# Dineshwar Mishra v. State of U.P. & Ors

- **Citation:** (2025) 2 ILRA 452
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-24
- **Case number:** Writ-A No. 2211 of 2025
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dineshwar-mishra-v-state-of-u-p-ors-54541
- **Pages:** 5

## Headnote

A. Service Law - UP Government Servants
(Discipline and Appeal) Rules, 1999 - Rule
9 - Punishment - Stoppage of two
increments
-
Inquiry
report
was
submitted - However, the disciplinary
authority, while holding the petitioner
guilty, relied upon some independent
report of other authority - Permissibility -
Held, the disciplinary authority is bound to
consider only the material, which has
been
adduced
during
the
inquiry
proceedings. If on perusal of the material
which has been adduced during the
inquiry proceeding, lead him to take a
different stand what has been recorded by
the inquiry officer, he is within his
competence to issue a notice to the
petitioner disagreeing with the findings of
the inquiry officer but at this stage he
cannot enlarge the scope of inquiry and
take the opinion from a third person and
relying on the said material imposed
punishment upon the government servant
- Rule 9 of the Rules of 1999 has been
grossly violated. (Para 13, 15 and 16)

Writ petition allowed. (E-1)

## Text

452 INDIAN LAW REPORTS ALLAHABAD SERIES
the date of his reinstatement. Accordingly,
the impugned orders dated.27.11.2024
passed by District Magistrate, Gonda and
28.2.2023 passed
by
Sub
Divisional
Magistrate, Mankapur, District Gonda, are
quashed.

17. The writ petition is allowed.

18. The petitioner would be entitled to
full back wages from the date of his
suspension to the date of his reinstatement
which may be paid to him expeditiously,
preferably within a period of two months
from the date a certified copy of this order
is placed before the competent authority.

19. In the aforesaid circumstances, we
have no doubt that once no punishment has
been awarded to the petitioner, the period
so spent under suspension is liable to be
duly considered as a period spent on duty
as provided for in proviso to Rule 54. Apart
from the above, there is no reason for the
respondents not to grant benefit as provided
in sub clause 3 of Rule 54 declaring the
period of his suspension till the date of his
reinstatement to be treated as a period spent
on duty for all purposes. It is, therefore,
provided that the period spent under
suspension by the petitioner shall be
deemed to be spent on duty.
----------
(2025) 2 ILRA 452
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 2211 of 2025

Dineshwar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Surya Mani Singh, Arun Pratap Verma

Counsel for the Respondents:
C.S.C., Abhinav Trivedi

A. Service Law - UP Government Servants
(Discipline and Appeal) Rules, 1999 - Rule
9 - Punishment - Stoppage of two
increments
-
Inquiry
report
was
submitted - However, the disciplinary
authority, while holding the petitioner
guilty, relied upon some independent
report of other authority - Permissibility -
Held, the disciplinary authority is bound to
consider only the material, which has
been
adduced
during
the
inquiry
proceedings. If on perusal of the material
which has been adduced during the
inquiry proceeding, lead him to take a
different stand what has been recorded by
the inquiry officer, he is within his
competence to issue a notice to the
petitioner disagreeing with the findings of
the inquiry officer but at this stage he
cannot enlarge the scope of inquiry and
take the opinion from a third person and
relying on the said material imposed
punishment upon the government servant
- Rule 9 of the Rules of 1999 has been
grossly violated. (Para 13, 15 and 16)

Writ petition allowed. (E-1)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Surya Mani, learned
counsel for the petitioner as well as
Standing counsel for the respondent.

2. With the consent of the parties, the
petition is being decided at the admission
itself.

3. The petitioner has approached this
court being aggrieved by the order dated
23.9.2024 passed by Principal Secretary,
Sugar Cane Department thereby inflicting
punishment of stoppage of two increments
2 All. Dineshwar Mishra Vs. State of U.P. & Ors.
453
permanent, and also giving a censure entry
to the petitioner.

4, Learned counsel for the petitioner
has vehemently urged that the procedure
adopted by the respondents while inflicting
punishment on the petitioner is in gross
violation of Uttar Pradesh Government
Servants (Discipline and Appeal) Rules,
1999 (hereinafter referred to as the Rules of
1999) specifically rule 9 where after
submission of the inquiry report the inquiry
officer had exonerated the petitioner of all
the charges. The inquiry officer sought
opinion of the Controlling Authority of the
petitioner and without affording any
opportunity
inflicted
the
aforesaid
punishment. He submits that apart from
being violative of Articles 14 and 16 of the
Constitution, the said punishment is alien to
the provisions of Rule 9 of the Rules of
1999 and, therefore, deserves to be set
aside.

5. Brief facts of the case as stated in
the writ petition are that the petitioner was
posted on the post of Deputy Cane
Commissioner, Saharanpur when certain
allegations were levelled against him for
not effectively complying with the tagging
orders which are issued by the District
Magistrate against the product of Sugar
Mills to ensure payment of cane price and
the inquiry proceedings commenced by
issuance of charge sheet on 13.9.2023 to
the petitioner containing four charges of
similar nature.

6. It has been submitted that though
the order of the District Magistrate
directing that all the revenue collected by
the Cane Officer from the sale of sugar
cane and molasses etc. should be so utilized
so as that 85 percent of the cane price is
paid to the farmers was not effectively
supervised and accordingly for the said
negligence the petitioner was charged.

7. The petitioner had filed his reply to
the charge sheet on 26.5.2022 and denied
the said allegations. The inquiry officer
submitted
his
report
on
9.1.2023
exonerating the petitioner of all the charges
and dealt with all the materials which were
led in this regard and found that it is
District Cane Officer, Shamli, who has not
complied with the directions of the District
Magistrate due to which there was no
effective realization of the payments of
cane price to the farmers.

8. The disciplinary authority of the
petitioner issued a show cause notice on
7.6.2023 indicating that though according
to the inquiry officer the petitioner has been
exonerated of all the four charges but
further recorded that the petitioner did not
led sufficient evidence and accordingly he
is guilty of negligence and has asked the
petitioner to submit his reply to the same. It
is clear that the petitioner had been
exonerated of all the charges by the inquiry
office and there is no mention that the
disciplinary authority at the stage of
issuance
of
show
cause
notice
has
disagreed with the findings of the inquiry
officer had directed the petitioner to submit
his reply as to why he should not be held to
be guilty of negligence.

9. The petitioner submitted his reply
on 8.1.2023 denying all the allegations and
by means of the impugned order dated
23.9.2024 punishment has been inflicted
upon the petitioner which has been assailed
in the present writ petition.

10. In the impugned order, it is noticed
that the inquiry report was further sent to
the controlling authority of the petitioner
454 INDIAN LAW REPORTS ALLAHABAD SERIES
which is Cane Commissioner and his
opinion was also sought in the matter a
copy of the said opinion was never given to
the petitioner and the said opinion was
sought after submission of the inquiry
report.
It
seems
that
the
Cane
Commissioner gave opinion against the
petitioner stating that, in fact, it is the
petitioner who is guilty of the charges
levelled against him and merely relying
upon
the
opinion
of
the
Cane
Commissioner that the present punishment
has been inflicted upon the petitioner.

11. From the entire material we find
that there is no mention of the opinion of
the Cane Commissioner in his order of the
inquiry report clearly indicating that during
the inquiry proceedings no other opinion
was available on record. It is the
disciplinary authority, who has obtained
opinion after submission of the inquiry
report
an
the
petitioner
was
never
confronted
with
by
the
material.
Accordingly, learned counsel for the
petitioner submits that entire inquiry stands
vitiated and deserves to be set aside.

12. Learned Standing counsel, on the
other hand, has submitted that full
opportunity of hearing was given to the
petitioner. He had submitted response to
the charge sheet and the inquiry officer has
given full opportunity to cross examine the
witness who had deposed in the said
inquiry. He does not dispute the fact that
the inquiry officer had exonerated the
petitioner of all the charges but submits that
the disciplinary authority was within his
competence as per rule 9 sub clause 2 to
disagree
with
the
findings
of
the
disciplinary authority and take another
view in the matter. He submits that merely
because the inquiry proceedings exonerated
the petitioner does not mean that the
disciplinary authority has also exonerated
him and accordingly submits that there was
sufficient
material
on
record
which
indicated that the petitioner was guilty of
the charges framed against him and prays
for dismissal of the writ petition.

13. Having heard the rival contentions,
the only point for consideration which falls
in the present petition is as to whether the
disciplinary authority after submission of
the inquiry report, could have called for
any independent report in the form of an
opinion from the Cane Commissioner. In
the present case, it seems that the Cane
Commissioner has given his opinion to the
disciplinary authority wherein according to
him the petitioner was guilty of the charges
leveled against him relying solely on the
findings
recorded
by
the
Cane
Commissioner, the petitioner has been held
to be guilty.

14. It is noticed that in the inquiry
proceedings
the
charges
against
the
delinquent government servant are sought
to be proved by adducing material during
the inquiry proceeding itself. It is the duty
of the prosecution to place all the
documents and evidence before the inquiry
officer which may lead toward proving the
charges leveled against the government
servant while, on the other hand, the
government
servant
is
afforded
full
opportunity to rebut all the charges and
allegations leveled against him. He further
submits that right to cross examine all the
witnesses who have deposed in favour of
the prosecution and it is only after detailed
considerations of the matterial which is
available during the inquiry the inquiry
officer submits his report to the disciplinary
authority. The disciplinary authority while
exercising the power under Rule 9 of the
Rules of 1999 has to take the evidence and
2 All. Dineshwar Mishra Vs. State of U.P. & Ors.
455
matterial which has come forth during the
said inquiry i.e. the material which has
been adduced before the inquiry officer.
Accordingly, under Rule 9 he has right to
disagree with the findings recorded by the
inquiry officer in which case he is bound to
issue a fresh show cause notice indicating
his disagreement or the reasons for his
disagreement
and
it
is
only
after
submission of the response from the
government servant he would take a
decision which is different from the report
of the inquiry officer if he feels that the
inquiry officer has not dealt with certain
aspects or recorded certain evidence, the
disciplinary authority would be within his
competence to remit the matter back for
fresh inquiry or any further report is given
by the inquiry officer and accordingly he
may accept the inquiry report where the
delinquent government servant has been
exonerated of the charges and adopt the
inquiry proceedings.

15. In the present case, considering that a
procedure has been followed by the inquiry
officer to seek opinion of the Cane
Commissioner. Seeking of such an opinion is
alien to the provisions of Rule 9 and the
disciplinary is bound to consider only the
material which has been adduced during the
inquiry proceedings. If on perusal of the
material which has been adduced during the
inquiry proceeding, lead him to take a different
stand what has been recorded by the inquiry
officer, he is within his competence to issue a
notice to the petitioner disagreeing with the
findings of the inquiry officer but at this stage
he cannot enlarge the scope of inquiry and take
the opinion from a third person and relying on
the said matterial imposed punishment upon
the government servant.

16. Accordingly, in the present case,
Rule 9 of the Rules of 1999 has been
grossly violated in as much as a fresh
material which was not on record before
the inquiry officer has been considered by
the
disciplinary
authority
to
inflict
punishment on the petitioner which cannot
be done and, therefore, this Court is of the
opinion that such exercise of of powers by
the appointing authority is illegal and
arbitrary and deserves to be set aside.

17. Apart from the above, we find that
the said procedure adopted by him is in
gross violation of the principles of natural
justice which provides full opportunity
being given to the servant during the
disciplinary proceedings the opinion which,
at the outset, could not have been taken on
record,was considered without affording
any opportunity of hearing to the petitioner.

18. The petitioner not being afforded
the said opinion and merely relying on the
same by the inquiry authority is clearly in
violation of the principles of natural justice
and accordingly, the procedure being
violative of Rule 9 of the rules of 1999 is
also against the provision of principles of
natural justice and consequently set aside.

19. In the aforesaid circumstances, the
order dated 23.9.2024, as contained in
Annexure No.1 to the writ petition, is
quashed. The matter is remitted back to the
disciplinary authority to proceed from the
stage of submission of reply of the petitioner
to the show cause notice issued to him and
pass fresh order in accordance with law.

20. It is further made clear that the
disciplinary
authority
shall
not
be
influenced by the impugned order while
passing fresh order.

21. Considering that much time has
lapsed, he is directed to pass fresh order,
456 INDIAN LAW REPORTS ALLAHABAD SERIES
expeditiously, preferably within six weeks
from the date a certified copy of this order
is placed before him in accordance with
law.

22. In light of the above, the writ
petition stands allowed.
----------
(2025) 2 ILRA 456
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.02.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 6576 of 2023

Vidya Kishor ...Petitioner
Versus
State of U.P.& Ors. ...Respondents

Counsel for the Petitioner:
Ram Charitra Pandey, Shashank Pandey

Counsel for the Respondents:
C.S.C.,
Raj
Kumar
Upadhyaya
(R.K.
Upadhyaya)

A. Service Law - Disciplinary proceeding -
Punishment - Reversion to original post -
Allegation
of
demanding
the
illegal
gratification - Video is alleged to be
available, but the copy of CD was never
provided during inquiry - The petitioner
was also never confronted with the
contents of the CD - Effect - CD was not
available till the stage of inquiry, but the
same was considered by Disciplinary
Authority - Permissibility - Held, even if
the Disciplinary Authority has to consider
the contents of the CD, it was necessary
for him to give notice to the petitioner
alongwith a copy of the CD and confront
the petitioner with regard to the contents
thereof - By not providing copy of CD and
on
the
other
hand
considering
the
contents
of
the
same
against
the
petitioner has vitiated the entire inquiry
proceedings - High Court set aside the
punishment order. (Para 11, 12 and 15)

Writ petition allowed. (E-1)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Ram Charitra Pandey,
learned counsel for the petitioner as well as
Sri
Sandeep
Chandra,
alongwith
Sri
Sandeep Sharma, learned Standing Counsel
for the State respondents and Sri Raj
Kumar
Upadhyaya,
learned
counsel
appearing for respondent no. 6.

2. It has been submitted by learned
counsel for the petitioner that petitioner
was working on the post of Circle Officer
in District - Rampur at the relevant point of
time has approached this Court assailing an
order of punishment dated 11.08.2023,
passed
against
him
in
disciplinary
proceedings whereby he has been inflicted
with punishment of reversion to the
original post (Mool Pad).

3. It has been next submitted by
learned counsel for the petitioner that while
the petitioner was posted as Circle Officer
at district Rampur, disciplinary proceedings
which related to an incident occurred on
05.04.2021, where one Smt. Sadhna Singh
R/o district Bareilly gave an application to
the Circle Officer (petition) on 05.04.2021
at Police Station - Police Lines for lodging
first information report, but the petitioner
did not take any action on the said
application.
Subsequently,
complainant
moved an application to the Superintendent
of Police, Rampur and also to the higher
officials, but still first information report
was not lodged and it is only subsequently,
when
Superintendent
of
Police
was
transferred that the said first information
report was lodged as Case Crime No. 404
of 2021, under Sections 376D, 323, 326,