# Anoop Kumar Singh v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 1220
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-09
- **Case number:** Writ-A No. 3074 of 2021
- **Bench:** Ramesh Sinha, Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anoop-kumar-singh-v-state-of-u-p-ors-49578
- **Pages:** 7

## Headnote

A. Service Law - Suspension/Punishment
- U.P. Government Servant Conduct Rules,
1956 - Rule 3 - Disciplinary proceedings
can be initiated against an employee in
respect of the action, even if it pertains to
exercise
of
judicial
or
quasi-judicial
powers. If a servant conducts himself in a way
inconsistent with the faithful discharge of his
duty in the service, it is misconduct which
justifies immediate dismissal. (Para 13, 14)

It is not necessary that a member of the
service should have committed the alleged act
or omission in the course of discharge of his
duty as a servant of the Government in order
that it may form the subject matter of
disciplinary proceedings. In other words, if
the act or omission is such as to reflect the
reputation of the officer for his integrity or
good faith or devotion to duty, there is no
reason why disciplinary proceedings should
not be taken against him for that act or
omission. (Para 12)

In the instant case, it is not in dispute that
the assessment so made by the petitioner for
the assessment year 2014-15 vide order
dated
20.09.2018
upon
which
he
was
subjected to inquiry was challenged by the
trader, namely, Shashi Sales, in the Court of
Additional Commissioner Grade-2 (Appeal),
Lucknow and the Appellate Authority, vide
order dated 05.10.2018, allowed the appeal
and quashed the order of assessment dated
20.09.2018 and remitted the matter to the
assessing officer for re-assessment of tax.
Thus, it appears that no revenue loss has
incurred to the government. (Para 17)

B. Due and proper opportunity of hearing -
The impugned order passed by the Tribunal
indicates that the issue was raised before it but
it came to a contrary finding by holding that
since the enquiry was based on the basis of
quasi-judicial order passed by the petitioner,
hence there was no requirement to hold a fullfledged enquiry. Where the charge-sheet
has been served on the petitioner and
major punishment is proposed, which has
been awarded to the petitioner, in such
circumstances, a proper enquiry ought to
have been held and it cannot be skirted by
saying that there was no need for holding
the same as it was based on documents.
Even if, at all, the said enquiry was based on
documents, the least that could have been
done, was to prove the said documents
inasmuch as it has been noticed that it was
not the legality of the order which was in
issue rather it was the manner in which
the order was passed, upon which the
charge-sheet was issued and was the
subject matter of the enquiry against the
petitioner. This aspect of the matter has been
completely lost sight off by the enquiry officer
as well as disciplinary authority and has also
1 All. Anoop Kumar Singh Vs. State of U.P. & Ors.
1221
been noted appropriately noticed by the
Tribunal. (Para 18, 19)

As per the principles laid down by the Apex
Court in Union of India & Ors. Vs K.K. Dhawan
(Infra) and the facts and circumstances of the
case, findings recorded by the Inquiry Officer
are totally vitiated for want of any legally
acceptable or relevant evidence to support the
charges of misconduct and in absence of any
evidence, the conclusion reached by the inquiry
officer affirmed by the disciplinary authority also
stand vitiated. (Para 20)

Writ petition allowed. Matter remitted to
enquiry officer. (E-4)

Precedent followed:

## Text

1220 INDIAN LAW REPORTS ALLAHABAD SERIES
considered by the Authorities at the
instance of the writ petitioner, relating to
the validity of the electoral college, once
the writ petitioner's membership of the
Society and a fortiori the general body of
the institution is non-existent.

20. We, therefore, see no reason to
interfere with the impugned order passed
by the learned Single Judge.

21. The Special Appeal fails and is
dismissed.
----------
(2023) 1 ILRA 1220
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.01.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE JASPREET SINGH, J.

Writ-A No. 3074 of 2021

Anoop Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rishi Raj, Sri Vinay Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension/Punishment
- U.P. Government Servant Conduct Rules,
1956 - Rule 3 - Disciplinary proceedings
can be initiated against an employee in
respect of the action, even if it pertains to
exercise
of
judicial
or
quasi-judicial
powers. If a servant conducts himself in a way
inconsistent with the faithful discharge of his
duty in the service, it is misconduct which
justifies immediate dismissal. (Para 13, 14)

It is not necessary that a member of the
service should have committed the alleged act
or omission in the course of discharge of his
duty as a servant of the Government in order
that it may form the subject matter of
disciplinary proceedings. In other words, if
the act or omission is such as to reflect the
reputation of the officer for his integrity or
good faith or devotion to duty, there is no
reason why disciplinary proceedings should
not be taken against him for that act or
omission. (Para 12)

In the instant case, it is not in dispute that
the assessment so made by the petitioner for
the assessment year 2014-15 vide order
dated
20.09.2018
upon
which
he
was
subjected to inquiry was challenged by the
trader, namely, Shashi Sales, in the Court of
Additional Commissioner Grade-2 (Appeal),
Lucknow and the Appellate Authority, vide
order dated 05.10.2018, allowed the appeal
and quashed the order of assessment dated
20.09.2018 and remitted the matter to the
assessing officer for re-assessment of tax.
Thus, it appears that no revenue loss has
incurred to the government. (Para 17)

B. Due and proper opportunity of hearing -
The impugned order passed by the Tribunal
indicates that the issue was raised before it but
it came to a contrary finding by holding that
since the enquiry was based on the basis of
quasi-judicial order passed by the petitioner,
hence there was no requirement to hold a fullfledged enquiry. Where the charge-sheet
has been served on the petitioner and
major punishment is proposed, which has
been awarded to the petitioner, in such
circumstances, a proper enquiry ought to
have been held and it cannot be skirted by
saying that there was no need for holding
the same as it was based on documents.
Even if, at all, the said enquiry was based on
documents, the least that could have been
done, was to prove the said documents
inasmuch as it has been noticed that it was
not the legality of the order which was in
issue rather it was the manner in which
the order was passed, upon which the
charge-sheet was issued and was the
subject matter of the enquiry against the
petitioner. This aspect of the matter has been
completely lost sight off by the enquiry officer
as well as disciplinary authority and has also
1 All. Anoop Kumar Singh Vs. State of U.P. & Ors.
1221
been noted appropriately noticed by the
Tribunal. (Para 18, 19)

As per the principles laid down by the Apex
Court in Union of India & Ors. Vs K.K. Dhawan
(Infra) and the facts and circumstances of the
case, findings recorded by the Inquiry Officer
are totally vitiated for want of any legally
acceptable or relevant evidence to support the
charges of misconduct and in absence of any
evidence, the conclusion reached by the inquiry
officer affirmed by the disciplinary authority also
stand vitiated. (Para 20)

Writ petition allowed. Matter remitted to
enquiry officer. (E-4)

Precedent followed:

1. S. Govinda Menon Vs U.O.I., AIR 1967 SC
1274 (Para 12)

2. Pearce Vs Foster, (1966) 7 QBD 536 (Para 14)

3. U.O.I. Vs K.K. Dhawan, AIR 1993 SC 1478
(Para 15)

4. St. of U. P. & ors. Vs Saroj Kumar Sinha,
(2010) 2 SCC 772 (Para 9)

Present petition assails judgment and
order dated 22.10.2020, passed by the
State Public Services Tribunal, Indira
Bhawan,
Lucknow
in
Claim
Petition
preferred by the petitioner against the
punishment order dated 04.09.2019 as
well as order dated 02.03.2020, by which
petitioner's
representation
to
His
Excellency, the Governor of U.P. on
01.10.2019, was rejected.

(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Jaspreet Singh, J.)

(1) Feeling aggrieved and dissatisfied
with the judgment and order dated
22.10.2020 passed by the State Public
Services
Tribunal,
Indira
Bhawan,
Lucknow (hereinafter referred to as "the
Tribunal") in Claim Petition No. 1886 of
2019 : Anoop Kumar Singh Vs. State of
U.P. and another, by which the said claim
petition preferred by the petitioner against
the punishment order dated 04.09.2019 was
dismissed, instant writ petition has been
preferred by the petitioner.

(2) The facts leading to the instant
appeal, in a nutshell, are as under :-

Initially,
the
petitioner
was
appointed on the post of Commercial Tax
Officer in the year 2002. Later on, his post
was designated as Assistant Commissioner,
Commercial Tax and while working as
such, the petitioner was placed under
suspension vide order dated 22.10.2018 on
the
ground
of
alleged
irregularities
committed by him while passing tax
assessment order in regard to M/s Shashi
Sales, Lucknow for the assessment year
2014-15. A charge-sheet dated 22.10.2018
was served upon the petitioner, levelling
seven charges against him. The Joint
Commissioner, Commercial Tax Officer's
Training Institute, Lucknow was appointed
as Enquiry Officer, who, after completion
of enquiry, submitted its report dated
22.01.2009, wherein it has been stated that
charge nos. 5 and 6 levelled against the
petitioner was not proved, whereas charge
nos. 1, 2, 4 and 7 were proved and charge
no.3 was partly proved. Thereafter, the
Disciplinary Authority had issued a show
cause notice dated 12.02.2019 to the
petitioner along with the copy of the
enquiry report dated 22.01.2019, to which
the petitioner had submitted his reply. After
that the Disciplinary Authority had passed
the punishment order dated 04.09.2019,
withholding
three
increments
with
cumulative effect and a censure entry.

(3) Against the aforesaid punishment
order dated 04.09.2019, the petitioner has
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
preferred claim petition No. 1886 of 2019
before the Tribunal, which was dismissed
by the Tribunal vide judgment and order
dated 22.10.2020. Feeling aggrieved, the
instant writ petition has been filed by the
petitioner.

(4) Heard Shri Rishi Raj, learned
Counsel for the petitioner and Shri
Abhiyudya
Mishra,
learned
Standing
Counsel for the State/respondents and
perused the impugned judgment passed by
the Tribunal as well as material brought on
record.

(5)

Challenging
the
impugned
judgment and order dated 22.10.2020
passed by the Tribunal, learned Counsel for
the petitioner has contended that on the
basis of any tax assessment order, the
concerned tax assessment officer cannot be
punished as he performed the quasi judicial
function. He further argued that if there is
any objection against the assessment order
passed by the Assessing Officer, the appeal
can be filed before the appellate authority
against that said assessment order. He
further argued that against the order of
assessment dated 20.09.2018 passed by the
petitioner, the trader had filed first appeal
before the appellate authority, which was
allowed by the appellate authority and
quashed
the
assessment
order
dated
20.09.2018 and remanded the matter to the
assessing officer for re-assessment of the
tax liability vide order dated 05.10.2018, a
copy of which has been annexed as
Annexure No.12 to the writ petition.

(6) Elaborating his submission, learned
Counsel for the petitioner has contended that
on the basis of passing any tax assessment
order, the concerned officer cannot be
punished as he performed the quasi judicial
function while passing the assessment order
and if any negligence is being committed, he
shall not be inflicted with the major
punishment in the manner as the petitioner
has been subjected to. His submission is that
the
Tribunal,
without
considering
the
aforesaid aspect of the matter, erred in
dismissing the claim petition preferred by the
petitoner.

(7) Learned Counsel for the petitioner
has next argued that the departmental
proceedings have been concluded against the
petitioner in violation of principles of natural
justice and without providing the evidence
against him inasmuch as the Inquiry Officer
has not associated the trader against which
the assessment order was passed by the
petitioner. The request of the petitioner for
producing evidence in his support was not
entertained by the Inquiry Officer. The
Disciplinary Authority, before passing the
punishment order, has failed to consider the
fact that the petitioner has performed a quasi
judicial function for which he could not be
held guilty and punished. His submission is
that the Tribunal has not considered the
aforesaid aspect of the matter while passing
the impugned order.

(8) Lastly, learned Counsel for the
petitioner has submitted that on 25.06.2020,
the Departmental Promotion Committee for
the purpose of promotion to the post of
Deputy Commissioner, Commercial Tax was
held and the similarly situated Trade Tax
Officers of 2002 batch have been promoted
on the post of Deputy Commissioner,
Commercial
Tax
Department
but
the
petitioner is still stagnant on the post of
Assistant Commissioner due to the impugned
action of the respondents.

(9) To strengthen his submission,
learned Counsel for the petitioner has
placed reliance upon the judgment of the
1 All. Anoop Kumar Singh Vs. State of U.P. & Ors.
1223
Apex Court in State of Uttar Pradesh and
others Vs. Saroj Kumar Sinha : (2010) 2
SCC 772, wherein in para-28, the Apex
Court observed that an enquiry 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.

(10) Learned Standing Counsel, on the
other hand, has submitted that while posted as
Assistant Commissioner, Commercial Tax,
Lucknow, the petitioner was kept under
suspension vide order dated 22.10.2018 for
irregularity committed by him in disposal of
Tax Assessment Order for the year 2014-15
with respect to the firm namely, Shashi Sales
Lucknow and disciplinary proceeding was
initiated against the petitioner and charge-sheet
was issued to the petitioner, levelling seven
charges against him. On receipt of the chargesheet, the petitioner has submitted the reply to
the charge-sheet on 10.12.2018. The Inquiry
Officer conducted the inquiry by fixing the
date, time and place and the petitioner was
given full opportunity of hearing in the
enquiry proceedings. The Inquiry Officer after
conclusion of the inquiry submitted the inquiry
report dated 22.01.2019 to the disciplinary
authority. The said inquiry report dated
22.1.2019 was supplied to the petitioner
through the letter dated 12.02.2019 keeping in
view sub-rule 4 of Rule 9 of the U.P.
Government Servant (Discipline and Appeal)
Rules, 1999, seeking his reply on the inquiry
report. In response thereof, the petitioner
submitted his reply to the show cause notice
dated 12.02.2019 through his letter dated
26.02.2019. After receipt of the reply of the
petitioner through letter dated 26.02.2019, the
U.P.
Public
Service
Commission
was
consulted and after the advice of the U.P.
Public Service Commission dated 19.08.2019,
the punishment order dated 04.09.2019 was
passed against the petitioner, withholding his
three increments with cumulative effect as
well as censure entry was also given, keeping
in view the fact of not adhering to the
departmental
procedures,
violating
the
Government Orders and also for violating
Rule 3 of the U.P. Government Servant
Conduct Rules, 1956. Against the aforesaid
punishment order dated 04.09.2019, the
petitioner submitted his representation to His
Excellency, the Governor of U.P. on
01.10.2019 which was rejected by means of
the order dated 02.03.2020. Feeling aggrieved,
the petitioner has preferred the claim petition
before the Tribunal, which was dismissed by
means of the impugned order. His submission
is that there is no illegality or perversity in the
impugned order and the instant writ petition is
liable to be dismissed.

(11)

We
have
examined
the
submissions advanced by the learned
Counsel for the parties and gone through
the impugned judgment and material
brought on record.

(12) Before proceeding further, it
would be apt to mention here that in S.
Govinda Menon Vs. Union of India : AIR
1967 SC 1274, the Apex Court has held as
under:-

" ..... It is not necessary that a
member of the service should have
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
committed the alleged act or omission in
the course of discharge of his duty as a
servant of the Government in order that it
may form the subject matter of disciplinary
proceedings. In other words, if the act or
omission is such as to reflect the reputation
of the officer for his integrity or good faith
or devotion to duty, there is no reason why
disciplinary proceedings should not be
taken against him for that act or omission....
The test is whether the act or omission has
some reasonable occasion with nature and
condition of his service or where the act or
omission has caused any reflection upon
the reputation of the member of the service
for integrity or devotion of duty as a public
servant.... The proposition put forward was
that quasi-judicial orders, unless vacated
under the provisions of the Act, are final
and binding and cannot be questioned by
the
executive
government
through
disciplinary proceedings..... The charge is,
therefore,
one
of
misconduct
and
recklessness
disclosed
by
the
utter
disregard of the relevant provisions.......
But in the present proceedings what is
sought to be challenged is not the
correctness or the legality of the decision of
the Commissioner but the conduct of the
appellant in the discharge of his duty as
Commissioner.
The
appellant
was
proceeded against because in the discharge
of his function, he acted in utter disregard
of the provisions of the Act and the Rules.
It is the manner in which he discharges his
function
that
brought
up
in
these
proceedings.....It is manifest, therefore, that
though the propriety and legality of the
sanction to the leases may be question in
appeal or revision under the Act the
Government is not precluded from taking
disciplinary act if there is proof that the has
acted in gross recklessness in the discharge
of his duties or that he failed to act honestly
or in good faith or that he omitted to
observe the prescribed conditions which are
essential for the exercise of the statutory
power."

(13) Thus, the aforesaid judgment is
an authority that disciplinary proceedings
can be initiated against an employee in
respect of the action, even if it pertains to
exercise
of
judicial
or
quasi-judicial
powers.

(14) In S. Govinda Menon (supra),
the Apex Court had relied upon the
judgment in Pearce Vs. Foster, (1966) 17
QBD 536, wherein it had been held as
under:-

"If a servant conducts himself in
a way inconsistent with the faithful
discharge of his duty in the service, it is
misconduct
which
justifies
immediate
dismissal."

(15) The Supreme Court in Union of
India & Ors. Vs. K.K. Dhawan, AIR 1993
SC 1478, relied upon its earlier judgment in S.
Govinda Menon (supra) and observed that the
officer who exercises judicial or quasi-judicial
powers, acts negligently or recklessly or in
order to confer undue favour on a person, is not
acting as a Judge, and in the disciplinary
proceedings, it is the conduct of the officer in
discharge of his official duties and not the
correctness or legality of his decisions or
judgments which are to be examined, as the
legality of the orders can be questioned on
appellate or revisional forum. In such a case the
Government cannot be precluded from taking
the disciplinary action for violation of the
Conduct Rules. The Apex Court summarised
some circumstances in which disciplinary
action can be taken, which are as under:-

"(i) Where the Officer had acted
in a manner as would reflect on his
1 All. Anoop Kumar Singh Vs. State of U.P. & Ors.
1225
reputation or integrity or good faith or
devotion of duty;

(ii) if there is, prima facie,
material
to
show
recklessness
or
misconduct in the discharge of his duty;

(iii) if he has acted in a manner
which is unbecoming of a Government
servant;

(iv) if he had acted negligently or
that he omitted the prescribed conditions
which are essential for the exercise of the
statutory powers;

(v) if he had acted in order to
unduly favour a party;

(vi) if he had been actuated by
corrupt motive, however, small the bribe
may be, because Lord Coke said long ago "
though the bribe may be small, yet the fault
is great."

(16) The Apex Court further observed
that the said instances were not exhaustive.
However, it was further observed by the
Apex Court that each case would depend
upon the facts and circumstances of that
case, and no absolute rule can be
postulated.

(17) In the instant case, it is not in
dispute that the assessment so made by the
petitioner for the assessment year 2014-15
vide order dated 20.09.2018 upon which he
was subjected to inquiry was challenged by
the trader, namely, Shashi Sales, in the
Court of Additional Commissioner Grade-2
(Appeal), Lucknow in Appeal No. 410 of
2018 and the Appellate Authority, vide
order dated 05.10.2018, allowed the appeal
and quashed the order of assessment dated
20.09.2018 and remitted the matter to the
assessing officer for re-assessment of tax.
A copy of the appellate order dated
05.10.2018 has been annexed with the
instant writ petition. Thus, it appears that
no revenue loss has incurred to the
government.

(18) That once it is noticed that the
departmental enquiry can proceed against a
delinquent
employee
relating
to
the
discharge of its duty in service and not
confining to the correctness of the order,
hence in the aforesaid circumstances, the
contention of the learned Counsel for the
petitioner that he was not given a due and
proper opportunity of hearing is to be
examined. It has been specifically urged by
the Counsel for the petitioner that no date,
time and place of the enquiry was fixed.

(19) From perusal of the impugned
order passed by the Tribunal also indicates
that the issue was raised before it but it
came to a contrary finding by holding that
since the enquiry was based on the basis of
quasi-judicial
order
passed
by
the
petitioner, hence there was no requirement
to hold a full-fledged enquiry. This aspect
could not be disputed by the learned
Standing
Counsel
nor
it
could
be
demonstrated that the petitioner was
granted due opportunity. Where the chargesheet has been served on the petitioner and
major punishment is proposed, which has
been awarded to the petitioner, in such
circumstances, a proper enquiry ought to
have been held and it cannot be skirted by
saying that there was no need for holding
the same as it was based on documents.
Even if, at all, the said enquiry was based
on documents, the least that could have
been done, was to prove the said
documents inasmuch as it has been noticed
that it was not the legality of the order
which was in issue rather it was the manner
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
in which the order was passed, upon which
the charge-sheet was issued and was the
subject matter of the enquiry against the
petitioner. This aspect of the matter has
been completely lost sight off by the
enquiry officer as well as disciplinary
authority
and
has
also
been
noted
appropriately noticed by the Tribunal.

(20) Taking note of principles laid
down by the Apex Court in Union of India
& Ors. Vs. K.K. Dhawan (Supra) and
considering the facts and circumstances of
the case, we find that findings recorded by
the Inquiry Officer are totally vitiated for
want of any legally acceptable or relevant
evidence to support the charges of
misconduct and in absence of any evidence,
the conclusion reached by the inquiry
officer
affirmed
by
the
disciplinary
authority also stand vitiated.

(21) In view of the aforesaid, the
instant writ petition succeeds and is
allowed. The impugned judgment and
order dated 22.10.2020 passed by the
Tribunal,
punishment
order
dated
04.09.2019 and the order dated 02.03.2020
are hereby quashed. The matter shall stand
remitted to the enquiry officer, who, shall
after giving due opportunity of hearing to
the petitioner, providing all the documents
and considering the legally admissible
evidence, shall proceed with the enquiry
and endeavour be made that the same is
taken to its logical conclusion within six
months from the date a copy of this order is
produced before the authority concerned. It
is also directed that the petitioner shall not
seek any unnecessary adjournments and if
he does not co-operate in the early
conclusion of the enquiry, the enquiry
officer shall be well within his rights to
proceed in the matter in accordance with
law.
----------
(2023) 1 ILRA 1226
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2022

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ-A No. 39214 of 2017

Mohd. Arif Khan ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Parvez Alam, Sri Namit Srivastava

Counsel for the Respondents:
A.S.G.I., Sri Anil Kumar Pandey, Sri Arvind
Kumar Goswami

A. Service Law - Disciplinary Proceedings
- Punishment - Indian Penal Code:
Section 302, 201; CRPF Act: Section 11(1)
- Unauthorized absence from duty - If the
absence
is
the
result
of compelling
circumstances under which it was not
possible to report or perform duty, such
absence cannot be held to be wilful.
Absence from duty without any application or
prior permission may amount to unauthorised
absence, but it does not always mean wilful.
There may be different eventualities due to
which an employee may abstain from duty,
including compelling circumstances beyond his
control like illness, accident, hospitalisation, etc.,
but in such case the employee cannot be held
guilty of failure of devotion to duty or behaviour
unbecoming of a government servant. In a
departmental proceeding, if allegation of
unauthorised absence from duty is made,
the disciplinary authority is required to
prove that the absence is wilful, in the
absence of such finding, the absence will
not amount to misconduct. (Para 27)

It is to be seen that the petitioner has remained
on unauthorized absence from duty primarily on
account of pendency of criminal case against