# Hemant Kumar Rai v. State of U.P

- **Citation:** (2024) 1 ILRA 1264
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-07
- **Case number:** Writ-A No. 19191 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hemant-kumar-rai-v-state-of-u-p-50862
- **Pages:** 12

## Headnote

Sri Samarth Singh, Sri Hritudhwaj Pratap
Sahi, Sri V.K. Singh (Sr. Adv.)

Counsel for the Respondent
C.S.C.

A. Service Law - UP Government Servants
Conduct Rules, 1956 - UP Government
Servants (Discipline and Appeal) Rules,
1999 - Rule 7 -Punishment - Withholding
the annual increments - Disciplinary
proceeding - No oral enquiry was held -
Neither any date was fixed, nor any place
was disclosed for the petitioner to appear
before the enquiry officer - Effect -
Enquiry report only records the charge
and then refers to the explanation offered
by
the
petitioner
and
then
finally
concludes that the petitioner was guilty of
the charges - Permissibility - Held, oral
enquiry
is
sine
quo
non
which
is
prescribed for under rule 7 of the Rules,
1999 in respect of major penalties - Since
1 All. Hemant Kumar Rai Vs. State of U.P.
1265
the order impugned is based upon the
enquiry reports that are in fact de hors the
procedure
prescribed
and
cannot
be
sustained in law, the order impugned,
which is a resultant action based upon
such enquiry reports, is not liable to be
sustained. (Para 19, 22 and 26)

Writ petition allowed. (E-1)

List of cases cited:

## Text

1264 INDIAN LAW REPORTS ALLAHABAD SERIES
pension. The decision of this Court in the
case of Prem Singh (supra), therefore,
would be restricted to the counting of
service rendered as work charged for
qualifying service for pension."

(emphasis added)

19.

Although
above
judgment
discusses the principle to interpret the
relevant rules framed by State of Bihar but
principle that govern the law, remains the
same in so far as entitlement to pension is
concerned and interpretation of rule 3(8) of
the amended Rules, 1961.

20. In view of the above, therefore,
for the purposes of benefit of pension under
the Old Pension Scheme, to the extent
period falls short of qualifying service for
pension in those cases where regularization
was done prior to 2005, period of service
rendered as daily wage/ casual labour, adhoc employee or work charge employee
counted towards qualifying period for
pension
and
those
who
have
been
regularized after 2005, in their respect that
much period rendered as daily wager/
casual/ ad-hoc capacity as it makes them
qualify for pension, should be taken into
account.

21. In view of the aforesaid, this writ
petition deserves to be allowed with a
direction in the nature of mandamus to the
respondents to count the services rendered
by the petitioner from the year 01.07.1976
up to 2010 (the date and year of
regularization) as qualifying service for
pension and steps shall be taken for
calculation and payment of pension in light
of the directions issued above. The
respondents shall also consider other claims
of the petitioner for leave encashment as
well as benefit of 7th Pay Commission
while determining the quantum of amount
payable to the petitioner, as directed above.
A writ of mandamus is accordingly issued
to the competent respondent to do needful
in the matter accordingly within a period of
three months of production of certified
copy of this order.

22. This petition thus stands allowed
as above with no order as to cost.
----------
(2024) 1 ILRA 1264
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 19191 of 2023

Hemant Kumar Rai ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri Samarth Singh, Sri Hritudhwaj Pratap
Sahi, Sri V.K. Singh (Sr. Adv.)

Counsel for the Respondent
C.S.C.

A. Service Law - UP Government Servants
Conduct Rules, 1956 - UP Government
Servants (Discipline and Appeal) Rules,
1999 - Rule 7 -Punishment - Withholding
the annual increments - Disciplinary
proceeding - No oral enquiry was held -
Neither any date was fixed, nor any place
was disclosed for the petitioner to appear
before the enquiry officer - Effect -
Enquiry report only records the charge
and then refers to the explanation offered
by
the
petitioner
and
then
finally
concludes that the petitioner was guilty of
the charges - Permissibility - Held, oral
enquiry
is
sine
quo
non
which
is
prescribed for under rule 7 of the Rules,
1999 in respect of major penalties - Since
1 All. Hemant Kumar Rai Vs. State of U.P.
1265
the order impugned is based upon the
enquiry reports that are in fact de hors the
procedure
prescribed
and
cannot
be
sustained in law, the order impugned,
which is a resultant action based upon
such enquiry reports, is not liable to be
sustained. (Para 19, 22 and 26)

Writ petition allowed. (E-1)

List of cases cited:

1. Salahuddin Ansari Vs St. of U.P. & ors.; 2008
(4) ADJ 58

2. Subhash Chandra Sharma Vs Managing
Director; 2000 (1) UPLBEC 541

3. St. of U.P. & anr. Vs T.P. Lal Srivastava; 1997
(1) LLJ 831

4. Special Appeal no. 631 of 2007; Janardan
Prasad Yadav Vs St. of U.P. & ors. decided on
20.02.2020

5. Chamoli District Cooperative Bank Ltd. Vs
Raghunath Singh Rana & ors.; AIR 2016 SC
2510

(Delivered by Hon'ble Ajit Kumar, J.)

1. In view of the fact that original
records relating to disciplinary proceedings
in question have been produced before the
Court, both the learned counsel for the
petitioner and learned Additional Chief
Standing Counsel agree that this petition
can be heard and decided at this stage itself.

2. Heard Sri V.K. Singh, learned
Senior Advocate assisted by Sri Samarath
Singh, learned counsel for the petitioner
and Sri P.K. Srivastava, learned Additional
Chief Standing Counsel for the State.

3 . Sri Hemant Kumar Rai, the present
petitioner, is aggrieved by the punishment
order dated 09.10.2023 passed by the State
Government inflicting upon him major
penalty in the nature of withholding two
annual increments with cumulative effect
and further directing recovery of a sum of
Rs. 44,84,006.00 for the loss caused to the
Government.

4. The disciplinary authority hold
petitioner guilty for not discharging duties
of his office during the relevant period and
thus by his act and conduct he violated the
conduct rules under U.P. Government
Servants Conduct Rules, 1956. Petitioner
has been held guilty on the basis of
findings returned against him by the
enquiry
officer
in
his
report
dated
24.09.2021.

5. The ground raised for assailing the
order is that in the matter of disciplinary
proceedings initiated against him under the
U.P. Government Servants (Discipline and
Appeal) Rules, 1999, inquiry as required to
be held under rule 7 of the said Rules, was
not held as per the procedure prescribed
and therefore, the disciplinary authority
was not justified in accepting the report
holding the petitioner guilty for the
findings so returned and imposing major
penalty.

6. It is argued that the oral enquiry as
contemplated under rule 7 of 1999 Rules by
recording statement of petitioner as a
delinquent employee as well as that of the
departmental witnesses had not taken place
and therefore, the enquiry stood vitiated in
law in the light of settled legal proposition
relating to departmental enquiry in the
matters of major penalty.

7. Learned counsel for the petitioner
in support of his argument has relied the
judgment of Supreme Court in the case of
Salahuddin Ansari v. State of U.P. &
Others, 2008 (4) ADJ 58 and submits that
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
when the enquiry itself is not sustainable
the punishment order based upon such
enquiry is equally not sustainable and is
liable to go.

8. Per contra it is argued by learned
Additional Chief Standing Counsel that the
petitioner
had
been
accorded
proper
opportunity to appear before the enquiry
officer to submit reply and face enquiry but
the petitioner himself chose to only submit
reply and he having not made any request
for oral enquiry, it would be taken that the
accused acquiesced to the procedure
adopted by the enquiry officer. It is further
argued that the petitioner has been given
proper show cause notice to which he had
given reply and disciplinary authority
imposed penalty after having considered
his reply and so now petitioner cannot
complain of not being afforded proper
opportunity to defend his case.

9. In compliance of the earlier order
passed by this Court dated 22.11.2023
original records have been produced before
the Court and have been examined by the
Court.

10. Before coming to the argument
advanced by learned counsel for the
petitioner, it is necessary to refer to certain
crucial fact aspects involved in the matter
of departmental enquiry qua the case in
hand.

11. Initially petitioner while working
as Assistant Commissioner, Commercial
Tax, Gorakhpur was served with a charge
sheet of embezzlement of certain money by
exercising power beyond the authority
vested in him which resulted in the loss of
public money and thus, petitioner was
charged with misconduct under the U.P.
Conduct Rules, 1956. This charge sheet
was issued to the petitioner on 25.06.2018
to which he did submit reply but the entire
departmental enquiry was held ex parte in
the sense that petitioner was not served
with any notice to appear before the
enquiry officer. After the enquiry report
was duly submitted by the enquiry officer
on 15.12.2015, petitioner was issued with a
show cause notice on 07.03.2019 along
with the enquiry report to which petitioner
submitted his reply on 28.03.2019.

12. It is pleaded in the writ petition
that in reply to the show cause notice,
petitioner reiterated that he was not
afforded any opportunity to participate in
the
enquiry
proceedings
to
get
his
statement recorded or to get the other
witnesses examined even though he had
denied charges. It is further pleaded in the
writ petition that while his reply was
pending consideration that on 22.02.2021
upon permission being accorded by the
higher authority petitioner was issued with
the
supplementary
charge
sheet.
It
transpires from the permission granted by
the State Government dated 16.02.2021
that a punishment was earlier sought to be
imposed upon the petitioner pursuant to the
first round of departmental proceedings for
withholding two annual increments with
cumulative effect to make good the
financial loss caused to the State, however,
the U.P. Public Service Commission
disagreed with the proposed punishment of
recovery of Rs. 44,84,046.00 because there
was no such charge leveled in the charge
sheet and so petitioner had no opportunity
to meet the charges.

13. Thus, the respondents proceeded
to
hold
enquiry
pursuant
to
a
supplementary charge sheet served upon
the petitioner on 12.03.2021 to which
petitioner
duly
submitted
his
reply,
1 All. Hemant Kumar Rai Vs. State of U.P.
1267
comprehensive enough, on 15.09.2021
denying the charges and also pleaded that
he had no liability in the matter as the tax
liability was upon the Firm, in the matter of
which tax appeal filed by the Firm came to
be allowed and the matter was remitted to
be heard afresh.

14. Hence the pleading was that once
the tax liability of Firm was set aside in
appeal, there cannot be said to any loss
caused to public exchequer as such. After
the departmental enquiry was held report
was sent on 24.09.2021 and petitioner was
issued
with
show
cause
notice
on
03.10.2021. Petitioner again submitted his
reply questioning the enquiry report being
de hors the procedure prescribed, as no oral
enquiry
was
held.
However,
the
disciplinary authority proceeded to impose
the major penalty by the order impugned
which is also questioned in this petition.

15. In order to appreciate the
argument of learned counsel for the
petitioner, first I proceed to examine the
relevant enquiry rules as provided for under
the Rules, 1999. Rule 7 of the enquiry rules
provided for enquiry to be held for major
penalty and the entire rule 7 is reproduced
hereunder:

"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 inquiry 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 from 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 charge farmed 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 the witnesses
proposed to prove the same along with oral
evidence, if any, shall be mentioned in the
charge-sheet.

(iv) The charge 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 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 exparte

(v) The charge-sheet, along with
the copy of the documentary evidences
mentioned therein and list of witnesses and
their statements, if any shall be served on
the
charged
Government
Servant
personally or by registered post at the
address mentioned in the official records in
case the charge-sheet could not be served
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
in aforesaid manner, the charge- sheet
shall be served by publication in a daily
newspaper having wide circulation:

Provided
that
where
the
documentary evidence is voluminous,
instead of furnishing its copy with
charge-sheet, the charge Government
servant shall be permitted to inspect the
same before the Inquiry Officer.

(vi)
Where
the
charged
Government Servant appears and admits
(vii) charges, the Inquiry Officer shall
submit his report to the Disciplinary
Authority on the basis of such admission.

(vii)
Where
the
charged
Govenment Servant denies the charge
the Inquiry Officer shall proceed to call
the witnesses proposed in the chargesheet and record their oral evidence in
presence of the charge Government
Servant who shall be given opportunity
to cross- examine such witnesses. After
recording the aforesaid 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 h is
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 witnesses to give evidence
or require any person to produce
documents before him in accordance
with the provisions of the Uttar Pradesh
Departmental inquiries (Enforcement of
Attendance of witnesses and production of
documents) Act 1976.

(ix) The Inquiry Officer may ask
any question he pleases, at any time of any
witness or from person charged with a
view to discover the truth or to obtain
proper proof of facts relevant to charges.

(x)
Where
the
charged
Government Servant does not appear on
the date fixed in the inquiry or at any
stage of the proceeding inspite of the
service of the notice on him or having
knowledge of the date the Inquiry
Officer shall proceed with the inquiry
exparte. 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 if 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.
The Government servant may take the
assistance of any other

(xii)
Government
Servant
to
present the case on this behalf but not
engage a legal practitioner for the purpose
unless the presenting office appointed by
the Disciplinary Authority is a legal
practitioner of the disciplinary Authority
having regard to the circumstance of the
case so permits.

Provided that the 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
1 All. Hemant Kumar Rai Vs. State of U.P.
1269

(ii)
Where
the
Disciplinary
Authority is satisfied, that for reason to be
recorded by it in writing, that it is not
reasonably practicable to held an inquiry
in the manner provided in these rules; or

(iii) Where the Governor satisfied
that, in the interest of the security of the
state, it is not expedient to hold an inquiry
in the manner provided in these rules."

(emphasis added)

16. From the perusal of aforesaid rule,
it is explicit that in the event delinquent
employee
denies
the
charges,
the
disciplinary authority shall proceed to hold
oral enquiry by fixing dates, inviting the
petitioner to get his statement recorded and
then on his request the enquiry officer also
call for departmental witnesses to be
examined. The enquiry officer on his own
may also call for departmental witnesses to
be examined. For not requiring the
departmental witness to remain present for
examination, the enquiry officer is required
to record specific reasons.

17. Thus, from the above, it is
obvious that the rules do provide holding of
oral enquiry. A division bench of this Court
in the case of Salahuddin Ansari v. State
of U.P. & Others, 2008 (4) ADJ 58 has
followed an earlier judgment of the Court
in the case of Subhash Chandra Sharma
v. Managing Director 2000 (1) UPLBEC
541, wherein, it was held that in the event
no oral enquiry was held it would amount
to violation of principles of natural justice.
The division bench then referred to the
judgment in the case of State of U.P. &
Another v. T.P. Lal Srivastava, 1997 (1)
LLJ 831, wherein, the Supreme Court has
held that even if there is reply to the charge
sheet, the enquiry officer would still be
under obligation to hold oral enquiry and
submit report as to whether charge was
proved or not. Thus, vide para 13 and 14
the Court held thus:

"13. The aforesaid exposition of
law makes it clear that the delinquent
employee has a right to defend himself at
different stages. When the charge-sheet is
served upon him, he has a right to submit his
reply and in case he does not submit reply,
that itself would not amount to admission of
guilt or that the charge stand proved. If the
allegations are serious and may result in
major penalty, the disciplinary authority may
appoint Inquiry Officer. Such Inquiry Officer,
thereafter would have to fix a date for oral
evidence. At this stage the delinquent
employee has a right to participate in the oral
inquiry, examine witnesses, if produced by
the department, and after the evidence of the
department is completed, the delinquent
employee may produce evidence in his
defence. During the course of oral inquiry,
the delinquent employee has right to
participate at every stage and date and if
there is any failure in participation on one or
more occasions, the Inquiry Officer cannot
deny him participation from the subsequent
stage.
The
delinquent
employee
can
participate at subsequent other stage also.
The Inquiry Officer, after completion of oral
inquiry, will submit its report after discussing
the entire material and if any charge is
proved, the disciplinary authority shall
supply a copy of the inquiry report to the
delinquent employee and he would again
have a right to submit reply to the inquiry
report.

14. Non holding of oral inquiry,
therefore, is a serious flaw which vitiates
the
entire
disciplinary
proceeding
including the order of punishment."

(emphasis added)
1270 INDIAN LAW REPORTS ALLAHABAD SERIES

18. This above view came to be
reiterated in Janardan Prasad Yadav v.
State of U.P. and Others. In the said
judgment the division bench also followed
the Supreme Court judgment in the case of
Chamoli District Cooperative Bank AIR
2016 SC 2510 and vide para 21 held thus:

"21. The Apex Court in State of
Uttranchal and Ors. v. Kharak Singh
reported in (2008) 8 SCC 236 had occasion
to examine various contours of natural
justice which need to be specified in a
departmental inquiry. The Apex Court
noticed earlier judgments where principles
were laid down as to how inquiry is to be
conducted. It is useful to refer paragraphs
9, 10, 11, 12, 13 and 15, which are to the
following effect:

.....9.
Before
analyzing
the
correctness of the above submissions, it is
useful to refer various principles laid down
by this Court as to how enquiry is to be
conducted and which procedures are to be
followed.

10. The following observations
and principles laid down by this Court in
Associated Cement Co. Ltd. v. The
Workmen and Anr. [1964] 3 SCR 652 are
relevant:

...... In the present case, the first
serious infirmity from which the enquiry
suffers proceeds from the fact that the three
enquiry
officers
claimed
that
they
themselves had witnessed the alleged
misconduct of Malak Ram. Mr. Kolah
contends that if the Manager and the other
officers saw Malak Ram committing the act
of misconduct, that itself would not
disqualify them from holding the domestic
enquiry. We are not prepared to accept this
argument. If an officer himself sees the
misconduct of a workman, it is desirable
that the enquiry should be left to be held by
some other person who does not claim to
be an eye-witness of the impugned incident.
As
we
have
repeatedly
emphasised,
domestic enquiries must be conducted
honestly and bona fide with a view to
determine whether the charge framed
against a particular employee is proved or
not, and so, care must be taken to see that
these enquiries do not become empty
formalities. If an officer claims that he had
himself seen the misconduct alleged against
an employee, in fairness steps should be
taken to see that the task of holding an
enquiry is assigned to some other officer.
How the knowledge claimed by the enquiry
officer can vitiate the entire proceedings of
the enquiry is illustrated by the present
enquiry itself.........

..... It is necessary to emphasise
that in domestic enquiries, the employer
should take steps first to lead evidence
against the workman charged, give an
opportunity to the workman to crossexamine the said evidence and then should
the workman be asked whether he wants to
give any explanation about the evidence led
against him. It seems to us that it is not fair
in domestic enquiries against industrial
employees that at the very commencement
of the enquiry, the employee should be
closely cross-examined even before any
other evidence is led against him. In
dealing with domestic enquiries held in
such industrial matters, we cannot overlook
the fact that in a large majority of cases,
employees are likely to be ignorant, and so,
it is necessary not to expose them to the
risk of cross-examination in the manner
adopted
in
the
present
enquiry
proceedings. Therefore, we are satisfied
that Mr. Sule is right in contending that the
course adopted in the present enquiry
1 All. Hemant Kumar Rai Vs. State of U.P.
1271
proceedings by which Malak Ram was
elaborately cross-examined at the outset
constitutes
another
infirmity
in
this
enquiry.

11) In ECIL v. B. Karunakar,
(1993) 4 SCC 727, it was held:

(1) Where the enquiry officer is
other than the disciplinary authority, the
disciplinary proceedings break into two
stages. The first stage ends when the
disciplinary
authority
arrives
at
its
conclusions on the basis of the evidence,
enquiry officer's report and the delinquent
employee's reply to it. The second stage
begins when the disciplinary authority
decides to impose penalty on the basis of its
conclusions. If the disciplinary authority
decides
to
drop
the
disciplinary
proceedings, the second stage is not even
reached.

While the right to represent
against the findings in the report is part of
the
reasonable
opportunity
available
during the first stage of the inquiry viz.,
before the disciplinary authority takes into
consideration the findings in the report, the
right to show cause against the penalty
proposed belongs to the second stage when
the disciplinary authority has considered
the findings in the report and has come to
the conclusion with regard to the guilt of
the employee and proposes to award
penalty on the basis of its conclusions. The
first right is the right to prove innocence.
The second right is to plead for either no
penalty or a lesser penalty although the
conclusion regarding the guilt is accepted.
It is the second right exercisable at the
second stage which was taken away by the
Forty-second Amendment. The second
stage consists of the issuance of the notice
to show cause against the proposed penalty
and of considering the reply to the notice
and deciding upon the penalty. What is
dispensed with is the opportunity of making
representation on the penalty proposed and
not of opportunity of making representation
on the report of the enquiry officer. The
latter right was always there. But before
the
Forty-second
Amendment
of
the
Constitution, the point of time at which it
was to be exercised had stood deferred till
the second stage viz., the stage of
considering the penalty. Till that time, the
conclusions that the disciplinary authority
might have arrived at both with regard to
the guilt of the employee and the penalty to
be imposed were only tentative. All that has
happened
after
the
Forty-second
Amendment of the Constitution is to
advance the point of time at which the
representation of the employee against the
enquiry
officer's
report
would
be
considered. Now, the disciplinary authority
has to consider the representation of the
employee against the report before it
arrives at its conclusion with regard to his
guilt or innocence in respect of the
charges.

* * *

Article 311(2) says that the
employee shall be given a "reasonable
opportunity of being heard in respect of the
charges against him". The findings on the
charges given by a third person like the
enquiry officer, particularly when they are
not borne out by the evidence or are
arrived at by overlooking the evidence or
misconstruing
it,
could
themselves
constitute new unwarranted imputations.
The proviso to Article 311(2) in effect
accepts two successive stages of differing
scope. Since the penalty is to be proposed
after the inquiry, which inquiry in effect is
to be carried out by the disciplinary
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
authority (the enquiry officer being only his
delegate appointed to hold the inquiry and
to assist him), the employee's reply to the
enquiry officer's report and consideration
of such reply by the disciplinary authority
also constitute an integral part of such
inquiry.

Hence, when the enquiry officer
is not the disciplinary authority, the
delinquent employee has a right to receive
a copy of the enquiry officer's report before
the disciplinary authority arrives at its
conclusions with regard to the guilt or
innocence of the employee with regard to
the charges levelled against him. That right
is a part of the employee's right to defend
himself against the charges levelled against
him. A denial of the enquiry officer's report
before the disciplinary authority takes its
decision on the charges, is a denial of
reasonable opportunity to the employee to
prove his innocence and is a breach of the
principles of natural justice.

12) In Radhey Shyam Gupta v.
U.P. State Agro Industries Corporation
Ltd. and Anr. (1999) 2 SCC 2, it was
held:

34. But in cases where the
termination is preceded by an enquiry and
evidence is received and findings as to
misconduct of a definitive nature are
arrived at behind the back of the officer
and where on the basis of such a report, the
termination order is issued, such an order
will be violative of the principles of natural
justice inasmuch as the purpose of the
enquiry is to find out the truth of the
allegations with a view to punish him and
not merely to gather evidence for a future
regular departmental enquiry. In such
cases, the termination is to be treated as
based or founded upon misconduct and will
be punitive. These are obviously not cases
where the employer feels that there is a
mere cloud against the employee's conduct
but are cases where the employer has
virtually accepted the definitive and clear
findings of the enquiry officer, which are
all arrived at behind the back of the
employee -- even though such acceptance
of findings is not recorded in the order of
termination. That is why the misconduct is
the foundation and not merely the motive in
such cases.

13) In Syndicate Bank and Ors. v.
Venkatesh Gururao Kurati (2006) 3 SCC
150, the following conclusion is relevant:

18. In our view, non-supply of
documents on which the enquiry officer
does not rely during the course of enquiry
does not create any prejudice to the
delinquent. It is only those documents,
which are relied upon by the enquiry
officer to arrive at his conclusion, the nonsupply of which would cause prejudice,
being violative of principles of natural
justice. Even then, the non-supply of those
documents prejudice the case of the
delinquent officer must be established by
the delinquent officer. It is well-settled law
that the doctrine of principles of natural
justice are not embodied rules. It cannot be
put in a straitjacket formula. It depends
upon the facts and circumstances of each
case. To sustain the allegation of violation
of principles of natural justice, one must
establish that prejudice has been caused to
him for non-observance of principles of
natural justice.

15. From the above decisions,
the following principles would emerge:

i)
The
enquiries
must
be
conducted bona fide and care must be
1 All. Hemant Kumar Rai Vs. State of U.P.
1273
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 and 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.

(emphasis added)

19. Thus, it is very much clear that
oral enquiry is sine quo non which is
prescribed for under rule 7 of the Rules,
1999 in respect of major penalties.

20. In view of the above settled legal
proposition, now I proceed to examine the
original records produced before the Court.

21. In so far as the enquiry report is
concerned pursuant to the first charge
sheet, I would not have gone into that but
since the second charge sheet is an
additional charge sheet only for the reason
that Public Service Commission had
refused to accord its approval to the
proposed punishment pursuant to the earlier
charge sheet and the additional charge
means in additional to the charges already
leveled against the petitioner and since this
time additional charge was only in respect
of the financial loss, even the procedure
followed in the first enquiry report is also
required to be considered.

22. Now looking to the first enquiry
report as is available in the original records,
I find that enquiry officer did not provide
any opportunity to the petitioner to
participate in the enquiry as neither any
date was fixed, nor any place was disclosed
for the petitioner to appear before the
enquiry officer. The enquiry report only
records the charge and then refers to the
explanation offered by the petitioner and
then finally concludes that the petitioner
was guilty of the charges. The covering
letter of the enquiry officer discloses that
delinquent employee sought time to furnish
reply and ultimately submitted reply on
07.10.2018.
Between
07.10.2018
and
15.12.2018 the enquiry officer could have
fixed dates for the petitioner to appear and
further would have given an opportunity to
him to ask for any departmental witness to
be examined but no such exercise had been
undertaken, at least the records are silent.
Even if the petitioner did not ask for any
oral enquiry in view of settled legal
position as discussed above, enquiry officer
was hide bound in law to hold an oral
enquiry. From the reply submitted by the
petitioner to the earlier charge sheet which
is available on record and as is also
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
reflected from the enquiry report that he
had denied the charges.

23. In such circumstances therefore, it
was imperative on the part of enquiry
officer to have held oral enquiry but he
failed to do so and submitted report upon
which punishment order was proposed to
be passed but was disapproved by the U.P.
Public Service Commission. It is after the
U.P. Public Service Commission had
refused to accord approval that the State
Government proceeded to approve an
additional charge and to hold a separate
enquiry in respect of such additional charge
while
maintaining
the
earlier
held
departmental
enquiry.
Resultantly
petitioner was served with an additional
charge sheet on 12.03.2021. It appears that
a new officer took over as Additional
Commissioner Grade-2 namely Mr. Anil
Kumar Srivastava in June 2021 and so he
wrote a letter on 15.07.2021 to the
petitioner to peruse the records if he wanted
on 22.07.2021 by putting in his appearance
so that enquiry report could be submitted.
Petitioner did appear before the enquiry
officer and submitted reply on 15.07.2021
denying the charges. Now after the
petitioner
submitted
his
reply
on
15.07.2021, the original records shows that
the petitioner had appeared before the
enquiry officer. The record also shows that
on 13.07.2021 the Joint Commissioner,
Head Quarter, Lucknow wrote to the
enquiry officer to conclude the enquiry and
submit report within 15 days.

24. The reminder was made on
26.08.2021 and a similar letter was got
issued from the Headquarter of the
department on 27.08.2021. Thus, it appears
disciplinary
authority
compelled
the
enquiry officer to somehow submit a report
in respect of additional charge sheet and so
the enquiry officer did submit report dated
24.09.2021. From the order/ note sheet that
has been placed on the top of the record
does not show that any date or time had
been fixed for the delinquent employee to
appear for his oral statement, even though
he had denied the charges. The covering
letter of the enquiry officer records that
petitioner had appeared pursuant to the
subsequent notice dated 14.09.2021 and
wanted a week's time to submit reply but he
had also submitted a written reply in his
defence on 15.09.2021. Beyond that, there
is nothing in the covering letter to
demonstrate that any date was fixed or time
schedule was given and place was notified
by the enquiry officer to hold any oral
enquiry. Neither the petitioner's statement
as delinquent employee was recorded, nor
the departmental witnesses, if any, was
examined. This second enquiry report thus
also stands vitiated for the same reason for
which the first enquiry report stood
vitiated.

25. Now based upon this enquiry
report the respondents proceeded to give a
show cause notice to the petitioner to which
petitioner replied but the disciplinary
authority ultimately held petitioner guilty
of the charges on the basis of enquiry
report and awarded punishment which is
now impugned herein in this petition. The
order dated 30.05.2018 which is an order of
punishment clearly records the findings
returned by the enquiry officer in his report
dated 18.09.2019 and also the subsequent
report dated 24.09.2021 on the additional
charge sheet and then proceeded to pass
order of punishment. The only document
available for the respondent State to hold
the petitioner guilty of the charges are the
two enquiry reports and nothing more. In
every para of the order impugned, the
findings returned by the enquiry officer has
1 All. Jai Mangal Ram Vs. U.P. State Public Service Tribunal, Lko & Ors.
1275
been referred to and relied to hold the
petitioner guilty of the charges so as to
inflict upon him with the punishment under
the order impugned.

26. Now since the order impugned is
based upon the enquiry reports that are in
fact de hors the procedure prescribed and
cannot be sustained in law, I am equally not
able to sustain the order impugned which is
a resultant action based upon such enquiry
reports.

27. In the circumstances, therefore, it
would be more appropriate that the enquiry
into the charges is held after and the
petitioner is given opportunity to get his
statement recorded and also get the
departmental witnesses examined, if he so
desires.

28. In view of the above, writ petition
succeeds and is allowed. Both the enquiry
reports dated 18.09.2019 and 24.09.2021 as
well
as
the
order
impugned
dated
09.10.2023 are hereby quashed. The matter
is remitted to the stage of enquiry.
Petitioner shall be appearing before the
disciplinary authority along with the copy
of this order and the disciplinary authority
thereafter, will be holding oral enquiry in
accordance with law and in the light of
Government Order dated 19th July 2022.
Petitioner's reply is already there with the
enquiry officer and this time the enquiry
officer shall fix a date, time and notify the
place where he would be holding enquiry
and requiring the petitioner to get his
statement recorded. The petitioner will
have an opportunity to present list of
witnesses to whom he may like to cross
examine. This time the enquiry officer shall
record oral statements, examination and
cross examination of witnesses as per the
procedure prescribed under the Rules,
1999. After the enquiry report is submitted,
it will be open for the respondents to
proceed afresh in the light of findings
returned by the enquiry officer and the
reply, if any, submitted by the petitioner
after show cause notice if issued to him.

29. Original records are returned to
learned Additional Chief Standing Counsel.
----------
(2024) 1 ILRA 1275
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ-A No. 30954 of 2017

Jai Mangal Ram ...Petitioner
Versus
U.P. State Public Service Tribunal, Lko &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Pandey, Sri Ajay Yadav,
Sri Rahu Yadav, Sri Vinod Kumar Singh, Sri
Vishwadeep Patel

Counsel for the Respondents:
C.S.C.

A. Service Law - Punishment - Dismissal
from service - Charge of misbehaving
with senior officer in an intoxicated
condition - Neither the blood test nor the
urine test was conducted before giving
report by the concerned Medical Officer.
Report was made only on the basis of
smell - Medical Officer has also not been
examined by the Department during the
disciplinary proceedings - Effect - Held,
mere
external
examination
is
not
sufficient proof to hold a person guilty of
consuming alcohol and it cannot be
concluded that he was in intoxicated