State of U.P. and Others vs Sri Khase Ram and Another

Barin Ghosh, C.J.—Sri Khase Ram, son of Sri Mahavir Singh, resident of Mahabatpur, District Meerut was appointed as Constable on 05.10.1975. By order dated 16.05.1985, he was dismissed from his service. He challenged unsuccessfully the order of dismissal in statutory appeal. He thereupon approached the Tribunal at Lucknow. Tribunal by its order dated 05.03.1994 accepted the contention of Khase Ram that the order of punishment was passed without giving him reasonable opportunity. Tribunal accordingly set aside the order of dismissal. In the circumstances, present writ petition was filed on 21.11.1994 before the Hon''ble High Court of Judicature at Allahabad, Lucknow Bench. The said Hon''ble Court on 25.11.1995 while directed listing of the writ petition for admission in the second week of January, 1995, stayed the operation of the judgment and order of the Tribunal till the said date. Subsequent thereto it does not appear that either the said court or upon transfer of the writ petition to this Court, this Court extended the said interim order. In the written statement filed before the Tribunal, nothing was brought on record to show that reasonable opportunity was given to Sri Khase Ram to defend the charge against him. It does not appear from the order of the Tribunal that independently records were produced to demonstrate the same.

In the present writ petition too, nothing has been brought on record to suggest that reasonable opportunity was given to Sri Khase Ram to defend him in the proceedings which was concluded by the order of termination impugned before the Tribunal. Then again, no independent record to that effect has also been produced. Before the Tribunal, it was the case of Khase Ram that without affording any opportunity, he was dismissed and that no witness was produced, nor he was given opportunity to cross examine any witness. It was his clear case that the matter was concluded in violation of natural justice and Article 311 of the Constitution of India. The order of the Appellate Authority suggests that from some record it appeared that Khase Ram refused to cross examine the witnesses. This order too was assailed before the Tribunal. No attempt was made to bring on record anything to suggest that the findings of the Appellate Authority are based on record.

In those circumstances, since negative cannot be proved and the allegation that the order of termination was passed without giving any opportunity to defend could only be disproved by producing appropriate record, in the absence of production of such record, we think it would not be possible for us to interfere with the judgment and order of the Tribunal. We, accordingly, dismissed the writ petition.