# Jagdish Narayan Katiyar v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 1163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-12
- **Case number:** Writ-A No. 5240 of 2017
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-narayan-katiyar-v-state-of-u-p-ors-49819
- **Pages:** 13

## Headnote

Appeal) Rules, 1999, Rule 7(i) Rule 9(4) -
Challenge to the punishment order of
dismissal - In the present case, no date
time and place was fixed by the enquiry
officer. The documents relied upon by the
enquiry committee in support of the
charges was not proved, as no evidence
was led to prove the same. The enquiry
committee appointed by the disciplinary
authority was dehors the Rules of 1999.
There is no provision under the Rules of
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
1999 to appoint an enquiry committee.
The
entire
enquiry
as
well
as
the
disciplinary
proceedings
was
vitiated.
Considering the fact that the petitioner
was presently 64 years of age and twice
the orders was passed and second time,
while passing punishment order, again the
mandatory provision under Rules of 1999
were
not
followed
by
the
enquiry
officer/enquiry committee as well as the
disciplinary
authority,
therefore,
the
request of the State to conduct denovo
enquiry from the stage of giving reply to
the charge sheet was refused. (Para 17,
22)

Writ Petition allowed. (E-5)

List of Cases Cited:

## Text

_Characters 0–39,949 of 44,059. This is a partial read: ask again with offset=39949 for what follows._

4 All. Jagdish Narayan Katiyar Vs. State of U.P. & Ors.
1163
through a candidate belonging to General
Category and, thereafter, appointment letter
was issued to the petitioner and she was
placed under probation period, which she
completed successfully. While entertaining
the writ petition, this Court granted an
interim order on 27.06.2002, which was
subsequently corrected vide order dated
04.07.2002 and in pursuance thereof, the
petitioner is discharging all duties and
functions and has been paid salary and is
on the verge of retirement and if there was
any
discrepancy
in
the
petitioner's
appointment, as raised vide termination
order dated 22.06.2002, it was to be
ascertained at the official level before
issuing appointment letter to the petitioner.

20. The appointment of the petitioner has
been made in accordance with पररभशस्ट "ख" &
पररभशस्ट "घ" of the applicable rules and her
probation period has not been extended.
Meaning
thereby,
she
has
successfully
completed the probation period. The service
rules fix a certain period of time beyond which
the probationary period cannot be extended and
an employee appointed or promoted to a post
on probation is allowed to continue in the post
after completion of the maximum period of
probation without an express order of
confirmation, he cannot be deemed to continue
in that post as a probationer by implication. The
reason is that such an implication is negatived
by the service rule forbidding extension of the
probationary period beyond the maximum
period fixed by it. In such a case, it is
permissible to draw the inference that the
employee allowed to continue in the post on
completion of the maximum period of
probation has been confirmed in the post by
implication.

21. In the view of the above, this
Court reaches to the inescapable conclusion
that statutory rules cannot be set at naught
by issuing executive instructions and the
observations made in the case of Dr.
Vishwajeet Singh and others (Supra) and
National Fertilizers Ltd. and others
(Supra) as relied upon by respondent No.2
would, therefore, be of no avail to the
respondents. Therefore, the impugned order
dated 22.06.2002 is liable to be quashed
and is hereby quashed.

22. The writ petition succeeds and is
allowed.

23. Consequences to follow.
----------
(2023) 4 ILRA 1163
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.04.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ-A No. 5240 of 2017

Jagdish Narayan Katiyar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sanjay Kumar Srivastava, Prahant Chandra

Counsel for the Respondents:
C.S.C.

U.P. Government Servant (Discipline and
Appeal) Rules, 1999, Rule 7(i) Rule 9(4) -
Challenge to the punishment order of
dismissal - In the present case, no date
time and place was fixed by the enquiry
officer. The documents relied upon by the
enquiry committee in support of the
charges was not proved, as no evidence
was led to prove the same. The enquiry
committee appointed by the disciplinary
authority was dehors the Rules of 1999.
There is no provision under the Rules of
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
1999 to appoint an enquiry committee.
The
entire
enquiry
as
well
as
the
disciplinary
proceedings
was
vitiated.
Considering the fact that the petitioner
was presently 64 years of age and twice
the orders was passed and second time,
while passing punishment order, again the
mandatory provision under Rules of 1999
were
not
followed
by
the
enquiry
officer/enquiry committee as well as the
disciplinary
authority,
therefore,
the
request of the State to conduct denovo
enquiry from the stage of giving reply to
the charge sheet was refused. (Para 17,
22)

Writ Petition allowed. (E-5)

List of Cases Cited:

1. St. of U.P. & ors. Vs Saroj Kumar Sinha, AIR
2010 SC 3131

2. Jalaluddin Ansari Vs St. of U.P. & ors. Service
Single No.5189 of 1995 Dt 9.5.2013

3. Ambika Prasad Srivastava Vs State Public
Services Tribunal, Lucknow & ors. [2004(22)
LCD 770

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1.
Heard
Mr.
Sanjay Kumar,
Advocate assisted by Mr. Akshat Kumar,
learned counsel for the petitioner and Ms.
Vasudha Singh, Brief Holder and Mr. Rajiv
Srivastava,
learned
Additional
Chief
Standing Counsel for the State.

2. By means of this writ petition, the
petitioner has prayed for a writ of certiorari
quashing orders dated 7.11.2016 and
15.11.2016, passed by respondents 2 and 3,
contained in Annexures 1 and 2 to the writ
petition.

A further writ of mandamus
commanding respondents to reinstate the
petitioner in service along with all
consequential benefits of service including
arrears of salary as also payment of current
salary along with other benefit of service
has also been prayed.

3. Brief facts of the case are that in
the year 2009-2010, when the petitioner
was posted as Senior Clerk in the office of
Civil Hospital, Lingiganj, Farrukhabad, he
was placed under suspension vide order
dated 22.1.2010 on the charge of financial
irregularities by Director (Administration),
Medical & Health Services, U.P. Lucknow.
Disciplinary proceedings were initiated
against the petitioner under the U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999 (In short, Rules of
1999). A charge sheet dated 6.7.2010 was
issued by the enquiry officer whereby three
charges were levelled against the petitioner.
After receiving the charge sheet, the
petitioner submitted his reply on 30.7.2010
denying all the three charges. Enquiry was
completed by the enquiry officer and the
respondent
No.2,
i.e.
the
Director
(Administration) issued a show cause
notice dated 12.1.2012 along with the copy
of the enquiry report. Reply was sought
from the petitioner which he gave on
28.1.2012 denying all the charges levelled
against him. Punishment order of dismissal
dated 13.4.2012 was passed by respondent
No.2.

Against the dismissal order, an
appeal was filed before the appellate
authority, i.e. the Principal Secretary,
Medical & Health, Government of U.P.,
Lucknow on 11.5.2012. The appeal was
decided by way of dismissal, by respondent
No.1 vide order dated 24.7.2013.

The
punishment
order
dated
13.4.2012 and the appellate order dated
24.7.2013 were assailed before the State
Public Services Tribunal by filing claim
4 All. Jagdish Narayan Katiyar Vs. State of U.P. & Ors.
1165
petition No.854 of 2014 Jagdish Narayan
Katiyar versus State of U.P. and others on
two grounds, firstly, the petitioner has been
falsely implicated in the aforesaid case and
secondly, the departmental enquiry has not
been conducted by the enquiry officer in
accordance with Rules of 1999 and in
violation of principle justice. The tribunal
vide its judgment and order dated 1.7.2015
has allowed the claim petition and set aside
the punishment order dated 13.4.20212 and
the appellate order dated 24.7.2013, The
matter was remanded to the respondents to
conduct denovo enquiry from the stage of
giving reply to the charge sheet. The
operative part of the judgment is extracted
below :

"उपरोक्त सिीक्षा के प्रकाश िें याची
ही याधचका स्िीकार की जाती है। दण्डादेश
ददनांक
27.04.2012/02.05.
2012
(संलग्नक
संख्या- ए-1 ) एिं ददनांक 25.07.2013 (संलग्नक
संख्या-ए-2) को ननरस्त ककया जाता जाता है
तथा विपक्षीगण को ननदेश ददया जाता है कक िे
इस ननणतय/ आदेश की प्रिार्णत प्रनतभलवप प्राप्त
होने के 15 ददनों के अन्दर याची के विरूद्ि
ननयिानुसार वििागीय कायतिाही हेतु उसे
ननलम्बन की अिस्था िें सेिा िें तत्काल प्रिाि
से पुनतस्थावपत करें साथ ही सेिा से पदच्युनत
की नतधथ 27.04.2012/02.05.2012 से पुनस्थातवपत
ककये जाने की नतधथ तक की अिधि को याची
की ननलम्बन कालिधि िानते हुए सेिा िें
ननरंतरता प्रदान करें। उक्त वििागीय जांच
कायतिाही, चूंकक याची द्िारा आरोप पत्र का, उिर
ददया जा चुका है इसभलए पुनः उससे उिर प्राप्त
करने की कोई आिचयकता नहीं है, के स्तर से
प्रारंि करके बचाय का सिुधचत अिसर प्रदान
करते हुए और संबंधित सिस्त अभिलेख
उपलब्ि कराते हुए इस आदेश की प्रिार्णत
प्रनत प्राप्त होने की नतधथ से तीन िाह िें संपूणत
जांच/ अनुशासननक कायतिाही विधिित पूणत करें
तथा पुनः की गयी जांच के ननष्कषत के आिार
पर याची के पाररणाभिक सेिा लािों / पैकिेजेज
के संबंि िें सकारण ि िुखररत आदेश द्िारा
पाररत करना सुननजचचत करें।

4. By the aforesaid order dated
1.7.2015, the respondents were directed to
conclude the departmental proceedings
within three months from the date of
receipt of copy of the order of the tribunal.
This order dated 1.7.2015 was assailed
before
this
court
in
Service
Bench
No.17226 of 2016 State of U.P. and others
versus
Jagdish
Narayan
Katiyar
and
another. The writ petition was dismissed
vide order dated 2.8.2016. However,
further three months' time was granted to
the petitioner State of U.P. to complete the
enquiry.

5. It is in purported compliance of the
judgment and order of the tribunal dated
1.7.2015 and the order dated 2.8.2016
passed by this Court, a four Member
enquiry committee was constituted who
after conducting enquiry submitted its
report dated 24.10.2016. Consequently, the
impugned punishment order contained in
Annexure No.1 and the notice, Annexure
No.2 have been passed.

6. It has been submitted by learned
counsel for the petitioner that there is no
provision in the Rules of 1999 to constitute
enquiry committee. The language of Rules
of 1999 is simple and the enquiry officer is
to be appointed, and not a Committee. No
date time and place of enquiry has been
fixed. No enquiry ofifcer has been
appointed. No show cause notice along
with the enquiry report for the proposed
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
punishment order as mandated under Rule
9(4) of Rules of 1999 has been given to the
petitioner. It is submitted that the impugned
order has been passed in flagrant violation
of principle of natural justice. In support of
his contention, learned counsel has relied
on judgment of Supreme Court in State of
U.P. and others versus Saroj Kumar
Sinha, AIR 2010 SC 3131 and the
judgment and order dated 9.5.2013 passed
by this Court in Service Single No.5189 of
1995 Jalaluddin Ansari versus State of
U.P. and others.

It is submitted by the petitioner's
counsel that this is the second time,
deliberately,
enquiry
has
not
been
conducted as per Rules of 1999 in spite of
order passed by the tribunal vide its
judgment and order dated 1.7.2015 only
with a view to save the higher officers
which is apparent from the letter written by
the Chief Manager of SBI, Farrukhabad
dated 25.3.2010 (Annexure No.10 to the
writ petition) which confirms that the
signatures of Drawing and Disbursing
Authority on three cheques were found
correct and no complaint has been received
from the CMO office regarding forged
payment of cheques from the captioned
account. It is submitted that this device has
been adopted by the disciplinary authority
only to save the concerned Chief Medical
Officer
and
Deputy
C.M.O.
and
deliberately on the second time, enquiry
has been conducted dehors the rules.

7. Learned Standing counsel for the
State opposed the petition.

8. The petitioner is a Class-III
employee of the State Government and his
service conditions are governed by Rules of
1999. Rule 3 of Rules of 1999 provides
minor and major penalty. Major penalty
includes removal from service. Rule 7 of
Rules of 1999 provides the procedure for
imposing major penalty in which the
enquiry shall be held. Rule 7 of Rules of
1999 is extracted below :

"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 charged Government
Servant shall be required to put in a written
statement of his defence in person on a
specified date which shall not be less than
15 days from the date of issue of chargesheet and to state whether he desires to
cross-examine any witness mentioned in the
charge-sheet and whether desires to give or
produce evidence in his defence. He shall
also be informed that in case he does not
appear or file written statement on the
4 All. Jagdish Narayan Katiyar Vs. State of U.P. & Ors.
1167
specified date, it will be presumed that he
has none to fumish and inquiry officer shall
proceed to complete the inquiry ex-parte

(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
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 chargesheet, the charge Government servant shall
be permitted to inspect the same before the
Inquiry Officer.

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

(vii)
Where
the
charged
Government Servant denies the charge the
Inquiry Officer shall proceed to call the
witnesses proposed in the charge-shoot 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 his defence

Provided that the Inquiry Officer
may for reasons to be recorded in writing
refuse to call a witness

(viii) The inquiry officer may
summon any 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 Goverment
Servant does not appear on the date fixed
in the inquiry or at any stage of the
proceeding in spite of the service of the
notice on 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
charged
Government Servant. 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.

(xii) The Government servant
may take the assistance of any other
Government Servant to present the case on
his behalf but not engage a legal
practitioner for the purpose unless the
Presenting
officer
appointed
by
the
Disciplinary
Authority
is
a
legal
practitioner 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

(ii)
Where
the
Disciplinary
Authority is satisfied, that for reason to be
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

9. A perusal of Rule 7(i) of Rules of
1999 shows that the disciplinary authority
either may himself inquire into the charges
or appoint an authority subordinate to him
as the inquiry officer to inquire into the
charges. As said above, no enquiry officer
as mandated under Rule 7(i) has been
appointed in this case; instead a four
Member Committee has been appointed for
which there is no provision. Rule 7(iv) and
(v) mandates providing list of witnesses
and their statements to be served upon the
charged government servant personally or
through registered post.

Rule 7(vii) provides that where
the charged government servant denies the
charges, the enquiry 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 evidences, the
Inquiry officer shall call and record the oral
evidence which the charged Government
Servant desired in his written statement to
be produced in his defence.

10. Admittedly, along with the charge
sheet, the proposed documentary evidence
and the name of the witnesses proposed to
prove the charges along with the oral
evidence has not been given in this case
which is evident from perusal of the charge
sheet. Admittedly, no oral enquiry has been
conducted. As no witnesses were proposed
in the charge sheet, consequently, no
witnesses were called by the enquiry
officer to prove the charges. The petitioner
has also not been called for recording his
oral evidence. In sum and substance, no
oral hearing at all has been conducted.

Sub Rule (x) further provides that
even if the charged government servant
does not appear on the date fixed in the
enquiry or any stage of the proceeding in
spite of the service of the notice on him,
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.

11. In this case, admittedly, no date
time and place was fixed for enquiry. The
enquiry appears to have been done in
flagrant violation of Rule 7 of Rules of
1999.

12. Even after submission of enquiry
report, Rule 9 (4) of Rules of 1999 provides
that in case the disciplinary authority
having regard to its findings on all or any
of the charges is of the opinion that any
penalty specified in Rule 3 should be
imposed on the charged Government
servant, he shall give a copy of the inquiry
report and his findings recorded under sub
rule (2) to the charged govt. servant and
require him to submit his representation if
he so desires within a reasonable specified
time. This mandatory requirement under
Rule 9(4) has also not been adhered to.

13. The Supreme Court in the case of
Saroj Kumar Sinha (supra) has held that the
Enquiry officer acts in a quasi judicial
authority
is
in
the
position
of
an
independent
adjudicator.
He
is
not
supposed to be a representative of the
department/
disciplinary
authority/
Government. His function is to examine the
4 All. Jagdish Narayan Katiyar Vs. State of U.P. & Ors.
1169
evidence presented by the department, even
in the absence of the delinquent official to
see as to whether the unrebutted evidence is
sufficient to hold that the charges are
proved.
Relevant
portion
from
the
judgment is reproduced as under :

"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
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.
Enquiry officer acting in a quasi judicial
authority is in the position of an
independent adjudicator. He is not
supposed to be a representative of the
department/
disciplinary
authority/
Government. His function is to examine
the evidence presented by the department,
even in the absence of the delinquent
official to see as to whether the
unrebutted evidence is sufficient to hold
that the charges are proved. In the
present case the aforesaid procedure has
not
been observed.
Since
no
oral
evidence
has
been
examined
the
documents have not been proved, and
could
not
have
been
taken
into
consideration
to
conclude
that
the
charges have been proved against the
respondents."

14. In this case, admittedly, no oral
evidence has been examined. Copy of the
documents has neither been provided to
the petitioner nor the same has been
proved by leading oral evidence, hence
could
not
have
been
taken
into
consideration to conclude that the charges
have been proved against the petitioner.

15. In Jalaluddin Ansari's case
(supra), this Court has also held that the
oral enquiry is must and without leading
oral evidence, guilt could not have been
proved,
relying
on
the
documentary
evidence. Relevant paragraphs of the
judgment are extracted below :

"In State of Uttar Pradesh and
others v. Saroj Kumar Sinha (supra) the
Hon'ble Apex Court has observed that
under Rule 7 (x), it is provided as under:-

"(x)
Where
the
charged
Government servant does not appear on the
date fixed in the inquiry or at any stage of
the proceeding in spite of the service of the
notice on 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."

27. 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 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
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

28. An enquiry officer acting as a
quasi judicial authority is in the position of
an independent adjudicator. He is not
supposed to be a representative of the
department/disciplinary
authority/
Government. His function is to examine the
evidence presented by the department, even
in the absence of the delinquent official to
see as to whether the unrebutted evidence
is sufficient to hold that the charges are
proved. In the present case the aforesaid
procedure has not been observed. Since no
oral evidence has been examined the
documents have not been proved, and could
not have been taken into consideration to
conclude that the charges have been
proved against the respondents."

In Abdul Salam's case (supra)
Division Bench of this court has also held
as under:-

"15. The principles of natural
justice demand that an application for
summoning a witness by the delinquent
officer should be considered by the enquiry
officer. It was obligatory on the part of the
enquiry officer to pass an order in the said
application. He could not refuse to
consider the same. It is not for the Railway
Administration to contend that it is for them
to consider as to whether any witness
should be examined by it or not. It was for
the enquiry officer to take a decision
thereupon. A disciplinary proceeding must
be fairly conducted. An enquiry officer is a
quasi-judicial authority. He, therefore,
must perform his functions fairly and
reasonably which is even otherwise the
requirement of the principles of natural
justice."

In the case of Roop Singh Negi
Versus Punjab National Bank, while
emphasizing the importance of principles of
natural
justice
in
the
matter
of
departmental enquiry, the Hon'ble Apex
Court has observed as under:

"14. Indisputably, a departmental
proceeding is a quasi judicial proceeding.
The Enquiry Officer performs a quasi
judicial function. The charges levelled
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon
taking
into
consideration
the
materials brought on record by the parties.
The purported evidence collected during
investigation by the Investigating Officer
against all the accused by itself could not
be treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove the said documents. The management
witnesses merely tendered the documents
and did not prove the contents thereof.
Reliance, inter alia, was placed by the
Enquiry Officer on the FIR which could not
have been treated as evidence.

15. We have noticed here-inbefore that the only basic evidence
whereupon reliance has been placed by the
Enquiry
Officer
was
the
purported
confession made by the appellant before
the police. According to the appellant, he
was forced to sign on the said confession,
as he was tortured in the police station.
Appellant being an employee of the bank,
the said confession should have been
proved. Some evidence should have been
brought on record to show that he had
4 All. Jagdish Narayan Katiyar Vs. State of U.P. & Ors.
1171
indulged in stealing the bank draft book.
Admittedly, there was no direct evidence.
Even there was no indirect evidence. The
tenor of the report demonstrates that the
Enquiry Officer had made up his mind to
find him guilty as otherwise he would not
have proceeded on the basis that the
offence was committed in such a manner
that no evidence was left."

In the case of Smt. Rajwati
Sharma Versus U.P. State and others, a
Division Bench of this Court, in which one
of us (Justice Pradeep Kant) was a
member, while emphasizing the need to
hold a full fledge departmental enquiry
even in case where the charged employee
had admitted in his statement the loss of
certain files which were in his possession,
observed as under:

"12.The employee in the instant
case, only made a statement of fact, in his
reply, about the loss of 14 files. Since the
files were misplaced,there could not have
been any denial of the said fact by any
person, including the charged employee.
The question was, whether Shri Krishna
was responsible for the loss of file or that
he was guilty of any misconduct. It is also
possible that in case, enquiry had been
held, circumstances might have come to the
fore, establishing, that even though the files
were misplaced which were supposed to be
in the custody of the deceased employee but
even then there was some valid defence or
mitigating circumstances for not awarding
of major punishment or on finding that no
fault could be attributed to him, he might
have been exonerated.

In the case of Govind Lal
Srivastava versus State of U.P. and others,
a Division Bench of this Court, in which
one of us (Justice Pradeep Kant) was a
member, has observed as under:

"12. It is cardinal principle of law
that in a domestic enquiry the charges
levelled against the delinquent officer have
to be proved by the department itself, that
too from the material on record and if
necessary, by adducing evidence. In doing
so, it is obligatory on the enquiry officer to
give opportunity to the delinquent officer to
controvert, rebut such evidence or to
adduce such evidence, which may falsify or
belie the case of the department. In nutshell
the delinquent officer has a right to
demolish the case of the department or
prove his innocence, but in no case the
delinquent officer is required to disprove
the charges before they are put to proof by
the enquiry officer through agency of the
department. The letter issued by the
erstwhile enquiry officer only says that the
petitioner if intends to have a personal
hearing, may appear on 20.10.1992 before
him. It is difficult to understand as to what
the enquiry officer meant by saying
personal hearing, whether it included the
right to adduce evidence, right of crossexamination and whether it also indicated
that any witness would be examined on that
date or documentary evidence, which is on
record or the record would be looked into
and in what respect personal hearing
would be done. It is always essential in any
proceedings where right of defence or onus
of establishing a charge is involved, clear
orders and intimation about the date, time
or place and the purpose for which the date
has been fixed, should be given by the
officer, who is holding the enquiry. The
delinquent would be hardly knowing as to
what reply and what additional facts, he
should mention before the enquiry officer,
when charges are not being said to be
proved and even before the steps being
taken for proving the charges. It is only
when the charges are sought to be proved
that the delinquent has a right to controvert
and rebut the same.
1172 INDIAN LAW REPORTS ALLAHABAD SERIES

13.The procedure of domestic
enquiry need not be detailed by us, but it is
established principle of law that an enquiry
commences when a charge sheet is issued,
a reply is required to be submitted by the
delinquent officer, the delinquent is at
liberty to ask for the documents in case the
documents are mentioned in the charge
sheet but the copies of the same have not
been annexed with the charge sheet, or the
documents, on which the charges are likely
to be proved and in case copy of some
documents can not be supplied then
opportunity
of
inspection
of
such
documents has to be provided. Opportunity
of inspection of documents should be
provided in a manner so that the charged
officer has free access to the record and for
which date, time and place has to be fixed.
It is only after the aforesaid stages are
over, the reply is submitted by the
delinquent officer and on receipt of the
reply, if the enquiry officer finds that the
charges are denied or in other words, they
are not accepted, obligation lies upon the
enquiry officer to proceed with the enquiry.
Even mere non-submission of the reply to
the charge sheet or not asking for
opportunity
of
producing
witness
or
evidence would not in itself be sufficient to
hold that opportunity was not availed by
the delinquent, though given. The enquiry
officer, on the date, time and place which is
to be fixed by him and intimated to the
delinquent officer, has to proceed with the
enquiry by first asking the department to
prove the charges by adducing such
evidence, which may be necessary for the
purpose and reply upon the documents,
which may be relevant and thereafter has
to afford an opportunity to the delinquent
to cross-examine the witnesses so adduced
or to produce any witness or adduce any
evidence in rebuttal. The delinquent officer
also has a right to show to the enquiry
officer that the evidence, which is sought to
be relied upon, is either in admissible or
hearsay or could not be relied upon for any
other valid reason. Of course, if enquiry
officer, after receipt of the reply fixes date,
time and place and informs the same to the
delinquent for appearing and participating
in the enquiry but the delinquent even then
does not appear, the enquiry can be
proceeded in his absence, which may
though be an ex-parte enquiry but would
not be vitiated on the ground that
opportunity was not given or if opportunity
was given the same was not availed of, by
the delinquent. In a case like this where exparte enquiry is to be conducted, the
enquiry officer is not still absolved of
getting the charges proved from the
evidence/material on record.

In the case of Ambika Prasad
Srivastava versus State Public Services
Tribunal, Lucknow and others, the Division
Bench of this Court, in which one of us
(Justice Pradeep Kant) was a member,
while emphasizing the importance of
principles
of
natural
justice
in
the
departmental enquiry held as under:

"In view of the admitted fact that
no opportunity was afforded to the
petitioner to participate in the enquiry and
he was not informed about the date, time
and place for holding the enquiry nor was
supplied
the
documents
which
were
demanded by him, and the enquiry report
was based simply on the reply submitted by
the petitioner, we find that the view taken
by the Tribunal otherwise, is palpably
erroneous. The entire proceedings are
vitiated for violation of principles of
natural
justice
and
not
affording
opportunity to the petitioner."

It is not such a case where no
oral evidence was required as the guilt
could not have been proved by relying upon
the documents alone. If the witnesses were
4 All. Jagdish Narayan Katiyar Vs. State of U.P. & Ors.
1173
not required to be examined in support of
the charges, even then it was incumbent
upon the enquiry officer to have fixed the
date, time and place after submission of the
reply to the charge-sheet by the delinquent
for holding oral enquiry in order to
appreciate the evidences filed in support of
the charges in presence of the delinquent
employee and call upon the department to
prove the alleged charges. There is no
denial about the fact that such exercise was
not done by the enquiry officer in the
present case.

In view of the above, I am of the
considered opinion that the departmental
enquiry conducted against the petitioner,
on the basis of which, the punishment of
dismissal from service was awarded, was
not held in accordance with law as
propounded by the Hon'ble Apex Court as
well as this Court as discussed above.
There is clear violation of rules of natural
justice.

In view of the discussions made
above writ petition is allowed. The
dismissal of the petitioner is set aside. The
petitioner was of the age of 49 years as
mentioned in the writ petition when this
writ petition was filed in the year 1995. He
must
have
attained
the
age
of
superannuation about 9 years back. I do
not find it proper case where liberty can be
given for initiating fresh enquiry. I
accordingly direct that the petitioner shall
be paid all the retiral dues and 50 per cent
salary
for
the
period
he
remained
dismissed from the service till the date of
superannuation within 90 days from the
date of production of a certified copy of
this order. While holding so I rely upon the
law laid down by the Hon'ble Apex Court
in the case of Life Insurance Corporation
of India and another v. Ram Pal Singh
Bisen, (2010) 4 SCC 491 and a Division
Bench of this Court in Ambika Prasad
Srivastava
v.
State
Public
Services
Tribunal, Lucknow and others [2004 (22)
LCD 770]. "

16. In another judgment in Ambika
Prasad Srivastava versus State Public
Services Tribunal, Lucknow and others
[2004(22) LCD 770, a Division Bench of
this Court has held that the the entire
proceedings are vitiated due to violation of
principles of natural justice and not
affording opportunity to the petitioner. In
that case, the petitioner was not informed
about the date, time and place for holding
enquiry nor was supplied the documents
which were demanded by him, and the
enquiry report was based simply on the
reply submitted by the petitioner.

17. Admittedly, in the present case,
no date time and place was fixed by the
enquiry officer. The documents relied upon
by the enquiry committee in support of the
charges have also not been proved as no
evidence was led to prove the same. The
enquiry committee appointed by the
disciplinary authority was also dehors the
Rules of 1999. There is no provision under
the Rules of 1999 to appoint an enquiry
committee. The entire enquiry as well as
the disciplinary proceedings are vitiated.

18. Before parting with the judgment,
this court has taken notice of the fact that
while passing the impugned order, the
disciplinary authority has though held that
the charges against the petitioner have been
proved,
however,
instead
of
passing
removal order has contemptuously relied
on earlier enquiry report dated 22.1.2011
and the punishment order dated 13.4.2012
which was already set aside by the tribunal.
The respondent No.2 has again passed the
impugned order in a very casual manner
and in flagrant violation of principles of
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
natural justice as also judgment of the
tribunal dated 1.7.2015.

19. At this stage, Mr. Rajiv
Srivastava, learned Addl. Chief Standing
Counsel, assisted by Ms. Vasudha, Brief
Holder has prayed that it is a matter of
financial embezzlement and hence one
more opportunity may be given to the State
to conduct denovo enquiry in the matter
from the stage the petitioner had submitted
reply to the charge sheet.

20. The learned counsel for the
petitioner has opposed the prayer made by
learned State Counsel and submitted that
the petitioner has retired from service.
Presently, he is 64 years of age. The
suspension order was passed in the year
2010. The tribunal has already given
sufficient opportunity to the State to
conduct denovo enquiry vide its judgment
and order dated 1.7.2015 and remanded the
matter. It is submitted that the respondent
even after the opportunity having been
granted by the tribunal has casually
conducted the enquiry and has passed
punishment order to the detriment of the
petitioner. The petitioner because of callous
attitude of respondent No.2 who has
wilfully not conducted proper enquiry as
per Rules of 1999 twice, on the second time
has passed order of punishment , again in
defiance of Rules of 1999. It is thus
submitted that keeping in view the age of
the petitioner and conduct of respondent
No.2 on two occasions, the prayer for
denovo enquiry is liable to be refused.

In support of his contention,
learned counsel has relied on judgment in
Ambika Prasad Srivastava and Jalaluddin
Ansari (supra). It is submitted that denovo
enquiry was refused in those cases and
against
the
judgment
of
Jalauddin
Ansari(supra), the State has filed special
appeal No.160 of 2014 decided on
28.3.2014 State of U.P. versus Jalaluddin
Ansari, only on limited ground that they
may be permitted for denovo enquiry.
However, the Division Bench vide its
judgment and order dated 28.3.2014 has
refused the State to do so because of the
adequate reasons having been given by
Hon'ble Single Judge regarding conduct of
the enquiry officer and the fact that the
petitioner of that case had retired from
service. The order dated 28.3.2014 (supra)
is extracted below :