# Rabi Kant Singh v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 128
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-16
- **Case number:** Service Single No. 19723 of 2020
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rabi-kant-singh-v-state-of-u-p-ors-47161
- **Pages:** 3

## Headnote

A. Service Law - Disciplinary enquiry - It
is a settled proposition of law that once the
Court sets aside an order of punishment, on
the ground that the enquiry was not properly
conducted, the Court cannot reinstate the
employee rather it remits the matter to the
disciplinary
authority
who
conducts
the
enquiry from the point where it stood vitiated
and conclude the same. (Para 11) (E-8)

List of Cases cited:-

## Text

128 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)08ILR A128
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN , J.

Service Single No. 19723 of 2020

Rabi Kant Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Meenakshi Singh Parihar, Ashok Shukla

Counsel for the Respondents:
C.S.C., Manjive Shukla, R.K. Upadhyay

A. Service Law - Disciplinary enquiry - It
is a settled proposition of law that once the
Court sets aside an order of punishment, on
the ground that the enquiry was not properly
conducted, the Court cannot reinstate the
employee rather it remits the matter to the
disciplinary
authority
who
conducts
the
enquiry from the point where it stood vitiated
and conclude the same. (Para 11) (E-8)

List of Cases cited:-

1. Chairman, LIC of India & ors. Vs
Masilamani (2013) 6 SCC 530 (followed)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri H.G.S. Parihar, learned
Senior Advocate assisted by Ms. Meenakshi
Singh Parihar, learned counsel for the
petitioner, Sri Manjive Shukla, learned
Additional Chief Standing Counsel for the
State-respondent and Sri R.K. Upadhyay,
learned counsel for respondent no.4.

2. In the proposed order, notices to
opposite party nos. 5 and 6 are dispensed
with as no prejudice is caused to
respondent nos. 5 & 6 by means of the
impugned order.

3. The order under challenge is a
punishment order dated 01.10.2020 passed
by
the
Additional
Chief
Secretary,
Cooperative Department, Government of
U.P., Lucknow awarding major punishment
to the petitioner reverting him from the post
of Additional
Commissioner/Additional
Registrar
to
the
post
of
Joint
Commissioner/Joint
Registrar
in
the
minimum pay scale withholding two
increments with cumulative effect.

4. Counter affidavit and rejoinder
affidavit have been exchanged, but Sri
Manjive Shukla, learned Additional Chief
Standing Counsel has submitted that for the
redressal of his grievance the present
petitioner has got two alternative remedies
and before exhausting those two remedies
his writ petition under Article 226 of the
Constitution
of
India
may
not
be
entertained.

5. As per Sri Manjive Shukla, since
the order impugned has been passed after
due approval from the Governor, therefore,
the petitioner may very well file either
revision under Rule 13 or review under
Rule 14 of UP Government Servant
(Discipline
&
Appeal)
Rules,
1999.
Secondly,
the
alternative
remedy
to
approach the UP State Public Services
Tribunal, Lucknow is also available to the
petitioner. As per Sri Manjive Shukla, both
the aforesaid grounds have been taken in
the counter affidavit.

6. I am also of the considered opinion
that the alternative statutory remedy may
not
be
circumvented
and
the
person/employee concerned should first
8 All. Rabi Kant Singh Vs. State of U.P. & Ors.
129
avail the alternative statutory remedy only
then he should approach this Court under
Article 226 of the Constitution of India.

7. In the present case, Sri H.G.S.
Parihar, learned Senior Advocate has
submitted that the petitioner has been
discriminated from the very beginning i.e.
from the date when the petitioner was
placed under suspension on 04.10.2018.
Despite the orders being passed by this
Court neither the inquiry was concluded
within time nor the final order has been
passed well in time, therefore, this Court
passed the order dated 29.04.2019 allowing
the Writ Petition No. 9754 (S/S) of 2019
(Rabi Kant Singh vs. State of U.P. and
others) setting aside the suspension order
permitting the competent authority to take
final decision in the matter.

8. Sri Parihar has submitted that the
law is settled that if the competent authority
has decided to award major punishment to
the employee, the full fledged departmental
inquiry should be conducted and concluded
strictly in accordance with law by affording
an ample opportunity of hearing in two
stages. First stage is at the stage of inquiry
proceedings wherein after receiving the
defence reply to the charge-sheet the date,
time and place shall be fixed for oral
inquiry and the onus would be upon the
authority to prove the charges following the
principles
of
preponderance
of
the
probabilities. The Hon'ble Apex Court in
catena of cases has held that no major
punishment order can be passed on the
basis of defence reply or supplementary
defence reply to the charge-sheet but the
same can be passed after conducting the
oral inquiry to prove the charge by fixing
date, time and place. The second stage
would be, the incumbent employee shall be
provided the copy of the inquiry report and
explanation shall be called apprising to
subjective satisfaction of the disciplinary
authority
regarding
the
proposed
punishment and the incumbent may file his
explanation showing his bona fide. After
considering the aforesaid explanation, the
disciplinary authority may pass appropriate
orders.

9. In the present case, the learned
counsel for the petitioner has drawn the
attention of this Court towards para 26 &
27 of the writ petition wherein he has
categorically indicated that after submitting
the defence reply to the charge-sheet no
date, time and place was fixed to conduct
oral inquiry, however, one letter dated
26.12.2018
was
issued
seeking
representation of the petitioner on any
working day and the petitioner submitted
his explanation on 31.12.2018 personally to
the Inquiry Officer. Those documents have
been enclosed as Annexure nos. 15 & 16 to
the writ petition. By means of explanation
dated 31.12.2018, the petitioner has again
categorically denied the charges levelled
against him and submitted his bona fide
enclosing therewith some documents on
that Sri Parihar has rightly submitted that
the aforesaid reply may be treated at best as
supplementary defence reply but this letter
dated 31.12.2018 of the petitioner may not
be treated as if he appeared before the
Inquiry Officer to examine/cross-examine
the material/person if any. Since, the date,
time and place for oral inquiry is fixed to
examine/cross-examine
the
relevant
material and person, however, said exercise
has not been carried out by the Inquiry
Officer.

10. Sri Manjive Shukla has drawn the
attention of this Court towards para 24 of
the counter affidavit wherein the recital has
been given that the Inquiry Officer has
130 INDIAN LAW REPORTS ALLAHABAD SERIES
wrote a letter dated 26.12.2018 to the
petitioner fixing date for 31.12.2018 and
the petitioner appeared before the Inquiry
Officer but did not make any request for
producing any material/witness. However,
no such date has been fixed for the
petitioner to appear before the Inquiry
Officer, as considered above.

11. I am of the considered opinion
that the letter dated 26.12.2018 may not be
treated as if any date, time and place was
fixed for oral inquiry and preferring the
representation by the petitioner dated
31.12.2018 on the letter dated 26.12.2018
may not be sufficient to treat as the date for
oral inquiry. Therefore, for all practical
purposes no date, time and place was fixed
to conduct oral inquiry. Therefore, in view
of the above instead of relegating the
matter to the Public Service Tribunal for
filing reference petition as it would be a
futile exercise, I hereby set-aside/quash the
order dated 01.10.2020 remanding back the
issue before the disciplinary authority to
direct the Inquiry Officer to conduct the
inquiry from the stage of defect in terms of
para 09 of the judgment of Hon'ble Apex
Court rendered in re:- Chairman, LIC of
India & others vs. A. Masilamani
[reported in (2013) 6 SCC 530] which
reads as under:-

"9. It is a settled legal proposition,
that once the Court sets aside an order of
punishment, on the ground that the enquiry
was not properly conducted, the Court cannot
reinstate the employee. It must remit the
concerned case to the disciplinary authority,
for it to conduct the enquiry from the point
that it stood vitiated, and conclude the same.
(Vide:
Managing
Director,
ECIL,
Hyderabad etc.etc. v. B. Karunakar etc.etc.,
AIR
1994
SC
1074;
Hiran
Mayee
Bhattacharyya v. Secretary, S.M. School for
Girls & Ors., (2002) 10 SCC 293; U.P. State
Spinning C. Ltd. v. R.S. Pandey & Anr.,
(2005) 8 SCC 264; and Union of India v.
Y.S. Sandhu, Ex- Inspector, AIR 2009 SC
161)."

12. It is further directed that in case the
departmental inquiry is conducted against the
petitioner from the stage of defect in terms of
the judgment of Hon'ble Supreme Court in
re:- Chairman, LIC of India (supra), the
same shall be conducted and concluded
strictly in accordance with law by affording
him ample opportunity of hearing subject to
proper cooperation of the petitioner with the
inquiry proceedings, inasmuch as, no inquiry
proceedings/departmental proceedings may
be concluded to its logical conclusion unless
the employee cooperates with the inquiry
proceedings. The inquiry shall be concluded
within a period of four months. Thereafter,
the
disciplinary
authority
may
pass
appropriate orders strictly in accordance with
law as directed above with expedition
without keeping the issue pending for
unlimited period.

13. Consequences to follow.

14. The writ petition is, accordingly,
allowed. No order as to costs.
----------
(2021)08ILR A130
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN , J.

Service Single No. 21568 of 2020

Manoj Kumar Giri ...Petitioner
Versus
State of U.P. & Ors. ...Respondents