# Ajai Kumar v. State of U.P

- **Citation:** (2022) 9 ILRA 1395
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-26
- **Case number:** Writ-A No. 13263 of 2021
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajai-kumar-v-state-of-u-p-49007
- **Pages:** 12

## Headnote

A. Civil Law - Service Law - U.P.
Government Servants (Discipline and
Appeal) Rules, 1999, Rule 9 - Action
on Inquiry Report - After submission
of the Inquiry report, in case the
disciplinary authority does not find any
infirmity with the Inquiry report he
shall proceed as per Rule 9(4), give a
show cause notice to the Government
servant requiring him to submit his
response to the said report, and on
receiving
the
same,
and
after
consultation
with
the
U.P
Public
Service Commission, where necessary,
may impose any penalty as provided in
Rule 3 - In case the disciplinary
authority finds that the inquiry has
been held in violation of Rule 7 & there
is procedural defect in conduct of the
Inquiry as provided for in Rule 7 of the
Rules
of
1999
or
some
grave
misconduct has been conducted by the
Inquiry Officer, then the Disciplinary
Authority, after recording reasons for
not accepting the Inquiry report &
disclosing the infirmity/defect in the
Inquiry
proceedings,
can
exercise
power under Rule 9(1) of the Rules,
1999 & remit the case for re-inquiry
from the stage of infirmity in the
Inquiry proceedings, as pointed out by
him, in his order passed under rule
9(1) of the rules of 1999 - Inquiry
officer shall thereupon proceed to hold
inquiry from such stage as directed by
disciplinary authority, according to the
provisions of Rule 7 - Where in case
the Disciplinary Authority disagrees
with the Inquiry Officer on the merits
of the case or findings recorded by the
Inquiry Officer, he must record his
disagreement and proceed according
to under Rule 9 (2) of the Rules, 1999,
following
the
procedure
prescribed
under Rule 9(4) of the Rules, 1999 -
When Inquiry Officer has exonerated
the
Government
employee
and
Disciplinary Authority agrees with the
inquiry report he shall proceed in
accordance with Rule 9(3) of the
Rules, 1999 (Para 25, 26, 27, 39)

B. Civil Law - Service Law - U.P.
Government Servants (Discipline and
Appeal) Rules, 1999, Rule 9 (1) - ReInquiry
-
infirmity
in
the
inquiry
report, which is the basis for ordering
Re-Inquiry, must be one in relating to
violation of the specific procedure
provided under Rule 7 of the rules of
1999, in conduct of the Inquiry -
resorting to re-inquiry under provision
of Rule 9(1) of the rules of 1999
cannot be passed without disclosing
the infirmity in the Inquiry report - On
passing of an order for re-Inquiry,
under rule 9(1), the previous inquiry
report becomes non est and cannot be
used against the Government servant
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
in the subsequent stage of inquiry
(Para 28)

C. Civil Law - Service Law - U.P. Government
Servants (Discipline and Appeal) Rules,
1999, Rule 9 (1) - Re-Inquiry - some of the
instances in which the disciplinary authority
can invoke the powers for Re-Inquiry - if
the inquiry is conducted by an authority not
authorised by the disciplinary authority to
conduct the inquiry, or If the charges in the
charge sheet do not fall in the category of
"definite charge" or that the charge sheet is
not approved by the Disciplinary authority,
or In case the charge sheet does not give
adequate time for reply or is less than 15
days from the charge sheet, or there is no
recital that the Government servant may
cross examine any witness mentioned in
the charge sheet or to produce evidence in
his defence, or In case the charge sheet is
not duly served upon the Government
servant, or the Government servant is not
permitted to produce witnesses in his
defence, or his oral evidence is not recorded
despite his request, or he may be of the
opinion that proper opportunity has not
been given to the Government servant to
defend himself are (Par 28)

Disciplinary Authority ordered re-inquiry for the
second time merely on the reason that there
were two conflicting inquiry reports dated
04.07.2016 and 31.12.2018 - Held- once State
Government itself found infirmity in the first
Inquiry report dated 04.07.2016, and directed
for re-Inquir

## Text

_Characters 0–39,612 of 41,158. This is a partial read: ask again with offset=39612 for what follows._

9 All. Ajai Kumar Vs. State of U.P.
1395
writ petitions of the respective petitioner
are not maintainable and are liable to be
dismissed on this ground alone.

40. For the findings recorded by this
Court to the maintainability of these writ
petitions as well as on merits of the case as
set up by the parties, this Court finds no good
ground to interfere in the matter. All the writ
petitions are, accordingly, dismissed.
----------
(2022) 9 ILRA 1395
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.09.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 13263 of 2021

Ajai Kumar ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Shobhit Mohan Shukla

Counsel for the Respondents:
C.S.C., Ashok Shukla, R.K. Upadhyay, Waseeq
Uddin Ahmed

A. Civil Law - Service Law - U.P.
Government Servants (Discipline and
Appeal) Rules, 1999, Rule 9 - Action
on Inquiry Report - After submission
of the Inquiry report, in case the
disciplinary authority does not find any
infirmity with the Inquiry report he
shall proceed as per Rule 9(4), give a
show cause notice to the Government
servant requiring him to submit his
response to the said report, and on
receiving
the
same,
and
after
consultation
with
the
U.P
Public
Service Commission, where necessary,
may impose any penalty as provided in
Rule 3 - In case the disciplinary
authority finds that the inquiry has
been held in violation of Rule 7 & there
is procedural defect in conduct of the
Inquiry as provided for in Rule 7 of the
Rules
of
1999
or
some
grave
misconduct has been conducted by the
Inquiry Officer, then the Disciplinary
Authority, after recording reasons for
not accepting the Inquiry report &
disclosing the infirmity/defect in the
Inquiry
proceedings,
can
exercise
power under Rule 9(1) of the Rules,
1999 & remit the case for re-inquiry
from the stage of infirmity in the
Inquiry proceedings, as pointed out by
him, in his order passed under rule
9(1) of the rules of 1999 - Inquiry
officer shall thereupon proceed to hold
inquiry from such stage as directed by
disciplinary authority, according to the
provisions of Rule 7 - Where in case
the Disciplinary Authority disagrees
with the Inquiry Officer on the merits
of the case or findings recorded by the
Inquiry Officer, he must record his
disagreement and proceed according
to under Rule 9 (2) of the Rules, 1999,
following
the
procedure
prescribed
under Rule 9(4) of the Rules, 1999 -
When Inquiry Officer has exonerated
the
Government
employee
and
Disciplinary Authority agrees with the
inquiry report he shall proceed in
accordance with Rule 9(3) of the
Rules, 1999 (Para 25, 26, 27, 39)

B. Civil Law - Service Law - U.P.
Government Servants (Discipline and
Appeal) Rules, 1999, Rule 9 (1) - ReInquiry
-
infirmity
in
the
inquiry
report, which is the basis for ordering
Re-Inquiry, must be one in relating to
violation of the specific procedure
provided under Rule 7 of the rules of
1999, in conduct of the Inquiry -
resorting to re-inquiry under provision
of Rule 9(1) of the rules of 1999
cannot be passed without disclosing
the infirmity in the Inquiry report - On
passing of an order for re-Inquiry,
under rule 9(1), the previous inquiry
report becomes non est and cannot be
used against the Government servant
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
in the subsequent stage of inquiry
(Para 28)

C. Civil Law - Service Law - U.P. Government
Servants (Discipline and Appeal) Rules,
1999, Rule 9 (1) - Re-Inquiry - some of the
instances in which the disciplinary authority
can invoke the powers for Re-Inquiry - if
the inquiry is conducted by an authority not
authorised by the disciplinary authority to
conduct the inquiry, or If the charges in the
charge sheet do not fall in the category of
"definite charge" or that the charge sheet is
not approved by the Disciplinary authority,
or In case the charge sheet does not give
adequate time for reply or is less than 15
days from the charge sheet, or there is no
recital that the Government servant may
cross examine any witness mentioned in
the charge sheet or to produce evidence in
his defence, or In case the charge sheet is
not duly served upon the Government
servant, or the Government servant is not
permitted to produce witnesses in his
defence, or his oral evidence is not recorded
despite his request, or he may be of the
opinion that proper opportunity has not
been given to the Government servant to
defend himself are (Par 28)

Disciplinary Authority ordered re-inquiry for the
second time merely on the reason that there
were two conflicting inquiry reports dated
04.07.2016 and 31.12.2018 - Held- once State
Government itself found infirmity in the first
Inquiry report dated 04.07.2016, and directed
for re-Inquiry, thereafter the first/previous
inquiry report ceased to exist & was non est and
therefore could not be taken into consideration
by the Disciplinary Authority - It is only the
subsequent inquiry report dated 31.1.2018
which only could have be considered by the
disciplinary authority - order dated 22.07.2019
is illegal as the disciplinary authority has not
disclosed any infirmity with the subsequent
second inquiry report dated 31.12.2018 - order
dated 22.7.2019 passed by Additional Chief
Secretary ordering re-Inquiry was set aside -
subsequent Inquiry proceedings, Inquiry report
as well as punishment order quashed - matter
remitted to the disciplinary authority to proceed
with the Inquiry from the stage of submission of
Inquiry report dated 31.12.2018 (Para 36, 37,
38)

Allowed. (E-5)

List of Cases cited:

1. State Bank of Patiala & ors. Vs S.K.Sharma
(1996)3 SCC 364

2. St. of U.P. Vs Saroj Kumar Sinha, (2010) 2
SCC

3. Chancery Division Taylor Vs Taylor

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Jaideep Narain Mathur,
Senior Advocate assisted by Sri Shobhit
Mohan Shukla for the petitioner, Sri Vivek
Shukla, learned Additional Chief Standing
counsel along with Sri Prafulla Yadav,
Standing counsel for State-opposite parties,
Sri R. K. Upadhyay for opposite party No.3
and Sri Ashok Shukla for opposite party
No.6.

2. By means of the present writ
petition the petitioner has assailed the order
dated 16.5.2021 passed by the State
Government thereby awarding punishment
to the petitioner of reversion along with
censure entry. Further the advice of U.P
Public
Service
Commission
dated
19.2.2021 has also been challenged. The
petitioner has further challenged the order
dated 22.7.2019 passed by Additional Chief
Secretary
(Appointment
Department),
Government of U.P, whereby order of reenquiry has been passed in exercise of
powers under Rule 7 and 9(1) of U.P.
Government
Servants
(Discipline
and
Appeal) Rules, 1999. The petitioner has
also sought for a direction to the opposite
parties not to give effect to the impugned
order dated 16.5.2021 and also to allow the
petitioner to work on the post of Sub
9 All. Ajai Kumar Vs. State of U.P.
1397
Divisional Officer, regularly with all
consequential benefits.

3. It has been submitted by learned
counsel for the petitioner that having been
selected on the post of Naib Tehsildar the
petitioner started working on 19.12.1993
under the control of Board of Revenue,
U.P.
He
was
subsequently
transferred/appointed on the post of Officer
on Special Duty (Land Management) under
New
Okhla
Industrial
Development
Agency (NOIDA), U.P., Gautam Buddha
Nagar on 3.2.2009 till 16.4.2012 and
thereafter he was posted at Board of
Revenue U.P., Lucknow.

4. The controversy in the present case
arose during his posting as an Officer of
Special
Duty
(Land
Management),
NOIDA. The petitioner was placed under
suspension by the Commissioner, Meerut
Division,
for
causing
loss
to
the
Government property and subsequently
decision
was
taken
for
initiating
disciplinary
proceedings
against
the
petitioner and he was placed under
suspension. The order of suspension was
revoked by the Board of Revenue on
13.8.2012. It has been submitted that
during the aforesaid period the petitioner
was considered for promotion in the cadre
of U.P. Civil Service (Executive Branch)
and
the
Departmental
Promotion
Committee recommended his promotion on
3.9.2012 but he was not promoted looking
to the disciplinary proceedings pending
against him. It is on the intervention of this
Court in a writ petition preferred by the
petitioner that by means of the judgment
and order dated 19.12.2012 passed in
Service Bench Petition No.1316 of 2012
considering that the suspension of the
petitioner had been revoked and no charge
sheet has been issued to him and
accordingly while disposing the writ
petition directed the opposite parties to
consider issuance of promotion order in
favour of the petitioner if he has been
found to be eligible by the D.P.C. The
petitioner was served with charge sheet on
19.9.2012 containing 11 charges. All the
charges pertain to issuance of a letter by the
petitioner on 1.9.2010 written by the
petitioner
to
the
Director
General
(Tourism). It has been submitted that the
said letter dated 1.9.2010 was sent in
response to the letter of Director General
(Tourism), dated 12.8.2010 who had
required certain information with regard to
the Hotel Golf View Ambedkar Vihar,
Village Chhalaira Bangar, Tehsil Dadari,
District Gautam Buddha Nagar, NOIDA.
The said letter was written after seeking
information from the Chief Planner and
Architect as well as the Officer on Special
Duty (Y) with Chief Executive Officer of
NOIDA , and the petitioner was directed to
communicate on behalf of NOIDA that
actually Hotel Golf View Ambedkar Vihar,
Village Chhalaira Bangar, Tehsiil Dadari,
District Gautam Buddha Nagar, Noida is
situated on abadi land and the NOIDA
authority does not have any power to
sanction map on a land which is in rural
area. It is on the basis of the letter dated
01.09.2010 the opposite parties have come
to a conclusion that the petitioner while
exercising his power holding the post of
Officer
on
Special
Duty
(Land
Management), NOIDA did not take any
action against the said hotel which has been
illegally constructed and did not inform the
higher authorities about the same and
consequently he is guilty of committing
causing loss to the Government. It is stated
that all the charges pertained to the same
issue and most of them are more or less
similar in nature. The inquiry officer i.e.
Additional
Commissioner,
Meerut
1398 INDIAN LAW REPORTS ALLAHABAD SERIES
Division, Meerut conducted the inquiry and
submitted inquiry report vide letter dated
2.7.2016 where all the 11 charges were
found
proved
against
the
petitioner.
Thereafter the State Government provided
copy of the inquiry report to the petitioner
vide letter dated 23.5.2017 for submitting
his
representation/explanation
to
the
inquiry report.

5. The petitioner submitted a detailed
reply to the show cause notice on
08.01.2018 which was forwarded by the
District Magistrate, Hapur to the State
Government and the State Government on
14.08.2018 after considering the reply
submitted by the petitioner directed the
inquiry officer / Additional Commissioner
(Administration ) to re inquire into all the
facts and submit his report. Along with the
said
order
Government
order
dated
22.12.2005 was enclosed and specific
query was put to the inquiry officer to
indicate as to how the petitioner could have
been found guilty in light of order dated
22.12.2005.

6. In pursuance of the order dated
14.8.2018 the inquiry officer reexamined
the entire factual matrix and again
submitted
his
report
to
the
State
Government recording a finding that the
charges against the petitioner were not
found proved and he further raised the issue
as to how can the Panchayat pass the map
of the said Hotel when on the said date the
land was vested with Noida authority and
also as to under what circumstances the
office of District Magistrate registered it as
a hotel when the ownership of the land was
not clear and as to who are the Engineers
responsible for not taking proper steps
despite the fact that the said hotel had been
constructed without proper sanction of the
authorities.

7. The State Government faced with
two contradictory inquiry reports dated
4.7.2016 and 31.12.2018 cancelled both the
inquiry reports and again in exercise of the
powers under Rule 9 (1) of the Rules of
1999 appointed Commissioner, Meerut
Division, Meerut as an inquiry officer to reenquire the matter.

8. Pursuant to the order of re-enquiry
against the petitioner the petitioner received
a letter from Additional Commissioner,
Meerut Division instead of Commissioner
who was directed to re-inquire, on
18.10.2019 stating that he has been
entrusted with the inquiry and the petitioner
was required to submit his reply. The
petitioner
appeared
before
Additional
Commissioner, Meerut on 02.11.2019 and
submitted his reply. Subsequently, realizing
the mistake, the Commissioner Meerut
Division herself required the petitioner to
appear before her on 25.11.2019 . The
petitioner
appeared
before
the
said
authority and submitted his reply which he
had submitted earlier before the Additional
Commissioner, Meerut. It is stated that the
inquiry
officer
did
not
afford
any
opportunity of personal hearing or of cross
examining any of the witnesses and
concluded the said inquiry on 16.7.2020
holding the petitioner guilty of all the
charges. The petitioner was given a show
cause notice along with copy of the inquiry
report by means of order dated 24.7.2020 to
which the petitioner replied on 14.9.2020
pursuant to which the impugned order
dated 16.5.2021 has been passed reverting
the petitioner to the post of Tehsildar and
also awarding him censure entry. The
impugned order further records that the
State Government after considering the
reply of the petitioner, was of the view that
the petitioner should have been awarded
the
punishment
of
withholding
two
9 All. Ajai Kumar Vs. State of U.P.
1399
increments along with censure entry and
the said recommendation was forwarded to
U.P. Public Services Commission for its
approval in accordance with the rules and
the U.P. Public Services Commission by
means of order dated 19.2.2021 was of the
opinion that considering the gravity of the
charges against the petitioner harsher
sentences deserves to be awarded to the
petitioner and was, therefore, of the opinion
that in the present facts and circumstances
of the case he should be awarded the
punishment of reversion along with censure
entry. The State Government concurred
with the view of the Uttar Pradesh Public
Service Commission and by means of the
impugned order dated 16.5.2021 has
awarded the punishment of reversion along
with censure entry.

9. Learned counsel for the petitioner
has challenged the disciplinary proceedings
on the ground that the order dated
27.7.2019 cancelling the inquiry reports
dated 04.07.2016 and 31.12.2018 is illegal
and arbitrary and passed on incorrect
appreciation facts and law. It is submitted
that in case the disciplinary authority
disagrees with the inquiry report he has two
options open to him, he can either remit the
matter to the enquiry officer for re enquiry
if conditions contained in Rule 9(1) are
fulfilled, or he has an option of recording
his disagreement with the enquiry report
and proceed with the matter as provided in
Rule 9(2) of the rules of 1999, adhering to
the conditions prescribed in Rule 9(4) after
giving a copy of the enquiry report to the
Government servant. It has further been
submitted, that once decision has been
taken by the disciplinary authority, the
matter is fit for re-enquiry then the previous
inquiry report is rendered non est, and it
cannot be acted upon in the subsequent
stage of the enquiry, where only the fresh
inquiry report can be relied upon by the
disciplinary authority to proceed against the
delinquent employee.

10. The learned counsel for the
petitioner has submitted that the order
dated 22.07.2019 passed by the State
Government
cancelling
both
enquiry
reports and again resorting to re-inquiry
under provision of Rule 9(1) of the rules of
1999 is illegal and arbitrary as such an
order cannot be passed without disclosing
the infirmity in the enquiry report and as
such in the circumstances of the present
case, there was no cogent reason for
invoking provisions of rule 9(1) of the rules
of 1999.

11. It has been submitted that when
decision is taken in exercise of powers
under rule 9(1) then the matter is remitted
to the enquiry officer for conducting the
enquiry from the stage of infirmity as
determined by the disciplinary authority,
and the previous inquiry report which is
found to be infirm is rejected.

12. The challenge to the impugned
punishment order has also been made on
the ground that when the enquiry was
conducted by the Commissioner Meerut
division, the petitioner was not informed of
any date, time and place for the said
enquiry and no opportunity was afforded to
the petitioner to examine or cross examine
any of the witnesses. It is further stated that
the documents relied upon in the charge
sheet were not proved, and hence the entire
proceedings were conducted in violation of
principles of natural justice without giving
due opportunity of hearing to the petitioner.

13. Learn counsel for the petitioner
has also contended that when the enquiry
was ordered for the 2nd time he preferred a
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
representation to the Chief Secretary stating
that the order read 22.07.2019 was illegal
in arbitrary as re-enquiry for the 2rd time
cannot be ordered. It was further stated that
once an enquiry report has been submitted
exonerating the petitioner it was incumbent
upon the Disciplinary Authority to proceed
in terms of rule 9(3) or to record his
disagreement in accordance with rule 9(2)
and pass appropriate orders. It is stated that
the Chief Secretary did not consider or
decide the representation made by the
petitioner.

14. It has been submitted on behalf of
the petitioner that the enquiry officer while
submitting the enquiry report has not
considered the reply submitted by the
petitioner, nor has he considered the
previous inquiry report dated 31.12.2018
wherein the petitioner was exonerated of all
the charges, despite the fact that the inquiry
officer was mandated to look into both
enquiry reports, and hence it has been
submitted that the inquiry report dated
16.07.2020 is illegal in arbitrary and
deserves to be set aside.

15. It was lastly contended the
disciplinary authority after perusing the
inquiry report dated 16.07.2020 as well as
the reply of the petitioner had proposed
the punishment of stoppage of two annual
increments with cumulative effect. The
proposal was forwarded to the U.P Public
Service Commission under rule 16 of the
U.P Government Servant (Discipline and
Appeal) Rules 1999. U.P Public Service
Commission recommended enhancement
of the punishment of reduction in rank,
and the State Government has accepted
the said recommendation, in the most
illegal and arbitrary manner without
applying its mind. It has been stated that
recommendations of the Public Service
Commission are also arbitrary being
bereft of any cogent reason from which
can reflects that it has applied its mind
while
proposing
to
enhance
the
punishment and consequently prayer has
been made to set aside the impugned
order.

16. The learned standing counsel
has opposed the writ petition and
submitted
that
there
were
serious
allegations
against
petitioner
which
required to be inquired into, and therefore
disciplinary proceedings were instituted
against the petitioner where he was
afforded full opportunity of hearing, and
it cannot be said that there was any
infirmity in the disciplinary proceedings
leading to award of punishment of
reversion to the petitioner.

17. The learned standing counsel also
supported the exercise of power under
rule 9(1) of the rules of 1999 and
submitted
that
once
a
disciplinary
authority comes to a decision that the
inquiry report has certain infirmities then
he can direct the inquiry officer to reinquire into the allegations levelled in the
charge sheet. He further submitted that
there is no limitation that such exercise of
power that it can be resorted to only once
during an enquiry, nor is such a
restriction discernible from the reading of
rule 9(1) of the rules of 1999. Whenever
such infirmities in the inquiry report are
discovered by the disciplinary authority
he would be at liberty to invoke
provisions of rule 9(1) of the rules of
1999.

18. Supporting the impugned order, it
was submitted that unless it is shown that
some prejudice has been caused to the
petitioner the inquiry proceedings cannot
9 All. Ajai Kumar Vs. State of U.P.
1401
be set aside merely because of violation of
any statutory provision or rule. In support
of the contentions learned Standing counsel
relied upon the judgement in the case of
State Bank of Patiala and others vs
S.K.Sharma (1996)3 SCC 364.

19. I have heard the counsel for the
parties and perused the record

20. The disciplinary proceedings were
initiated against the petitioner when he was
holding the post of Officer on special duty
(Land Management) under New Okhla
Industrial Development Agency. He was
placed under suspension and subsequently
the said order was revoked on 13.08.2012.
A chargesheet was issued to him on
19.09.2012 containing 11 charges which
pertain to issuance of a letter dated 01.09.
2010 sent in response to the letter of the
Director General (Tourism) who had
required certain information with regard to
Hotel Golf View Ambedkar Vihar, NOIDA.
The
allegations
levelled
against
the
petitioner pertained to the fact that the
petitioner did not take any action against
the
said
Hotel
which
was
illegally
constructed, without approval of map, and
also that did not inform the higher
authorities about the same. The inquiry
officer conducted the inquiry and submitted
the inquiry report on 04.07.2016 where all
the charges were proved against the
petitioner.
The
Disciplinary Authority
provided the copy of the inquiry report to
the petitioner vide show cause notice dated
23.05.2017, to which the petitioner replied
on 8.01.2018.

21. Considering the reply submitted
by the petitioner to the inquiry report, the
Disciplinary Authority vide order dated
14.08.2018 directed the inquiry officer/
Additional Commissioner (Administration)
Meerut to re-inquire into all the facts and to
submit his enquiry report. The enquiry
officer inquired into the charges against the
petitioner again and submitted his inquiry
report on 31.08.2018 exonerating the
petitioner of all the charges.

22. On receiving the second inquiry
report
dated
31.12.2018,
the
State
Government by means of impugned order
dated 22.07.2019, after recording that there
are two conflicting inquiry reports in
existence, decided to cancel both the
inquiry reports dated 04.07.2016 and
31.12.2018 in exercise of rule 9(1) and
further directed the matter be re-inquired
by the Commissioner Meerut division.

23. The petitioner has assailed the
order dated 22.07.2018 and questioned the
exercise of power by the disciplinary
authority under rule 9(1) of the Rules of
1999 for sending the matter for re-inquiry
only because there were two conflicting
inquiry reports. He submits that the said
order is illegal and arbitrary and beyond the
scope of power vested in disciplinary
authority as per rule 9(1) as that the enquiry
officer can proceed only in accordance with
Rules of 1999, and cannot travel beyond
the prescription provided therein, and in the
present case he has exercised power under
rule 9(1) which could not have been validly
exercised by him in the facts of the case.

24. For adjudication of the other
matter it will be relevant to refer to Rule 9
of the Rules of 1999 which reads as under:-

"Rule 9(1): The Disciplinary Authority
may, for reasons to be recorded in writing,
remit the case for re-enquiry to the same or
any other inquiry officer under intimation
to the charged Government Servant. The
inquiry officer shall thereupon proceed to
1402 INDIAN LAW REPORTS ALLAHABAD SERIES
hold the inquiry from such stage as directed
by the Disciplinary Authority, according to
the provisions of Rule 7.

Rule 9(2): The Disciplinary Authority
shall, if it disagrees with the findings of the
inquiry officer on any charge, record its own
findings thereon for reasons to be recorded.

Rule 9(3): In case the charges are not
proved, the charged Government Servant
shall be exonerated by the Disciplinary
Authority of the charges and inform him
accordingly.

Rule 9(4): If the Disciplinary Authority,
having regard to its findings on all or any or
charges is of the opinion that any penalty
specified in Rule 3 should be imposed on the
charge Government Servant, he shall give a
copy of the inquiry report and his findings
recorded under sub-rule (2) to the charged
Government Servant and require him to
submit his representation if he so desires,
within a reasonable specified time. The
Disciplinary Authority shall, having regard to
all the relevant records relating to the inquiry
and
representation
of
the
charged
Government Servant, if any, and subject to
the provisions of Rule 16 of these rules, pass
a reasoned order imposing one or more
penalties mentioned in Rule 3 of these rules
and communicate the same to the charged
Government Servant."

25. It appears from rules of 1999 that
same is a self-contained code and the
procedure has been prescribed for holding
disciplinary
inquiry
and
awarding
punishment. After the submission of the
Inquiry report where charges are proved, the
disciplinary authority proceeds to examine
the inquiry report and in case he does not find
any infirmity with the enquiry report he shall
proceed in terms of rule 9(4) and give a show
cause notice to the Government servant
requiring him to submit his response to the
said report, and on receiving the same, and
after consultation with the U.P Public Service
Commission, where necessary, may impose
any penalty as provided in Rule 3.

26. In case he finds that the inquiry has
been held in violation of rule 7, where either
the Government servant has not been given
adequate opportunity of hearing or for any
other cogent reason, the disciplinary authority
after recording reasons for not accepting the
enquiry report, may order a re-inquiry under
Rule 9(1).

27. As is discernible from rule 9(1) the
infirmity in the inquiry report, which is the
basis for ordering re-enquiry, must be one in
relating to violation of the specific procedure
provided under Rule 7 of the rules of 1999, in
conduct of the enquiry. This aspect is clear
from the perusal of rule 9(1) where it is
provided that the "inquiry officer shall
thereupon proceed to hold inquiry from such
stage as directed by disciplinary authority,
according to the provisions of rule 7".
Therefore, the disciplinary authority can
direct for re-enquiry from the stage of
infirmity in the enquiry proceedings as
pointed out by him in his order passed under
rule 9(1) of the rules of 1999. In exceptional
circumstances where there exists serious
allegation against the enquiry officer, of bias
or misconduct in conducting the enquiry, the
disciplinary authority after recording his
satisfaction can also invoke rule 9(1).

28.

In where
the
inquiry
is
conducted:-

i. By an authority not authorised by
the disciplinary authority to conduct the
inquiry, or

ii. If the charges in the charge sheet do
not fall in the category of "definite charge"
or that the charge sheet is not approved by
the Disciplinary authority, or
9 All. Ajai Kumar Vs. State of U.P.
1403
iii. In case the charge sheet does not give
adequate time for reply or is less than 15
days from the charge sheet, or there is no
recital that the Government servant may
cross examine any witness mentioned in
the charge sheet or to produce evidence in
his defence,or

iv. In case the charge sheet is not duly
served upon the Government servant, or

v. The Government servant is not
permitted to produce witnesses in his
defence, or his
oral evidence is not recorded despite his
request, or

vi. He may be of the opinion that
proper opportunity has not been given to
the Government servant to defend himself
are some of the instances in which the
disciplinary authority can invoke the
powers under rule 9(1) of rules of 1999.

29.

The
natural
corollary
to
invocation of power and the rule 9(1) of the
Rules of 1999 is that the previous inquiry
report is set aside, when the re-inquiry is
ordered. On passing of an order under rule
9(1), the previous inquiry report becomes
non est and cannot be used against the
Government servant in the subsequent
stage of inquiry. The reasons which must be
recorded by the disciplinary authority are
about the defect in the enquiry proceedings.
Such a defective inquiry which has been so
declared by the disciplinary authority, while
passing the order under rule 9(1), ceases to
exist and hence becomes unactionable, and
cannot be relied upon.

30.

The
Supreme
Court
has
considered this aspect of the matter in the
case of State of U.P. v. Saroj Kumar
Sinha, (2010) 2 SCC where it was held:-

"25. A bare perusal of the aforesaid
charges shows that the three charges were
based
on
official
documents/official
communications. We have earlier noticed
the
relentless
efforts
made
by
the
respondent
to
secure
copies
of
the
documents, which was sought to be relied
upon, to prove the charges. These were
denied by the Department in flagrant
disregard of the mandate of Rule 7 sub-rule
(v). Therefore the inquiry proceedings are
clearly vitiated having been held in breach
of the mandatory sub-rule (v) of Rule 7 of
the 1999 Rules.

26. The first inquiry report is vitiated
also on the ground that the inquiry officers
failed to fix any date for the appearance of
the respondent to answer the charges. Rule
7(x) clearly provides as under:

"7. (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."

27.A bare perusal of the aforesaid subrule shows that when the respondent had
failed to submit the explanation to the
charge-sheet it was incumbent upon the
inquiry officer to fix a date for his
appearance in the inquiry. It is only in a
case when the government servant despite
notice of the date fixed failed to appear that
the inquiry officer can proceed with the
inquiry
ex
parte.
Even
in
such
circumstances it is incumbent on the
inquiry officer to record the Statement of
witnesses mentioned in the charge-sheet.
Since the government servant is absent, he
would clearly lose the benefit of crossexamination
of
the
witnesses.
But
1404 INDIAN LAW REPORTS ALLAHABAD SERIES
nonetheless in order to establish the
charges the Department is required to
produce the necessary evidence before the
inquiry officer. This is so as to avoid the
charge that the inquiry officer has acted as
a prosecutor as well as a judge.

31.

In
the
present
case
the
Disciplinary Authority has ordered re-
inquiry by means of dated 22.07.2019. The
only reason stated in the said order is that
there are two conflicting inquiry reports
dated 04.07.2016 and 31.12.2018 and for
this reason alone the matter has been
referred for re-enquiry for the second time.

32. The question which arises for
consideration is regarding the validity of
the order dated 22.07.2019 ordering reinquiry on the grounds that there were two
conflicting enquiry reports in existence,
and clearly, no infirmity or defect was
pointed out or considered in the second
enquiry report dated 31.12.2018.

33. In the instant case the first inquiry
report was submitted by the inquiry officer
on 04.07.2016 holding the petitioner guilty
of all the 11 charges. On 14.08.2018 the
decision
was
taken
by
the
State
Government
for
re-enquiry
after
considering the reply submitted by the
petitioner. In his reply he had submitted
that
according
to
the
order
dated
22.12.2005 passed by NOIDA giving the
responsibility of removing the illegal
encroachments was of the Project Engineer
and not the petitioner, and consequently the
petitioner was not responsible for removal
of illegal encroachments. The said reply
seemed logical and reasonable to the
disciplinary authority, and he was of the
considered opinion that the inquiry officer
had not considered the reply of the
petitioner in the correct perspective, and it
was thought fit to have the matter reenquired.

34. It is noticed that the State
Government was of the considered view
that the earlier inquiry dated 04.07.2016
stood vitiated, as the reply of the petitioner
was not considered and more specifically
when there was a specific order holding the
Project Engineer responsible for removal of
any encroachment coming up in the area
under by NOIDA, then how could the
petitioner be found to be guilty of the said
charges, was a question which was posed in
the said order itself.

35. The State Government itself had
found infirmity in the enquiry report dated
04.07.2016,
and
according
to
the
judgement of the Supreme Court in the case
of State of U.P. v. Saroj Kumar Sinha the
first/previous inquiry report was vitiated
and ceased to exist.

36. On 22.07.2019 when the State
Government was considering the second
enquiry report then previous enquiry report
dated 04.07.2016 had ceased to exist. The
only enquiry report which should have
been
considered
by
the
disciplinary
authority was the subsequent enquiry report
dated 31.12.2018. The reason stated in the
impugned order dated 22.07.2019 that there
are "two contradictory inquiry reports" is
based on a fallacious belief that the
previous inquiry report dated 04.07.2016
was in existence and could be acted upon,
which is clearly erroneous, arbitrary and
illegal.

37. As discussed earlier, the moment
decision is taken by the disciplinary
authority invoking the provisions of rule
9(1) of the rules of 1999, the previous
inquiry report ceases to exist because of the
9 All. Ajai Kumar Vs. State of U.P.
1405
infirmities
as
pointed
out
by
the
disciplinary authority and consequently the
previous enquiry report dated 04.07.2016
was non est and of no consequence, and
therefore,
could
not
be
taken
into
consideration by the Disciplinary authority.
It is only the subsequent inquiry report
dated 31.1.2018 which only could have be
considered by the disciplinary authority for
further proceedings.

38. The order dated 22.07.2019 is also
illegal and arbitrary for the reason that the
disciplinary authority did not find any
infirmity with the inquiry report dated
31.12.2018, nor any such infirmity has
been disclosed in his order. It is the
defects/infirmities found in the enquiry
report by the disciplinary authority which
clothes him which with the authority to
exercise the power vested in rule 9(1) of
the rules of 1999, in other words pointing
out of such infirmity in the enquiry report
is a precondition for exercise of power on
the disciplinary authority under rule 9(1) of
the rules of 1999. It is only when there is an
infirmity in conduct of the inquiry in
violation of any of the provisions of rule 7
of the Rules of 1999, or there is any other
allegation of grave misconduct against the
inquiry officer in conducting the said
enquiry can the disciplinary authority
exercises jurisdiction under rule 9(1) of the
rules of 1999, after recording such reasons.
No such infirmity has been pointed out
considered or stated in the order dated
22.07.2019 for rejecting the inquiry report
dated
31.12.2018
which
renders
the
exercise of power by the Disciplinary
Authority without jurisdiction, illegal and
arbitrary.

39. This Court is of the considered
view that disciplinary authority while
exercising power under Rule 9 would
exercise the power in the following
manner:-

(I) In case there is any procedural
defect in conduct of the enquiry as
provided for in Rule 7 of the Rules of 1999
or some grave misconduct has been
conducted by the Inquiry Officer then the
Disciplinary Authority can exercise power
under Rule 9(1) of the Rules, 1999.

(II) Where in case the Disciplinary
Authority disagrees with the Inquiry
Officer on the merits of the case or findings
recorded by the Inquiry Officer, he must
record his disagreement and proceed
according to under Rule 9 (2) of the Rules,
1999, following the procedure prescribed
under Rule 9(4) of the Rules, 1999.

(III)
When
Inquiry
Officer
has
exonerated the Government employee and
Disciplinary Authority agrees with the
inquiry
report
he
shall
proceed
in
accordance with Rule 9(3) of the Rules,
1999.

40. It is also noticed that by not
following the mandatory provisions for
conduct of the inquiry can itself cause
prejudice to the Government servant.
Procedural fairness is the hallmark of the
conduct of disciplinary proceedings. The
Rules of 1999 are mere incorporation of the
principles of natural justice which deserve
to be rigorously followed by the enquiry
officer. It is trite law that so far as the
statutory provisions are concerned, the law
is clear to the effect that if the same
requires a thing to be done in a particular
manner, then it cannot be done in a
different manner and has to be done in that
manner alone. The law, therefore, right
from 1876 Chancery Division Taylor Vs.
Taylor
till
date
is
the
same. The
disciplinary authority having failed to
exercise his power under rule 9(1) of rules
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
of 1999 in the prescribed manner, vitiates
the order dated 22.07.2019 and all the
subsequent proceedings. Prejudice has also
been caused to the delinquent employee,
the disciplinary authority could have
accepted the enquiry report exonerating
him, and he could have proceeded under
rule 9(3) of the Rules of 1999 and dropped
the proceedings in his favour.

41. Considering the above, this Court
is of the considered view that the order
dated 22.07.2019 it is clearly arbitrary and
illegal and such an order could not have
been passed in exercise of jurisdiction
under rule 9(1) of the rules of 1999 and
consequently the order dated 22.07.2019 is
hereby quashed, and consequently the
subsequent enquiry proceedings resulting
in enquiry report dated 16.07.2020 as well
as punishment order dated 16.05.2021 are
quashed. The matter is remitted to the
disciplinary authority to proceed with the
enquiry from the stage of submission of
enquiry report dated 31.12.2018 and pass
appropriate
orders
and
proceed
in
accordance with law.

42. The counsel for the petitioner has
also raised other grounds for challenging
the impugned order of punishment dated
16.05.2021, where the petitioner was not
giving proper opportunity of hearing and
no date, time and place was fixed, nor his
reply considered by the inquiry officer,
rendering the entire enquiry arbitrary and
illegal, and also that the U.P Public Service
Commission had not given reasons for
enhancing the punishment.