# Ashok Kumar Singh v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 300
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-22
- **Case number:** Writ A No. 8770 of 2022
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-singh-v-state-of-u-p-anr-50618
- **Pages:** 16

## Headnote

Held: The writ petition under Article 226
challenging the St. Public Service Tribunal's
order dated 22.09.2022, dismissing the claim
petition against the punishment order dated
8 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
301
22.12.2021 (imposing censure and stoppage of
one increment for one year), is allowed. The
Tribunal's order and the punishment order are
set aside due to procedural irregularities in the
disciplinary proceedings, including non-supply of
relied-upon documents (report/tehrir of Shri
Shiv Avatar Singh and NCRB dated 05.05.2021)
not part of the charge-sheet, violating Rule 7 of
the U.P. Government Servants (Discipline &
Appeal) Rules, 1999, and failure to provide the
enquiry report to the petitioner before imposing
punishment,
contravening
Rule
9(4).
The
Tribunal failed to address these grounds, and
the disciplinary enquiry exceeded the threemonth time limit stipulated by the court without
seeking an extension, rendering the proceedings
unsustainable. The petitioner is entitled to all
consequential reliefs as per rules. The order is
not to be treated as precedent due to the
peculiar facts of the case. No order as to costs.

List of Cases cited:

## Text

_Characters 0–39,699 of 54,723. This is a partial read: ask again with offset=39699 for what follows._

300 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Yogendra Nath Singh (supra) vide
paragraph 8 this Court held thus:

"8. Another objection is that this
vacancy lapsed within the meaning of
Regulation 20 of Chapter II of the
Regulations
framed
under
the
U.P.
Intermediate
Education
Act,
1921.
Regulation 20 states that where the
Committee of Management has failed to
advertise any sanctioned post, which has
fallen vacant, in accordance with the
Regulations within a period of three months
from the date of occurrence of the vacancy,
such posts shall be deemed to have been
surrendered and shall not be filled up,
unless its creation is sanctioned afresh by
the Director. No sanction having been
obtained from the Director, the Respondent
No. 1 stated in the impugned order that the
post would be deemed to have been
surrendered. This was the position before
the Act, 1982, became operative. But after
the enforcement of the Act, 1982, every
vacancy has to be filed in only by the
commission and ad hoc appointment can be
made by the Management Committee only
in the circumstances as contained in
Section 18(1)(b). Petitioner's appointment
cannot be impugned on that ground."

29. I may observe here that whenever
a matter is remanded on a question upon
which the Court wants a certain finding of
fact, the authority has to address that issue
only
and
no
other
considerations
extraneous to issue should be taken into
account to reject a claim which otherwise
would be valid but for a definite finding on
issue under remand. In my considered view
the authority having held issue No. 2 in
favour of the petitioner, was required to just
look into the documents and findings of the
High Court in earlier round of litigation and
nothing beyond that.

30. In view of the above, writ petition
succeeds and is allowed. The decision
taken by the Committee dated 18th
November, 2015 impugned in the writ
petition
questioning
the
appointment
against the vacancy of Jagat Pal Singh is
set aside. Petitioner is held to be lawfully
appoint against a substantive vacancy of
Assistant Teacher then lying vacant. He is
held entitled to regularisation vide relevant
provisions and clause under Section 33-C
of Act No.- 5 of 1982 and so also all other
consequential benefits both in terms of
salary increament in pay etc. including
service period to be counted towards
qualify service for pension.

31. Competent authority is directed to
pass consequential order within a month
from the date of production of certified
copy of this order.
----------
(2023) 8 ILRA 300
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.08.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 8770 of 2022

Ashok Kumar Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sameer Kalia

Counsel for the Respondents:
C.S.C.

Held: The writ petition under Article 226
challenging the St. Public Service Tribunal's
order dated 22.09.2022, dismissing the claim
petition against the punishment order dated
8 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
301
22.12.2021 (imposing censure and stoppage of
one increment for one year), is allowed. The
Tribunal's order and the punishment order are
set aside due to procedural irregularities in the
disciplinary proceedings, including non-supply of
relied-upon documents (report/tehrir of Shri
Shiv Avatar Singh and NCRB dated 05.05.2021)
not part of the charge-sheet, violating Rule 7 of
the U.P. Government Servants (Discipline &
Appeal) Rules, 1999, and failure to provide the
enquiry report to the petitioner before imposing
punishment,
contravening
Rule
9(4).
The
Tribunal failed to address these grounds, and
the disciplinary enquiry exceeded the threemonth time limit stipulated by the court without
seeking an extension, rendering the proceedings
unsustainable. The petitioner is entitled to all
consequential reliefs as per rules. The order is
not to be treated as precedent due to the
peculiar facts of the case. No order as to costs.

List of Cases cited:

1. Abhishek Prabhakar Awasthi Vs The New
India Assurance Company Limited & ors., 2013
SCC OnLine All 14267

2. Ministry of Finance & anr.Vs S.B. Ramesh,
AIR 1998 SC 853

3. Surya Dev Rai Vs Ram Chander Rai & ors.,
(2003) 6 SCC 675

(Delivered by Hon'ble Om Prakash Shukla, J.)

A. INTRODUCTION

(1) Heard Shri Sameer Kalia, learned
Counsel representing the appellant and Shri
Anil Kumar Singh 'Visen', learned Standing
Counsel for the State/respondents.

(2) The present writ petition under
Article 226 has been filed assailing the
judgment and order dated 22.09.2022
passed by the State Public Service Tribunal,
Lucknow
(hereinafter
referred
to
as
"Tribunal"),
whereby
Claim
Petition
No.370
of
2022
filed
by
the
claimant/petitioner against the order of
punishment dated 22.12.2021, by which he
was awarded two minor penalties i.e. (1)
Censure; and (2) stoppage of one increment
for one year, has been dismissed.

B. FACTUAL MATRIX

(3) As per the records available on the
file of the present case, the petitioner was
initially appointed on the post of Assistant
Commissioner
Sales
Tax
under
the
Commissioner, Commercial Tax (respondent
no.2) on 29.9.1998 after having been selected
for the said post by the U.P. Public Service
Commission. Subsequently, on account of his
excellent
services,
the
petitioner
was
promoted
to
the
post
of
Deputy
Commissioner in the year 2009 and thereafter
again in the year 2015, he was promoted to
the post of Joint Commissioner Commercial
Tax. Thereafter, in the month of July 2019,
the petitioner was transferred from the
Headquarters at Lucknow to District -
Bulandshahr where he joined and started
functioning
as
Joint
Commissioner,
Commercial Tax (SIB), Bulandshahr.

(4) On 26.3.2021, the State Election
Commission
notified
the
Three
Tier
Panchayat Elections - 2021 held in the
State of Uttar Pradesh. Apparently, prior to
the aforesaid notification i.e. on 25.3.2021,
the
District
Election
Officer
(Panchayat)/District
Magistrate,
Bulandshahr appointed the petitioner as
Returning Officer for Development BlockSikandrabad,
District-
Bulandshahr.
However,
subsequently,
the
District
Election
Officer
(Panchayat)/District
Magistrate Bulandshahr, vide order dated
03.04.2021, amended its earlier order dated
25.3.2021 and appointed the petitioner as
Returning Officer for Development Block -
Khurja in place of Development Block -
Sikandarabad.
302 INDIAN LAW REPORTS ALLAHABAD SERIES

(5) Pursuant to the aforesaid order of
the District Magistrate Bulandshahr dated
03.04.2021, the petitioner took charge of
the post of Returning Officer, Development
Block - Khurja and conducted the entire
election
process
starting
from
the
submission of nomination papers till the
counting of votes and declaration of results
(except for the Member Zila Panchayat), as
per the notified election schedule, with
sincerity and transparency. The polling of
votes took place on 29.4.2021 at all the
polling booths of Development Block -
Khurja and during which reportedly no
untoward incident took place and the
polling was conducted in a peaceful and
organized manner.

(6) According to the petitioner, on
02.5.2021, at 08:00 a.m., the counting of
votes commenced under his direction and
supervision at Jatiya Bal Vihar Inter
College, Khurja which is situated in the
said Development Block Khurja. At around
05:00 p.m., on the following date i.e.
03.5.2021, the counting of votes got
concluded and subsequently, the petitioner
declared the result of the concerned posts
of
Gram
Pradhan,
Member
Gram
Panchayat and Member Kshetra Panchayat
and also handed over the prescribed
certificate
to
the
returned/elected
candidates.

(7) After conclusion of counting of
votes at 05:00 p.m. and declaration of result
of the aforesaid three posts, the petitioner
and the polling team secured all the
necessary documents and completed all the
formalities, which took some time and as
such it was only at around 06:30 p.m., the
petitioner along with his team were able to
proceed
to
District
Headquarters.
Apparently, before the petitioner could
reach the District Headquarters with his
team, the Additional District Magistrate
(Administration)/Deputy Election Officer
Panchayat, Bulandshahar contacted the
petitioner on his mobile no.7235001008
and directed the petitioner to return to the
place where the counting took place as
allegedly some dispute had to be resolved.
As per the directions of the Deputy
Election Officer Panchayat/ Additional
District Magistrate (Administration), the
petitioner reached the place of counting,
where the Deputy District Election Officer,
Panchayat also reached, whereafter the
aforesaid officer apprised the petitioner
about the complaint of one candidate for
the post of Member Zila Panchayat (Ward
No.25) who had made a request for recounting. On the request having been made
by the alleged complainant/candidate, the
petitioner required the other counting staff
to be present at the place of counting and
further directed the support staff to call the
other candidates of Ward No.25 also till
such time the support staff and the other
candidates were reaching the place of
counting. The petitioner along with his
team in the presence of the Deputy Election
Officer Panchayat/ Additional District
Magistrate (Administration) tried to sort
out
the
objections
of
the
aforesaid
candidate and due to the efforts of the
petitioner and Deputy Election Officer
Panchayat/ Additional District Magistrate
(Administration) and other district level
officer, the objections of the candidate were
sorted out and upon which the said
candidate requested for declaration of the
result without insisting for re-counting of
votes.

(8) It was only thereafter that the
District Level Election Officers left with
the required counting sheet to enable them
to declare the result. In all this process of
consideration/ resolution of complaint /
8 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
303
objection of the candidate (ward no.25) it
took considerable time, which eventually
led to some delay. It is the case of the
petitioner that the delay caused was neither
deliberate nor intentional and in any case
the entire process and the delay therewith
was well within the knowledge of the
District Level Election authorities.

(9) Apparently, the Deputy Election
Officer (Panchayat)/ Additional District
Magistrate (Administration) on 04.5.2021
submitted a letter to the District Election
Officer Panchayat/ District Magistrate
narrating that the petitioner had not
submitted the counting sheet to the Election
Officer till 12:00 PM despite of the fact that
the counting had concluded about 05:00
PM and allegedly due to which certain
candidates of Ward Nos. 24, 25 and 26
created a ruckus at the Collectorate
premises as well as at the place of counting
in Khurja citing that the result is being
allegedly manipulated and due to which
there was unrest at the said places. This
letter dated 04.05.2021 was forwarded to
the State Election Commission by the
District Election Officer Panchayat/District
Magistrate vide his letter dated 04.5.2021.

(10) Thereafter, the State Election
Commission, on the basis of the aforesaid
letter of the District Magistrate dated
04.5.2021 forwarded a recommendation to
the
respondent
no.2-Commissioner,
Commercial Tax, Lucknow for suspension
and initiation of disciplinary inquiry against
the petitioner stating that the petitioner had
shown indifference and had been negligent
towards his duties while functioning as
Returning Officer of Development Block-
Khurja.

(11) Subsequently, on 13.05.2021, the
Commissioner, Commercial Tax, Lucknow
(respondent no.2), on the basis of the
aforesaid letter dated 12.5.2021 of the State
Election
Commission,
forwarded
a
recommendation to the State Government
(respondent
no.1)
for
suspension
and
initiation of disciplinary inquiry against the
petitioner. Thereafter, the State Government
(respondent no.1) issued the order of
suspension dated 21.05.2021 to the petitioner
and it was also directed to initiate disciplinary
enquiry with respect to the role of the
petitioner as Returning Officer, Development
Block - Khurja.

(12) Feeling aggrieved by the order of
suspension dated 21.05.2021, the petitioner in
the first round of litigation had preferred Writ
Petition No. 12120 of 2021 before this Court.
The learned Single Judge, on appreciating the
rival submissions of the parties, arrived at a
conclusion that the respondents while passing
the order of suspension has failed to record
reasons to arrive at a conclusion of
satisfaction that the charges are serious
enough to impose major penalty. In this
background, the learned Single Judge, vide
judgment and order dated 19.07.2021, while
setting aside the order of suspension dated
21.05.2021, directed the respondents to
permit the petitioner to function on the post
of Joint Commissioner (SIB), Bulandshahar
and pay him regular salary month by month
as and when they became due, however,
disciplinary proceedings pending against the
petitioner was directed to be continued and
the same was to be completed within three
months from the date of production of
certified copy of the said order. The
concluding remark by the learned Single
Judge vide order dated 09.07.2021 has been
pressed by the petitioner, which is being
extracted herein below:

".....Respondents are directed to
permit the petitioner to allow to work on
304 INDIAN LAW REPORTS ALLAHABAD SERIES
the post of Joint Commissioner (SIB),
Bulandshahar and pay him regular salary
month by month as and when became due.

It is, however, made clear that the
disciplinary proceedings pending against
the petitioner shall go on and shall be
completed within three months from the
date of production of certified copy of this
order."

(13) According to the petitioner, he
served a certified copy of the aforesaid
judgment and order dated 19.07.2021 to the
State
Government
on
06.08.2021.
However, prior to it, vide letter dated
20.07.2021,
the
Enquiry
Officer
so
appointed on 07.06.2021 by the State
Government served a charge-sheet dated
13.07.2021 to the petitioner levelling two
charges against him. In support of both the
charges, two reports i.e. one of Additional
District Magistrate (Administration) and
the other of the District Magistrate,
Bulandshahr dated 04.05.2021 were cited
as evidence. On receipt of the aforesaid
charge-sheet
dated
29.07.2021,
the
petitioner, vide application/representation
dated
29.07.2021,
sought
certain
documents from the Enquiry Officer related
to the charges in question, so as to enable
him to give a proper reply. Although, the
Enquiry
Officer,
on
receipt
of
the
application
of
the
petitioner
dated
29.07.2021, wrote a letter to the Additional
District
Magistrate
(Administration)/
Deputy
Election
Officer
(Panchayat),
requesting
to
supply
the
documents
demanded by the petitioner vide letter
dated 29.07.2021 within a week, however,
allegedly no heed was paid by the aforesaid
authorities and the documents demanded by
the petitioner vide letter dated 29.07.2021
was never supplied to him. Thereafter, in
absence of the demanded documents, the
petitioner submitted his reply to the chargesheet on 08.10.2021, denying the charges
levelled against him.

(14) On receipt of the aforesaid reply
of the petitioner, on 11.01.2021, the
Enquiry
Officer
again
requested
the
Additional
District
Magistrate
(Administration)/Deputy Election Officer
(Panchayat)
to
supply
the
required
documents to the petitioner. Although, on
20.10.2021,
the
Additional
District
Magistrate
(Administration)/
Deputy
Election
Officer
(Panchayat)
supplied
certain
documents
to
the
petitioner,
however, according to the petitioner, these
documents were not those documents,
which were demanded by the petitioner. In
any case, the petitioner, in continuation of
his earlier reply, again submitted a
supplementary reply to the charge-sheet on
29.10.2021, denying the charges and
requested that he may be exonerated from
the charges so levelled against him.

(15) Apparently, the Enquiry Officer
had submitted its report on 17.12.2021,
holding both the charges to be proved
against the petitioner.

(16) The Disciplinary Authority i.e.
State Government (respondent no.1), on
receipt
of
the
enquiry
report dated
17.12.2021,
passed
the
impugned
punishment
order
dated
22.12.2021,
thereby imposing two minor penalties upon
the petitioner, namely, (1) censure; and (2)
stoppage of one increment for one year.

(17) Feeling aggrieved by the
impugned
punishment
order
dated
22.12.2021, the petitioner preferred Claim
Petition No. 370 of 2022 before the State
Public Service Tribunal, Lucknow. The
learned Tribunal, vide judgment and order
dated 22.09.2022, dismissed the claim
8 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
305
petition, by upholding the punishments
inflicted/imposed on the petitioner by the
disciplinary authorities. It is this judgment
and order passed by the learned Tribunal
dated 22.09.2022, which has been assailed
in the instant writ petition.

C. SUBMISSIONS

(18) The learned Counsel for the
petitioner has submitted manifold grounds
to impinge the impugned order and has
heavily relied on a judgment of Full Bench
of this Court rendered in Abhishek
Prabhakar Awasthi Vs. The New India
Assurance
Company
Limited
and
others: 2013 SCC OnLine All 14267 and
has submitted that the learned Single Judge
of this Court, while allowing the writ
petition No. 12120 (S/S) of 2021 filed by
the petitioner against the order of his
suspension dated 21.05.2021 vide judgment
and order dated 19.07.2021, in addition to
other direction, had also directed that the
disciplinary
proceedings
should
be
completed within three months from the
date of receipt of a certified copy of the
order. It is the submission of the learned
Counsel for the petitioner that since the
petitioner had served a certified copy of the
aforesaid
judgment
and
order
dated
19.07.2021 to the State Government on
06.08.2021, the period of three months
came to be expired on 05.12.2021. Thus,
according to him, since the charge-sheet
was prepared on 13.07.2021 and served on
the petitioner vide letter of Enquiry Officer
dated
20.07.2021
only,
therefore,
construing
the
date
of
initiation
of
departmental enquiry to be when the
charge-sheet is prepared/ served on the
petitioner, the departmental enquiry ought
to have been concluded within a period of
three
month
w.e.f.
13.07.2021
or
20.07.2021. However, the enquiry came to
be
concluded
only
on
19.12.2021.
Therefore, according to him, for all
practical purposes the authority concerned
as having not concluded the departmental
enquiry against the petitioner within three
months' time as stipulated by the learned
Single Judge vide order dated 19.07.2021
nor had sought for any extension of time
from this Hon'ble Court, the same is bad in
law. Thus, it has been argued that in view
of the decision of Full Bench of this Court
in the case of Abhishek Prabhakar
Awasthi
vs.
New
India
Assurance
Company Ltd. (Supra), after expiry of
stipulated period, the departmental enquiry
ought to have not been conducted and
concluded against the employee. Therefore,
it is submitted by him that on this ground
alone, the impugned punishment order falls
and is not sustainable.

(19) Elaborating his submissions, the
learned Counsel has drawn our attention to
para-4.10 of the claim petition to submit
that though specific plea to the aforesaid
aspect of the matter has been taken by the
petitioner in para-4.10 of the claim petition,
but the learned Tribunal has not considered
the aforesaid plea of the petitioner nor has
even discussed while passing the impugned
judgment and order dated 22.09.2022.

(20) Learned Counsel representing the
petitioner has next submitted that impugned
punishment order dated 22.11.2021 has
been passed in utter violation of Rule 9 (4)
of
the
U.P.
Government
Servants
(Discipline & Appeal) Rules, 1999 for the
reason that (a) the documents as demanded
by the petitioner during the course of
enquiry were never supplied to him; (b) the
enquiry report dated 17.12.2021 was never
supplied to the petitioner; and (c) while
preparing enquiry report dated 17.12.2021,
though report/tehrir of Shri Shiv Avatar
306 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh,
Tehsildar/Counting
Magistrate,
Tehsil Khurja and NCRB dated 05.05.2021
were not the part of the charge-sheet, but
even then the same were placed reliance by
the Enquiry Officer to prove the charges,
therefore, the enquiry report as well as the
impugned punishment order are per se
illegal. According to him, the aforesaid plea
has been taken by him in para-4.5 of the
claim petition, but while passing the
impugned judgment/order, the Tribunal had
not considered the aforesaid aspect of the
matter and erred in dismissing the claim
petition by means of the impugned order.
Thus, the impugned order passed by the
Tribunal
as
well
as
the
impugned
punishment order were liable to be setaside.

(21) Per contra, learned Standing
Counsel representing the State/ respondents
has
supported
the
impugned
judgment/order passed by the learned
Tribunal and has submitted that though in
the earlier proceedings when suspension
order was set-aside by the learned Single
Judge of this Court vide order dated
19.07.2021 (supra), time period was given
within which the disciplinary proceedings
so initiated against the petitioner was
supposed to be completed, which could not
be done, but that by itself would not be a
ground for setting aside punishment order
in view of the dictum of the Full Bench of
this
Court
rendered
in
Abhishek
Prabhakar Awasthi Vs. New India
Assurance Company Limited and others
(supra). Thus, according to the learned
Counsel for the respondent, the plea of the
petitioner
in
this
regard
was
not
substantiated.

(22) Learned Standing Counsel has
next submitted that the charges levelled
against the petitioner is serious in nature,
for which disciplinary proceedings have
been initiated against the petitioner. The
Enquiry Officer, after appreciating the
relevant material on record and also
considering the reply of the petitioner to the
charge-sheet, has come to the conclusion
that the petitioner is guilty for the charges
levelled against him. The Departmental
Authority
i.e.
State
Government,
on
examining the relevant record as well as the
enquiry report, has passed the impugned
order of punishment against the petitioner,
which is in consonance to the gravity of the
charges levelled against the petitioner. The
learned Tribunal, after considering the
gravity of the charges and also material
brought on record before him, has rightly
dismissed the claim petition by means of
the impugned order. Thus, according to the
learned Standing Counsel, the impugned
order of punishment as well as impugned
judgment/order passed by the learned
Tribunal do not suffer from any infirmity or
illegality. Therefore, the writ petition is
liable to be dismissed.

D. ANALYSIS & FINDINGS

(23) Having regard to the submissions
advanced by the learned Counsels for the
parties and after perusing the records
available, this Court has given an anxious
thought to the entire gamut of facts and the
law referred by both the rival parties.

(24) Apparently, the procedure with
regard
to
holding
of
disciplinary
proceedings against Government servants
in State of U.P. is governed as per the
provisions
of
the
Uttar
Pradesh
Government
Servant
(Discipline
and
Appeal), Rules 1999 (hereinafter referred
to as 'Rules, 1999'). The procedure for
imposing penalties, the manner in which
charge-sheet is required to be given, the
8 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
307
holding of an enquiry by the inquiry officer
designated for the said purpose, the grant of
opportunity to call witnesses and record
their oral evidence are also provided under
Rules, 1999.

(25) While assailing the impugned
punishment
order
passed
by
the
disciplinary authority as well as impugned
judgment/order passed by the Tribunal, the
learned Counsel representing the petitioner
has laid much emphasis upon Rule 7 and
Rule 9 (iv) of Rules, 1999, therefore, we
deem it apt to reproduce Rule 7 and 9 of
Rules, 1999, which are as under :-

"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
evidences and the name of witnesses
proposed to prove the same along with
oral evidences, 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, along
with the copy of 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 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
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
308 INDIAN LAW REPORTS ALLAHABAD SERIES
evidences, 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
his
in
accordance
with
the
provisions
of
the
Uttar
Pradesh
Departmental Inquiries (Enforcement of
Attendance of Witness 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 in spite of the service of the
notice on his 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 or 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 impracticable 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."

8. xxxxxxxxxx

"9. Action on Inquiry Report-
(1) The disciplinary authority may, for
reasons to be recorded in writing, remit the
case for re-enquiry to the same or any other
inquiry officer under intimation to the
charged Government Servant. The inquiry
officer shall thereupon proceed to 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
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 or charges is of the opinion
that any penalty specified in Rule 3
should be imposed on the charge
Government Servant, he shall give a
8 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
309
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 supplied)

(26) A bare perusal of the aforesaid
provisions of Rules, 1999 would go to
show that the aforesaid rules are a selfcontained
rules
and
an
exhaustive
procedure
has
been
laid
down
for
conducting a departmental inquiry. It has
been the consistent stand of the petitioner
that
the
procedure
adopted
by
the
disciplinary is vitiated due to various
reasons including he was not provided with
the relevant documents during the said
proceedings. Although, the learned Counsel
for the petitioner has asserted that relevant
documents were not provided to the
petitioner, however he was unable to point
out from the pleading or otherwise as to
what documents could not be supplied to
him nor it has been argued as to how those
documents could be relevant to the
disciplinary proceedings. Thus, the said
issue appears to be irrelevant.

(27) The next point raised by the
learned Counsel for the petitioner is that
while preparing enquiry report dated
17.12.2021, though report/tehrir of Shri
Shiv Avatar Singh, Tehsildar/Counting
Magistrate, Tehsil Khurja and NCRB dated
05.05.2021 were not the part of the chargesheet, but even then the same were placed
reliance
by
the
Enquiry
Officer
to
substantiate
the
charges
against
the
petitioner and therefore, according to him,
the enquiry report as well as the impugned
punishment order are per se illegal.

(28) This Court finds substantial force
in the said argument of the petitioner, even
the learned Tribunal did not deal with the
said aspect, although the said ground had
been agitated by the petitioner in the claim
petition. Since, the learned Tribunal did not
deal with the said aspect of the matter, this
Court is obliged to examine the said ground
enunciated by the petitioner in the present
writ petition.

(29) A con-joint reading of Rule 7(iii)
and (v) of the Rules 1999 makes it clear
that not only the proposed documentary
evidences shall be mentioned in the chargesheet, but the same shall be served upon the
charged officer. The said procedure is an
essential
facet
of
the
departmental
proceeding as it not only gives a certainty
to the allegation levelled against the erring
public servant but also prevents the
department from a roving enquiry. The said
procedure is to serve the rule of fairness
and flows in the true sprit of Article 14 and
public policy. Most importantly, the said
procedure prevents from pulling up a
surprise at the time of departmental enquiry
and also enables the delinquent public
servant to prepare for his defense well in
advance. In any case, supply of documents
relied upon by the department in an enquiry
is an inalienable right of the charged officer
and is an extension of the right to equality
as free and fair procedure are a part and
parcel of Article 14 of the Constitution of
India, which in turn serves the purpose to
live with dignity.
310 INDIAN LAW REPORTS ALLAHABAD SERIES

(30) This Court is clear in its mind
that the applicability of the provisions of
Rule 7 of the Rules, 1999 relating to supply
of documents to the charged officer is
mandatory and forms essential cannons of
principle of natural justice viz "audi
alteram partem" i.e no person shall be
condemned
unheard.
Apparently,
the
impugned judgment of the learend Tribunal
has fallen short of returning any findings on
the said aspect of non-supply of the
report/tehrir of Shri Shiv Avatar Singh,
Tehsildar/Counting
Magistrate,
Tehsil
Khurja and NCRB dated 05.05.2021 to the
petitioner, which admittedly were not the
part of the charge-sheet, but were relied
upon by the Enquiry Officer to substantiate
the charges against the petitioner. The very
non-supply of these documents vitiates the
enquiry and the consequent report filed
with the disciplinary authority and as such
cannot be allowed to be sustained in the
eyes of law.

(31) This Court finds that even at the
second stage, wherein as per Rule 9 (4) of
the Rules 1999, the petitioner was to be
supplied with the enquiry report and called
for a representation against the said
representation, adequate opportunity for
explanation was not given to the petitioner
in that regard. Apparently, Rule 9(4) of the
Rules, 1999 provides for sufficient selfguard to a delinquent officer, in case the
disciplinary authority is of the view that the
enquiry report submitted is against the said
delinquent officer, inasmuch as it provides
that the Disciplinary Authority, shall give a
copy of the inquiry report and his findings
to the charged Government Servant and
require him to submit his representation
within
a
reasonable
specified
time.
Apparently
the
giving
of
such
a
representation is a last chance afforded to a
delinquent officer to justify his misdeeds to
the disciplinary authority and is again an
essential
facet
of
the
disciplinary
proceedings and in terms of the public
policy.
Further,
it
is
only
after
a
representation is received from the charged
officer that the disciplinary authority
having regard to all the relevant records
relating to the inquiry and representation of
the charged Government servant pass a
reasoned order imposing one or more
penalties.

(32) In the present case, the enquiry
report was submitted by the enquiry officer
on 17.12.2021 and without supplying a
copy of the said report and awaiting the
representation thereof, the petitioner was
imposed
the
punishment
order
on
22.12.2021. Again, although these grounds
had been made good by the petitioner
before the learned Tribunal, however,
unfortunately the same has been dealt in a
very cursory manner and as such this Court
has been burdened to deal with such a
fundamental aspect of a departmental
enquiry.

(33) The Hon'ble Supreme Court in
the case of Ministry of Finance and
another v. S.B. Ramesh reported in AIR
1998 SC 853 has emphasized that in case
of disciplinary proceedings if Enquiry
Officer relies on the documents, then, those
documents should be proved in accordance
with law and any inference drawn from the
documents which were not proved in
accordance with law, would be illegal and
opposed to law.

(34) Further, there is another aspect of
the matter, which has been agitated by the
learned Counsel for the petitioner. This
Court finds that the said issue relating to
conclusion of departmental enquiry within
three months of the order dated 21.07.2021
8 All. Ashok Kumar Singh Vs. State of U.P. & Anr.
311
passed in the case of the petitioner by this
Hon'ble Court in the earlier round of
litigation has been conveniently again not
dealt with the learned Tribunal. Although
an effort has been made by the learned
Standing Counsel before this Court in the
present writ petition, by submitting that the
judgment of the Hon'ble Full Bench of this
Court in Abhishek Prabhakar Awasthi vs.
The New India Assurance Company
Limited and others (supra)by itself
cannot be a ground for setting aside the
punishment imposed on the petitioner.
Although, the argument appears to be very
attractive, however, this Court finds that the
Full Bench of this Court has answered the
questions in reference vide paragraph-2 of
the
aforesaid
referred
judgment
by
formulating the following question :-

"(a) Whether if an inquiry
proceeding is not concluded within a time
frame fixed by a court and concluded
thereafter, without seeking extension from
the Court then on the said ground the entire
inquiry proceeding as well as punishment
order passed, is vitiated in view of the
judgment in the case of P.N. Srivastava;
and

(b) Whether the law as laid down
by a Division Bench of this Court in the
case of P.N. Srivastava that if an inquiry
proceeding is not concluded within a time
frame as fixed by a Court, it stands vitiated
is still a good law in view of the judgment
rendered by the Supreme Court in the case
of Suresh Chandra as well as a judgment
dated 27.07.2009 of a Division Bench of
this Court in Writ Petition No. 1056 (SB) of
2009 (Union of India and others Vs.
Satendra Kumar Sahai and another)."

(35) Although, the answer to the
aforesaid reference was made by the Full
bench at paragraph-19 of the judgment,
however, it would be significant to note
that the Full Bench in that very judgment
also recorded the prelude to the said
judgment at paragraph-6, which makes for
an enlightenment reading. Suffice to
mention that the Full Bench in that
paragraph observed as follows :-

"6.