U.P. and others v. Saroj Kumar Sinha,
(2010) 2 SCC 772. In Saroj Kumar Sinha
(supra), it has been held by their Lordships:

"28. An inquiry officer acting in a
quasi-judicial 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."

22. At this stage, Mr. Girijesh Kumar
Tipathi, learned Additional Chief Standing
Counsel has pointed out that before the
disciplinary authority, post conclusion of
inquiry, he was given a second show cause,
enclosing therewith a copy of the inquiry
report and given an opportunity to appear
before the Inquiry Officer at the specified
time on a specific date to show cause
against the findings of the Inquiry Officer
and the proposed punishment. It is also
pointed out that the petitioner did appear
and showed cause. He was heard by the
Disciplinary Authority.

23. The submission of the learned
Additional
Chief
Standing
Counsel,
therefore, is that whatever infirmity has
crept in the Inquiry Officer's report, stands
cured by provision of this opportunity. This
Court is afraid that the submission cannot
be accepted.

24. The procedure to fix a date, time
and place of inquiry and the requirement
for the establishment to prove its case is
imperative and that has to be observed,
while the Inquiry Officer is holding inquiry
to find out whether the delinquent is guilty
of the charges. It is a stage where evidence
has to be led by parties - by one in support
of the charges, and, by the other, to dispel
them. It is the establishment who have to
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
prove the charges by their evidence in the
first instance, and once the establishment
have done that, due opportunity has to be
given to the delinquent to cross examine
the establishment's witnesses. Thereafter,
the burden to produce evidence in rebuttal
lies on the delinquent's shoulders. This has
not at all happened in the present case and
the opportunity, of which the learned
Additional chief Standing Counsel speaks
in order to bail out the respondents, is an
opportunity envisaged at the stage of what
is popularly called the 'second show cause'.
That is a stage after the inquiry and would
certainly not cure the flaw that goes to the
root of the matter during inquiry and
vitiates the proceedings.

25. Normally, with the findings above
recorded, this Court would have quashed
the orders of dismissal, leaving it open to
the respondents to conduct an inquiry
afresh but, looking to the nature of the
charge, which does appear to be trivial and
the fact that a lot of time has gone by, this
Court is of opinion that, that course of
action is not at all warranted. Decidedly,
the punishment awarded here falls into that
exceptional category, which is known to
law as shockingly disproportionate.

26. In the circumstances, this petition
succeeds, and, is, allowed. The impugned
order dated 15.08.2005 passed by the
Nagar Ayukt Nagar Nigam, Allahabad and
the order dated 12.03.2007 passed by the
Commissioner,
Allahabad
Divison,
Allahabad are hereby quashed.

27. A mandamus is issued ordering
the Nagar Ayukt, Nagar Nigam, Allahabad
to forthwith reinstate the petitioner in
service, granting him the benefit of
continuity and seniority. However, in the
circumstances that the petitioner presently
is and considering the fact that he has not
rendered, though not for his fault, any
service to the respondents, he will be
entitled to fifty percent back-wages. Costs
easy.
----------
(2023) 8 ILRA 1454
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.07.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 2001270 of 2013

Ajeet Pratap Singh ...Petitioner
Versus
U.O.I. & Ors.. ...Respondents

Counsel for the Petitioner:
Sri Alok Mishra

Counsel for the Respondents:
A.S.G., Sri Ajit Kumar Dwivedi, Sri Alok
Kumar Tripathi, Sri Anurag Srivastava, Sri
D.P. Dwivedi

A. Service Law - Absorption - Post of
Customer
Relationship
Executive
-
Appointment was made for a period of two
years - Circular dated 20.07.2010 laid
down policy for absorption of the officers
subject to having achieved minimum 60%
target during the year 2009-2010 -
Petitioner
was
not
absorbed
as
he
achieved only target 55.91%, though
various persons whose target was lower
than the benchmark of 60% have been
absorbed by the bank - Discrimination
alleged - Parity claimed - Negative parity,
how far relevant - Held, the reason for
absorption of other persons, as emerges,
is that no target was assigned to them
despite they having been appointed on
contract basis and only other work was
taken from them - Even if aforesaid four
persons had been absorbed wrongly, the
petitioner cannot claim a similar benefit