# Dr. Rakesh Raman v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 181
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-07
- **Case number:** Service Single No.13256 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-rakesh-raman-v-state-of-u-p-ors-44802
- **Pages:** 5

## Headnote

A. Service Law - Departmental Inquiry -
Initiation of the departmental inquiry -
Commences from the date of service of
the charge-sheet on the delinquent.

If the charge- sheet is not served upon the
employee, it may not be said that the
departmental inquiry against the incumbent is
pending. (Para 8).

B. Service Law - Promotion pending
Departmental Enquiry - Sealed cover
procedure can be resorted to only after a
charge memo is served on the concerned
official or the charge-sheet is filed
before the criminal court and not before.
(Para 8)

Petition allowed (E-4)

Precedent followed: -

## Text

3 All. Dr. Rakesh Raman Vs. State of U.P. & Ors.
181
not list/disclose the acts and omission to
constitute misconduct under the Conduct
Rules.

16. Having due regard to the facts and
circumstances and to the allegations made
against the petitioner, this Court, prima facie,
is of the opinion that the mandate of proviso
to Rule 4 is not made out. Accordingly, the
writ petition is allowed. The impugned
suspension order dated 4 August 2019
passed by the first respondent, Secretary,
Cooperative, Government of U.P., Lucknow,
is set aside and quashed. Petitioner shall be
reinstated, however, the pending disciplinary
proceedings against the petitioner shall
continue and be concluded expeditiously
preferably within four months from the date
of receipt of certified copy of this order,
provided the petitioner cooperates and there
is no other impediment.

17. No cost.
----------
(2019)11ILR A181

ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: LUCKNOW 07.11.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN , J.

Service Single No.13256 of 2019

Dr. Rakesh Raman ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Hari Prasad Gupta

Counsel for the Respondents:
C.S.C.

A. Service Law - Departmental Inquiry -
Initiation of the departmental inquiry -
Commences from the date of service of
the charge-sheet on the delinquent.

If the charge- sheet is not served upon the
employee, it may not be said that the
departmental inquiry against the incumbent is
pending. (Para 8).

B. Service Law - Promotion pending
Departmental Enquiry - Sealed cover
procedure can be resorted to only after a
charge memo is served on the concerned
official or the charge-sheet is filed
before the criminal court and not before.
(Para 8)

Petition allowed (E-4)

Precedent followed: -
1. U.O.I. etc. Vs K.V. Jankiraman & etc. (1991)
4 SCC 109 (Para 8, 9)

2. Harish Kumar Sharma, IFS Vs St. of Pun. &
anr. (2017) 4 SCC 366 (Para 8)
(Delivered by Hon'ble Rajesh Singh
Chauhan, J. )

1. Heard Sri H.P. Gupta, learned
counsel for the petitioner and Dr. Uday Veer
Singh, learned Additional Chief Standing
Counsel for the State-respondents.

2. By means of this writ petition, the
petitioner has prayed for the following
reliefs:-

"(I) Issue a writ, order or direction
in the nature of mandamus directing the
opposite parties to open the sealed cover
procedure, wherein recommendation of the
D.P.C. held in the year 2016 has been kept in
sealed cover procedure, while the juniors to
the petitioner has been promoted vide order
dated 30.09.2016.

(II) Issue a writ, order or
direction in the nature of mandamus
182 INDIAN LAW REPORTS ALLAHABAD SERIES
commanding the opposite parties to
promote the petitioner with all the
incidental and consequential service
benefits including arrears of salary for
the post of Additional Director (Level-V)
in the pay scale of Rs.37400-67000 grade
pay Rs.8900 with effect from 30.09.2016.

(III) Issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to
extend the benefits of the 4th A.C.P. on
completion of
24
years
continuous
satisfactory service with effect from
01.12.2008."

3. The contention of Sri H.P. Gupta,
learned counsel for the petitioner is that
one departmental inquiry, which was
initiated against the petitioner in the year
2011, has been finally concluded on
27.10.2017 as office memo to that effect
has been issued by the Secretary of the
Department, which is contained as
Annexure No.6 to the writ petition. On
account of the aforesaid inquiry, the
candidature of the petitioner was kept
under sealed cover and since the said
inquiry has been concluded wherein the
petitioner has been exonerated, the sealed
cover should be opened.

4. In the meantime, the petitioner
has been informed that vide office memo
dated 20.11.2015 one more departmental
inquiry was initiated, therefore, the
petitioner preferred a representation dated
05.02.2016,
which
is
contained
as
Annexure No.8 to the writ petition,
demanding the copy of the charge-sheet,
if any, from the Enquiry Officer i.e. the
Additional Director, Medical Health &
Family Welfare, Agra Division, Agra.
Even the Enquiry Officer has also
preferred a letter dated 12.11.2018 to the
Director General, Medical & Health
Services, U.P., Lucknow for providing
the
charge-sheet
to
the
petitioner.
However, on 01.11.2019, the statement
was given by the State Counsel before the
Court that the charge-sheet has been
served upon the petitioner. Therefore, this
Court vide order
dated
01.11.2019
directed the learned Standing Counsel to
produce the copy of the charge-sheet with
the proof of service fixing the date on
04.11.2019.

5. On 05.11.2019, Dr. Uday Veer
Singh, learned Additional Chief Standing
counsel has produced the copy of the
charge-sheet. On 05.11.2019, this Court
has passed the order as under:-

"Heard Sri H.P. Gupta, learned
counsel for the petitioner and Dr. Udai
Veer Singh, learned Additional Chief
Standing
Counsel
for
the
Staterespondents.

This Court has passed the order
dated 01.11.2019 as under:-

"Learned
Standing
Counsel
states that chargesheet is served upon the
petitioner and enquiry would completed
within one month. However, he does not
have copy of the chargesheeet. He prays
for a day's time to produce before this
court
the
service
report
of
the
chargesheet upon the petitioner.

Put up this case on 04-112019."

In compliance of the aforesaid
order, learned Add.C.S.C. has produced
the copy of letter dated 04.11.2019
preferred on behalf of the Director
General, Medical & Health Services,
3 All. Dr. Rakesh Raman Vs. State of U.P. & Ors.
183
U.P., Lucknow addressing to the Chief
Standing Counsel, High Court, Lucknow
Bench, Lucknow enclosing therewith the
copy of one letter dated 22.10.2019
preferred by one Sri J. L.Yadav, Under
Secretary, Government of U.P., Lucknow
to the Additional Director, Medical,
Health
and
Family
Welfare,
Agra
Division, Agra and the charge-sheet
dated
22.10.2019
relating
to
the
petitioner and another charge-sheet dated
22.10.2019 relating to one Dr. V.K.
Gupta have been enclosed. The photocopy
of the aforesaid instructions letter and the
documents are being taken on record.

The perusal of the aforesaid
letters clearly reveals that the issue in
question is of the year 2015 and it appears
that no charge-sheet has been issued against
the petitioner since 2015 till date. Even the
charge-sheet dated 22.10.2019, which is said
to have been issued against the petitioner,
has not been served upon the petitioner, as
no service report has been indicated in these
letters. Further, even the single charge,
which has been levelled against the
petitioner
vide
charge-sheet
dated
22.10.2019, does not indicate any culpability
of the petitioner in the issue.

Prima-facie, it appears that this
is half hearted exercise being carried out,
resultant
thereof,
the
petitioner
is
approaching the competent authorities
time to time but to no avail. As a matter of
fact, these letters do not satisfy the query
of the Court dated 01.11.2019.

Dr. Udai Veer Singh, learned
Additional Chief Standing Counsel prays
for and is granted 24 hours time to seek
complete instructions in the matter,
particularly on the point as to whether
any charge-sheet has been prepared,
which is directly relating with the
allegations against the petitioner, and if
so, as to whether the same has been
served upon the petitioner or not.

List / put up this case on
07.11.2019 in the additional cause list."

6. Today, Dr. Uday Veer Singh,
learned
Additional
Chief
Standing
Counsel has apprised the Court that the
said charge-sheet has been provided to the
Enquiry Officer but there is no service
report with him to show the Court as to
whether the said charge-sheet has been
served upon the petitioner or not.

7. Sri H.P. Gupta, learned counsel
for the petitioner has submitted with
vehemence that till date no charge-sheet
has been served upon the petitioner.

8. In support of his submission, Sri
Gupta has placed reliance upon the
judgment of Hon'ble Supreme Court
rendered in Union of India etc. vs. K.V.
Jankiraman etc. reported in 1991 (4)
SCC 109 wherein the Hon'ble Supreme
Court has categorically held that the
initiation of the departmental inquiry
would be considered to be commenced
with effect from the date of service of the
charge-sheet and if the charge-sheet is not
served upon the employee, it may not be
said that the departmental inquiry against
the incumbent is pending. The aforesaid
dictum of Hon'ble Supreme Court has
been considered in various cases by the
Hon'ble Supreme Court as well as by this
Court. The Hon'ble Supreme Court in re:
Harish Kumar Sharma, IFS vs. State of
Punjab and another reported in (2017) 4
SCC 366 has followed the dictum of K.V.
Jankiraman (supra) and held in paras-16
and 17 as under:-
184 INDIAN LAW REPORTS ALLAHABAD SERIES

"16. The employee in respect of
whom chargesheet has been issued and
the disciplinary proceedings are pending
or in respect of whom prosecution for
criminal
charge
is
pending,
his
assessment is to be kept in a sealed cover
and is not to be given effect to. The
question is as to when prosecution for
criminal charge is treated to have been
'pending'. This aspect came up for
consideration in K.V. Jankiraman's case
and the Court held that sealed cover
procedure is to be resorted to only after
the charge memo/chargesheet is issued,
as is clear from the following passage in
para 16 of the judgment:

"16. On the first question, viz.,
as to when for the purposes of the sealed
cover procedure the disciplinary/criminal
proceedings
can
be
said
to
have
commenced, the Full Bench of the
Tribunal has held that it is only when a
charge-memo
in
a
disciplinary
proceedings or a charge-sheet in a
criminal prosecution is issued to the
employee that it can be said that the
departmental
proceedings/criminal
prosecution is initiated against the
employee. The sealed cover procedure is
to be resorted to only after the chargememo/charge-sheet
is
issued.
The
pendency of preliminary investigation
prior to that stage will not be sufficient to
enable the authorities to adopt the sealed
cover procedure. We are in agreement
with the Tribunal on this point. The
contention advanced by the learned
counsel for the appellant-authorities that
when there are serious allegations and it
takes time to collect necessary evidence to
prepare and issue charge-memo/chargesheet, it would not be in the interest of the
purity of administration to reward the
employee with a promotion, increment etc.
does not impress us. The acceptance of this
contention would result in injustice to the
employees in many cases. As has been the
experience
so
far,
the
preliminary
investigations take an inordinately long time
and particularly when they are initiated at the
instance of the interested persons, they are
kept pending deliberately. Many times they
never result in the issue of any chargememo/charge-sheet. If the allegations are
serious and the authorities are keen in
investigating them, ordinarily it should not
take much time to collect the relevant
evidence and finalise the charges. What is
further, if the charges are that serious, the
authorities have the power to suspend the
employee under the relevant rules, and the
suspension by itself permits a resort to the
sealed cover procedure. The authorities thus
are not without a remedy..."

17. In view of the aforesaid law
laid down by this Court, the crucial
aspect is as to whether the prosecution
for criminal charge was pending against
the appellant when the DPC meeting was
held. In K.V. Jankiraman's case, this
Court gave imprimatur to the order of the
CAT holding that if the chargesheet is
filed in a criminal court, sealed cover
procedure can be resorted to. This was
conclusion No.4 of the CAT judgment,
which was upheld by this Court, and this
conclusion reads as under:

"(4) the sealed cover procedure
can be resorted to only after a charge
memo is served on the concerned official
or the charge-sheet filed before the
criminal
court
and
not
before..."
(emphasis supplied)

9. Considering the rival submissions
of learned counsel for the parties and
perusing material available on record and
3 All. Km. Anamika Singh Vs. The State of U.P. & Ors.
185
also considering the dictum of Hon'ble
Supreme Court in re: K. V. Jankiraman
(supra), I am of the considered opinion
that in the given circumstances the sealed
cover envelope in the case of the
petitioner should be opened atonce as the
charge-sheet has yet not been served upon
him.

10. Accordingly, the writ in the
nature
of
mandamus
is
issued
commanding the opposite parties to open
the sealed cover procedure, within three
weeks from the date of production of a
certified copy of this order, wherein the
recommendation of the D.P.C. held in the
year 2016 has been kept in the sealed
cover procedure and act upon the
recommendation of D.P.C. The petitioner
shall also be entitled for all consequential
service benefits strictly in accordance to
law.

11. The writ petition is, therefore,
allowed.

12. No order as to cost.
----------
(2019)11ILR A185

ORIGINAL JURISDICTION
CIVILL SIDE
DATED: ALLAHABAD 17.10.2019

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Civil Misc. Writ Petition No. 13260 of 2016
Connected with
WRIT -A No.13262 of 2019
and
WRIT -A No.13263 of 2019
and
WRIT -A No.13265 of 2019

Km. Anamika Singh ..Petitioner
Versus
The State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Vijay Gautam, Sri Atipriya Gautam, Sri
Vinod Kumar Mishra.

Counsel for the Respondents:
C.S.C.

A. Service Law - Termination - U.P.
Police Constable and Head Constable
Service Rules, 2015: Rule 20(4), Rule
14(1) - Once a trainee police constable is
proposed to be terminated on a specific
charge of misconduct, the procedure
under Rule 14 should be mandatorily
followed before proceeding to impose
major punishment. (Para 16, 21, 23)

Rule confers jurisdiction upon the appointing
authority
to
assess
the
working
of
a
probationer with an intent to either confirm his
services or to extend the period of probation
or to discontinue his employment on account
of unsatisfactory work and failure to improve
despite opportunity. The petitioners have
hardly worked for a month, their termination
on grounds of misconduct and assessment of
their working during the period of probation.
(Para 18, 19, 21)

B. Service Law - U.P. Police Regulations:
Regulation 541(2) - Applicability - Police
regulations have been held to have
binding force but in areas where field is
occupied by statutory regulations, the
authorities cannot act in violation of
statutory rules by resorting to provisions
of Police Regulations. (Para 21)

D. Service Law - Termination- Principles
to
term
a
termination
order
as
'simplicitor' or 'punitive' reiterated.

If form and language of the termination of
probationer clearly indicate that it is punitive
in nature then there would be no requirement
to go into the details of the background and
surrounding circumstances in testing whether
the order of termination is simplicitor or
punitive. (Para 24, 25)

E. Service Law - Constitution of India -
Disproportionate action is in derogation