# Amar Singh v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 379
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-21
- **Case number:** Writ-A No. 11040 of 2020
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-singh-v-state-of-u-p-ors-49583
- **Pages:** 23

## Headnote

A. Service Law-The Constitution of India,
1950-Article 226 - The Uttar Pradesh
Government
Servant's
Conduct
Rule,
1956-Rule 3, 7 & 9 - The Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules-Rules 7 & 9---(a) Whether
the procedure adopted in conducting inquiry by
constituting technical team was foreign to the
concept of the regular inquiry as contemplated
under the Rules, 1999 and, therefore, holding
such inquiry was de hors the procedure
prescribed
for;
and
(b).
Whether
the
punishment awarded to the petitioner is
disproportionate to the guilt proved.

B. Held---The first charge was proved partly
only and that too on the ground that petitioner
had himself made an admission, that while
trying to delete the message he got the same
forwarded in whatsapp group by wrongly
touching the icon---Incident happened in the
midnight
hours,
therefore,
applying
the
definition of misconduct given in Strout's
dictionary there was nothing to demonstrate
that the petitioner did it intentionally. It was a
case where petitioner did delete the message in
the midnight hours before anybody could have
read it, however, by way of precaution he
messaged other whatsapp group members to
delete the message wrongly got sent by him.
The department would have been justified in
bringing home the charge, had it produced
the persons who might have read the
message
or
shown
to
others
or
had
complained
against
the
petitioner---The
charge itself did not stand proved and,
therefore, punishment of dismissal from
service
is
held
to
be
shockingly
disproportionate---Petitioner had made a fair
admission and upon the said fair admission
the department sets up an inquiry and did not
find a single employee or the member of the
group message who were the employees to
have read the message before it was deleted
in the midnight hours---Petitioner does not
deserve punishment of dismissal from service-
--In the absence of evidence as to circulation
of message to pollute mind of people towards
the government, the government should have
appreciated his courage to show admission
and should have warned him to be careful in
future---Petitioner shall be reinSt.d in service
and shall be entitled to all consequential
benefits.

Petition allowed. (E-15)

List of Cases cited:

## Text

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12 All. Amar Singh Vs. State of U.P. & Ors.
379
(2023) 12 ILRA 379
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 11040 of 2020

Amar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Man Mohan Singh, Sri Anil Kumar Mehrotra,
Sri Ashish Kumar Srivastava, Sri Ashok Khare
(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Jitendra Nath Maurya, Sri M.N. Singh,
Sri Nipun Singh

A. Service Law-The Constitution of India,
1950-Article 226 - The Uttar Pradesh
Government
Servant's
Conduct
Rule,
1956-Rule 3, 7 & 9 - The Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules-Rules 7 & 9---(a) Whether
the procedure adopted in conducting inquiry by
constituting technical team was foreign to the
concept of the regular inquiry as contemplated
under the Rules, 1999 and, therefore, holding
such inquiry was de hors the procedure
prescribed
for;
and
(b).
Whether
the
punishment awarded to the petitioner is
disproportionate to the guilt proved.

B. Held---The first charge was proved partly
only and that too on the ground that petitioner
had himself made an admission, that while
trying to delete the message he got the same
forwarded in whatsapp group by wrongly
touching the icon---Incident happened in the
midnight
hours,
therefore,
applying
the
definition of misconduct given in Strout's
dictionary there was nothing to demonstrate
that the petitioner did it intentionally. It was a
case where petitioner did delete the message in
the midnight hours before anybody could have
read it, however, by way of precaution he
messaged other whatsapp group members to
delete the message wrongly got sent by him.
The department would have been justified in
bringing home the charge, had it produced
the persons who might have read the
message
or
shown
to
others
or
had
complained
against
the
petitioner---The
charge itself did not stand proved and,
therefore, punishment of dismissal from
service
is
held
to
be
shockingly
disproportionate---Petitioner had made a fair
admission and upon the said fair admission
the department sets up an inquiry and did not
find a single employee or the member of the
group message who were the employees to
have read the message before it was deleted
in the midnight hours---Petitioner does not
deserve punishment of dismissal from service-
--In the absence of evidence as to circulation
of message to pollute mind of people towards
the government, the government should have
appreciated his courage to show admission
and should have warned him to be careful in
future---Petitioner shall be reinSt.d in service
and shall be entitled to all consequential
benefits.

Petition allowed. (E-15)

List of Cases cited:

1. Taylor Vs Taylor (L.R.) 1 Ch. 426

2. Sirsi Municipality Vs Cecelia Kom Francis
Tellis, (1973) 1 SCC 409

3. Sukhdev Singh Vs Bhagatram Sardar Singh
Raghuvanshi, (1975) 1 SCC 421

4.
Krishna
Rai
(Dead)
through
legal
representatives Vs Banaras Hindu University &
ors.(2022) 8 SCC 713

5. U.O.I. & ors.Vs J. Ahmed: (1979) 2 SCC 286

6. Ram Kishan Vs U.O.I. & ors.: (1995) 6 SCC
157

7. Indian Railway Company Ltd. Vs Ajay Kumar
(2003) 2 UPLBEC 1206

8. Pushpak Jyoti Vs St. of U.P. & ors.: (2004) 1
UPLBEC 547
380 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Deen Dayal Shukla Vs St. of U.P. & ors.: 2005
(3) ESC 1814 (All)

10. St. Bank of India & ors.Vs Samarendra
Kishore Endow & anr.: (1994) ILLJ 872 SC

11. Mithilesh Singh Vs Union of India: (2003) 2
SCR 377

12. Kisan Sahkari Chini Mills Ltd. & ors.Vs
Presiding Officer, Labour Court, Lucknow & ors.:
2019 (8) ADJ 92

13. Rajendra Upadhyay Vs St. of U.P. &
ors.(Writ - A No.- 30927 of 2009)

14. Narinder Mohan Arya Vs United India
Insurance Company Ltd. & ors.: AIR 2006 SC
1748

15. Government of India & anr. Vs George
Philip: AIR 2007 SC 705

16. St. of Karn. & anr. Vs N. Gangaraj: (2020) 3
SCC 423

17. St. of A.P. Vs S. Sree Rama Rao: AIR 1963
SC 1723

18. Council of Civil Service Unions Vs Minister
for the Civil Service: 1984 (3) All ER 935

19. U.O.I. Vs P. Gunasekaran: (2015) 2 SCC 610

20. U.O.I. Vs Sardar Bahadur: (1972) 4 SCC 618

21. Associated Provincial Picture Houses Ltd. Vs
Wednesbury Corp..: (1947) 2 All ER 680

22. Gohil Vishvaraj Hanubhai & ors.Vs St. of
Guj.& ors.: (2017) 13 SCC 621

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

1. Heard Sri Anil Kumar Mehrotra,
learned counsel for the petitioner and Sri
Neeraj
Tripathi,
learned
Additional
Advocate General assisted by Sri R.D.
Mishra, learned Standing Counsel for the
State respondents.

2. Petitioner, who was working as
Additional Private Secretary in the State
Secretariat of U.P. has prayed for a writ of
certiorari for quashing the order dated 7th
September, 2020 passed by the respondent
No.- 2 terminating him from service.

3. Briefly stated facts are that
petitioner had a Whatsapp group with is
Mobile
No.-
9454410505
as
an
administrator. He claimed to have received
a message on 6th July, 2018 on aforesaid
mobile that "UGC के नियम से ओबीसी और दनितों के
निए दरवाजे नबिकुि बन्द हो चुके हैैैै
 । रामराज्य में CM
ठाकुर अजय नस ह योगी और DyCM प नित नदिेश शमाा िे
जानतवाद खत्म करते हुए गोरखपुर नवश्वनवद्यािय में 71 में 52
अपिी जानत को सहायक प्रोफेसर बिाया।"

"As per the UGC Regulations the
doors for OBC and Scheduled class are
closed. In these days of Ramrajya CM
Thakur Ajay Singh Yogi and Deputy CM
Pandit Dinesh Sharma in order to remove
casteism have appointed 52 candidates of
their caste out of total 71 candidates on the
post of Assistant Professor in Gorakhpur
University."

(English translation by the Court)

4. This message which was quite an
objectionable
remark
for
State
Government, petitioner wanted to delete
the same but due to inadvertent mistake he
pressed the key 'forward' and thus got the
message forwarded to the whatsapp group.
He made a request to the members of the
whatsapp group to delete the message.
Interestingly, nobody made a complaint to
the State Government but petitioner
himself expressed regret vide his letter on
9th July, 2018 addressed to the Chief
Secretary, Government of U.P. in following
terms:
12 All. Amar Singh Vs. State of U.P. & Ors.
381

" सेवा में

मुख्य सनचव,

उ० प्र० शासि।

महोदय,

सादर निवेदि सनहत अवगत कराया जािा है नक नदिा क
06.07.2018 को मेरे मोबाइि ि ० - 9454410505 पर
एक आपनिजिक स देश जो नक सरकार की आिोचिा से सम्बनन्ित
था प्राप्त हुआ था। इस स देश को आपनिजिक मािते हुए मेरे द्वारा
उक्त स देश को निनिट करिे का प्रयास नकया गया, िेनकि त्रुनटवश
यह स देश निनिट ि हो कर गित स्थाि पर टच हो जािे के कारण
ह्वाट्सअप ग्रुप पर प्रसाररत हो गया, नजसे मैिे सम्बनन्ितों को
व्यनक्तगत अिुरोि पर उक्त स देश निनिट करिे का अिुरोि नकया है।

उपयुाक्त कृत्य मुझसे गैरइरादति घनटत हो गया है इसके निए
मैं हानदाक रूप से खेद व्यक्त कर रहा ह ूँ एव मैं आश्वस्त ह ूँ नक इस
नदशा में भनवष्य में मैं सतका रह ूँगा।

नदिा क 09.07.2018

भवदीय

g0@viBuh;

(अमर नस ह-II)

अपर ड़नजी सड़चव।"

"To

The Chief Secretary

U.P. Government

Sir,

This is humbly submitted that on
06-07-2018 one objectionable message was
received on my mobile No. 9454410505
which was related to the criticism of the
government. Considering this message to
be objectionable, I had attempted to delete
the aforesaid message, however, instead of
being deleted, this message got circulated
on whatsapp group due to accidental touch,
for which a personal request was made by
me to the concerned to delete the abovesaid message.

The above act took place inadvertently
by me for which I express heart-felt
apology and assure that I shall remain alert
in future in this regard.

Dated:09-07-2018

Sincerely Yours

Sd/illegible

(Amar Singh-II)

Additional Private Secretary"

(English translation done by the Court)

5. It is upon the aforesaid letter that
State Government set up a departmental
inquiry by issuing a chargesheet to the
petitioner on 24th July, 2018 with two
charges:
(a)
You
have
forwarded
objectionable remarks made to the Chief
Minister and Deputy Chief Minister on
6th July, 2018 upon your CUG Mobile
No.-
9454410505;
and
(b)
The
objectionable message, which was a
serious remarks sent by you in the
whatsapp group has lowered the prestige
and respect of the State Government in
public eyes and has also eroded its trust.
Your above deed is against the U.P.
Government Servant's Conduct Rule,
1956 (hereinafter referred to as 'Conduct
Rules, 1956') and thus you are guilty of
the same.

6. In support of the above two
charges, the Government led four evidence
out of which three were related to the
provisions as contained under 3, 7 and 9
of the Conduct Rules, 1956 and the last
one was the message which petitioner
himself had reported to the Government.
Petitioner submitted a letter of request
on 6th September, 2018 to the Inquiry
Officer for verification as to whether the
person to whom message got forwarded,
had read the message and had really
caused damage to the prestige and
respect
of
the
Government
and
accordingly, he requested to be given
opportunity to examine those reports to
enable him to submit appropriate reply.
382 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Petitioner made a reminder letter
on 12th November, 2018 but when he did
not receive any reply, he submitted a
detailed reply to the charges levelled
against him in the chargesheet and denied
the charges. He claimed in his reply that he
had mistakenly forwarded the message and
the time between forwarding the message
and its deletion was too less but was quite
possible that message might have got
delivered to the members of the whatsapp
group. He submitted reply that he never
intended to forward any such message and,
therefore, the second charge of lowering
down the prestige and respect of the
Government in the mind of the people and
eroding its trust and credibility was all
misconceived.

8. The Inquiry Officer wrote a letter
to the petitioner on 29th July, 2018 in
response to his request letter dated 12th
November, 2018 in which petitioner had
made request to cross-examine those
members of the department who may have
received message and read the same
informing him that Special Secretary of the
State Secretariat had intimated him vide
letter dated 19th July, 2019 that no such
information
was
available
with
the
Government.
Thus,
there
was
no
departmental witness available to be crossexamined and accordingly, petitioner was
directed to appear before the Inquiry
Officer for oral inquiry and hearing. The
petitioner appeared before the Inquiry
Officer on 30th July, 2019 and prayed that
sympathetic approach be adopted and he
may be exonerated from the charges. He
submitted his written statement also before
the Inquiry Officer on the said date. The
Inquiry Officer concluded the inquiry and
submitted a report and did not find either
charge No.- 1 or charge No.- 2 to be
proved. In respect of the charge No.- 1 only
this much findings came to be returned by
the
Inquiry
Officer
that
there
was
admission on the part of the petitioner to
have forwarded the message to the
whatsapp group. Upon receiving such
inquiry report dated 13th August, 2019,
same was supplied to the petitioner vide
letter dated 17th September, 2019 to offer
his explanation, if any.

9. Petitioner again denied the charges
by submitting his explanation on 4th
October, 2019 and pleaded that whatsapp
group message was deleted by him and that
he had not authored the message and so for
inadvertent mistake of forwarding the
message to the whatsapp group, should be
taken to be a sheer inadvertent mistake on
his part without any intention to damage
the prestige and respect of the Government.

10. Surprisingly enough the State
Government instead of passing any order
upon seeking explanation of the petitioner
on the basis of the inquiry report, further
sought explanation from the Inquiry Officer
to verify as to what was the date and time
when the message was deleted and whether
option 'delete for everyone' was exercised
or only deleted for self.

11. In response to this letter the
Inquiry Officer wrote back to the authority
that the only option available to the
petitioner on whatsapp group was 'delete'
and so he deleted the message and for this
the delinquent employee had offered an
explanation that at that time there was old
version of whatsapp and that he was not
very technically sound so the only option
available on the mobile was 'delete' and he
touched the same.

12. The Inquiry Officer further
explained in his inquiry report that he has
12 All. Amar Singh Vs. State of U.P. & Ors.
383
recorded a categorical finding to the effect
that none of the members of the whatsapp
group have admitted to have received any
such message nor, any such evidence was
available and this was also proved from the
report submitted by the administration of
the Secretariat. The Inquiry Officer wrote
that he had demanded evidence from the
department but no such evidence was made
available by the department and so it was
sufficiently proved that before it could be
delivered to Whatsapp group members, it
got deleted.

13. The State Government instead of
further passing any order on the basis of
inquiry report, first constituted a two
member technical Committee under its
order dated 29th January, 2020 consisting
of Sri Amrit Tripathi, Special Secretary,
Secretariat (Administration) U.P. and Sri
Raj Kumar Gupta, Technical Director
(NIC) and Technical Advisor, Technical
U.P. Secretariat Lucknow and it required
the Technical Inquiry Committee to submit
a report.

14.
The
Deputy
Secretary,
Government of U.P. wrote a letter to the
Technical Director, NIC, a member of the
Committee to submit report on four
points:

(i). In the matter concerned when the
objectionable message was forwarded on
16th July, 2018 at around 11:26 pm in the
night what was the time available within
which the matter could have been deleted;

(ii). At what time the delinquent
employee had deleted the message;

(iii). Once the message has been
forwarded in the chat group from a mobile
then whether such a person can delete such
message for himself or for the entire group;
and

(iv). What option was exercised by the
petitioner for deleting the message whether
delete for him or delete for everyone.

15. The technical team submitted
report on 6th February, 2020 on above four
points stating therein that the message
could have been deleted after being
forwarded within one hour eight minutes
and 16 seconds (1 hours 8 minutes 16
seconds). It is for the delinquent employee
to tell exact time when the message was
deleted, message can be deleted from
handset from which it was sent. A message
in whatsapp group can be deleted only by
pressing the option 'delete for everyone'.

16. It is after receiving the aforesaid
report that the respondents proceeded to
pass order dated 7th September, 2020
holding
petitioner
guilty
of
serious
misconduct for forwarding objectionable
message against the Government which
sufficiently proved indiscipline, misconduct
and despotism and, therefore, he deserved
maximum punishment and consequently
the order of termination from service was
passed.

17. The arguments advanced by
learned counsel for the petitioner are :

(i) the second inquiry conducted by
technical Committee was de hors the
procedure prescribed for under the U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999 (hereinafter referred
to as 'Rules, 1999') inasmuch as copy
thereof having not been supplied to the
petitioner, respondents were not justified in
relying upon any such ex parte inquiry
report;

(ii) Petitioner was not made aware of
the proposed inquiry to be held by two
member Committee under the order of the
384 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government dated 29th January, 2020
as copy thereof was never supplied to the
petitioner nor, the technical committee so
formed permitted any participation of the
petitioner by issuing notice to him during
the inquiry. Thus, the principle of natural
justice were absolutely violated and order
impugned, therefore, is unsustainable on
this count alone;

(iii).
The
serious
charges
of
misconduct for circulation of objectionable
message and that too with deliberate
intention to cause damage to the prestige
and respect of the State Government,
having been found as not proved for want
of sufficient evidence by Inquiry Officer, a
mere allegation or part of the charge that
petitioner forward the message from his
mobile number was not grave enough to
inflict upon him maximum penalty of
termination
from
service.
Thus,
the
argument
is
that
punishment
is
disproportionate to the charge proved.

18. In support of the above
arguments,
learned
counsel
for
the
petitioner has placed before this Court the
report of Inquiry Officer dated 13th August,
2019 (Annexure-11 to the writ petition), the
clarification sought from the Inquiry
Officer by the State Government vide letter
dated 18th November, 2019 (Annexure -
13 to the writ petition), reply of the Inquiry
Officer
dated
16th
December,
2019
(Annexure-14 to the writ petition), inquiry
made from the petitioner by the Inquiry
Officer and reply under letter dated 2nd
December, 2019 and reply of the petitioner
to the same dated 12th December, 2019
(Part of the Annexure - 14 to the writ
petition). Letter dated 29th January, 2020
(Annexure - 15 to the writ petition) by the
Deputy Secretary of Government of U.P.
constituting two member technical inquiry
Committee. A letter written to the Technical
Advisor by the State Secretariat dated 5th
February, 2020 asking him to submit a
report on four points. The reply letter of the
Technical Advisor dated 6th July, 2020
(Annexure-16 to the writ petition) has been
submitted.

19. Learned counsel for the petitioner
has relied upon the judgment of England
and Wales Court of Appeal (Civil Division)
in the case of Associated Provincial
Picture Houses Ltd. v. Wednesbury
Corporation: (1947) 2 All ER 680,
judgment of Supreme Court in the case of
Union of India and others v. J. Ahmed:
(1979) 2 SCC 286, Ram Kishan v. Union
of India and others: (1995) 6 SCC 157,
Gohil Vishvaraj Hanubhai and others v.
State of Gujarat and others: (2017) 13
SCC 621, judgment of Allahabad High
Court in the case of Pushpak Jyoti v. State
of U.P. and others: (2004) 1 UPLBEC
547, Deen Dayal Shukla v. State of U.P.
and others: 2005 (3) ESC 1814 (All) &
Kisan Sahkari Chini Mills Ltd. and
others v. Presiding Officer, Labour
Court, Lucknow and others: 2019 (8)
ADJ 92.

20. Countering the submissions made
by learned counsel for the petitioner,
learned
Additional
Advocate
General
appearing for the State submitted that
admission is the best piece of evidence. As
petitioner has himself admitted to have
forwarded the objectionable message to the
whatsapp group being administrator of the
whatsapp group, it needed no further
evidence to prove that such message was
got circulated or not. He submits that even
if a message stands deleted in a group,
petitioner having failed to prove that the
message got deleted for all the members
and that they had not seen the message, the
presumption would be raised that he
12 All. Amar Singh Vs. State of U.P. & Ors.
385
circulated the message and thereby caused
damage to the prestige and respect of the
Government. On the issue of constitution of
the technical Committee and further
clarification sought from the Inquiry
Officer who had submitted the inquiry
report,
learned
Additional
Advocate
General submitted that it is always open for
the disciplinary authority to disagree with
the findings of the Inquiry Officer or even
to seek clarification from the Inquiry
Officer on certain points. He further argues
that Technical Committee report was not
such that required any further clarification
or deliberations involving the petitioner and
that was only in support of findings already
returned by the Inquiry Officer in support
of charge No.- 1, may be partly, that
petitioner had himself forwarded the
message. The technical issue was whether
petitioner had deleted the message or not
and whether he deleted the message for
himself or for all whatsapp group members.

21. He has sought to justify the order
for the reasons assigned therein and
submitted that the termination order is not
such which may dis-entitle the petitioner
from seeking appointment elsewhere. He
further submitted that this Court may not sit
in appeal over and above the findings
returned by the Inquiry Officer and the
decision taken by the disciplinary authority
except, of course, in the event this Court
comes to conclude that the procedure
adopted was de hors the procedure
prescribed for under the relevant service
rules.

22. Learned Additional Advocate
General has relied upon the judgment of
Supreme Court in the case of Union of
India v. Sardar Bahadur: (1972) 4 SCC
618, Narinder Mohan Arya v. United
India Insurance Company Ltd. and
others: AIR 2006 SC 1748, Government
of India and another v. George Philip:
AIR 2007 SC 705, Deputy Commissioner,
KVS and others v. J. Hussain: (2013) 10
SCC 106, State of Karnataka v. N.
Gangaraj: (2020) 3 SCC 423, Muzaffar
Husain v. State of U.P. and others: AIR
2022 SC 2216, Managing Director, ECIL,
Hyderabad and others v. B. Karunakar
and others, (1993) 4 SCC 727.

23. Having heard learned counsel for
the respective parties and their arguments
raised across the bar and having perused
the record and the authorities cited above, I
find two issues to be arising before this
Court:
(a)
Whether
the
procedure
adopted
in
conducting
inquiry
by
constituting technical team was foreign
to the concept of the regular inquiry as
contemplated under the Rules, 1999 and,
therefore, holding such inquiry was de
hors the procedure prescribed for; and
(b). Whether the punishment awarded to
the petitioner is disproportionate to the
guilt proved.

24. Coming to the first issue, it is
necessary to go through the procedure
prescribed under the Rules, 1999. Rule 7 of
Rules, 1999 contemplate regular inquiry for
the purposes of major penalty including the
penalty of dismissal/ termination from
service. Rule 7 of 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.
386 INDIAN LAW REPORTS ALLAHABAD SERIES

(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-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
12 All. Amar Singh Vs. State of U.P. & Ors.
387
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."

(Emphasis added)

25. From bare reading of aforesaid
rules it is apparent that the chargesheet with
definite charges with the approval of
disciplinary authority shall be served upon
delinquent employee and then charged
Government
servant
shall
be
given
opportunity to submit reply but the inquiry
shall be held by the Inquiry Officer in the
event Government servant denies the
charges. It shall record oral evidence of the
witnesses proposed in the chargesheet in
presence of the charged Government servant,
who shall have the opportunity to crossexamine the witnesses. The Inquiry Officer
shall call and record the oral evidence also
which the charged Government servant
desired in his written statement to be
produced in his defence. The Inquiry Officer
is also vested with the authority to call for
witness to give evidence if so required or to
produce the documents before him in
accordance with the provisions of U.P.
Departmental Inquiries (Enforcement of
Attendance of Witnesses and Production of
Documents) Act, 1976. The disciplinary
authority after recording evidence, perusing
the documents, getting the oral testimony of
the departmental witness and that of the
defence witness, shall proceed to prepare the
report.

26. After inquiry report is submitted
as per Rule 9 of Rules, 1999, the
disciplinary authority shall proceed to take
action on the report. For its better
appreciation
Rule
9
is
reproduced
hereunder:

"9. Action on Inquiry Report.- (1)
The
disciplinary
authority
may,
for
reasons to be recorded in writing, remit
the case for re-inquiry to the same or any
other Inquiry Officer under intimation to
the charged Government servant. The
Inquiry Officer shall thereupon proceed to
hold the inquiry from such stage as directed
by the disciplinary authority, according to
the provisions of Rule 7.

(2) The disciplinary authority shall, if
it disagrees with the findings of the
388 INDIAN LAW REPORTS ALLAHABAD SERIES
Inquiry Officer on any charge, record its
own findings thereon for reasons to be
recorded.

(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;

(4) If the disciplinary authority having
regard to its findings on all or any of
charges is of the opinion that any penalty
specified in Rule 3 should be imposed on
the charged 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."

(Emphasis added)

27. From bare reading of the aforesaid
Rule 9(1) it is clear that the disciplinary
authority for the reasons to be recorded in
writing, is entitled to remit the case for reinquiry by the same Inquiry Officer or any
other Inquiry Officer under intimation to
the charged Government servant. The
Inquiry Officer thereafter shall proceed to
inquire from such stage as directed by the
disciplinary authority. Sub-rule 2 of Rule 9
provides for disciplinary authority to
disagree with the findings returned by the
Inquiry officer at any charge and may
record its own findings thereon for the
reasons to be recorded. Sub-rule 3 of Rule
9 provides that in the event charges are not
proved the charged Government servant
shall be exonerated by the disciplinary
authority of the charges and shall inform
him accordingly. Sub-rule 4 of Rule 9
provides that if it comes to conclude that
any penalty as proposed under Rule 3 of
Rules, 1999 deserved to be imposed upon
the charged Government servant, the
authority shall give a copy of the inquiry
report and its findings recorded under subrule (4) to the charged Government servant
and shall require him to submit his
representation within a specified time and
then shall proceed to impose punishment as
prescribed under Rule 3.

28. From the discussions as made
above qua Rule 7, 8 & 9 three stages are
clearly postulated under the Rules:

(i). Setting up a regular inquiry in the
event of major penalty with the issuance of
chargesheet and appointment of Inquiry
Officer and issuance of an approved
chargesheet by the disciplinary authority
calling for reply;

(ii) Disciplinary Inquiry Officer is to
hold inquiry in detail both oral as well as
requiring documentary evidence and then
to submit report;

(iii) With the submission of report it is
open for the disciplinary authority to order
inquiry de novo, or disagree with the Inquiry
Officer for the reason on the findings by
assigning reasons and in the event decides to
propose major penalty under Rule 3, shall cause
service to the inquiry report or his decision of
the proposed punishment upon the delinquent
employee requiring his representation within
specified period; and then if charges are not
proved, charged Government servant shall be
exonerated by disciplinary authority.

29. From the perusal of the inquiry
report in the instance case, I find that
12 All. Amar Singh Vs. State of U.P. & Ors.
389
Inquiry Officer concluded that charge No.-
1 insofar as the circulation of objectionable
message by way of criticism of the
Government as per the Rule 9 of Rules,
1956 was not proved at all. Since the
intention of circulation of objectionable
message which amounted to criticism of
the Government by way of unauthorized
communication
or
dissemination
of
information was not proved, the act and
conduct of the petitioner amounting to
misconduct by criticism of the Government
and
not
conducting
himself
as
the
Government
servant
with
disciplined
behaviour as per Rules 3 and 7 of Rules,
1956 was also not proved. The Inquiry
Officer found the charge to the extent of
forwarding of message in question in the
whatsapp group was proved only for the
admission made by the petitioner himself.

30. Interestingly, the department had
no witness to place before the Inquiry
Officer to record his oral statement, nor had
any documentary evidence to prove that
such
objectionable
message
stood
circulated in the whatsapp group and that
those members of the whatsapp group had
read it or otherwise made it public.

31. The enquiry report when got
submitted to the Disciplinary authority, the
disciplinary authority in order to verify the
correctness of intention and innocence as
pleaded by the petitioner that though he
wanted to delete the message but got it
forwarded and then he subsequently
deleted, made certain queries from the
Inquiry Officer under letter dated 18th
November,
2019.
In
turn
on
26th
November, 2019 the Inquiry Officer made
certain further queries from the petitioner
to
which
petitioner
replied
on
2nd
December, 2019 and 12th December, 2019
and the Inquiry Officer submitted report
that may be called as supplementary report
on 16th December, 2019. This report again
categorically recorded that as per the
statement of the delinquent employee it
was old version of Whatsapp where only
option 'delete' as such was available which
the delinquent employee had pressed and
that despite demand raised for available
evidence with the department in support of
the charge, nothing was placed before the
Inquiry Officer which sufficiently proved
that the message stood deleted.

32. In support of this supplementary
report I would like to refer to the letter of
the Inquiry Officer written to the petitioner
on 29th July, 2019 during pendency of the
inquiry that despite letter written to the
office of the Chief Minister regarding
availability of any such material in support
of the charge, he was informed vide letter
dated 9th July, 2019 that no such document
was available. After this supplementary
report was submitted though it is not styled
as
a
supplementary
report
to
the
disciplinary authority, State Government
proceeded to constitute a Committee
afresh, called as a 'Technical Committee' of
two members to further seek clarification
on four points.

33. This letter of Deputy Secretary
dated 29th January, 2020 followed by 5th
February, 2020 does not show any
disagreement with the findings of the
Inquiry Officer in his report exonerating the
petitioner of the two charges, the only
clarification instead, was sought as to the
message being deleted or not in time. The
technical committee also submitted a report
that all this could have been disclosed only
by delinquent employee himself whether he
deleted the message for everyone or not, or
whether he actually deleted the message or
not.
390 INDIAN LAW REPORTS ALLAHABAD SERIES

34. This kind of constitution of
inquiry committee without showing any
disagreement on certain definite findings
retuned by Inquiry Officer not finding any
reason to bring home the charges, is not
contemplated under Rule 9(2) of Rule,
1999. The defence taken by the learned
Additional Advocate General that this was
only clarificatory as the technical team
could have submitted a better report, cannot
find
favour
because
the
disciplinary
authority had itself sought clarification
from the Inquiry Officer under letter dated
18th November, 2019 and that was
sufficient enough. The Inquiry Officer did
submit report on 16th November, 2019, a
report was quite supplementary in nature,
which
carried
the
statement
of
the
petitioner that message was deleted. In
absence of any disagreement with the same,
decision
to
constitute
any
Technical
Committee as such to further enquire into
the matter, was totally uncalled for.

35. This administrative exercise of
power is foreign to the concept of
'authority' vested with the disciplinary
authority looking to the provisions as
contained under Rule 9(2) of the Rules,
1999. There is no concept of second
enquiry de novo by appointing any other
Inquiry Officer under the Rules, 1999.
Thus, the argument advanced by learned
counsel for the petitioner that entire second
inquiry may be called a Technical Enquiry
Committee was totally de hors the
procedure prescribed for. I further find that
the show cause notice was already issued to
the petitioner on 17th November, 2019
asking him to submit his representation, did
not disclose any proposed punishment
except to the extent that he had himself
forwarded the objectionable message. It is
after petitioner had submitted reply to the
same that supplementary inquiry report was
called
for
and,
therefore,
in
these
circumstances, the second technical inquiry
held under the letter dated 29th January,
2020 was required to have due participation
of
the
petitioner
but
unfortunately
petitioner was not informed of any such
inquiry held by the respondent concerned.

36. In paragraph 42 it has been
categorically stated that the technical
inquiry report was ex parte. This paragraph
42 has been replied vide paragraph 42 of
the counter affidavit with the remarks that
"it need no comments being matter of
record and thus can be verified from the
same".

37. Thus, it is absolutely clear that the
inquiry report was obtained in gross
violation of principles of natural justice and
it is a fair admission on the part of the
respondent, inasmuch as the procedure
adopted being de hors the rules, is liable to
be held arbitrary and illegal and so resultant
action is liable to be held void. When a
thing is required to be done in a manner
that must be done in that manner alone.
(Taylor v. Taylor (L.R.) 1 Ch. 426).

38. This above principle is based
upon the legal maxim "Expressio unius est
exclusio alterius", meaning thereby that if
a statute provides for a thing to be done in
a particular manner, then it has to be done
in that manner and in no other manner and
following some other course is not
permissible. This maxim has consistently
been followed in a number of decisions to
begin with in Chandra Kishore Jha v.
Mahavir Prasad, (1999) 8 SCC 266;
Haresh Dayaram Thakur v. State of
Maharashtra, (2000) 6 SCC 179 : AIR
2000 SC 2281; Delhi Administration v.
Gurdip Singh Uban, (2000) 7 SCC 296;
Dhanajaya Reddy v.