# Aish Mohammad v. State Of U.P. & Ors

- **Citation:** (2025) 7 ILRA 415
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-21
- **Case number:** Writ A No. 7443 of 2025
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aish-mohammad-v-state-of-u-p-ors-53561
- **Pages:** 9

## Headnote

C.S.C.

ISSUE FOR CONSIDERATION
Whether a disciplinary proceedings qua
charges that may invite major penalty, in
the absence of oral inquiry is per se bad
and, therefore, any consequential action
pursuant thereto is liable to be held void
ab initio.
HEADNOTE
Service Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
7
-
Disciplinary
proceedings
-
Requirement of oral inquiry
- Noncompliance - Charges related to the
discharge of quasi judicial exercise of
power of the petitioner as Consolidation
Officer in the matter of objection being
decided under Sections 9 and 12 of the
U.P. Consolidation of Holdings Act, 1953 -
No date for personal hearing or for
inviting any departmental witness to be
examined was fixed - Inquiry Officer held
the petitioner guilty only on his own
assessment of records.

Held: Authority was to consider and appreciate
the documents available on record relating to
the disposal of the proceedings and then the
relevant departmental witnesses ought to have
been examined - As per Rule 7, in the event the
delinquent employee refuses to accept the
charge and even if he does not submit or offer
his explanation, the Inquiry Officer is still bound
in law to hold an oral inquiry in terms of the
examination of departmental witnesses - Oral
inquiry is sine qua non in the matter of
disciplinary proceedings if drawn against the
delinquent employee for major penalty -
Disciplinary proceedings in the absence of oral
inquiry is per se bad and any consequential
416 INDIAN LAW REPORTS ALLAHABAD SERIES
action pursuant thereto is void ab initio -
Impugned order dated 27th March, 2025
quashed - Respondent directed to appoint new
Inquiry Officer within four weeks and the Inquiry
Officer directed to hold oral inquiry - Writ petition
allowed. [Paras 6, 7, 8, 9, 10, 12, 13, 14] (E-5)
CASE LAW CITED
Salahuddin Ansari v. State of U.P. & Others, (2008) 4
ADJ 58 ; Kishor Kumar v. State of U.P. & Others,
Writ-A No. 10177 of 2019, decided on 9 October
2023; Tata Chemicals Ltd. v. Commissioner of
Customs, (2015) 11 SCC 628 ; Krishna Rai v. Banaras
Hindu University, (2022) 8 SCC 713 ; Managing
Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4
SCC 727
List of Acts
U.P. Government Servant (Discipline and Appeal)
Rules, 1999, Rule 7; U.P. Consolidation of Holdings
Act, 1953, Sections 9, 12
List of Keywords
Disciplinary proceedings; Oral inquiry; Quasi-judicial
function; Major penalty; Void ab initio; Departmental
witnesses; Consolidation Officer; Rule 7 compliance.

CASE ARISING FROM

Appearances for Parties
Advs. For Petitioner: Shri Shiv Sagar Singh,
Advs. For Respondents: Standing Counsel

## Text

7 All. Aish Mohammad Vs. State of U.P. & Ors.
415
herself had submitted to the advertisement
by moving application as per qualification
mentioned therein and secondly, this being
a case of direct recruitment through
competent examination by Commission as
contemplated under rule 17 of the Rules, it
cannot be said to be confused with
recruitment
through
Departmental
Selection
Committee
as
contemplated
under Rule 18.

21.In
view
of
above,
therefore,
petitioner cannot be permitted to take plea
that selection process is de hors the
procedure as 10 years experience on the
post of Anganbari Worker which is
prescribed under Rule 4(2) has not been
taken into consideration.

22.Petition thus being devoid of
merits, is accordingly dismissed.
----------
(2025) 7 ILRA 415
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2025
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 7443 of 2025

Aish Mohammad ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shiv Sagar Singh

Counsel for the Respondents:
C.S.C.

ISSUE FOR CONSIDERATION
Whether a disciplinary proceedings qua
charges that may invite major penalty, in
the absence of oral inquiry is per se bad
and, therefore, any consequential action
pursuant thereto is liable to be held void
ab initio.
HEADNOTE
Service Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
7
-
Disciplinary
proceedings
-
Requirement of oral inquiry
- Noncompliance - Charges related to the
discharge of quasi judicial exercise of
power of the petitioner as Consolidation
Officer in the matter of objection being
decided under Sections 9 and 12 of the
U.P. Consolidation of Holdings Act, 1953 -
No date for personal hearing or for
inviting any departmental witness to be
examined was fixed - Inquiry Officer held
the petitioner guilty only on his own
assessment of records.

Held: Authority was to consider and appreciate
the documents available on record relating to
the disposal of the proceedings and then the
relevant departmental witnesses ought to have
been examined - As per Rule 7, in the event the
delinquent employee refuses to accept the
charge and even if he does not submit or offer
his explanation, the Inquiry Officer is still bound
in law to hold an oral inquiry in terms of the
examination of departmental witnesses - Oral
inquiry is sine qua non in the matter of
disciplinary proceedings if drawn against the
delinquent employee for major penalty -
Disciplinary proceedings in the absence of oral
inquiry is per se bad and any consequential
416 INDIAN LAW REPORTS ALLAHABAD SERIES
action pursuant thereto is void ab initio -
Impugned order dated 27th March, 2025
quashed - Respondent directed to appoint new
Inquiry Officer within four weeks and the Inquiry
Officer directed to hold oral inquiry - Writ petition
allowed. [Paras 6, 7, 8, 9, 10, 12, 13, 14] (E-5)
CASE LAW CITED
Salahuddin Ansari v. State of U.P. & Others, (2008) 4
ADJ 58 ; Kishor Kumar v. State of U.P. & Others,
Writ-A No. 10177 of 2019, decided on 9 October
2023; Tata Chemicals Ltd. v. Commissioner of
Customs, (2015) 11 SCC 628 ; Krishna Rai v. Banaras
Hindu University, (2022) 8 SCC 713 ; Managing
Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4
SCC 727
List of Acts
U.P. Government Servant (Discipline and Appeal)
Rules, 1999, Rule 7; U.P. Consolidation of Holdings
Act, 1953, Sections 9, 12
List of Keywords
Disciplinary proceedings; Oral inquiry; Quasi-judicial
function; Major penalty; Void ab initio; Departmental
witnesses; Consolidation Officer; Rule 7 compliance.

CASE ARISING FROM

Appearances for Parties
Advs. For Petitioner: Shri Shiv Sagar Singh,
Advs. For Respondents: Standing Counsel

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard learned counsel for the parties
and perused the records.

2. Learned Standing Counsel has placed
before this Court the original records relating to
the disciplinary proceedings drawn against the
petitioner pursuant to the order dated 1st July,
2025 and before the Court opens the original
records, learned Standing Counsel fairly
concedes that no oral hearing was conducted in
the matter of departmental inquiry/ domestic
inquiry conducted by the inquiry officer.

3. Upon perusal of the records it transpires
that petitioner was issued with a chargesheet on
6th December, 2022 inviting his explanation by
the inquiry officer vide letter dated 25th March,
2023. Since petitioner did not submit any reply,
therefore, departmental inquiry was proceeded
with against him on the basis of records
available and report was submitted on 6th
October, 2023.

4. Upon perusal of the records I further find
that on 31st October, 2022, Consolidation
Commissioner
appointed
Deputy
Director
Consolidation, Basti as inquiry officer to conduct
the domestic inquiry in terms of Rule 7 of the U.P.
Government Servant (Discipline and Appeal)
Rules, 1999 (herein after referred to as 'Rules,
1999'). Thereafter a letter was written as a
reminder by the Deputy Director, Consolidation,
Basti to Mr. Aish Mohammad, namely the
petitioner, the then consolidation officer to submit
his reply as more than four months have passed,
failing which the Deputy Director Consolidation
during this inquiry has proceeded ex parte and
thereafter inquiry report got submitted on 6th
October, 2023.

5. Upon perusal of the record it transpires
that the Deputy Director Consolidation, Basti
wrote a letter to the Settlement Officer,
Maharajganj and as a consequence thereto it
appears that Deputy Director Consolidation, Basti
proceeded to conclude the inquiry and submit
report on 6th October, 2023.

6. Upon perusal of the report dated 6th
October, 2023 which is available on record
7 All. Aish Mohammad Vs. State of U.P. & Ors.
417
in original, I do not find there to be any
reference of any letter fixing a date for
personal
hearing
or
inviting
any
departmental witness to be examined,
before the inquiry officer proceeded to
submit report bringing home the charge in
respect of all the allegations and charges
framed against the petitioner. I find that he
has held petitioner guilty on the basis of his
own assessment of records.

7. It is interesting to notice that the
charges relate to the discharge of quasi
judicial exercise of power of the petitioner
and consolidation officer in the matter of
objection being decided under Sections 9
and 12 the U.P. Consolidation of Holdings
Act, 1953 and therefore, the authority was
to consider and appreciate the documents
available on record relating to the disposal
of the proceedings and then the relevant
departmental witnesses ought to have
examined. For ready reference, Rule 7 of
the Rules, 1999 is reproduced hereunder:

"7. Procedure for imposing
major penalties. - Before imposing any
major penalty on a Government servant, an
inquiry shall be held in the following
manner:

(i) The disciplinary authority may
himself inquire into the charges or appoint
an authority subordinate to him as Inquiry
Officer to inquire into the charges.

(ii) The facts constituting the
misconduct on which it is proposed to take
action shall be reduced in the form of
definite charge or charges to be called
charge-sheet. The charge-sheet shall be
approved by the disciplinary authority:

Provided
that
where
the
appointing authority is Governor, the
charge- sheet may be approved by the
Principal Secretary or the Secretary; as the
case may be, of the concerned department.

(iii) The charges framed shall be
so precise and clear as to give sufficient
indication to the charged Government
servant of the facts and circumstances
against him. The proposed documentary
evidence and the name of the witnesses
proposed to prove the same alongwith oral
evidence, if any, shall be mentioned in the
charge-sheet.

(iv) The charged Government
servant shall be required to put in a written
statement of his defence in person on a
specified date which shall not be less than
15 days from the date of issue of chargesheet and to state whether he desires to
cross-examine any witness mentioned in the
charge-sheet and whether desires to give or
produce evidence in his defence. He shall
also be in- formed that in case he does not
appear or file the written statement on the
specified date, it will be presumed that he
has none to furnish and Inquiry Officer
shall proceed to complete the inquiry ex
parte.

(v) The charge-sheet, alongwith
the copy of the documentary evidences
mentioned therein and list of witnesses and
their statements, if any shall be served on
the
charged
Government
servant
personally or by registered post at the
address mentioned in the official records.
In case the charge-sheet could not be
served in aforesaid manner, the chargesheet shall be served by publication in a
daily newspaper having wide circulation:

Provided
that
where
the
documentary
evidence
is
voluminous,
instead of furnishing its copy with charge-
418 INDIAN LAW REPORTS ALLAHABAD SERIES
sheet, the charged Government servant
shall be permitted to inspect the same
before the Inquiry Officer.

(vi)
Where
the
charged
Government servant appears and admits
the charges, the Inquiry Officer shall
submit his report to the disciplinary
authority on the basis of such admission.

(vii)
Where
the
charged
Government servant denies the charges, the
Inquiry Officer shall proceed to call the
witnesses proposed in the charge-sheet and
record their oral evidence in presence of
the charged Government servant who shall
be given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidence, the Inquiry Officer shall call and
record the oral evidence which the charged
Government servant desired in his written
statement to be produced in his defence:

Provided that the Inquiry Officer
may for reasons to be recorded in writing
refuse to call a witness.

(viii) The Inquiry Officer may
summon any witness to give evidence or
require any person to produce documents
before him in accordance with the
provisions
of
the
Uttar
Pradesh
Departmental Inquiries (Enforcement of
Attendance of Witnesses and Production of
Documents) Act, 1976.

(ix) The Inquiry Officer may ask
any question he pleases, at any time of any
witness or from person charged with a view
to dis- cover the truth or to obtain proper
proof of facts relevant to charges.

(x)
Where
the
charged
Government servant does not appear on the
date fixed in the inquiry or at any stage of
the proceeding in- spite of the service of the
notice on him or having knowledge of the
date, the Inquiry Officer shall proceed with
the inquiry ex parte. In such a case the
Inquiry Officer shall record the statement
of witnesses mentioned in the charge-sheet
in absence of the charged Government
servant.

(xi) The disciplinary authority, if
it considers it necessary to do so, may, by
an order appoint a Government servant or
a legal practitioner, to be known as
"Presenting Officer" to present on its
behalf the case in support of the charge.

(xii) The Government servant
may take the assistance of any other
Government servant to present the case on
his behalf but not engage a legal
practitioner for the purpose unless the
Presenting
Officer
appointed
by
the
disciplinary
authority
is
a
legal
practitioner of the disciplinary authority
having regard to the circumstances of the
case so permits:

Provided that this rule shall not
apply in following cases:

(i) Where any major penalty is
imposed on a person on the ground of
conduct which has led to his conviction on
a criminal charge; or

(ii)
Where
the
disciplinary
authority is satisfied that for reason to be
recorded by it in writing, that it is not
reasonably practicable to hold an inquiry
in the manner provided in these rules; or

(iii) Where the Governor is
satisfied that, in the interest of the security
of the State, it is not expedient to hold an
manner provided in these rules."
7 All. Aish Mohammad Vs. State of U.P. & Ors.
419

8. Upon a bare reading of the aforesaid
rule it clearly transpires that in the event
the delinquent employee refuses to accept
the charge, in other words, denies the same
and even if he does not submit or offer his
explanation, the inquiry officer is still
bound in law to hold an oral inquiry in
terms of the examination of departmental
witnesses. The chargesheet itself relies
upon documents in the form of the report of
Deputy Director Consolidation, Siddharth
Nagar and also records relating to the
proceedings concerned and, therefore, in
the considered view of the Court, the
Deputy Director Consolidation, Siddharth
Nagar, who had submitted report ought to
have examined and recorded the statement
of the person on the basis report was
submitted.

9. In the case of Salahuddin Ansari
v. State of U.P. & others, (2008) (4) ADJ
58, the Court has very clearly held that oral
inquiry is sine qua non in matter of
disciplinary proceedings if drawn against
the delinquent employee for major penalty.
This Court in the case of Kishor Kumar v.
State of U.P. and others (Writ - A No.-
10177 of 2019) decided on 9th October,
2023 has held vide paragraph 12 thus:

"12. In my above view, I find
support in the division bench judgment of
this Court in the case of Salahuddin Ansari
vs. State of UP & ors; 2008 (4) ADJ 58,
wherein the Bench has relied upon an
earlier division bench judgment in the case
of Subhash Chandra Sharma vs. Managing
Director & anr, MANU/UP/0757/1999 in
which it was held that imposition of penalty
in the nature of major penalty without
holding inquiry was bad. The said
judgment came to be affirmed by Supreme
Court in SLP as the SLP against the
judgment stood dismissed on 16.08.2000.
Citing the aforesaid judgment and another
judgment of the Supreme Court in the case
of State of UP & anr vs. T.P. Lal
Srivastava; 1997 (1) LLJ 831, the Division
Bench in the case of Salahuddin Ansari
(supra) vide paragraphs 11, 13 and 14,
held thus:

"11. A Division Bench of this
Court in Subhash Chandra Sharma Vs.
Managing Director & another, 2000 (1)
U.P.L.B.E.C. 541, considering the question
as to whether holding of an oral inquiry is
necessary or not, held that if no oral
inquiry is held, it amounts to denial of
principles
of
natural
justice
to
the
delinquent employee. The aforesaid view
was reiterated in Subhash Chandra Sharma
Vs. U.P. Cooperative Spinning Mills &
others, 2001 (2) UPLBEC 1475 and Laturi
Singh Vs. U.P. Public Service Tribunal &
others, Writ Petition No. 12939 of 2001,
decided on 06.05.2005.

13. The aforesaid exposition of
law makes it clear that the delinquent
employee has a right to defend himself at
different stages. When the charge sheet is
served upon him, he has a right to submit
his reply and in case he does not submit
reply, that itself would not amount to
admission of guilt or that the charge stand
proved. If the allegations are serious and
may
result
in
major
penalty,
the
disciplinary authority may appoint Inquiry
Officer. Such Inquiry Officer, thereafter
would have to fix a date for oral evidence.
At this stage the delinquent employee has a
right to participate in the oral inquiry,
examine witnesses, if produced by the
department, and after the evidence of the
department is completed, the delinquent
employee may produce evidence in his
defence. During the course of oral inquiry,
the delinquent employee has right to
420 INDIAN LAW REPORTS ALLAHABAD SERIES
participate at every stage and date and if
there is any failure in participation on one
or more occasions, the Inquiry Officer
cannot deny him participation from the
subsequent stage. The delinquent employee
can participate at subsequent other stage
also. The Inquiry Officer, after completion
of oral inquiry, will submit its report after
discussing the entire material and if any
charge is proved, the disciplinary authority
shall supply a copy of the inquiry report to
the delinquent employee and he would
again have a right to submit reply to the
inquiry report.

14. Non holding of oral inquiry,
therefore, is a serious flaw which vitiates
the
entire
disciplinary
proceeding
including the order of punishment."

10. Thus a disciplinary proceedings
qua charges that may invite major penalty,
in the absence of oral inquiry is per se bad
and, therefore, any consequential action
pursuant thereto is liable to be held void ab
initio. In other words, the Court holds that
in the matters where the rule contemplates
full fledged inquiry inclusive of oral
inquiry even in the cases where the replies
to the chargesheet have not been submitted
it is imperative on the part of the inquiry
officer to hold oral enquiry and, therefore,
in the absence of oral enquiry, inquiry
report if submitted, it deserves to be
quashed and so also the resultant action. In
the case of Satyendra Singh v. State of
U.P. and another, 2024 SCC OnLine SC
3325, the Supreme Court vide paragraphs
13, 14, 15 and 16 has held thus:

"13. This Court in a catena of
judgments has held that the recording of
evidence in a disciplinary proceeding
proposing charges of a major punishment
is mandatory. Reference in this regard may
be held to Roop Singh Negi v. Punjab
National Bank (2009) 2 SCC 570 and
Nirmala J. Jhala v. State of Gujarat (2013)
4 SCC 301.

14. In the case of Roop Singh
Negi (supra), this Court held that mere
production of documents is not enough,
contents of documentary evidence have to
be
proved
by
examining
witnesses.
Relevant extract thereof reads as under:-

"14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon
taking
into
consideration
the
materials brought on record by the parties.
The purported evidence collected during
investigation by the investigating officer
against all the accused by itself could not
be treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove the said documents. The management
witnesses merely tendered the documents
and did not prove the contents thereof.
Reliance, inter alia, was placed by the
enquiry officer on the FIR which could not
have been treated as evidence.

15. We have noticed hereinbefore
that the only basic evidence whereupon
reliance has been placed by the enquiry
officer was the purported confession made
by the appellant before the police.
According to the appellant, he was forced
to sign on the said confession, as he was
tortured in the police station. The appellant
being an employee of the Bank, the said
confession should have been proved. Some
evidence should have been brought on
record to show that he had indulged in
7 All. Aish Mohammad Vs. State of U.P. & Ors.
421
stealing the bank draft book. Admittedly,
there was no direct evidence. Even there
was no indirect evidence. The tenor of the
report demonstrates that the enquiry officer
had made up his mind to find him guilty as
otherwise he would not have proceeded on
the basis that the offence was committed in
such a manner that no evidence was left.

...

19. The judgment and decree
passed against the respondent in Narinder
Mohan Arya case [(2006) 4 SCC 713 :
2006 SCC (L&S) 840] had attained finality.
In the said suit, the enquiry report in the
disciplinary proceeding was considered,
the same was held to have been based on
no evidence. The appellant therein in the
aforementioned situation filed a writ
petition questioning the validity of the
disciplinary proceeding, the same was
dismissed. This Court held that when a
crucial finding like forgery was arrived at
on evidence which is non est in the eye of
the law, the civil court would have
jurisdiction to interfere in the matter. This
Court emphasised that a finding can be
arrived at by the enquiry officer if there is
some evidence on record. ..."

15. Same view was reiterated in
State of Uttar Pradesh v. Saroj Kumar
Sinha (2010) 2 SCC 772, wherein, this
Court held that even in an ex-parte inquiry,
it is the duty of the Inquiry Officer to
examine the evidence presented by the
Department to find out whether the
unrebutted evidence is sufficient to hold
that the charges are proved. The relevant
observations made in Saroj Kumar Sinha13
are as follows: -

"28. An inquiry officer acting in a
quasi-judicial authority is in the position of
an independent adjudicator. He is not
supposed to be a representative of the
department/disciplinary
authority/Government. His function is to
examine the evidence presented by the
Department, even in the absence of the
delinquent official to see as to whether the
unrebutted evidence is sufficient to hold
that the charges are proved. In the present
case the aforesaid procedure has not been
observed. Since no oral evidence has been
examined the documents have not been
proved, and could not have been taken
into consideration to conclude that the
charges have been proved against the
respondents.

....

33. As noticed earlier in the
present case not only the respondent has
been denied access to documents sought to
be relied upon against him, but he has been
condemned unheard as the inquiry officer
failed to fix any date for conduct of the
enquiry. In other words, not a single
witness has been examined in support of
the
charges
levelled
against
the
respondent. The High Court, therefore,
has rightly observed that the entire
proceedings are vitiated having been
conducted in complete violation of the
principles of natural justice and total
disregard of fair play. The respondent
never had any opportunity at any stage of
the proceedings to offer an explanation
against the allegations made in the chargesheet."

16. In the case of Nirmala J.
Jhala (supra, this Court held that evidence
recorded in a preliminary inquiry cannot
be used for a regular inquiry as the
delinquent is not associated with it and the
opportunity
to
cross-examine
persons
422 INDIAN LAW REPORTS ALLAHABAD SERIES
examined in preliminary inquiry is not
given. Relevant extract thereof reads as
under: -

"42. A Constitution Bench of this
Court in Amalendu Ghosh v. North Eastern
Railway [AIR 1960 SC 992], held that the
purpose of holding a preliminary inquiry in
respect of a particular alleged misconduct
is only for the purpose of finding a
particular fact and prima facie, to know as
to whether the alleged misconduct has been
committed and on the basis of the findings
recorded in preliminary inquiry, no order
of punishment can be passed. It may be
used only to take a view as to whether a
regular disciplinary proceeding against the
delinquent is required to be held.

43. Similarly in Champaklal
Chimanlal Shah v. Union of India [AIR
1964 SC 1854] a Constitution Bench of this
Court while taking a similar view held that
preliminary inquiry should not be confused
with regular inquiry. The preliminary
inquiry is not governed by the provisions of
Article 311(2) of the Constitution of India.
Preliminary inquiry may be held ex parte,
for it is merely for the satisfaction of the
Government though usually for the sake of
fairness, an explanation may be sought
from the government servant even at such
an inquiry. But at that stage, he has no
right to be heard as the inquiry is merely
for the satisfaction of the Government as to
whether a regular inquiry must be held.
The Court further held as under : (AIR p.
1862, para 12)

"12. ... There must therefore be
no confusion between the two enquiries and
it is only when the government proceeds to
hold a departmental enquiry for the
purpose of inflicting on the government
servant one of the three major punishments
indicated
in
Article
311
that
the
government servant is entitled to the
protection of that article [, nor prior to
that]."

44.
In
Narayan
Dattatraya
Ramteerthakhar v. State of Maharashtra
[(1997) 1 SCC 299 : 1997 SCC (L&S) 152
: AIR 1997 SC 2148] this Court dealt with
the issue and held as under:

"... a preliminary inquiry has
nothing to do with the enquiry conducted
after issue of charge-sheet. The preliminary
enquiry is only to find out whether
disciplinary enquiry should be initiated
against the delinquent. Once regular
enquiry is held under the Rules, the
preliminary enquiry loses its importance
and, whether preliminary enquiry was held
strictly in accordance with law or by
observing principles of natural justice of
(sic) nor, remains of no consequence."

45. In view of the above, it is
evident that the evidence recorded in
preliminary inquiry cannot be used in
regular inquiry as the delinquent is not
associated with it, and opportunity to
cross-examine the persons examined in
such inquiry is not given. Using such
evidence would be violative of the
principles of natural justice.

(emphasis supplied)

11. The principle of compliance of
prescribed procedure and to act in the same
manner as prescribed under the rules, is a
well settled legal position in matters of
discharge of duties by administrative
authorities. In the case of Tata Chemical
Ltd. v. Commissioner of Customs (2015)
11 SCC 628 and Krishna Rai v Banaras
7 All. Smt. Archana Sahu Vs. State of U.P. & Ors.
423
Hindu University (2022) 8 SCC 713, it
has been held that when a procedure is laid
down to do a thing then it should be done
in that manner alone.

12. In view of the above, the order
impugned dated 27th March, 2025 is
hereby
quashed,
however,
Petitioner's
status will be the same as was at the time of
inquiry till the fresh inquiry report is
submitted and consequential action is taken
in the light of the judgment of Supreme
Court in the case of Managing Director,
ECIL, Hyderabad and others v. B.
Karunakar and others (1993) 4 SCC 727.

13. Accordingly, the respondent is
directed to appoint new inquiry officer
within a period of four weeks from the date
of production of certified copy of this
order. Soon after the appointment of
inquiry officer as directed herein above, the
petitioner shall be submiting reply to the
chargesheet within a further period of four
weeks. The inquiry officer thereafter shall
proceed to hold oral inquiry and petitioner
shall be participating in the same. The oral
inquiry
would
include
the
oral
examination of the petitioner as well as
the departmental witness, if any. After
the oral examination is completed, the
inquiry report shall be submitted within a
maximum period of two months from the
date of reply submitted by the petitioner
and thereafter the disciplinary authority
shall proceed to pass final order in the
matter strictly in accordance with law and
as per the procedure prescribed under the
Discipline and Appeal Rules, 1999 within
a further period of two months.

14. Thus, the writ petition succeeds
and is allowed as above.

15. The original records are returned.
----------
(2025) 7 ILRA 423
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2025
BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ A No. 8120 of 2025

Smt. Archana Sahu ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Avijit Saxena

Counsel for the Respondents:
C.S.C.

ISSUE FOR CONSIDERATION
Whether the penalty of withholding of one
increment with cumulative effect under the
U.P. Basic Education Staff Rules, 1973, is
appealable,
or
whether
the
aggrieved
employee has the remedy of representation
under Rule 5(2) of the said Rules.

HEADNOTE
A. Service Law - U.P. Basic Education
Staff Rules, 1973 - Rule 3 and Rule 5 -
Remedy
against
minor
and
major
penalties
-

"Appeal"
and
"Representation" - Held, appeal lies only
against
major
penalties
enumerated
under Rule 5(1), whereas for minor
penalties such as censure or withholding
of increment, remedy is by way of
representation under Rule 5(2).
Petitioner,
a
primary
school
teacher
challenged
the
order
dated
09.04.2025
passed by the District Basic Education Officer,
withholding one increment with cumulative
effect and transferring her. Held: Penalty of
withholding of one increment with cumulative
effect falls under minor penalties and is not
appealable under Rule 5(1). Remedy available
is to make a representation before the officer
specified by the Director of Education (Basic)