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STATE OF U.P. THRU' PRINCIPAL SECRETARY versus KAILASH JAISWAL & ANOTHER

High Court of Judicature at Allahabad

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State Of U.P. Thru' Principal Secretary v. Kailash Jaiswal & Another - SPECIAL APPEAL DEFECTIVE No. 66 of 2007 [2007] RD-AH 5875 (2 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

      COURT NO. 32

Special Appeal No. 66 of 2007

State of U.P. Vs. Kailash Jaiswal & another

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This appeal under Chapter VIII Rule 5 of the Rules of the Court is preferred by the State Government against the order of the Hon'ble Single Judge dated 5.10.2006 in Civil Misc. Writ Petition No. 31339 of 2006 preferred by the State of U.P. against the order dated 1.12.2005 and 29.3.2006 of the trial court in Revisions No. 1 of 2006 and 3 of 2006.

At the outset, Sri S.M.A. Kazmi, learned Advocate General states that the appellant is aggrieved only by a portion of the order whereby the Hon'ble Single Judge has recorded a finding that involvement of the officers of the State Government is positive from record and therefore, direction has been issued to hold departmental enquiry at the first instance by the concerned department into the conduct of the officers mentioned in the order. It is vehemently contended that there was neither any appropriate pleading showing their involvement nor there was any material on record on the basis of which there could have been a conclusive finding showing their involvement in the alleged fraud. It has also been contended that at no point of time any notice was issued to those officers and, therefore, the order being passed behind their back, cannot sustain. Reliance has been placed on a judgment of the Hon'ble Apex Court in the case of U.P. Gram Panchayat Adhikari Sangh & others Vs. Daya Ram Saroj & others, reported in (2007) 2 SCC 138, and it is submitted that in the absence of any pleading  in the writ petition, the Hon'ble Single Judge erred in directing for holding of enquiry. It is also submitted that  the finding in the order that the involvement of the officers is positive from the record is bound to prejudice the departmental proceeding.

Having considered the submissions and looking to the facts of the case, we are of the view that the direction for holding departmental proceeding requires to be modified. We accordingly modify the order of the Hon'ble Single Judge to the extent that the State Government at the first instance shall make a fact finding enquiry in respect of the allegations of fraud committed in getting the plot in question free hold. In the event, any evidence comes in that enquiry showing prima facie involvement of any officer, it will be open to the State Government to take such legal action as permissible under law or to proceed against him in accordance with law. We, accordingly, dispose of this appeal with the above modification in the order of the Hon'ble Single Judge. We further provide that the aforesaid fact finding/preliminary enquiry shall be concluded by the State Government within six months from the date of issuance of a certified copy of this order. The State Government shall, thereafter proceed in accordance with law against the officers/officials found involved on the basis of evidence or material found during such fact finding enquiry.

With the above modification, the appeal stands disposed of.

Dated: 2.4.2007

SA


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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