# Brij Bhushan Maurya v. State of U.P. & Anr

- **Citation:** (2021) 4 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-19
- **Case number:** Special Appeal No. 66 of 2021
- **Bench:** Manoj Misra, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-bhushan-maurya-v-state-of-u-p-anr-47043
- **Pages:** 10

## Headnote

A. Civil Law - U.P. Government Servants
Conduct Rules, 1956 - Rule 3(1) - UP
Government
Servants
(Discipline
&
Appeals)
Rules,
1999
-
Rule
7
-
Disciplinary
Enquiry
-
Punishment
-
Reversion - Major Penalty - Lack of Oral
Enquiry - Effect - Principle of Natural
Justice - Applicability - Held, where, in a
major penalty enquiry, after service of the
charge-sheet,
the
charge-sheeted
employee in his reply to the charge-sheet
does not admit the charge or refutes the
charge, it is mandatory to fix a date for an
oral enquiry - Failure to fix a date for the
oral enquiry in such circumstances would
vitiate the enquiry and the consequential
order of punishment - It is not necessary
for the charge-sheeted officer to pray for
an oral enquiry inasmuch as the moment
the charge-sheeted officer does not admit
the charge or refutes the charge, an oral
enquiry is required not only to comply
with the provisions of the 1999 Rules but
also the principles of natural justice. (Para
18)
Special Appeal allowed. (E-1)
Cases relied on :-
4 All. Brij Bhushan Maurya Vs. State of U.P. & Anr.
163

## Text

162 INDIAN LAW REPORTS ALLAHABAD SERIES
the person who allegedly took the appellant
in adoption had a living wife, whose
existence was denied in the deed, the
presumption, whatever available, stood
rebutted.

17. At this stage, we may notice another
statement of the learned counsel for the
appellant though not vehemently pressed as
an argument. It was stated that there were
property documents on record to show that
the estate of the deceased employee
(Rajendra Singh) had come to the appellant
and, therefore, for all practical purposes he
was the son of the deceased employee. We
find not much value in those facts because
here, to qualify as a dependent of an
employee who died in harness, the appellant
had set up a plea that he was the adopted son
of the deceased employee. Once that plea
stood discarded upon finding that a valid
adoption could not be established, as to how
the property of the deceased employee
devolved was not important and binding on
the authorities who were to deal with the
claim for compassionate appointment on the
strength of adoption. That apart, there were
other circumstances also, such as continuance
of name of natural parents of the appellant in
educational certificates, obtained after the
alleged date of adoption, to suggest that
adoption was sham may be to divest the
estranged wife of her claim in the deceased
employee's property.

18. For all the reasons recorded above,
we are of the considered view that the learned
single judge was justified in negativing the
claim of the writ petitioner (the appellant) for
compassionate appointment on the basis of
his alleged adoption by the deceased
employee.

19. The appeal is, accordingly,
dismissed.
----------
(2021)04ILR A162
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Special Appeal No. 66 of 2021

Brij Bhushan Maurya ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Uma Nath Pandey,Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

A. Civil Law - U.P. Government Servants
Conduct Rules, 1956 - Rule 3(1) - UP
Government
Servants
(Discipline
&
Appeals)
Rules,
1999
-
Rule
7
-
Disciplinary
Enquiry
-
Punishment
-
Reversion - Major Penalty - Lack of Oral
Enquiry - Effect - Principle of Natural
Justice - Applicability - Held, where, in a
major penalty enquiry, after service of the
charge-sheet,
the
charge-sheeted
employee in his reply to the charge-sheet
does not admit the charge or refutes the
charge, it is mandatory to fix a date for an
oral enquiry - Failure to fix a date for the
oral enquiry in such circumstances would
vitiate the enquiry and the consequential
order of punishment - It is not necessary
for the charge-sheeted officer to pray for
an oral enquiry inasmuch as the moment
the charge-sheeted officer does not admit
the charge or refutes the charge, an oral
enquiry is required not only to comply
with the provisions of the 1999 Rules but
also the principles of natural justice. (Para
18)
Special Appeal allowed. (E-1)
Cases relied on :-
4 All. Brij Bhushan Maurya Vs. State of U.P. & Anr.
163
1. Sur Enamel & Stamping Works Ltd. Vs The
Workmen; 1963 AIR SC 1914
2. St. Of U.P. & anr. Vs Sri C.S. Sharma; AIR
1968 SC 158
3. Radhey Kant Khare Vs U.P. Co-Operative
Sugar Factories Federation Ltd.; 2003 (21) LCD
610
4. St. Of Uttaran. & ors. Vs Kharak Singh;
(2008) 8 SCC 236
5. St. of U.P. and others Vs Saroj Kumar Sinha;
(2010) 2 SCC 772
6. Chamoli District Co-operative Bank Ltd. Vs
Raghunath Singh Rana & ors.; (2016) 12 SCC
204
(Delivered by Hon'ble Manoj Misra, J.&
Hon'ble Rohit Ranjan Agarwal, J.))

1. This intra-court appeal arises from
a judgment and order, dated 02.03.2021, of
a Single Judge in Writ A No. 8811 of 2020
whereby the writ petition of the appellant
assailing a punishment order of reversion,
dated 01.10.2020, has been dismissed.

2. The factual matrix of the case is as
follows:-

(i) The appellant (writ petitioner)
gained entry in service through U.P. Public
Service
Commission
(for
short
the
Commission) and, at the relevant time, was
posted as District Inspector of Schools (for
short DIOS), Basti. With reference to his
functioning as DIOS Basti, he was served a
charge-sheet, dated 17.05.2006, levelling
upon him a charge that he granted
permission/ approval for payment of salary
to one Class C and three Class D
employees
appointed
in
educational
institutions (i.e. M.P.B.P. Balika Inter
College, Harraiya, Basti and Kishan Inter
College, Bhanpur, Basti) without prior
concurrence/
recommendation
of
the
Regional Level Committee headed by
Joint Director of Education, as was
required by the Government Order dated
19.12.2000, and by doing so he violated the
Government Order. With reference to this
charge-sheet, a report exonerating the
appellant was submitted on 02.06.2009
with which the State Government did not
agree. Rather, it proposed a punishment of
reversion to be imposed upon the appellant
and sent the same for approval of the
Commission. The Commission, however,
disagreed with the proposed punishment
and, rather, proposed a lesser punishment
of withholding two increments. The State
Government vide order dated 14.03.2012
passed the order as proposed by the
Commission. This order of punishment,
dated 14.03.2012, has been separately
challenged by the appellant through Writ A
No. 21916 of 2012 which is pending.

(ii) In the meantime, another
charge-sheet dated 15.04.2009, was served
upon the appellant. The second chargesheet levelled two charges. The first being
that before granting approval to the
appointment of Class C employee, namely,
Shiv Kumar, at M.P.B.P. Balika Inter
College, Harraiya, Basti, vide order dated
11.08.2004, the appellant failed to accord
consideration
for
adjustment
of
compassionate appointees working against
supernumerary posts, as was required by a
Government
Order
dated
30.07.1992,
thereby causing financial loss to the State
Exchequer. In addition to above, it was
alleged, the mandate of Government Order
dated 19.12.2000 requiring approval from
the Regional Level Committee was not
met. The second charge levelled in the
charge sheet dated 15.04.2009 was in
respect of according approval to the
appointment and payment of salary to as
164 INDIAN LAW REPORTS ALLAHABAD SERIES
many as 10 direct appointees on the post of
Peon in various institutions of the district
without taking into consideration the
mandate of the Government Order dated
30.07.1992 mentioned above. In addition to
above, it was alleged, the appellant had
failed to follow the guidelines contained in
the Government Order dated 19.12.2000
requiring approval of the Regional Level
Committee
before
appointment
and
payment of salary. It was alleged that the
action of the appellant caused loss to the
State Exchequer and amounted to violation
of Rule 3(1) of U.P. Government Servants
Conduct Rules, 1956 (for short 1956
Rules).

(iii) The appellant submitted his
reply to the charge-sheet dated 15.04.2009
stating, inter-alia, that requirement to first
adjust compassionate appointees working
against supernumerary posts did not place
any restriction on appointment of persons
belonging to reserved categories as clarified
by Government Order dated 06.09.2000. In
addition to that, it was stated that in respect of
appointment on Class 'C' post, one Kamlesh
Pratap Singh, appointed on a supernumerary
post, was adjusted in Kishan Inter College,
Basti. Apart from above, it was claimed that
there were 160 sanctioned posts of clerk in
the district against which there were only 145
appointees therefore, on the date of sanction
of appointment, there were 15 posts lying
vacant. In respect of not following the
mandate
of
Government
Order
dated
19.12.2000 it was stated that the said
Government Order would not come in the
way of payment of salary made to appointees
against already sanctioned posts inasmuch as
its operation was limited to newly sanctioned
posts.
Support
was
drawn
from
a
Government Order dated 29.12.2006, issued
pursuant to High Court's order dated
09.05.2006 in Writ No.3363 of 2002,
providing that for approval of appointment
and sanction of salary to Group C and Group
D posts in educational institutions covered by
U.P. Intermediate Education Act, 1921 and
the Regulations framed thereunder it is the
DIOS who is the authority competent.
Likewise, in respect of charge no.2 similar
defence was set up and, in addition to that, it
was stated that there were as many as 624
sanctioned Group D posts in the district
against which only 517 posts were filled and
as many as 107 posts were vacant therefore
the allegation that loss was caused to the
State Exchequer is incorrect. Thus, in short,
both the charges were denied by the
appellant.

(iv) After submission of reply by
the appellant, on 17.02.2011 an enquiry
report
was
forwarded
to
the
State
Government. Acting on it, the State
Government issued show cause notice to
the appellant on 20.09.2011 to which a
reply was submitted by the appellant on
02.12.2011. After consultation with the
Commission, the State Government, by
order dated 01.10.2020, imposed major
punishment
of
reversion
upon
the
appellant, thereby, reverting him from the
post of District Inspector of Schools to the
post of Basic Shiksha Adhikari, as
originally held by the appellant, coupled
with a censure entry.

3. Through Writ A No.8811 of 2020,
the appellant questioned the order of
punishment, inter-alia, on two grounds:-

(a) that the second charge-sheet
in effect is an extension of the first
therefore, as under the first charge-sheet the
petitioner has already been punished, the
second
charge-sheet
proceeding
and
punishment violates the doctrine of double
jeopardy;
4 All. Brij Bhushan Maurya Vs. State of U.P. & Anr.
165

(b) that after receipt of reply from
the appellant to the second charge-sheet,
the enquiry officer did not fix any date,
time and place of the enquiry and no
enquiry including oral enquiry was held by
the enquiry officer as is the mandate of
Rule 7of the U.P. Government Servants
(Discipline & Appeals) Rules, 1999 (for
short 1999 Rules) and as such the entire
enquiry and consequent punishment stands
vitiated not only for violation of the
provisions of the 1999 Rules but also the
principles of natural justice.

4. The State contested the writ
petition by filing counter-affidavit stating
therein that the two charge-sheets were
quantitatively and qualitatively different.
The first was in respect of approval of
payment of salary to one Class 'C' and three
Class 'D' employees in violation of
Government
Order
dated
19.12.2000
whereas the second was in respect of
according approval to the appointment and
consequential payment of salary to one
clerk and ten Class IV employees without
taking into consideration the Government
Order dated 30.07.1992 which required
prior
adjustment
of
compassionate
appointees, working on supernumerary
posts, against sanctioned posts. Therefore,
the doctrine of double jeopardy was not
applicable. In respect of the second ground
taken by the appellant, the State claimed
that the enquiry report was based on
documents which were not refuted and
therefore no prejudice was caused to the
appellant by not holding an oral enquiry.
Hence, the writ petition was liable to be
dismissed.

5. The learned Single Judge dismissed
the writ petition by holding that the scope
of enquiry under the two charge-sheets was
different and therefore the doctrine of
double jeopardy would not apply on the
facts of the case. In respect of the second
ground taken by the appellant, that is of not
holding oral inquiry, the learned single
judge observed that the appellant could not
demonstrate that any prejudice was caused
to him by not holding an oral enquiry
inasmuch as the enquiry report was based
on documents. The learned single judge
accordingly dismissed the writ petition.

6. We have heard Sri Ashok Khare,
learned senior counsel, assisted by Sri Uma
Nath Pandey, for the petitioner-appellant;
and the learned Standing Counsel for the
respondents. As the affidavits exchanged
between the parties, before the learned
Single Judge, are available in the paper
book of this appeal, with the consent of
learned counsel for the parties, this appeal
has been finally heard at the admission
stage itself and is being decided by this
judgment.

7. Sri Khare though, initially, tried to
demonstrate that the two charge-sheets
were more or less similar in pith and
substance, but when confronted with the
contents of each of the two charge-sheets,
which have been extensively quoted in the
judgment of the learned Single Judge to
demonstrate that the scope of the two
charge-sheets was different, rightly did not
take his submissions further on that score.
We have also noticed the contents of the
two charge-sheets and having noticed the
contents thereof, we are in agreement with
the view of the learned single judge that the
scope of inquiry in the two charge-sheets
was different and, therefore, the second
enquiry, which had much wider scope than
the first, would not be hit by the doctrine of
double jeopardy. The view of the learned
166 INDIAN LAW REPORTS ALLAHABAD SERIES
single judge on that issue is, accordingly,
affirmed.

8. In respect of the second ground
taken in the writ petition, that is there was
no oral inquiry held, Sri Khare pointed out
to the averments made in paragraphs 15
and 28 of the writ petition. Therein specific
averment was made that after submission
of the reply to the charge-sheet, no date,
time and place of the enquiry was fixed nor
intimated to the petitioner-appellant by the
enquiry officer and that no enquiry
including oral enquiry was held by the
enquiry officer. It was pointed out that
there was no specific denial of the aforesaid
averments in the counter-affidavit. Sri
Khare submits that the view taken by the
learned Single Judge that by not holding an
oral enquiry, no prejudice was caused to
the appellant because the inquiry report is
based on documents is erroneous inasmuch
as the stand of the appellant was : (a) that
under
the
Government
Order
dated
06.09.2000, there was a specific provision
that there would be no stoppage of
appointment of candidates belonging to the
reserved categories, such as Scheduled
Caste,
Scheduled
Tribes
and
Other
backward
classes,
while
ensuring
adjustment of compassionate appointees
working on supernumerary posts against
regular vacancies therefore, even if such
appointments were made, they would not
be considered in the teeth of the earlier
Government Order dated 30.07.1992; (b)
that there was no question of financial loss
to the State Exchequer as appointments
were admittedly against vacant sanctioned
posts, inasmuch as, the sanctioned posts
lying vacant in the district were much
larger in number than the posts against
which
appointments
were
made
and
approved;
and
(c)
that
under
the
Government Order dated 29.12.2006 as
well as the Regulations framed under the
UP Intermediate Education Act, 1921, the
power
to
accord
approval
to
the
appointment of Class III and Class IV
employees vested in the DIOS, which was
not circumscribed by the Government
Order
dated
19.12.2000.
Sri
Khare
submitted that the aforesaid defence of the
petitioner-appellant has been discarded by
the disciplinary authority by relying upon
the enquiry report dated 20.09.2011 in
which the enquiry officer had observed that
in support of the defence, no proof was
submitted by the charge-sheeted officer. He
submits that oral enquiry was necessary
because in the oral enquiry, the chargesheeted officer would have had an
opportunity not only to produce evidence in
his
defence
but
also
question
the
documents relied upon against him. Hence,
the view taken by the learned Single Judge
that by not holding an oral enquiry, no
prejudice was caused to the appellant is not
correct.

9. Per contra, the learned Standing
Counsel supported the judgment of the
learned Single Judge by claiming that since
the charge has been substantiated on the
basis of documents, of which there was no
denial, the learned Single Judge was
justified in holding that no prejudice was
caused to the appellant by not holding oral
enquiry.

10. Having considered the rival
submissions and upon perusal of the records,
it is established as a fact that after submission
of reply by the appellant to the charge-sheet,
no date, time and place of the enquiry was
fixed by the enquiry officer and that no oral
enquiry was held by the enquiry officer. We
have therefore to examine whether by not
holding an oral enquiry and by not fixing a
date to enable the charge-sheeted officer to
4 All. Brij Bhushan Maurya Vs. State of U.P. & Anr.
167
appear and submit his defence in the inquiry,
the enquiry gets vitiated. If so, whether it
vitiates the report and the order of punishment.

11. It is not in dispute that 1999 Rules
are applicable for the purposes of imposing
penalty on the appellant. Rule 3 of the 1999
Rules provides for the penalties that can be
imposed upon a Government Servant for
good and sufficient reasons:

Minor penalties :

(i) Censure;

(ii) Withholding of increments for
a specified period;

(iii) Stoppage at an efficiency bar;

(iv) Recovery from pay of the
whole or part of any pecuniary loss caused
to Government by negligence or breach of
orders; and

(v) Fine in case of persons
holding Group 'D' posts.

Major penalties :

(i) Withholding of increments
with cumulative effect;

(ii) Reduction to a lower post or
grade or time scale or to a lower stage in a
time scale;

(iii) Removal from the service
which does not disqualify from future
employment; and

(iv) Dismissal from the service
which
disqualifies
from
future
employment.

12. From above, it is clear that the
punishment of reversion from the post of
District Inspector of Schools to the original
post of Basic Shiksha Adhikari is a major
penalty, as has been imposed upon the
appellant. For imposition of major penalty,
under 1999 Rules, the procedure is laid
down in Rule 7 of the 1999 Rules. Rule 7
provides that the disciplinary authority may
himself inquire into the charges or appoint
an authority subordinate to him as Inquiry
Officer to inquire into the charges. With
regard to the form of the charge-sheet it is
provided that the facts constituting the
misconduct on which it is proposed to take
action shall be reduced in the form of
definite charge or charges. The chargesheet is to be approved by the disciplinary
authority provided where the appointing
authority is Governor, as is in the present
case, the charge-sheet may be approved by
the Principal Secretary or the Secretary, as
the case may be, of the concerned
department. The charges framed are to 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 along with oral
evidence, if any, has to be mentioned in the
charge-sheet. The charged Government
servant is required to put in a written
statement of his defence in person on a
specified date, which is not to 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
is also to 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
168 INDIAN LAW REPORTS ALLAHABAD SERIES
shall proceed to complete the inquiry ex
parte. Sub-clause (vi) of Rule 7 provides
that 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. Sub-clause (vii) of Rule 7
provides
that
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 Enquiry Officer may for
reasons to be recorded in writing refuse to
call such witness. Sub-clause (viii) of Rule
7 confers power upon the Inquiry Officer to
summon any witness to give evidence or
require any person to produce documents
etc. Sub-clause (x) of Rule 7 of 1999 Rules
provides as follows:

"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."

13. As to the manner in which a
disciplinary enquiry is to be held and
whether an oral enquiry is a must, there are
a number of decisions. In Sur Enamel and
Stamping Works Ltd. vs The Workmen,
1963 AIR SC 1914, it was held "An
enquiry cannot be said to have been
properly held unless (i) the employee
proceeded against has been informed
clearly of the charges levelled against him,
(ii) the witnesses are examined - ordinarily
in the presence of the employee - in respect
of the charges, (iii) the employee is given a
fair
opportunity
to
cross-examine
witnesses, (iv) he is given a fair opportunity
to examine witnesses including himself in
his defence if he so wishes on any relevant
matter, and (v) the enquiry officer records
his findings with reasons for the same in
his report." The Supreme Court in that case
had found that the enquiry report had
placed reliance on certain reports which
were not made available to the workman
and the person, who prepared those reports,
did not attend the enquiry at all. Such an
enquiry was held to be invalid.

14. In State Of Uttar Pradesh & Anr
vs Sri C.S. Sharma, AIR 1968 SC 158, the
apex
court
took
the view
that
an
opportunity has to be given to the chargesheeted employee to produce his witnesses
or to lead evidence in defence in absence
whereof, the entire disciplinary proceeding
gets vitiated. A Division Bench of this
Court in Radhey Kant Khare vs U.P. CoOperative Sugar Factories Federation
Ltd., 2003 (21) LCD 610 by placing
reliance on various decisions of the Apex
Court as well as of this Court emphasising
upon the necessity of an oral enquiry,
expounded the law as follows:-

"After a charge-sheet is given to
the employee, an oral enquiry is a must,
whether the employee requests for it or not.
Hence, a notice should be issued to him
indicating him the date, time and place of the
enquiry. On that date the oral and
documentary evidence against the employee
4 All. Brij Bhushan Maurya Vs. State of U.P. & Anr.
169
should first be led in his presence.......
Ordinarily, if the employee is examined first,
it is illegal........ No doubt in certain
exceptional cases, the employee may be
asked to lead evidence first....., but ordinarily
the rule is that first the employer must adduce
his evidence. The reason for this principle is
that the charge-sheeted employee should not
only know the charges against him but should
also know the evidence against him so that he
can properly reply to the same. Where no
witnesses were examined and no exhibit or
record is made but straightaway the employee
was asked to produce his evidence and
documents in support of his case it is
Illegal......."

15. In State Of Uttaranchal & Ors vs
Kharak Singh : (2008) 8 SCC 236, after
considering a catena of decisions, the Apex
Court summarized the legal principles, in
paragraph 15 of the judgment, as follows:-

"From the above decisions, the
following principles would emerge:

(i)
The
enquiries
must
be
conducted bona fide and care must be
taken to see that the enquiries do not
become empty formalities.

(ii) If an officer is a witness to
any of the incidents which is the subject
matter of the enquiry or if the enquiry was
initiated on a report of an officer, then in
all fairness he should not be the Enquiry
Officer. If the said position becomes known
after the appointment of the Enquiry
Officer, during the enquiry, steps should be
taken to see that the task of holding an
enquiry is assigned to some other officer.

(iii)
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent
charged,
give
an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
he wants to lead any evidence and asked to
give any explanation about the evidence led
against him.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply a
copy of the enquiry report and all
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any."

16. In State of Uttar Pradesh and
others v. Saroj Kumar Sinha, (2010) 2
SCC 772, in the context of 1999 Rules, the
Apex Court upon finding that inquiry
officer had failed to fix a date for
appearance of the charge-sheeted employee
to answer the charge, after noticing sub rule
(x) of Rule 7 of the 1999 Rules, in
paragraph 26 of its judgment, observed :-

" The first inquiry report is
vitiated also on the ground that the inquiry
officers failed to fix any date for the
appearance of the respondent to answer the
charges."

In paragraph 27 of the said
judgment, the Apex Court, after quoting
sub-rule (x) of Rule 7 of the 1999 Rules,
observed :-

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

17. In the case of Chamoli District
Co-operative Bank Ltd. v. Raghunath
Singh Rana and others : (2016) 12 SCC
204, in the context of the procedure laid
down in Regulation 85 of the U.P. Co-
operative Societies Employees Service
Regulations, 1975, the Apex Court after
noticing various earlier decisions rendered
by it, in paragraph 22 of its judgment, held
that the disciplinary enquiry stood vitiated
because the inquiry officer fixed no date for
the oral enquiry after service of reply to the
charge-sheet.

18. A conspectus of the decisions
noticed above would show that where, in a
major penalty enquiry, after service of the
charge-sheet, the charge-sheeted employee
in his reply to the charge-sheet does not
admit the charge or refutes the charge, it is
mandatory to fix a date for an oral enquiry.
Failure to fix a date for the oral enquiry in
such circumstances would vitiate the
enquiry and the consequential order of
punishment. It is not necessary for the
charge-sheeted officer to pray for an oral
enquiry inasmuch as the moment the
charge-sheeted officer does not admit the
charge or refutes the charge, an oral
enquiry is required not only to comply with
the provisions of the 1999 Rules but also
the principles of natural justice. In a
disciplinary enquiry, even if evidence is in
the form of documents, the documents
would have to be produced and their
authenticity certified either by production
of a witness or on the basis of an admission
of the charge-sheeted employee made by
him after receipt of those documents or
production of those documents before him
in the inquiry. After the department has led
its evidence, the charge-sheeted employee
is to be given opportunity to lead evidence
in defence. Defence evidence may be oral
or documentary depending upon the nature
of the evidence which the defence wishes
to rely on.

19. In the instant case, the appellant
had not admitted the charges. He had
pleaded not guilty. In these circumstances,
he had a right to lead evidence in defence
in the inquiry. Not holding an inquiry in
these circumstances most certainly was
prejudicial to his defence more so when the
reversion order dated 01.10.2020 recites
that the appellant had not led any evidence
to substantiate his defence. The view taken
by the learned Single Judge that the writ
petitioner (the appellant herein) had failed
to demonstrate as to what prejudice was
caused to him by not holding an oral
enquiry, in our considered view, is not
correct. Because, once the writ petitioner
(the appellant herein) had refuted the
charges by claiming that the order of
approval of the appointments and payment
of salary, at his level, was not a misconduct
to his understanding, as, according to him,
there existed Government Orders to support
such action, he was entitled to an oral
hearing. Not holding an oral hearing has
4 All. Ram Bachan Ram Vs. Union of India & Ors.
171
most certainly been prejudicial to his
interest.

20. At this stage, we may observe that
the charge levelled upon the petitioner was
with regard to breach of Rule 3 of 1956
Rules.
Rule
3
provides:
(1)
Every
Government servant shall at all times
maintain absolute integrity and devotion to
duty. (2) Every Government servant shall at
all times conduct himself in accordance
with the specific or implied orders of
Government regarding behaviour and
conduct which may be in force. Misconduct
is not defined. But a conduct which is in
violation of the code of conduct prescribed
for the office concerned may be treated as a
misconduct. Ordinarily, a breach of the
prescribed code of conduct may occur in
two situations. One due to improper
motives, which is to be viewed seriously,
and the other due to negligence which may
be
visited
with
minor
punishment,
dependent on facts of a case. As to whether
a conduct referable to breach of circular/
government
orders
amounts
to
a
misconduct, if so and punishable to what
extent, under the Rules, is dependent upon
multiple factors such as : (a) whether such
departmental
guidelines
/
circulars
/
government orders are well circulated and
admit of no two views; and (b) whether, on
account of multiple instructions in the form
of circulars/ government orders, there exist
a scope to have different views. In addition
to above, there may be a situation where
the conduct in question of an officer facing
enquiry is influenced by a misleading note
put by his subordinate staff in ordinary
course of business. If it is so, the violation
of the Government order or instruction or
circular may not be attributable to that
officer but to his subordinate. Thus, to
reach to a well considered finding on the
issue, it is desirable to have a date fixed
in the inquiry so as to provide the chargesheeted officer an opportunity to submit his
defence. But, for all of this, an oral enquiry
is necessary. Depriving a charge-sheeted
officer of the opportunity of an oral
enquiry, under the circumstances, would
therefore, in our considered view, cause
serious prejudice to his defence. Hence, the
view to the contrary taken by the learned
single judge is not correct.

20. As, admittedly, the enquiry officer
fixed no date for oral enquiry on the chargesheet served on the appellant, in spite of the
fact that the appellant had submitted a reply
refuting the charges, the enquiry stood
vitiated and so did the enquiry report as well
as the consequential action. The appeal is
therefore allowed. The judgment and order of
the learned Single Judge dated 02.03.2021 in
Writ A No. 8811 of 2020 is set aside. The
punishment order dated 01.10.2020 passed by
the second respondent is quashed. The
respondents, however, are at liberty to carry
out the disciplinary proceeding on the chargesheet dated 15.04.2009 from the stage of the
enquiry, in accordance with law, and in the
light of the observations made herein above.
There is no order as to costs.
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(2021)04ILR A171
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2021

BEFORE

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

Writ A No. 1309 of 2017

Ram Bachan Ram ...Petitioner
Versus
Union of India & Ors. ...Respondents