{"id":5620,"date":"2010-07-02T00:00:00","date_gmt":"2010-07-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kapil-deo-singh-vs-state-of-u-p-another-on-2-july-2010"},"modified":"2017-09-03T20:06:08","modified_gmt":"2017-09-03T14:36:08","slug":"kapil-deo-singh-vs-state-of-u-p-another-on-2-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kapil-deo-singh-vs-state-of-u-p-another-on-2-july-2010","title":{"rendered":"Kapil Deo Singh vs State Of U.P.& Another on 2 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Kapil Deo Singh vs State Of U.P.& Another on 2 July, 2010<\/div>\n
                                          1\n\nCourt No. - 26\nCase :- WRIT - A No. - 26220 of 1994\n\nPetitioner :- Kapil Deo Singh\nRespondent :- State Of U.P.& Another\nPetitioner Counsel :- V. Singh\nRespondent Counsel :- S.C.\n\nHon'ble Anil Kumar,J.\n<\/pre>\n
      By means of the present writ petition, the petitioner has challenged the order
\ndated 10th February, 1994(Annexure-11) and the order dated 19th July, 1993
\n(Annexure-9)passed by opposite party No. 1 respectively.\n<\/p>\n
      Heard counsel for the petitioner, learned Standing Counsel and perused the
\nrecord.\n<\/p>\n
      Factual matrix of the present case in brief as submitted by the learned
\ncounsel for the petitioner are that the petitioner who was working on the post of
\nNazool Superintendent, Nagar Mahapalika, Allahabad was placed under
\nsuspension by order dated 05.12.1992 thereafter a chargesheet was issued to him;
\nto which he submitted his reply on 20.01.1993. Thereafter an Inquiry Officer was
\nappointed to conduct the inquiry in the matter in question but the said Inquiry
\nOfficer only on the basis of the reply submitted by the petitioner to the charges
\nwhich were levelled on him by chargesheet dated 30.12.1992, without holding any
\nfact finding inquiry submitted his inquiry report to the Competent Authority (O.P.
\nNo. 1).\n<\/p>\n
      Thereafter, the said authority had issued a show cause notice to the
\npetitioner to which he has submitted his reply and on 19.07.1993 after considering
\nthe same the impugned order dated 19.07.1993 has been passed thereby awarding
\nthe punishment to the petitioner. Aggrieved by the said order petitioner filed an
\nappeal which was rejected by order dated 10th February, 1994. Hence the present
\nwrit petition has been filed by the petitioner thereby challenging the said orders.\n<\/p>\n
      Learned counsel for the petitioner while assailing the impugned orders
\nsubmits that the impugned order dated 19.07.1993 (Annexure-9) is illegal and
\narbitrary as no fact finding inquiry has been conducted by the Inquiry Officer in
\nthe matter in question on one hand and on the other hand the Inquiry Officer only
\non the basis of the chargesheet       dated 30.12.1992 levelling charges on the
\npetitioner and the reply submitted by him submitted his inquiry report and taking
\n                                           2<\/span><\/p>\n
into the consideration the same, a show cause notice was issued to the petitioner
\nand thereafter the impugned order dated 19.07.1993 has been passed so the same is
\nviolative of Articles 14, 16 and 311 of the Constitution of India as well as principle
\nof natural justice.\n<\/p>\n
      Learned counsel for the petitioner further submits that the impugned order
\ndated 10th February, 1994 (Annexure-11) is also illegal and arbitrary in nature as
\nthe same is a non-speaking and non-reasoned order and no reason has been
\nassigned whatsoever therein on the basis of the which the appeal of the petitioner
\nhas been rejected. Accordingly, the orders dated 19.07.1993 and 10.02.1994 are
\nliable to be set aside.\n<\/p>\n
      Learned Standing Counsel by supporting the impugned orders which are
\nunder challenge in the present writ petition has submitted that the said orders are
\nperfectly valid and passed on the basis of material available on the record by the
\nCompetent Authorities.       Accordingly, the present writ petition filed by the
\npetitioner is liable to be dismissed.\n<\/p>\n
      I have heard the counsel for the parties and perused the record.\n<\/p>\n
      Undisputed facts of the present case are that the petitioner who was working
\non the post of Nazool Superintendent, Nagar Mahapalika, Allahabad was initially
\nplaced under suspension and thereafter a chargesheet was issued to him to which
\nhe submitted his reply on 20.01.1993. Thereafter the inquiry officer did not hold
\nany fact any inquiry in order to prove the charges which were levelled on the
\npetitioner and only on the basis of the reply submitted by the petitioner had
\nsubmitted his inquiry report which is a sole basis of passing of the impugned order
\ndated 19.07.1993.\n<\/p>\n
      It is late in a day to quarrel that regular inquiry means opportunity to submit
\nreply to charge-sheet and also to lead evidence in defence. Even if the delinquent
\nemployee does not cooperate , it shall always be incumbent on the inquiry officer
\nto record oral evidence to substantiate the charges. If the enquiry is not done in the
\nmanner as stated herein above then in that circumstances the enquiry conducted is
\nin utter disregard to the principles of natural justice and the impugned order passed
\non the basis of enquiry report, suffers from substantial illegality and violative of
\nprinciples of natural justice and the order of punishment vitiates.\n<\/p>\n
      In the case of Radhey Shayam Gupta Vs. U.P. State Agro Industries
\n                                          3<\/span><\/p>\n
Corporation Limited, (1999) 2 SCC 21 Hon’ble Supreme Court has held that :-\n<\/p>\n
          ” But in cases where the termination is preceded by an enquiry
\n          and evidence is received and findings as to misconduct of a
\n          definitive nature are arrived at behind the back of the officer and
\n          where on the basis of such a report, the termination order is
\n          issued, such an order will be violative of the principles of
\n          natural justice inasmuch as the purpose of the enquiry is to find
\n          out the truth of the allegations with a view to punish him and not
\n          merely together evidence for a future regular departmental
\n          enquiry. In such cases, the termination is to be treated as based
\n          or founded upon misconduct and will be punitive . These are
\n          obviously not cases where the employer feels that there is a mere
\n          cloud against the employee’s conduct but are cases where the
\n          employer has virtually accepted the definitive and clear findings
\n          of the enquiry officer, which are arrived at behind the back of
\n          the employee- even though such acceptance of findings is not
\n          recorded in the order of termination. That is why the misconduct
\n          is the foundation and not merely the motive in such cases”.<\/p><\/blockquote>\n
      In the case of Gyan Das Sharma Vs. State of U.P. and others, 2009 (27)
\nLCD 926 this Court has held that :-\n<\/p>\n
                 “In the present case, undoubtedly, no oral evidence was
\n           recorded during the course of inquiry proceedings, It is
\n           incumbent on the inquiry officer to record oral evidence to
\n           substantiate charges. Documents on record should have been
\n           proved by cogent reasons by recording finding of fact on merit by
\n           the inquiry officer but the same has not been done. The inquiry
\n           has been conducted in utter disregard to principle of natural
\n           justice. Since the impugned order has been passed on the basis of
\n           the inquiry report which suffers from substantial illegality and
\n           violative of principles of natural justice, the order of punishment
\n           vitiates . The writ petitioner deserved to be allowed.”<\/p><\/blockquote>\n
      Further the Division Bench of this Court in the case of Lucknow Kshetriya
\n                                           4<\/span><\/p>\n
Gramin Bank and others Vs. Shri Devendra Kumar Upadhyay, 2009 (27)
\nLCD 990 has held that :-\n<\/p>\n
                  “In case an employee is charged of misconduct and
\n            chargesheet is issued, it is to contain precise and specific
\n            charges along with the evidence which the department wants
\n            to rely upon, in proving the charge and the charges along with
\n            the copy of document should be provided to the delinquent.
\n            After asking the reply from the delinquent, the enquiry is to
\n            proceed where the charges are to be proved by the department
\n            concerned, on the basis of the evidence which the department
\n            chooses to produce, oral as well as documentary. The
\n            delinquent also has to be provided, adequate and reasonable
\n            opportunity to lead evidence in rebuttal, may be oral or
\n            documentary or both. It is on the basis of evidence so led and
\n            the material available on record that the Inquiry Officer has to
\n            apply his mind to find out whether the charge levelled against
\n            him stands proved or not.”<\/p><\/blockquote>\n
      As in the present case, neither any fact finding inquiry was held nor any
\nevidence was led, moreover, no witnesses were examined only on the basis of the
\nreply submitted by the petitioner, the Inquiry Officer had submitted his report and
\nthe same was the basis for passing of the impugned order. So, the impugned order
\nwhich is under challenge is in contravention to the principles of natural justice and
\ncannot sustain.\n<\/p>\n
      Further, it is settled proposition of law that not only administrative order
\nbut also judicial order must be supported by a reason recorded in it because the
\nreasons are like a wire which connects the mind of the decision making authority
\nand the decision given by him and if the link or wire is broken i.e. to say no
\nreasons are given in the impugned order then it will not be possible to know as
\nwhat was going in the mind of the decision making authority so as to come to the
\nconclusion on the basis of which the impugned punishment is awarded. The said
\nrequirement is also in accordance with the principles of natural justice as an
\nemployee against whom the impugned decision is taken should know that under
\nwhat circumstances the same is taken and as in the present case, the appellate
\norder dated 10.02.1994 is a non-speaking order and no reason has been assigned
\n                                            5<\/span><\/p>\n
whatsoever by the O.P. No. 1 by passing the same so the same is violative of
\nprinciples of natural justice and arbitrary in nature .\n<\/p>\n
      In the case of Jagdish Prasad Gupta (Supra) Hon’ble Supreme Court has
\nheld as under:-\n<\/p>\n
             ” Even in respect of administrative orders Lord Denning M. R. in
\n             Breen V. Amalgamated Engineering Union, 1971 (1) All ER 1148,
\n             observed: ” The giving of reasons of one of the fundamentals of good
\n             administration.” In Alexander Machinery (Dudley) Ltd. Vs. Crabtree,
\n             1974 LCR 120, it was observed:\n<\/p><\/blockquote>\n
             “Failure to give reasons amounts to denial of justice. Reasons are live
\n             links between the mind of the decision taker to the controversy in
\n             question and the decision or conclusion arrived at.” Reasons substitute
\n             subjectivity by objectivity. The emphasis on recording reasons is that if
\n             the decision reveals the “inscrutable face of the sphinx”, it can, by its
\n             silence, render it virtually impossible for the Courts to perform their
\n             appellate function or exercise the power of judicial review in adjudging
\n             the validity of the decision. Right to reason is an indispensable part of
\n             a sound judicial system, reasons at least sufficient to indicate an
\n             application of mind to the matter before Court. Another rationale is
\n             that the affected party can knowwhy the decision has gone against him.
\n             One of the statutory requirements of natural justice is spelling out
\n             reasons for the order made, in other words, a speaking out. The
\n             “inscrutable face of a sphinx” is ordinary incongruous with a judicial
\n             or quasi- judicial performance.\n<\/p><\/blockquote>\n
                    This Court in State of Orissa V. Dhaniram Luhar, 2004 (5) SCC,
\n             568: 2004 (2) CCSC 602, 2004 (1) ACR 918 (SC) , has while
\n             reiterating the view expressed in the earlier cases for the past two
\n             decades emphasised the necessity, duty and obligation of the High
\n             Court to record reasons in disposing of such cases. The hallmark of a
\n             judgment\/ order and exercise of judicial power by a judicial forum is to
\n             disclose the reasons for its decision and giving of reasons has been
\n             always insisted upon as one of the fundamentals of sound
\n             administration of justice-delivery system to make known that there had
\n             been proper and due application of mind to the issue before the Court
\n                                           6<\/span><\/p>\n
            and also as an essential requisite of principles of natural justice. Any
\n            judicial power has to be judiciously exercised and the mere fact that
\n            discretion is vested with the Court\/ Forum to exercise the same either
\n            way does not constitute any license to exercise it at whims or fancies
\n            and arbitrarily as used to be conveyed by the well known saying :
\n            varying according to the Chancellors foot”. Arbitrariness has been
\n            always held to be the anathema of judicial exercise of any power, all
\n            the more so when such orders are amenable to challenge further before
\n            higher forums. Such ritualistic observations and summary disposal
\n            which has the effect of at times, cannot be said to be a proper and
\n            judicial manner of disposing of judiciously the claim before the Courts.
\n            The giving of reasons for a decision is an essential attribute of judicial
\n            and judicious disposal of a mater before Courts, and which is the only
\n            indication to know about the manner and quality of exercise
\n            undertaken, as also the fact that the Court concerned had really
\n            applied its mind.”<\/p><\/blockquote>\n
      In the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai
\nKshetriya, Gramin Bank (Supra) ,the apex Court has held as under:-\n<\/p>\n
            “In our opinion, an order of affirmation need not contain as elaborate
\n            reasons as an order of reversal, but that does not mean that the order
\n            of affirmation need not contain any reasons whatsoever. In fact, the
\n            said decision in Prabhu Dayal Grover Case(1995) 6 SCC 279 has itself
\n            stated that the appellate order should disclose application of mind.
\n            Whether there was an application of mind or not can only be disclosed
\n            by some reasons, at least in brief, mentioned in the order of the
\n            appellate authority. Hence, we cannot accept the proposition that an
\n            order of affirmation need not contain any reasons at all. That order
\n            must contain some reasons, at least in brief, so that one can know
\n            whether the appellate authority has applied its mind while affirming
\n            the order of the disciplinary authority.”<\/p><\/blockquote>\n
      Recently, the Apex Court in the case of Secretary and Curator, Victoria
\nMemorial Hall Vs. Howrah Ganatantrik Nagrik Samity and others, (2010) 3
\nSCC 732 has held that reasons is the heart beat of every conclusion , it introduces
\nclarity in an order and without assigning the same, it becomes lifeless. Reasons
\n                                            7<\/span><\/p>\n
substitute subjectivity by objectivity . Absence of reasons render the order
\nindefensible\/unsustainable particularly when the order is subject to further
\nchallenge before a higher forum. It was further held that thus recording of reasons
\nis a principle of natural justice and every judicial order must be supported by
\nreasons recorded in writing . It ensures transparency and fairness in decision
\nmaking. The person who is adversely affected comes to know as to why his
\napplication has been rejected.\n<\/p>\n
      In view of the abovesaid parameters and the law as laid down by the Apex
\nCourt, the order dated 10.02.1994 (Annexure-11) passed by the O.P. No. 2 is
\nunsustainable and laible to be quashed.\n<\/p>\n
      Needless to mention herein that in the case of Canara Bank and others Vs.
\nDebasis Das and others (2003) 4 Supreme Court Cases, 557 Hon’ble Supreme
\nCourt has held that whenever an order is struck down as invalid being in violation
\nof principles of natural justice, there is no final decision of the case and fresh
\nproceedings are left open. that is done is to vacate the order assailed by virtue of its
\ninherent defect, but the proceedings are not terminated.\n<\/p>\n
      Further, Hon’ble Supreme Court in the case of NTC (WBAB&O) Ltd. Vs.
\nAnjan K. Saha, (2004) 7 SCC 581 after taking into consideration the
\nConstitutional Bench in the case of Managing Director, ECIL Vs. B. Karunakar
\n(1993) 4 SCC 727 has held as under:-\n<\/p>\n
                      “The language of clause 14(4)(c) of the Model Standing
\n                Orders is not mandatory. In any case , non compliance therewith
\n                cannot be held to be more vitiating factor than non supply of enquiry
\n                report . If the Constitution Bench of the Supreme Court in cases of
\n                non supply of enquiry report directs the procedure to be adopted by
\n                allowing the employers to restart the enquiry from the stage of
\n                supply of enquiry report without reinstating the employee , why such
\n                a course should not be directed to be adopted where the other
\n                grievance of the employee is denial of opportunity to show cause
\n                against proposed penalty? When the court can direct a fresh enquiry
\n                from the stage of supply of enquiry report the next step in the enquiry
\n                of giving opportunity against the proposed penalty can also be
\n                directed to be taken. After the fresh enquiry is over from the stage of
\n                supply of enquiry report, the employee can be granted opportunity
\n                                             8<\/span><\/p>\n
                  against proposed penalty in terms of clause 14(4)(c) of the Model
\n                  Standing Orders. Consequential order, if any passed , shall abide the
\n                  final result of the proceedings . As held in the case of B. Karunakar,
\n                  (1993) 4 SCC 727 if the employee is cleared of the charges and is
\n                  reinstated , the disciplinary authority would be at liberty to decide
\n                  according to law how it will treat the period from the date of
\n                  dismissal till the period of reinstatement and the consequential
\n                  benefits.”\n<\/p><\/blockquote>\n
         For the foregoing reasons, the impugned order dated 19.07.1993 (Annexure-\n<\/p><\/blockquote>\n
9) and 10.02.1994 (Annexure-11) are set aside and the matter is remanded back to
\nthe Disciplinary Authority\/Competent Authority to proceed with the inquiry in
\naccordance with law from the stage of submitting the reply by the petitioner to the
\nchargesheet. It is further provided that the disciplinary\/inquiry proceedings as well
\nas final decision shall be taken in the matter in question by the Competent
\nAuthority within a period of three months from the date of receiving the certified
\ncopy of this order.\n<\/p>\n
         With the above observations, the writ petition is allowed.
\n         No order as to costs.\n<\/p>\n
Order Date :- 2.7.2010
\nRavi\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Kapil Deo Singh vs State Of U.P.& Another on 2 July, 2010 1 Court No. – 26 Case :- WRIT – A No. – 26220 of 1994 Petitioner :- Kapil Deo Singh Respondent :- State Of U.P.& Another Petitioner Counsel :- V. Singh Respondent Counsel :- S.C. Hon’ble Anil Kumar,J. By means […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-5620","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nKapil Deo Singh vs State Of U.P.& Another on 2 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kapil-deo-singh-vs-state-of-u-p-another-on-2-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kapil Deo Singh vs State Of U.P.& Another on 2 July, 2010 - 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