Khajanchi Gupta vs State Of U P And Another
2022 Latest Caselaw 19658 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 34
 

 
Case :- WRIT - A No. - 14426 of 2022
 

 
Petitioner :- Khajanchi Gupta
 
Respondent :- State Of U P And Another
 
Counsel for Petitioner :- Manish Kumar Nigam,Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Bhatia,J.

Heard the counsel for the petitioner and the learned Standing Counsel.

In terms of the order passed by this Court on 01.11.2022, the Standing Counsel has produced the instructions, which are taken on record.

The submission of the counsel for the petitioner is that the petitioner was served with a charge-sheet on 23.05.2022 wherein a single charge was levelled against the petitioner stating that on the land bearing Gata No.269-D/0.016h, recorded as a banjar land, was declared as aabadi land by playing fraud and on the basis of the forged documents and on the said land, godown and houses have been constructed and on the said, rent has been taken.

From the allegations levelled against the petitioner, the file was called in which it is revealed that in the said file, recall application is pending. It was further observed that the petitioner has submitted a report on 21.12.2015 in respect of land bearing Gata No.269-D area 0.016 hectare is recorded as 'banjar' and the applicant was in possession for about 25-30 years and the same may be registered as 'Abadi' under section 6(2) of the U.P. Z.A. & L.R. Act. It was also recorded that the said report was endorsed by the Tehsildar on 27.04.2016 and which led to the passing of the order by the ADM on 25.07.2016. It was further recorded that the persons who have been benefited on the basis of the said report, if were eligible, could have applied for a regular lease in their favour and thus, the allegations was that wrong benefit was accorded to a private person by playing a fraud.

In support of the said charge, four evidences being letter dated 15.12.2016, letter dated 17.10.2016, report dated 21.12.2015, revenue record dated 17.06.2016 and the order dated 25.07.2016 were proposed to be relied upon as evidences in support of the charge levelled against the petitioner.

The petitioner claims to have filed a reply to the said charges by denying the charges on 29.06.2022 (Annexure no.3).

The case of the petitioner is that subsequent to the reply, an enquiry was conducted, however, the said enquiry was not in compliance to the mandate of the Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. The counsel for the petitioner places emphasizes on non-compliance of the Rule 7 (vii) of the said 1999 Rules to argue that neither any date was fixed nor the evidence relied upon on the charge-sheet was proved and on the said basis, the enquiry report was furnished against the petitioner being the enquiry report dated 16.07.2022 (Annexure no.7). The counsel for the petitioner has stated that in the said report, there is no mention as to how the documents referred to be relied upon in support of the charge were proved. The conclusion in the enquiry report that the report dated 21.12.2015 was forged and was given under a conspiracy. Prima-facie from perusal of documents there is no evidence to arrive at a conclusion that the report dated 21.12.2015 was either forged or was issued under a conspiracy. The enquiry report does not record that the person in whose favour the land was settled was not eligible.

The counsel for the petitioner argues that based upon the said flawed enquiry report, a show cause notice was issued to the petitioner which led to the passing of the impugned order. As the contention of the counsel for the petitioner is that the enquiry report, not being in compliance to the provisions of the Rule 7 (vii) of the 1999 Rules , the entire enquiry stands vitiated being against the principles of natural justice.

The Standing Counsel, on the other hand, based upon the instructions argues that the petitioner was given adequate opportunity and the enquiry report, after perusal of the four reports referred to in the charge-sheet, recorded a finding that the report furnished by the petitioner on 21.12.2015 was with a view to give benefits to ineligible persons by playing fraud on the basis of the conspiracy. He further argues that against the impugned order, an appeal lies under the 1999 Rules and the petitioner should be relegated to the remedy of appeal.

The counsel for the petitioner argues that although an appeal lies under the 1999 Rules, ex-facie the enquiry is in violation of the principle of natural justice and, as such, a writ would lie. He places reliance on the judgment of the Hon'ble Apex Court in the case of Whirlpool Corporation vs Registrar Of Trade Marks, Mumbai & others reported at (1998) 8 SCC 1. He also places reliance on the on the Government Order No.08/2022/725/Saitalis/Ka-1-2022/13(2)/2022 dated 19.07.2022 wherein it has been emphasized that the departmental enquiry should be fair and a host of guidelines have been issued which have not been followed, he emphasises on guideline no.9, 10 and 11 which have apparently not been followed.

Considering the submissions made at the bar, the sole charge levelled against the petitioner was of giving a false report which was to be established on the basis of the evidences as disclosed in the charge-sheet, which were in the nature of documentary evidences. The said evidences are on record and contained along with the Annexure no.2.

From the perusal of the enquiry report, and the evidences relied upon in the charge-sheet, prima-facie there appears to be no material to form an opinion that the report dated 21.12.2015 furnished by the petitioner was with a view to give some benefit to the persons who were ineligible. Even otherwise, there appears to be no consideration of the report (the evidences) proposed along with the show cause notice. The enquiry report as produced by the Standing Counsel along with the instructions does not disclose as to on what basis the reports were not proved. Although strict rules of evidences are not applicable to the disciplinary proceedings, it was incumbent upon the enquiry officer to have recorded the evidence with regard to each of the evidences relied upon against the petitioner, which, ex-facie has not been done. Further, the enquiry report or the instructions do not disclose the time and dates on which the enquiry was conducted nor does it reveal that the petitioner participated in the said enquiry as such, the inescapable conclusion is that the enquriy against the petitioner, which has led to the passing of the order dated 25.08.2022 is in violation of the principle of natural justice as well as in ignorance of guidelines in Government Order No.08/2022/725/Saitalis/Ka-1-2022/13(2)/2022 dated 19.07.2022.

Accordingly, the order dated 25.08.2022 passed by the respondent no.2 (Annexure no.1) is hereby quashed with a liberty to the respondents to initiate the proceedings from the stage where the petitioner has submitted his reply. The enquiry thereafter shall proceed by observing the mandate of Rule 7(vii) of the 1999 Rules and shall be concluded with all expedition and after giving adequate hearing to the petitioner.

To avoid further delay, it is directed that the petitioner shall appear along with his defenses and whatever documents he chooses to rely upon before the enquiry officer on 13.12.2022 at 12:00 noon who shall thereafter proceed, as directed above, to conclude the enquiry in accordance with law after following the principles of natural justice.

The writ petition stands disposed off in terms of the said order.

Order Date :- 3.12.2022

VNP/-