Yogendra Singh vs Counsel for Petitioner(s)

petitioner, Sri Ashutosh Srivastava, the learned Standing Counsel appearing on behalf of the State and perused the records.

2. By means of the instant petition the petitioner has challenged the validity of an order dated 31.03.2004, passed by the Deputy Inspector General of Police, PAC Kanpur Range, Kanpur dismissing the petitioner from service.

3. The petitioner had challenged the aforesaid order by filing an appeal which has been dismissed by means of an order dated

05.07.2004 passed by the Inspector General of Police PAC, East Zone, U.P. Lucknow. Thereafter, the petitioner preferred a revision which was dismissed by means of an order dated 01.12.2005, passed by the Director General of Police, U.P. The petitioner had thereafter given an application the State Government challenging the punishment order and that was rejected by means of an order dated 23.08.2006. The validity of the aforesaid orders have been challenged by the petitioner.

4. Briefly stated, the petitioner was appointed as a Constable in Provincial Arms Constabulary (PAC) in the year 1966. Later on the petitioner was promoted as Assistant Sub Inspector and in due course he was promoted to a post of Sub Inspector in the year 2 WRIA No. 10673 of 2006

5. A preliminary enquiry was instituted against the petitioner in the year 1999 in respect of payment of GPF to Head Constable Ikbal Bahadur Singh and Constable Rajendra Prasad Shukla. The preliminary enquiry report held the petitioner guilty of laxity in supervising the performance of duties by Ankik (Accountant) and a recommendation was made to imposed a minor punishment of censure entry upon the petitioner.

6. On 01.04.1999 a charge sheet was issued to the petitioner. The petitioner has submitted his reply to the charge sheet. On

18.08.1999, an equiry report was submitted holding the petitioner guilty and recommending dismissal from service. Accordingly, the petitioner was dismissed from service by means of an order dated

01.10.1999.

7. The appeal filed by the petitioner against the punishment order was allowed and the dismissal order was set aside by means of an order dated 05.06.2002 passed by the Deputy Director General of Police, PAC Kanpur Division, Kanpur.

8. The appellate authority held that the punishment order was passed merely after recording the statement of some of the prosecution witnesses. There was nothing to indicate as to whether the petitioner had cross-examined the witnesses or not. No documents in support of the charges was made as exhibit and findings in the punishment order do not contain any discussion regarding the documents. The order did not reveal as to whether the petitioner was granted an opportunity to produce witnesses and documents or not. The appellate authority held departmental proceedings were not conducted in a proper manner. Accordingly, the appeal was allowed, the punishment order dated

15.03.2002 was set aside, a direction was issued to again initiate disciplinary proceedings against the petitioner by ensuring that no irregularity is committed in disciplinary proceedings. 3 WRIA No. 10673 of 2006

9. It was after the remand by the appellate authority that the impugned punishment order dated 21.03.2004 has been passed.

10. Assailing the validity of the punishment order dated

31.03.2004, the learned counsel for the petitioner has submitted that although the earlier dismissal order had been set aside on the ground that the petitioner had not been granted any opportunity to cross-examine the witnesses and to produce his witnesses and document and without any findings that prosecution document had been established, the punishment order dated 31.03.2004 has been passed without examination of any prosecution witness and, obviously, without the petitioner having been given any opportunity to cross-examine the prosecution witnesses.

11. The opposite parties have filed a counter affidavit and two supplementary counter affidavits.

12. The learned Standing Counsel has submitted that after remand fresh enquiry was conducted. A supplementary enquiry report dated 30.01.2003 was submitted, a copy whereof has been annexed as Annexure No.1 to the supplementary counter affidavit dated 19.01.2023, wherein the petitioner was found guilty. The learned Standing Counsel has submitted that as a fresh enquiry was conducted against the petitioner, it cannot be said that the petitioner has been dismissed from service again without holding any fresh enquiry.

13. A perusal of the supplementary enquiry report dated

30.01.2003 shows that the enquiry officer has stated in the report that after remand the enquiry officer has taken defense evidence only.

14. The learned counsel for the petitioner has submitted that even this supplementary enquiry report dated 30.01.2003 was rejected by the disciplinary authority and therefore the fourth supplementary enquiry report dated 17.01.2004 was submitted. This supplementary report contains a narration 4 WRIA No. 10673 of 2006 supplementary enquiry report was rejected because of certain defects in it and the matter was remanded for conducting a fresh enquiry. Even the fourth supplementary enquiry report makes a mention of defence witnesses only and it does not refer to the statements given by any prosecution witnesses.

15. The learned Standing Counsel has submitted that even as per the statements of defence witnesses the charges against the petitioner-employee were proved.

16. It is settled law that for passing an order of dismissal of an employee, the employer has to prove the charges by producing its own witnesses and evidence. In case the employer does not adduce any evidence to prove the charges, the employee cannot be punished even if he does not put up any defense. Further, no employee can be punished without any evidence having been led in support of the charges and merely on the basis of defence evidence put up by the employee himself in his defense.

17. The defense witnesses that were examined originally during the first enquiry conducted against the petitioner, had not been cross-examined by the petitioner and, therefore, the first enquiry report was set aside and so were the second and supplementary enquiry reports. The fourth supplementary enquiry report which has formed the basis for passing the impugned dismissal order also does not make any reference to the statements of prosecution witnesses and it appears that no prosecution witness has been examined after remand of the matter by the appellate authority by means of an order dated 05.06.2002.

18. In absence of any evidence having been led to prove the charges levelled against the petitioner in spite of remand of the matter by the appellate authority and thereafter setting aside the enquiry report and supplementary enquiry reports repetitively by the disciplinary authority cannot result in dismissal of the petitioner in absence of any prosecution witness having been examined in any of the repetitive supplementary enquiry proceedings. The 5 WRIA No. 10673 of 2006 charge related to that occurrence that took place in the year 1995, this writ petition was filed in the year 2006 when the petitioner had already retired from service and he was 61 years of age and now when this petition is being heard towards the end of the year 2025, the petitioner would have attained the age of 80 years. In these circumstances, when no prosecution evidence could be led during the repetitive supplementary enquiry proceedings no useful purpose would be served by remanding the matter and giving yet another opportunity to hold a fresh enquiry against the petitioner.

19. Accordingly, the writ petition is allowed. The impugned punishment order dated 31.03.2004, passed by the Deputy Inspector General of Police, P.A.C. Kanpur Range, Kanpur dismissing the petitioner from service from the post of Sub Inspector, PAC is set aside. All necessary consequences shall follow. The authorities concerned are directed to calculate the dues payable to the petitioner consequent to this order within a period of two months from today and pay the entire payment to him within a period of next three months. December 9, 2025 Ram. (Subhash Vidyarthi,J.) RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench

petitioner, Sri Ashutosh Srivastava, the learned Standing Counsel appearing on behalf of the State and perused the records.

2. By means of the instant petition the petitioner has challenged the validity of an order dated 31.03.2004, passed by the Deputy Inspector General of Police, PAC Kanpur Range, Kanpur dismissing the petitioner from service.

3. The petitioner had challenged the aforesaid order by filing an appeal which has been dismissed by means of an order dated

05.07.2004 passed by the Inspector General of Police PAC, East Zone, U.P. Lucknow. Thereafter, the petitioner preferred a revision which was dismissed by means of an order dated 01.12.2005, passed by the Director General of Police, U.P. The petitioner had thereafter given an application the State Government challenging the punishment order and that was rejected by means of an order dated 23.08.2006. The validity of the aforesaid orders have been challenged by the petitioner.

4. Briefly stated, the petitioner was appointed as a Constable in Provincial Arms Constabulary (PAC) in the year 1966. Later on the petitioner was promoted as Assistant Sub Inspector and in due course he was promoted to a post of Sub Inspector in the year 2 WRIA No. 10673 of 2006

5. A preliminary enquiry was instituted against the petitioner in the year 1999 in respect of payment of GPF to Head Constable Ikbal Bahadur Singh and Constable Rajendra Prasad Shukla. The preliminary enquiry report held the petitioner guilty of laxity in supervising the performance of duties by Ankik (Accountant) and a recommendation was made to imposed a minor punishment of censure entry upon the petitioner.

6. On 01.04.1999 a charge sheet was issued to the petitioner. The petitioner has submitted his reply to the charge sheet. On

18.08.1999, an equiry report was submitted holding the petitioner guilty and recommending dismissal from service. Accordingly, the petitioner was dismissed from service by means of an order dated

01.10.1999.

7. The appeal filed by the petitioner against the punishment order was allowed and the dismissal order was set aside by means of an order dated 05.06.2002 passed by the Deputy Director General of Police, PAC Kanpur Division, Kanpur.

8. The appellate authority held that the punishment order was passed merely after recording the statement of some of the prosecution witnesses. There was nothing to indicate as to whether the petitioner had cross-examined the witnesses or not. No documents in support of the charges was made as exhibit and findings in the punishment order do not contain any discussion regarding the documents. The order did not reveal as to whether the petitioner was granted an opportunity to produce witnesses and documents or not. The appellate authority held departmental proceedings were not conducted in a proper manner. Accordingly, the appeal was allowed, the punishment order dated

15.03.2002 was set aside, a direction was issued to again initiate disciplinary proceedings against the petitioner by ensuring that no irregularity is committed in disciplinary proceedings. 3 WRIA No. 10673 of 2006

9. It was after the remand by the appellate authority that the impugned punishment order dated 21.03.2004 has been passed.

10. Assailing the validity of the punishment order dated

31.03.2004, the learned counsel for the petitioner has submitted that although the earlier dismissal order had been set aside on the ground that the petitioner had not been granted any opportunity to cross-examine the witnesses and to produce his witnesses and document and without any findings that prosecution document had been established, the punishment order dated 31.03.2004 has been passed without examination of any prosecution witness and, obviously, without the petitioner having been given any opportunity to cross-examine the prosecution witnesses.

11. The opposite parties have filed a counter affidavit and two supplementary counter affidavits.

12. The learned Standing Counsel has submitted that after remand fresh enquiry was conducted. A supplementary enquiry report dated 30.01.2003 was submitted, a copy whereof has been annexed as Annexure No.1 to the supplementary counter affidavit dated 19.01.2023, wherein the petitioner was found guilty. The learned Standing Counsel has submitted that as a fresh enquiry was conducted against the petitioner, it cannot be said that the petitioner has been dismissed from service again without holding any fresh enquiry.

13. A perusal of the supplementary enquiry report dated

30.01.2003 shows that the enquiry officer has stated in the report that after remand the enquiry officer has taken defense evidence only.

14. The learned counsel for the petitioner has submitted that even this supplementary enquiry report dated 30.01.2003 was rejected by the disciplinary authority and therefore the fourth supplementary enquiry report dated 17.01.2004 was submitted. This supplementary report contains a narration 4 WRIA No. 10673 of 2006 supplementary enquiry report was rejected because of certain defects in it and the matter was remanded for conducting a fresh enquiry. Even the fourth supplementary enquiry report makes a mention of defence witnesses only and it does not refer to the statements given by any prosecution witnesses.

15. The learned Standing Counsel has submitted that even as per the statements of defence witnesses the charges against the petitioner-employee were proved.

16. It is settled law that for passing an order of dismissal of an employee, the employer has to prove the charges by producing its own witnesses and evidence. In case the employer does not adduce any evidence to prove the charges, the employee cannot be punished even if he does not put up any defense. Further, no employee can be punished without any evidence having been led in support of the charges and merely on the basis of defence evidence put up by the employee himself in his defense.

17. The defense witnesses that were examined originally during the first enquiry conducted against the petitioner, had not been cross-examined by the petitioner and, therefore, the first enquiry report was set aside and so were the second and supplementary enquiry reports. The fourth supplementary enquiry report which has formed the basis for passing the impugned dismissal order also does not make any reference to the statements of prosecution witnesses and it appears that no prosecution witness has been examined after remand of the matter by the appellate authority by means of an order dated 05.06.2002.

18. In absence of any evidence having been led to prove the charges levelled against the petitioner in spite of remand of the matter by the appellate authority and thereafter setting aside the enquiry report and supplementary enquiry reports repetitively by the disciplinary authority cannot result in dismissal of the petitioner in absence of any prosecution witness having been examined in any of the repetitive supplementary enquiry proceedings. The 5 WRIA No. 10673 of 2006 charge related to that occurrence that took place in the year 1995, this writ petition was filed in the year 2006 when the petitioner had already retired from service and he was 61 years of age and now when this petition is being heard towards the end of the year 2025, the petitioner would have attained the age of 80 years. In these circumstances, when no prosecution evidence could be led during the repetitive supplementary enquiry proceedings no useful purpose would be served by remanding the matter and giving yet another opportunity to hold a fresh enquiry against the petitioner.

19. Accordingly, the writ petition is allowed. The impugned punishment order dated 31.03.2004, passed by the Deputy Inspector General of Police, P.A.C. Kanpur Range, Kanpur dismissing the petitioner from service from the post of Sub Inspector, PAC is set aside. All necessary consequences shall follow. The authorities concerned are directed to calculate the dues payable to the petitioner consequent to this order within a period of two months from today and pay the entire payment to him within a period of next three months. December 9, 2025 Ram. (Subhash Vidyarthi,J.) RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench