# Mahendra Shukla v. State of U.P. & Ors. 1538 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 5 ILRA 1537
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-29
- **Case number:** Writ-A No. 49679 of 2003
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-shukla-v-state-of-u-p-ors-1538-indian-law-reports-allahabad-series-50137
- **Pages:** 12

## Headnote

A. Civil Law - Service Matter - Disciplinary
Proceeding
-
Government
Servant
(Discipline and Appeal) Rules, 1999, Rule

## Text

5 All. Mahendra Shukla Vs. State of U.P. & Ors.
1537

2.
Shikshamitra
(Trained
through distance education method and
graduate Shikshamitra passed two years
BTC.

3. D. Ed. (Two Years Diploma in
Education
from
NCTE
recognized
Institute).

4. D. Ed. Special Education
(Rehabilitation Council of India (RCI)
recognized Institute)

5. Specialized BTC (Operated in
Uttar Pradesh Recognized by NCTE).

6. Two Year BTC Urdu Special
Training (Operated in Uttar Pradesh)

7. B. El. Ed. (4-year Bachelor of
Elementary Education)

8.
B.
Ed.
-
Bachelor
of
Education
(from
U.G.C./NCTE
recognized institution)

11. There are no instructions to the
candidates
that
the
candidates
were
required
to
fill
the
information
corresponding to the serial numbers which
were to be treated as the category code. The
fact remains that the candidates were
required to be BTC irrespective of
wherefrom and by what mode they had
obtained the training qualification.

12. The Court finds no substance in
submission of the learned counsel for the
respondents that the petitioner did not fill in
the information that they were Shiksha
Mitra
having
obtained
the
BTC
qualification by distant education made in
their online application form and on
account of the said non disclosure the
software did not identify them as Shiksha
Mitra and consequently, did not extend the
weightage admissible to them. In the
opinion of the Court, it is the faulty
programming and the petitioners have
satisfied the eligibility criteria could not be
denied the appointment. However, the
Court upholds the stand of the respondents
that no correction could be made in the
online form of the petitioners.

13. In view of the above, the writ
petition is allowed in part. The impugned
orders dated 05.11.2020 and 10.11.2020
(Annexure Nos.7 & 8) to the writ petition
respectively) are quashed to the extent it
denies the relief of including the names of the
petitioners in the list of selected candidates
for allotment of the District for appointment
as Assistant Teachers. The impugned orders
so far as it holds that no correction can be
made in the online application forms are
upheld. The respondents shall now proceed to
include the names of the petitioners in the list
of successful candidates for allotment of the
Districts and allot the Districts as per their
preference and quality point marks and issue
the appointment letters accordingly. The
entire exercise shall be done within a period
of two months from the date of service of
certified copy of the order of this Court upon
the concerned respondents.
----------
(2023) 5 ILRA 1537
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-A No. 49679 of 2003

Mahendra Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1538 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Satyendra Pandey, Sri Vishal Tandon, Sri
Vijay Shankar Shukla, Sri Jai Shankar Mishra

Counsel for the Respondents:
C.S.C.

A. Civil Law - Service Matter - Disciplinary
Proceeding
-
Government
Servant
(Discipline and Appeal) Rules, 1999, Rule
7. Issue: If the procedure for a major
penalty was initiated, is it mandatory to
conduct a regular enquiry and further
provide an opportunity of oral evidence to
the concerned employee? Held: Once the
procedure is started for a major penalty,
the same has to be completed as provided
in the Rules, and if the same is left
midway, the enquiry proceeding shall be
vitiated. Once the enquiry proceeding is
vitiated, no penalty, either major or minor,
can be imposed upon the employee.
(Paras 24, 25)

Petitioner
was
suspended
by
the
disciplinary
authority
under
the
contemplation of a disciplinary proceeding
invoking provisions contained under Rule
7 of the Government Servant (Discipline
and Appeal) Rules, 1999, for imposing a
major penalty. Enquiry Officer served
charge sheet. Petitioner submitted his
reply/explanation denying all the charges
made
in
the
charge
sheet.
Without
conducting a regular enquiry and without
supplying documents and papers on the
basis
of
which
the
petitioner
was
suspended, respondent No.3 ex-parte took
the allegations as proved and petitioner
was awarded a minor punishment. Held:
Enquiry proceeding was initiated after the
suspension of the petitioner for imposing
a major penalty, but ultimately, without
completing the same, a minor penalty was
imposed, which was in violation of the
Rules as well as the law laid down by the
Apex Court. Such an order cannot be
sustained in the eye of law. (Para 25)

Allowed. (E-5)

List of Cases cited:

1. Sohan Lal Vs U.P. Cooperative Federation Ltd.
& anr.; 2013 (6) ADJ 250 (DB)

2. St. of U.P. & ors. Vs Ashtebhuja Mishra &
anr.; 2017(9) ADJ 373 (DB)

3. Kamla Charan Misra Vs St. of U.P. & ors.;
2008 Law Suit (All) 1016 (DB)

4. H.B.V.N.L. Vidyut Nagar, Hisar & ors.Vs
Yashvir Singh Gulia; 2013 (SC) 568

5. St. of Uttar Pradesh Vs Saroj Kumar Sinha
(2010) 2 SCC 772

6. Roop Singh Negi Vs Punjab National Bank,
(2009) 2 SCC 570

7. Subhas Chandra Sharma Vs Managing
Director & anr. reported 2000(1) UPLBEC 541

8. Meenglas Tea ESt. Vs The Workmen, AIR
1963 SC 1719

9. S.C. Girotra Vs United Commercial Bank 1995
Supp. (3) SCC 212

10. Subhas Chandra Sharma Vs U.P. Cooperative Spinning Mills & ors.reported 2001 (2)
UPLBEC 1475

11. Rajesh Prasad Mishra Vs Commissioner,
Jhansi Division, Jhansi & ors.reported 2010 (1)
UPLBEC 216

12. Mahesh Narain Gupta Vs St. of U.P. &
ors.reported (2011) 2 ILR 570

13. Subhash Chandra Gupta Vs St. of U.P.
reported 2012 (1) UPLBEC 166

14. St. of U.P. & ors. Vs Ashtebhuja Mishra &
anr.; 2017(9) ADJ 373 (DB)

(Delivered by Hon'ble Prakash Padia, J.)

1. The petitioner has preferred this
Writ Petition for issuance of a writ of
certiorari
to
quash
the
order
dated
22.09.2000 passed by the respondent
No.3/District Magistrate Ballia as well as
5 All. Mahendra Shukla Vs. State of U.P. & Ors.
1539
order
dated
30.04.2003
passed
by
respondent No.2/Commissioner, Azamgarh
Region
Azamgarh,
which
was
communicated
to
the
petitioner
on
04.06.2003.

2. Brief facts of the case are that
petitioner while posted at the office of
District
Supply
Officer
Ballia,
was
suspended by the respondent No.3/District
Magistrate Ballia vide its order dated
13.01.2000 and District Supply Officer was
appointed as Enquiry Officer. District
Supply Officer/Enquiry Officer/respondent
No.5
served
charge-sheet
upon
the
petitioner on 29.04.2000 on the basis of
certain paper which were never provided to
the petitioner with a direction to submit
reply.
The
petitioner
submitted
his
reply/explanation
vide
letter
dated
04.05.2000 denying all the charges made in
the charge-sheet.

3. After submission of the reply, the
petitioner was anticipating that a regular
enquiry be conducted in the matter and he
shall also be afforded an opportunity to
cross examine the witness of prosecution
and test the credibility of evidence of
prosecution
and
also
be
given
an
opportunity to adduce evidence in his
defence. But without conducting regular
enquiry and without supplying documents
and papers on the basis of which the
petitioner was suspended, the respondent
No.3 ex-parte took the allegations proved
without providing any notice or opportunity
of hearing and passed the order of
suspension stating that the petitioner has
not given any evidence along with the
reply. After receipt of notice dated
11.09.2000 issued by respondent No.3 for
showing cause on proposed penalty, the
petitioner showed the cause vide its
letter/reply dated 13.09.2000 stating therein
that whatever fault have alleged to have
been levelled on the petitioner were
circumstantial
and
were
caused
by
collectively and alleged charges levelled
against the petitioner has not been done by
him and the mistake committed due to over
burden of work but the respondent No.3
without considering the same and without
providing any opportunity of hearing,
without supplying the documents and
papers and relying only upon the report of
the Enquiry Officer, the respondent No.3
passed the order an ex-parte manner.
Against the order dated 22.09.2000 passed
by respondent No.3, the petitioner preferred
the
appeal
before
respondent
No.2/Commissioner, Azamgarh Division
Azamgarh
on
02.11.2000
and
the
respondent No.2 rejected the appeal the
appeal has no force.

4. The main ground of challenge the
aforesaid orders is that the petitioner was
suspended by the disciplinary authority
under
contemplation
of
disciplinary
proceeding
while
invoking
provisions
contained under Rule 7 of Government
Servant (Discipline and Appeal) Rules,
1999 for imposing major penalty but while
proceeding
was
under
progress,
the
petitioner
has
been
awarded
minor
punishment contrary to the law laid down
by this Court in the case of Sohan Lal Vs.
U.P. Co-operative Federation Ltd. and
another; 2013 (6) ADJ 250 (DB) as well as
the law laid down by Lucknow Bench of
this Court in the case of State of U.P. and
others
Vs.
Ashtebhuja
Mishra
and
another; 2017(9) ADJ 373 (DB) and
Kamla Charan Misra Vs. State of U.P. and
others; 2008 Law Suit (All) 1016 (DB).

5. Refuting the submission of learned
counsel for the petitioner, learned Standing
Counsel rely upon a judgment of the Apex
1540 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in the case of D.H.B.V.N.L. Vidyut
Nagar, Hisar and others Vs. Yashvir Singh
Gulia; 2013 (SC) 568 has submitted that if
the procedure for imposing major penalty
has been started and in the meantime, if the
authority comes to the conclusion that it is
the case of imposing minor penalty and the
minor penalty is awarded, the order cannot
be faulted.

6. In response to the argument,
learned counsel for the petitioner contended
that in case of D.H.B.V.N.L. (supra) there
is a provision under the Rules to award
minor penalty even in a case where the
procedure for awarding major penalty is
under progress, whereas there is no such
provision under the Government Servant
(Discipline and Appeal) Rules, 1999 under
which proceeding has been initiated against
the petitioner.

7. We have considered the argument
raised by learned counsel for the parties
and have perused the record.

8. Learned counsel appearing for the
petitioner has submitted that neither oral
witnesses were examined nor date, time
and place were fixed by the Enquiry
Officer, therefore, in light thereof, no
charges have been proved. It is stated that
enquiry proceeding was initiated under the
provision of U.P. Government Servant
(Discipline and Appeal) Rules 1999 and
Rule 7 of Rule 1999 which clearly provides
procedure for imposing major penalty. For
ready reference, the same may be quoted
herein 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 inquire 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 form 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 charges framed 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
evidence and the name of the witnesses
proposed to prove the same alongwith 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 charge-sheet
and to state whether he desires to crossexamine 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 the 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 ex parte.

(v) The charge-sheet, alongwith
the copy of the documentary evidences
5 All. Mahendra Shukla Vs. State of U.P. & Ors.
1541
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 charged Government servant
shall be permitted to inspect the same
before the Inquiry Officer.

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

(vii)
Where
the
charged
Government servant denies the charges, the
Inquiry Officer shall proceed to call the
witnesses proposed in the charge-sheet and
record their oral evidence in presence of
the charged Government servant who shall
be given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidence, the Inquiry Officer shall call and
record the oral evidence which the charged
Government servant desired in his written
statement to be produced in his defence :

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

(viii) The Inquiry Officer may
summon any witness 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
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.

(xi) The disciplinary authority,
if it considers it 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 circumstances of the
case so permits :

Provided that this rule shall not
apply in following cases :
1542 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
recorded by it in writing, that it is not
reasonably practicable to hold an inquiry
in the manner provided in these rules; or

(iii) Where the Governor is
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. Basic issues before this Court is
that if procedure for major penalty was
initiated, is it mandatory to conduct the
regular enquiry and further provided
opportunity of oral evidence to the
concerned employee? In this reference, it is
necessary to refer certain judgments of
Supreme Court as well as of this Court, in
which this issue considered.

10. This Hon'ble Court in the matter
of Kamla Charan Misra Vs. State of U.P.
and others: 2009 (2) AWC 1259 has
considered this issue. For ready reference,
para 9 and 10 of this judgment are quoted
herein below;

"9. There is one more reason
which necessitates the enquiry officer to
hold a regular enquiry. In the present case,
a charge-sheet was served upon the
petitioner and after receipt of the chargesheet, the petitioner had submitted a reply
denying the charges levelled against him.
After receipt of the reply to the chargesheet, the enquiry officer submitted a report
on 4.8.1992. While submitting reply to the
charge-sheet, the petitioner has specifically
pleaded that the enquiry officer has not
conducted the enquiry fairly. Since the
respondents have proceeded ahead by
adopting the procedure of major penalty
and the enquiry officer has completed the
enquiry and submitted a report, the defence
taken by the learned standing counsel does
not seem to be sustainable. Once, the
disciplinary
authority
adopted
the
procedure of enquiry for major penalty and
appointed an officer as enquiry officer, who
held the enquiry and submitted a report, in
such situation, it shall always be incumbent
on the part of the enquiry officer to hold the
enquiry adopting the procedure for regular
enquiry. Regular enquiry means, after reply
to the charge-sheet, the enquiry officer
must
record
oral
evidence
with
an
opportunity to the delinquent employee to
cross-examine the witnesses and thereafter,
opportunity should be given to the
delinquent employee to adduce evidence in
defence. The opportunity of personal
hearing should also be afforded to the
delinquent employee. Even if the charged
employee does not co-operate with the
enquiry, it shall be incumbent upon the
enquiry officer to proceed ex parte by
recording oral evidence vide Jagdish
Prasad Singh v. State of U.P. 1990 LCD
486; Avatar Singh v. State of U.P. 1998
LCD
199;
Town
Area
Committee.
Jalalabad
v.
Jagdish
Prasad
:
AIR1978SC1407 ; Managing Director, U.P.
Welfare Housing Corporation v. Vijay
Naraln Bajpai : (1980)ILLJ222SC ; State
of U.P. v. Shatrughan Lal : [1998]3SCR939
; Chandrama Tewari v. Union of India and
Ors. AIR 1998 SC 117 and Anil Kumar v.
Presiding Officer and Ors. AIR 1985 SC
1121.

10. In a case in State Bank of
India v. T.J. Pal 1999 SCC (L&S;) 922 and
Union of India v. S.C. Parasar 2006 SCC
5 All. Mahendra Shukla Vs. State of U.P. & Ors.
1543
(L&S;) 496 : 2006 (5) AWC 5129 (SC),
Hon'ble Supreme Court ruled that in a
departmental
proceeding,
where
the
procedure for major penalty is initiated
then even if disciplinary authority awards
minor penalty, the enquiry should be
completed by adopting the procedure
prescribed for major penalty.

In view of the above, the
argument advanced by the learned standing
counsel that the procedure prescribed for
minor penalty was rightly followed does
not seem to be sustainable."

11. This was also an issue before the
Supreme Court in case of State of Uttar
Pradesh v. Saroj Kumar Sinha reported
(2010) 2 SCC 772 held that :-

"An inquiry 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.

When a departmental enquiry is
conducted against the government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The inquiry
officer has to be wholly unbiased. The rules
of natural justice are required to be
observed to ensure not only that justice is
done but is manifestly seen to be done. The
object of rules of natural justice is to
ensure that a government servant is treated
fairly in proceedings which may culminate
in imposition of punishment including
dismissal/removal from service."

12. Similar view was taken by
Supreme Court in Roop Singh Negi v.
Punjab National Bank, (2009) 2 SCC
570:-

"Indisputably,
a
departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial 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."

13. This Court has also taken same
view in Subhas Chandra Sharma v.
Managing Director and another reported
2000(1) UPLBEC 541:-

"In
our
opinion
after
the
petitioner replied to the charge-sheet a date
should have been fixed for the enquiry and
the petitioner should have been intimated
the date, time and place of the enquiry and
on that date the oral and documentary
1544 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence against the petitioner should have
been led in his presence and he should have
been given an opportunity to cross-examine
the witnesses against him and also he
should have been given an opportunity to
produce his own witnesses and evidence. If
the petitioner in response to this intimation
had failed to appear for the enquiry then an
ex parte enquiry should have been held but
the petitioner's service should have not
been
terminated
without
holding
an
enquiry. In the present case it appears that
no regular enquiry was held at all. All that
was done that after receipt of the
petitioner's reply to the charge-sheet he
was given a show-cause notice and
thereafter the dismissal order was passed.
In our opinion this was not the correct
legal procedure and there was violation of
the rules of natural justice. Since no date
for enquiry was fixed nor any enquiry held
in which evidence was led in our opinion
the impugned order is clearly violative of
natural justice."

14. The Hon'ble Supreme Court in the
case of Meenglas Tea Estate v. The
workmen., AIR 1963 SC 1719, has held
that;

"It is an elementary principle that
a person who is required to answer a
charge must know not only the accusation
but also the testimony by which the
accusation is supported. He must be given
a fair chance to hear the evidence in
support of the charge and to put such
relevant questions by way to crossexamination as he desires. Then he must be
given a chance to rebut the evidence led
against him. This is the barest requirement
of an enquiry of this character and this
requirement must be substantially fulfilled
before the result of the enquiry can be
accepted".

15. In the case of S.C. Girotra v.
United Commercial Bank 1995 Supp. (3)
SCC 212, Hon'ble Supreme Court has
observed that;

"The Supreme Court set aside a
dismissal order which was passed without
giving the employee an opportunity of
cross-examination. In State of U.P. v. C. S.
Sharma, AIR 1968 SC 158, the Supreme
Court
held
that
omission
to
give
opportunity to the officer to produce his
witnesses and lead evidence in his defence
vitiates the proceedings. The Court also
held that in the enquiry witnesses have to
be examined in support of the allegations,
and opportunity has to be given to the
delinquent to cross-examine these witnesses
and to lead evidence in his defence. In
Punjab National Bank v. A.I.P.N.B.E.
Federation, AIR 1960 SC 160, (vide para
66) the Supreme Court held that in such
enquiries evidence must be recorded in the
presence of the charge-sheeted employee
and he must be given an opportunity to
rebut the said evidence. The same view was
taken in A.C.C. Ltd. v. Their Workmen,
(1963) II LLJ. 396, and in Tata Oil Mills
Co. Ltd. v. Their Workmen, (1963) II LLJ.
78 (SC).

Even if the employee refuses to
participate in the enquiry the employer
cannot straightaway dismiss him, but he
must hold and ex-parte enquiry where
evidence must be led vide Imperial Tobacco
Co. Ltd. v. Its Workmen, AIR 1962 SC 1348,
Uma Shankar v. Registrar, 1992 (65) FLR
674 (All)."

16. The above judgment was followed
by a Division Bench in Subhas Chandra
Sharma v. U.P.Co-operative Spinning
Mills and others reported 2001 (2)
UPLBEC 1475 the Court held thus:
5 All. Mahendra Shukla Vs. State of U.P. & Ors.
1545

"In
cases
where
a
major
punishment proposed to be imposed an oral
enquiry is a must, whether the employee
request, for it or not. For this it is
necessary to issue a notice to the employee
concerned intimating him date, time and
place of the enquiry as held by the Division
Bench of this Court in Subhash Chandra
Sharma v. Managing Director, (2000) 1
UPLBEC 541, against which SLP has been
dismissed by the Supreme Court on 16-82000."

17. This Court has also taken the
same view in the case of Rajesh Prasad
Mishra v. Commissioner, Jhansi Division,
Jhansi and others reported 2010 (1)
UPLBEC 216 and has observed as under:

"Now coming to the question,
what is the effect of non-holding of oral
inquiry, I find that, in a case where the
inquiry officer is appointed, oral inquiry is
mandatory. The charges are not deemed to
be proved suo motu merely on account of
levelling them by means of the charge sheet
unless the same are proved by the
department before the inquiry officer and
only thereafter it is the turn of delinquent
employee to place his defence. Holding
oral enquiry is mandatory before imposing
a major penalty, as held by Apex Court in
State of U.P. & another Vs. T.P.Lal
Srivastava, 1997 (1) LLJ 831 as well as by
a Division Bench of this Court in Subhash
Chandra Sharma Vs. Managing Director &
another, 2000 (1) U.P.L.B.E.C. 541.

The question as to whether non
holding of oral inquiry can vitiate the entire
proceeding or not has also been considered
in detail by a Division Bench of this Court
(in which I was also a member) in the case
of Salahuddin Ansari Vs. State of U.P. and
others, 2008(3) ESC 1667 and the Court
has clearly held that non holding of oral
inquiry is a serious flaw which vitiates the
entire disciplinary proceeding including the
order of punishment."

18. The Division Bench of this Court
in the case of Mahesh Narain Gupta v.
State of U.P. and others reported (2011) 2
ILR 570 had also deal with the same issue.
It held:

"At this stage, we are to observe
that in the disciplinary proceedings against
a delinquent, the department is just like a
plaintiff and initial burden lies on the
department to prove the charges which can
certainly be proved only by collecting some
oral evidence or documentary evidence, in
presence and notice charged employee.
Even if the department is to rely its own
record/document
which
are
already
available, then also the enquiry officer by
looking into them and by assigning his own
reason after analysis, will have to record a
finding that hose documents are sufficient
enough to prove the charges.

In no case, approach of the
Enquiry Officer that as no reply has been
submitted, the charge will have to be
automatically proved can be approved. This
will be erroneous. It has been repeatedly
said that disciplinary authority has a right
to proceed against delinquent employee
in exparte manner but some evidence will
have to be collected and justification to
sustain the charges will have to be stated
in detail. The approach of the enquiry
officer of automatic prove of charges on
account of non filing of reply is clearly
misconceived and erroneous. This is
against the principle of natural justice,
fair play, fair hearing and, thus, enquiry
officer has to be cautioned in this
respect."
1546 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In another case in Subhash
Chandra Gupta v. State of U.P. reported
2012 (1) UPLBEC 166 the Division Bench
of this Court after going through the
different judgements on this issue observed
as under:

"It is well settled that when the
statute provides to do a thing in a
particular manner that thing has to be done
in that very manner. We are of the
considered opinion that any punishment
awarded on the basis of an enquiry not
conducted in accordance with the enquiry
rules meant for that very purposes is
unsustainable in the eye of law. We are further
of the view that the procedure prescribed
under the inquiry rules for imposing major
penalty is mandatory in nature and unless
those procedures are followed, any out come
inferred thereon will be of no avail unless the
charges are so glaring and unrefutable which
does not require any proof. The view taken by
us find support from the judgement of the Apex
Court in State of U.P. & another Vs. T.P.Lal
Srivastava, 1997 (1) LLJ 831 as well as by a
Division Bench of this Court in Subash
Chandra Sharma Vs. Managing Director &
another, 2000 (1) U.P.L.B.E.C. 541.

A Division Bench decision of this
Court in the case of Salahuddin Ansari Vs.
State of U.P. and others, 2008 (3) ESC
1667 held that non holding of oral inquiry
is a serious flaw which can vitiate the order
of disciplinary proceeding including the
order of punishment has observed as
under:-

" 10....... Non holding of oral
inquiry in such a case, is a serious matter
and goes to the root of the case.

11. A Division Bench of this
Court in Subash Chandra Sharma Vs.
Managing Director & another, 2000 (1)
U.P.L.B.E.C. 541, considering the question
as to whether holding of an oral inquiry is
necessary or not, held that if no oral
inquiry is held, it amounts to denial of
principles
of
natural
justice
to
the
delinquent employee. The aforesaid view
was reiterated in Subash Chandra Sharma
Vs. U.P.Cooperative Spinning Mills &
others, 2001 (2) U.P.L.B.E.C. 1475 and
Laturi
Singh
Vs
U.P.Public
Service
Tribunal & others, Writ Petition No. 12939
of 2001, decided on 06.05.2005."

20. In case of Sohan Lal Vs. U.P. Cooperative Federation Ltd. and another;
2013 (6) ADJ 250 (DB), the same issue
was very much before the Court and Court
has considered the above issue. For ready
reference, para 31, 32, 33, 34 and 35 of this
judgment are quoted herein below;

"31. It was, however, pointed out
on behalf of respondents that punishment
actually awarded to petitioner is only
recovery and censure/special adverse entry
and both being minor punishment, the
punishment order ought not be interfered
on the ground that no oral inquiry is held
since before imposing a minor punishment
oral inquiry is not obligatory.

32. In our view the submission is
thoroughly misconceived. From perusal of
charge sheet it cannot be doubted that the
charges, if have been proved, petitioner
could have been liable to be awarded a
major penalty. The competent authority
also proceeded with an intention that
charges, if proved, may result in major
penalty and it is for this reason earlier he
was suspended and then he appointed an
Inquiry Officer. Appointment of Inquiry
Officer for holding oral inquiry shows the
intention of the disciplinary authority that
5 All. Mahendra Shukla Vs. State of U.P. & Ors.
1547
the employee may suffer major penalty. In
those cases where oral inquiry is necessary
i.e. cases of major penalty, inquiry officer
is ordinarily appointed otherwise simply by
issuing a charge sheet and receiving reply,
a minor penalty could have been awarded,
which is not the case here.

33. The intention of disciplinary
authority is further clear from the fact that
petitioner was placed under suspension.
Suspension is permissible only when
charges are so serious so as to attract
major penalty. Besides, even the show
cause notice issued to petitioner proposed a
major penalty.

34. We are clearly of the view that
the ultimate result shall not govern the
manner
of
preceding
disciplinary
proceedings inasmuch as the authorities, if
found no proof of serious charges to justify
major penalty, therefore, imposed minor
penalty, it would not distract from the fact
that proceedings were initiated for major
penalty and despite denying adequate
opportunity to delinquent employee, i.e., by
not holding oral inquiry, he was able to
show shallowness of charges which satisfy
the disciplinary authority that major
penalty is not warranted. If adequate
opportunity would have been afforded to
delinquent
employee,
he
could
have
demonstrated that no penalty whatsoever is
liable to be inflicted upon him, since, the
charges in entirety, are baseless etc. It is
the inception of proceedings which will
govern
the
manner
of
disciplinary
proceedings to be conducted and not the
ultimate result. Therefore, mere fact that
lastly only minor penalty could have been
inflicted upon petitioner, would not dilute
his legal right that disciplinary inquiry
when initiated must have been held in
conformity with procedure prescribed,
attracting provisions, applicable at the
inception of inquiry.

35. After careful consideration of
the facts we are of the view that the
disciplinary proceedings are vitiated for the
aforestated reasons. The impugned order
dated 29.8.2000 passed by respondent no.2
herein is liable to be quashed. Accordingly
it is quashed."

21. This Court in the matter of State
of U.P. and others Vs. Ashtebhuja Mishra
and another; 2017(9) ADJ 373 (DB) has
also taken the same view.

22. Learned Standing Counsel has
placed reliance upon another judgment of this
Court in the case of D.H.B.V.N.L. Vidyut
Nagar, Hisar and others Vs. Yashvir Singh
Gulia; 213 Legal Eagle (SC) 568 and
submitted that even if procedure is started for
major penalty, disciplinary authority may
impose minor penalty.

23. I have carefully perused the above
referred judgment of Apex Court, which is
distinguishable for the reason that there under
the Rules it is provided that if procedure has
been started for major penalty, disciplinary
authority may impose minor penalty in place
of major penalty. Here it is not so.

24. Therefore, in the light of law laid
down by the Apex Court and followed by this
Court time to time, this fact is very much
clear that once the procedure is started for
major penalty, the same has to be completed
as provided in the Rules and if the same is
left away in the mid way, enquiry proceeding
shall be vitiated.

25. Once the enquiry proceeding is
vitiated, no penalty either major or minor
1548 INDIAN LAW REPORTS ALLAHABAD SERIES
can be imposed upon the employee. This
Court in the matter of Kamla Charan Misra
and Sohan Lal (supra) has taken the view that
once the enquiry proceeding initiated has not
been completed as provided in the Rule and
ultimately minor penalty may not be
imposed. In present case too, this fact is very
much clear that enquiry proceeding was
initiated after suspension of petitioner for
imposing major penalty but ultimately
without completing the same, minor penalty
has been imposed, which is in-violation of
Rule as well as law laid down by Apex Court
as well as of this Court, therefore, such order
can not be sustained in the eye of law.

26. In view of above, the order dated
22.09.2000 passed by the respondent
No.3/District Magistrate Ballia as well as
order dated 30.04.2003 passe by respondent
No.2/Commissioner,
Azamgarh
Region
Azamgarh are hereby quashed. The writ
petition succeeds and is allowed.

27. The respondents are at liberty to
proceed in accordance with law.
----------
(2023) 5 ILRA 1548
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 18527 of 2021

State of U.P. & Ors. ...Petitioners
Versus
Raj Kumar Singh ...Respondent

Counsel for the Petitioners:
C.S.C., Sri Jagdish Pathak

Counsel for the Respondent:
Sri Ram Narain
A. Civil Law - Disciplinary proceedings -
Uttar
Pradesh
Police
Officers
of
Subordinate
Rank
(Punishment
and
Appeal) Rules, 1991 - Rule 14 - Issue:
Whether the Tribunal was competent to
usurp the role of an appellate authority by
setting aside the punishment order when,
admittedly, the factum of the charge of
overstay of leave was not denied by the
employee? Held: Courts/Tribunals are not
to
act
as
appellate
authorities
in
disciplinary
proceedings.
Tribunal
exceeded its jurisdiction in setting aside
the
impugned
order
passed
by
the
Disciplinary
Authority
imposing
punishment on the respondent. At most,
Tribunal could have remitted the matter to
the Disciplinary Authority to pass a fresh
order.
Tribunal
was
not
within
its
jurisdiction and competence to set aside
the punishment while sitting in appeal
without returning a finding that the
disciplinary enquiry stood vitiated for
breach of statutory provisions of the
Rules, 1991, or that the punishment was
not commensurate with the guilt or
perverse. (Para 35, 36)
B.
Uttar
Pradesh
Police
Officers
of
Subordinate
Rank
(Punishment
and
Appeal) Rules, 1991 - Appendix-1 of
Rules, 1991 - Appendix-1 of the Rules,
1991,
specifically
provides
that
the
Inquiry
Officer
may
recommend
the
proposed punishment after concluding the
departmental proceedings. The proviso to
this Appendix provides that the Inquiry
Officer may also, separately from these
proceedings,
make
his
own
recommendation
regarding
the
punishment to be imposed on the charged
police officer. (Para 32)
List of Cases cited:

1. Syed Yakoob Vs K.S. Radhakrishnan AIR 1964
SC 477

2. U.O.I.Vs P. Gunasekaran 2015 (2) SCC 610

3. U.O.I.Vs Flight Cadet Ashish Rai 2006 (2) SCC
364