# Ashish Kumar Tiwari v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-16
- **Case number:** Writ-A No. 12055 of 2017
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kumar-tiwari-v-state-of-u-p-ors-46133
- **Pages:** 10

## Headnote

A. Civil Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
7 - Service law - Departmental Inquiry -
Major Penalty - Chargesheet not in
conformity with the Rules - No intimation
of date, time and venue of inquiry - Effect
- Procedural Safeguard - Held, Imposition
of a major penalty on a Government
servant is a serious matter, and no matter
how serious the charge is, procedural
safeguards have to be strictly ensured -
Obligation to intimate the date, time and
venue of inquiry is of seminal importance
- A Government servant, who does not file
a reply to the charge sheet, is entitled to
appear at the inquiry and cross-examine
witnesses for the establishment and make
his submissions. (Para 14 and 18)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

1 All. Ashish Kumar Tiwari Vs. State of U.P. & Ors.
867
impermissible in light of the caveats carried in
the advertisements and notices issued by the
respondents as well as the declarations made by
the candidates themselves while participating in
the recruitment process. It would not only be
iniquitous but also detrimental to public interest
to command the respondents to permit
rectifications at the fag end of a recruitment
exercise which commenced in December 2018.
The stipulations contained in the advertisements
and notices issued were never assailed by the
petitioners prior to participating in the
recruitment process. It would be unfair not just
to the respondents but to the other selected
candidates to now accord them such permission
which would necessarily result in the selection
process being stalled and derailed. This Court
as well as the Supreme Court has consistently
taken the view that such a course being tread
would be wholly unfair and unwarranted. The
Court repels the challenge to the Government
Order of 4 December 2020 being contrary to
the mandate of Rule 14. It also negatives its
challenge on the ground of being discriminatory
or unfair.

51. These petitions shall consequently
stand disposed of with liberty to the State
respondents to evaluate the case of each of
the petitioners before this Court in light of
the Government Order dated 4 December
2020.
----------
(2021)01ILR A867
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2020

BEFORE

THE HON'BLE J.J.MUNIR, J.

Writ-A No. 12055 of 2017

Ashish Kumar Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Arvind Srivastava, Sri Ashok Kumar
Dubey, Sri Shiv Kumar Pal, Sri Sushil
Kumar Pal

Counsel for the Respondents:
C.S.C.

A. Civil Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
7 - Service law - Departmental Inquiry -
Major Penalty - Chargesheet not in
conformity with the Rules - No intimation
of date, time and venue of inquiry - Effect
- Procedural Safeguard - Held, Imposition
of a major penalty on a Government
servant is a serious matter, and no matter
how serious the charge is, procedural
safeguards have to be strictly ensured -
Obligation to intimate the date, time and
venue of inquiry is of seminal importance
- A Government servant, who does not file
a reply to the charge sheet, is entitled to
appear at the inquiry and cross-examine
witnesses for the establishment and make
his submissions. (Para 14 and 18)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Syed Nazir Abbas Naqvi Vs St. of U.P. & ors. ,
2003 (6) AWC 4996
2. Dukh Haran Prasad Vs St. of U.P. & ors. ,
2015 (3) AWC 2227
3. Kaptan Singh Vs St. of U.P., 2014 (5) AWC
5171
4. St. of Uttar Pradesh & ors. Vs Saroj Kumar
Sinha, (2010) 2 SCC 772

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an order passed by Ms. Monika
Rani, the then Collector, Chitrakoot, dated
03.02.2017, dismissing the petitioner from
Government service. It has further been
ordered that a sum of Rs.86,74,600/- held
868 INDIAN LAW REPORTS ALLAHABAD SERIES
embezzled by the petitioner be recovered
from him.

2. The petitioner was a Deputy
Cashier (उप िोिस़िया), posted at the SubTreasury Mau, District Chitrakoot. Shorn
of details, that are unnecessary to determine
the short point that arises for consideration
here, the petitioner was charge sheeted
through two separate charge sheets dated
06.04.2016
and
26.05.2016,
on
the
foundation
of
which,
disciplinary
proceedings were drawn against him. The
substance of the charges against the
petitioner is that he had embezzled
Government moneys in the sum of
Rs.86,74,600/- by manipulating figures in
the deposit challans, relating to sums of
money, collected at the Treasury and
deposited by him at the Allahabad Bank,
Branch Mau, District Chitrakoot on 69 days
between 08.04.2015 to 06.02.2016.

3. Parties have exchanged affidavits,
whereafter this petition was formally
admitted to hearing on 01.12.2020. It was
heard on that date and thereafter, adjourned
on a few instances. Parties have concluded
their submissions today.

4. Heard Mr. Arvind Srivastava,
learned Counsel for the petitioner, along
with Mr. Ashok Kumar Dubey, Mr. Shree
Prakash Singh and Dr. Amar Nath Singh,
learned Standing Counsel appearing on
behalf of the State.

5. No doubt, the charges against the
petitioner are serious, but Mr. Arvind
Srivastava says that the impugned order has
been passed in utter violation of principles
of natural justice. During hearing, he has
canvassed a number of points to assail the
entire disciplinary proceedings, including
those relating to non-supply of documents,
that have been produced against him, apart
from personal bias that he has alleged
against
Kamlesh
Kumar,
the
Senior
Treasury
Officer,
District
Treasury,
Chitrakoot.

6. This Court is not minded to
examine the other contentions raised by Mr.
Srivastava, which may not be treated to be
decided either way by this judgment,
except the one that this Court proceeds to
consider now. Mr. Srivastava submits that
during the course of the departmental
inquiry, as a part of the disciplinary
proceedings, no date, time or place for
holding the inquiry was determined nor any
such date, time or place was intimated to
the petitioner. He further submits that the
respondents have not proved the charges
before the Inquiry Officer by examining
witnesses in support of the same. No oral
evidence has been recorded on behalf of the
establishment. The Inquiry Officer has
proceeded to evaluate papers before him,
without any evidence being led by the
establishment to prove the charges. The
Inquiry Officer, on the basis of an
evaluation of documents on record done of
his own, has held the charges proved. This,
according to Mr. Srivastava, is a manifest
illegality, which vitiates the inquiry report
and the consequential order of dismissal
from service founded on it.

7. Learned Counsel for the petitioner
has, in particular, invited the Court's
attention to paragraph no.43 of the writ
petition, where it is averred to the
following effect:

"43. That it is pertinent to state here
that nothing has been done pursuant to the
said letter dated 22.11.2016 by the Enquiry
Officer. Neither any alleged charge sheet,
material evidence or permission to cross
1 All. Ashish Kumar Tiwari Vs. State of U.P. & Ors.
869
examine the alleged witnesses has been
provided nor any date or time or place has
been disclosed/ fixed by the Inquiry Officer
for hearing of the petitioner in the alleged
departmental enquiry being conducted
against him, and thus the said act and
conduct of the inquiry officer not only
violates the U.P. Government Servant
(Discipline and Appeal) Rules, 1999 and
the Government Order dated 22.4.2015 but
also violates the Principles of Natural
Justice of law."

8. Paragraph no.43 of the writ petition
has been answered in paragraph no.44 of
the counter affidavit, which reads to the
following effect:

"44. यह सि रिट यासचिा िे प्रस्ति-43 िा िथन
सजस प्रिाि वसर्वत है, स्वीिाि नहीं है। उपयुक्त एवं सवस्तृत
उत्ति पूववती प्रस्तिों में सदया जा चुिा है।"

9. The only paragraph of consequence
in the counter affidavit, where any material
averment with regard to the petitioner's
stand carried in paragraph no.43 of the writ
petition can be found, is paragraph no.40 of
the writ petition, which reads:

"40. यह सि, रिट यासचिा िे प्रस्ति-39 िा िथन
सजस प्रिाि वसर्वत है, स्वीिाि नहीं है। जांच असर्िािी
द्वािा याची िो आिोप पत्र सदनांि 07-11-16, समस्त
साक्ष्ों/ संलग्निों ससहत अनेि बाि उपलब्ध ििायी गयी।
सििु याची ने आिोप पत्र में इंसगत सिसी िी आिोप िा
उत्ति न देिि मात्र जांच में व्यवर्ान र्ालने/ सवलम्ब ििाने
िी नीयत से अनावश्यि पत्राचाि सिये औि उपयुवक्त
पत्रजात उसे प्राप्त न होने िा िथन सिया। उक्त िे साक्ष्
स्वरूप जांच असर्िािी द्वािा याची िो प्राप्त ििाया गया
पत्र सदनांि 19-11-16 अवलोिनीय है सजसमें स्पष्ट उल्लेख
है सि "....... आप द्वािा मात्र पेशबन्दी सिये जाने िी नीयत
से शासन िो अनावश्यि व झूठे तथ्ों पि आर्ारित
पत्राचाि िि भ्रसमत सिये जाने िा िुम्मित प्रयास सिया
गया है। यद्यसप आप द्वािा जानबूझिि अपने सवरुद्ध
प्रचसलत सविागीय िायवाही िो असर्ितम समय ति
सवलम्मम्बत ििने िी नीयत से ऐसे िृत्य सिये जा िहे हैं
तथासप यसद िसथत तौि पि सादे िागज प्राप्त होने िा
िथन आप द्वािा सिया जा िहा है तो आपिो सनदेसशत
सिया जाता है सि आप अपने सवरूद्ध प्रचसलत सविागीय
िायवाही से सम्बम्मित आिोप पत्र समस्त संलग्निों ससहत,
जो पूवव में आपिो हस्तगत् ििाये जा चुिे हैं, पुनः
अर्ोहस्ताक्षिी िायावलय में तत्काल उपम्मस्थत होिि
अर्ोहस्ताक्षिी िे समक्ष प्राप्त ििना सुसनसित ििें। ......"
पुनः सजलासर्िािी द्वािा याची िो प्राप्त ििाया गया आदेश
सदनांि 07-12-16 अवलोिनीय है सजसमें स्पष्ट उल्लेख है
सि मा0 उच्च न्यायालय द्वािा रिट यासचिा संख्या
24929/2016 में पारित आदेश सदनांि 06-09-16 िे
अिगवत जांच िायवाही सदनांि 31-12-16 ति पूर्व सिये
जाने िे सनदेश सदये गये हैं सििु याची द्वािा जानबूझिि
अपने सवरूद्ध प्रचसलत सविागीय िायवाही िो असर्ितम्
समय ति लम्मम्बत िखने िी नीयत से सववथा गलत, भ्रामि
व सनिार्ाि पत्राचाि बािम्बाि ििते हुए जांच में अपेसक्षत
सहयोग नहीं सदया जा िहा है। यद्यसप याची िो आिोप पत्र
मय समस्त सम्बम्मित असिलेख/ छायाप्रसतयां अनेि बाि
सीर्े/ पंजीिृत र्ाि से प्राप्त ििाये जा चुिे हैं सफि िी
याची सविागीय िायवाही से सम्बम्मित प्रपत्र पुनः सीर्े प्राप्त
िििे अपना पक्ष जांच असर्िािी िे समक्ष प्रस्तुत ििे।
पत्र सदनांि 19.11.2016 एवं आदेश सदनांि 07.12.2016
िी छायाप्रसत सांिग्नक सां0-6 व 7 िे रूप में संलग्न है।"

10. It appears that the specific stand
of the petitioner, that a date, time and place
to
hold
the
inquiry
were
never
communicated to him, was canvassed
before this Court earlier as well, when this
petition was still at the stage of motion of
hearing. There is a very detailed order on
this issue passed on 28.02.2019, which
reads:

"Heard Sri Arvind Srivastava learned
counsel for the petitioner and Sri Vikram
Bahadur Yadav learned Standing Counsel.

Pursuant to the earlier orders passed,
Sri
Vikram
Bahadur
Yadav
learned
Standing Counsel has produced the record.
From the records which have been
produced before the Court it appears that
the respondents had placed the petitioner
upon notice to file a reply to the charge
sheet which had been served. According to
them however despite time having been
granted, the petitioner did not furnish any
870 INDIAN LAW REPORTS ALLAHABAD SERIES
reply. Sri Yadav has then, after going
through the entire record, submitted that no
oral evidence was recorded in the course of
the disciplinary proceedings since the
respondents were of the considered view
that the charges were liable to be tested and
established on the basis of the documentary
evidence which was made part of the
enquiry. Sri Yadav has then, drawing the
attention of the Court to the enquiry report,
submitted that the enquiry officer has
independently evaluated the documentary
evidence and has thereafter proceeded to
record his detailed conclusions with respect
to the charges levelled.

Sri
Arvind
Srivastava
learned
counsel
for
the
petitioner
has
additionally drawn the attention of the
Court
to
the
pleadings
taken
in
paragraph-43 of the writ petition to
contend that no notice indicating the
date, time or place of enquiry was
communicated to the petitioner by the
enquiry officer.

Sri Yadav with the aid of the record
has sought to rebut this assertion and
has submitted that notices had in fact
been issued. He prays for time to file a
supplementary
counter
affidavit
bringing those notices on record.

Although Sri Srivastava learned
counsel
for
the
petitioner
in
his
preliminary submissions advanced on
this writ petition sought to make certain
allegations
against
the
fourth
respondent and to submit that the entire
action taken against the petitioner was
tainted with mala fides, on being asked
to point out the averments made against
the said respondent so as to justify
issuance of notice, all that was pleaded
was the averments made in paragraph59 of the writ petition.

Presently and on evaluation of the
averments so made, this Court finds no
ground to issue notice to the private
respondent No.4.

List this petition again after three
week by which time the supplementary
counter affidavit may be filed by the
State."

11. At the hearing before this Court,
no supplementary counter affidavit has
been filed on behalf of the State, in terms
prayed
on
28.02.2019.
This
Court,
therefore, has no option but to proceed on
the assumption that the averments in the
paragraph no.43 of the writ petition are
true, as these remain unrebutted. The
conclusion on facts, therefore, would be
that no date, time and place of the inquiry
scheduled was intimated to the petitioner.
The consequence of this failure in law will
be shortly examined. Apart from it, it has
also been urged that no oral evidence
during the course of inquiry was recorded
on behalf of the establishment, which was
necessary in the case, which involved a
charge entailing a major penalty. Here also,
there is hardly any dispute on facts that no
oral evidence was led on behalf of the
establishment to prove the charges. This
fact has figured in this Court's order dated
28.02.2019, where Mr. Vikram Bahadur
Singh, learned Standing Counsel, on going
through the record, did not dispute the fact
that during the course of the disciplinary
proceedings,
no
oral
evidence
was
recorded. No material to the contrary has
been shown to this Court during the hearing
today or earlier on 1st December, 2020.
This
Court,
therefore,
also
has
to
pronounce upon the legal effect of the
respondents' failure to lead oral evidence in
support of the charges, held proved against
the petitioner at the inquiry.

12.

Learned
Standing
Counsel
submits that the present case is one which
1 All. Ashish Kumar Tiwari Vs. State of U.P. & Ors.
871
does not require any oral evidence at all,
for the petitioner's guilt is established by
documents that are on record. He submits
that there is ample evidence on record to
show that the petitioner did not submit
replies to the charge sheets or led evidence,
despite being granted ample opportunity to
do so. The Inquiry Officer, therefore, on a
perusal of the documents on record, rightly
and justly concluded that the petitioner was
guilty of tampering the various treasury
challans and by doing that, embezzled
Government moneys in the sum of
Rs.86,74,600/-.

13.

This
Court
has
carefully
considered the rival submissions advanced
by parties. The procedure for imposition of
major penalties is laid down in the U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999 (for short, ''the
Rules'). Rule 7 of the Rules read as follows:

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

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

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

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

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

(iv) The charged Government
servant shall be required to put in a written
statement of his defence in person on a
specified date which shall not be less than
15 days from the date of issue of chargesheet and to state whether he desires to
cross-examine any witness mentioned in
the charge-sheet and whether desires to
give or produce evidence in his defence. He
shall also be informed 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 charge-sheet 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 chargesheet, 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
872 INDIAN LAW REPORTS ALLAHABAD SERIES
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 discover the truth or to obtain proper
proof of facts relevant to charges.

(x)
Where
the
charged
Government servant does not appear on the
date fixed in the inquiry or at any stage of
the proceeding inspite 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
inquiry in the manner provided in these
rules."

(Emphasis by Court)

14. It must be remarked that the
imposition of a major penalty on a
Government servant is a serious matter, and
no matter how serious the charge is,
procedural safeguards have to be strictly
ensured. The procedure for holding an
inquiry is laid down in Rule 7 of the Rules,
extracted above. A perusal of the record of
the writ petition and facts that have been
established do not show whether a charge
sheet conforming to Rule 7(iii) of the Rules
was ever issued to the petitioner. There is a
mention of two charge sheets in the
impugned order 03.02.2017, but all that this
Court has been shown is the inquiry report
1 All. Ashish Kumar Tiwari Vs. State of U.P. & Ors.
873
dated 31.12.2016, annexed to the counter
affidavit, carrying a summary of the
charges.
This
report
is
annexed
as
Annexure no.4 to the counter affidavit. In
fact, this document carries the entire record
of disciplinary proceedings and the manner
these have been gone about. This Court is
convinced that a charge sheet conforming
to Rule 7 of the Rules was never issued to
the petitioner, carrying with it a summary
of the documentary evidence and the
witnesses, by which distinct charges
indicated and framed, in precise and clear
terms against the petitioner, were proposed
to be proved.

15. It must also be said that the
inquiry proceedings as well as the order of
the Disciplinary Authority betray an
impression that the respondents have
confounded the two distinct roles of the
Investigator and the Adjudicator. So long as
the respondents were holding a preliminary
inquiry and discovered evidence, which
they believe to inculpate the petitioner, they
could go about the exercise in the manner
they found feasible. But, in the next step,
when the stage came to establish the
charges in disciplinary proceedings, the
Inquiry Officer appears to have forgotten
his role as an impartial arbiter and so also
the
respondents,
their
obligation
to
establish, by evidence, charges against the
petitioner before their Domestic Inquiry
Tribunal. The Inquiry Officer and the
respondent Authorities mixed up both roles,
virtually putting onus on the petitioner to
establish his innocence. Even if it be that
not bad, the Inquiry Officer acted on mere
papers that were before him, without
evidence being led at the inquiry by the
establishment.

16. It hardly need be gainsaid that in a
case where a delinquent employee does not
appear or does not file a reply to the charge
sheet, Rule 7 of the Rules mandates ex
parte proceedings. Ex parte proceedings
postulate that the establishment have to
prove the charges against the delinquent by
leading evidence, both documentary and
oral. The Inquiry Officer acted on papers
that were filed in support of the charges,
mistaking them for evidence. In a domestic
inquiry, the provisions of the Evidence Act
certainly do not apply. But that does not
mean that their quintessence about basic
principles relating to proof and evidence
are to be cast aside.

17. The Inquiry Officer in this case
acted on a volume of papers, that were
before him, without those papers being
systematically proved as evidence in the
inquiry. This could be done by the
Presenting Officer by examining relevant
witnesses. In the process, the Inquiry
Officer forgot the distinction between
idle papers and evidence, on which he
could act. The documents on record had
to be proved by the establishment through
appropriate means, which would then be
properly galvanized into documentary
evidence. This Court must remark that
looking to the nature of the charges,
which relate to tampering allegedly done
by the petitioner in various documents,
such as deposit challans tendered to the
Bank, besides the Bank scroll, oral
evidence of other functionaries at the
Treasury and the Bank connected to the
transaction, would be essential to bring
home the charges. No relevant witness
has been examined to establish that it was
the petitioner, who tampered the figures
in
the
documents
and
embezzled
Government money. An Investigator's
plea, howsoever strongly found on the
material
collected,
cannot
be
an
Adjudicator's determination.
874 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Likewise, the obligation to
intimate the date, time and venue of inquiry
is of seminal importance. A Government
servant, who does not file a reply to the
charge sheet, which may not be the case
here, is still entitled to appear at the inquiry
and cross-examine witnesses
for the
establishment and make his submissions. In
this case, it has been found for a fact that
the date, time and venue of inquiry were
not communicated to the petitioner. The
failure of the respondents to do so, vitiates
the proceedings albeit on a procedural
facet. It would be profitable in this
connection to refer to a decision of this
Court in Syed Nazir Abbas Naqvi vs.
State of U.P. and Ors., 2003 (6) AWC
4996. It has been held in the context of an
ex parte inquiry where the delinquent
employee appeared before the Inquiry,
Officer and said that he had nothing to offer
in his defence, that the employee's stand
does not absolve the establishment to prove
the charges by examining witnesses. It was
held in Syed Nazir Abbas Naqvi (supra):

"9. ............. Even if it is accepted that
petitioner made any statement before the
Inquiry Officer that he does not wish to say
anything more, the Enquiry Officer could
not have closed the proceedings and
submitted the report only on the basis of
petitioner's reply. It was incumbent upon
him under the rules, as well as in
observance of the principle of natural
justice to have got the charges proved by
examining the witnesses who may have
proved the record in respect of the charges
in accordance with law. In any case, the
Inquiry Officer was required to give
reasons
for
refusing
summoning
of
witnesses. In the present case, the Court
finds that considering the charges and the
reply, the contractor in respect of whom it
was stated by petitioner that the over
writing was made by the Contractor
himself and the Registrar, who was
Drawing and Disbursing Officer and the
member
in
charge
were
necessary
witnesses, both to prove the charges, as
well as defence witnesses..........."
 (Emphasis by Court)

19. Also relevant in this connection is
the decision of this Court in Dukh Haran
Prasad vs. State of U.P. and Ors., 2015
(3) AWC 2227. In Dukh Haran Prasad, it
has been held:

"15. It is not disputed by the learned
Standing Counsel that the imposition of the
penalty of stoppage of three increments
with cumulative effect upon the petitioners
was a major penalty. If that be the admitted
position, the procedure prescribed under
Rule 7 was to be mandatorily followed. It
has been repeatedly held by this Court that
in the case of imposition of a major penalty,
a failure to hold an oral inquiry is fatal. If
there be any need to refer to authority for
this proposition, one may only note the
judgment rendered by a Division Bench of
this Court in the case of Sharad Kumar
Varma v. State of U.P. and others; 2006
(110) FLR 630."

20. On the same point is the decision
of a Division Bench of this Court Kaptan
Singh vs. State of U.P., 2014 (5) AWC
5171. It has been held in Kaptan Singh:

"9. We are unable to accept the
contention of the learned Additional Chief
Standing Counsel. Even if the delinquent
employee does not request for personal
hearing the burden of proving the charges
normally being upon the department, the
enquiry officer was under obligation to fix
a date for such enquiry, with information to
the delinquent and to conduct enquiry
1 All. Ashish Kumar Tiwari Vs. State of U.P. & Ors.
875
wherein he was required to examine
documentary as well as oral evidence, if
any, in support of the charges. Even if the
delinquent employee did not participate in
the enquiry, the Enquiry Officer was duty
bound to discharge his obligation as an
Enquiry Officer of ascertaining the truth in
respect of the charges levelled against him,
on the basis of evidence, as to whether the
same are proved against him or not.

10. Even if the delinquent does not
demand personal hearing or does not give
the names of witnesses with brief synopsis
of points on which the wishes to examine
or cross-examine the witnesses, the Inquiry
Officer is not absolved from fixing a date
of
enquiry,
with
intimation
to
the
delinquent and if he does not appear on the
date fixed to either adjourn the enquiry to
some other date or to proceed ex parte, as
he deems fit. In either eventuality, he is
required to hold inquiry, if delinquent is
present, in his presence, if he is absent, ex
parte. If oral evidence is referred in the
charge-sheet, same is required to be
recorded/examined, if not, even then the
documentary evidence is required to be
examined in the light of the charges for
ascertaining the truth in respect thereof.
The delinquent is also entitled to be
intimated the date for oral enquiry, wherein
the Inquiry Officer should confront the
delinquent with the charges and the
evidence in support thereof, put relevant
queries to him, elicit and record his
replies/response in respect thereof. Such
oral enquiry is necessary as it gives an
opportunity, to the delinquent to explain his
conduct and to the Inquiry Officer to have a
better perspective of the controversy, as, it
is not always possible to discern the truth
from written replies and documents which
may not necessarily convey the complete
truth. Even where the delinquent does not
dispute the veracity of the documentary
evidence, oral enquiry is necessary as he
may still have an explanation to offer.

13. The reference to "documentary
evidence" in Rule 7(iii) and (v) clearly
indicates that the same have to be
examined, as aforesaid, on the date to be
fixed for enquiry, whether in the presence
of the delinquent or in absentia (ex parte).
This requirement though not express is
implicit in the aforesaid rules, as is the
requirement of holding an oral enquiry as it
is a sine qua non for providing reasonable
opportunity to defend and is part of the
principles of natural justice under Articles
311 and 14 of the Constitution. Reference
may be made in this regard to the
judgments of the Apex Court in State of
Uttar Pradesh and others v. Saroj Kumar
Sinha, (2010) 2 SCC 772 : 2010 (4) AWC
4221 (SC); Roop Singh Negi v. Punjab
National Bank, (2009) 2 SCC 570; State of
U.P. v. T.P. Lal Srivastava,(1996) 10 SCC
702 and Imperial Tobacco Company of
India Ltd. v. Its Workmen, AIR 1962 SC
1348 and the judgments of this Court in
R.K.
Singh
v.
Director/Appointing
Authority, Govind Ballabh Pant Social
Science Institute, Jhunsi, Allahabad and
another, (2001) 2 UPLBEC 1282 : 2001 (3)
AWC 1694 and Subhash Chandra Sharma
v. U.P. Co-operative Spinning Mills and
others, (2001) 2 UPLBEC 1475. The
aforesaid requirement of law has not been
followed in the instant case."

21. There are very illuminating
remarks on the point involved here to be
found in the guidance of their Lordships of
the Supreme Court in State of Uttar
Pradesh and others v. Saroj Kumar
Sinha, (2010) 2 SCC 772. In State of U.P.
vs. Saroj Kumar Sinha, it has been held:

"28. An inquiry officer acting in a
quasi-judicial authority is in the position of
876 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
 (Emphasis by Court)

22. Bearing in mind the aforesaid
position of law, this Court is of opinion that
this petition deserves to succeed with
liberty to the respondents to proceed afresh
in the matter, after issuing a charge sheet
drawn up in accordance with Rule 7 of the
Rules,
and
further
adhering
to
the
principles of holding an inquiry, where
there is likelihood of imposition of a major
penalty.

23. In the result, this writ petition
succeeds and is allowed. The impugned
order of dismissal from service dated
03.02.2017,
passed
by
the
District
Magistrate, Chitrakoot, Annexure No.1 to
the writ petition, is hereby quashed. The
petitioner shall be reinstated in service
forthwith. It will be open to the respondents
to hold a fresh enquiry, after issuing a fresh
charge sheet, drawn up in accordance with
Rule 7 of the Rules. The charge sheet shall
be served upon the petitioner by Speed Post
and Registered Post at the correct postal
address, to be communicated by the
petitioner
to
the
District
Magistrate,
Chitrakoot by 15th January, 2021. The
District Magistrate, Chitrakoot shall retain
a postal track of any dispatch made by him
to the petitioner. It will be open to the
respondents
to
conclude
the
inquiry
expeditiously, in accordance with law, after
granting due opportunity to the petitioner,
and bearing in mind the guidance in this
judgment.

24. The petitioner shall be entitled to
receive his current salary from the date of
reinstatement in service. The entitlement to
receive the arrears will remain dependent
on the final outcome of the disciplinary
proceedings and the orders made there.
During the period of the disciplinary
proceedings, if the respondents choose to
pursue them, it will be open to the
respondents to post the petitioner, wherever
they find it convenient. The petitioner will
cooperate with the inquiry.

25. There shall be no order as to costs.
----------
(2021)01ILR A876
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ-A No. 16247 of 2019

Kushal Pal Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Nisheeth Yadav

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Article 311 (1)
and (2) - Ambit and Scope - Disciplinary
proceeding - Major punishment - Article
311 gives constitutional protection to a