# Rajendra Kumar v. Director General, Council of Sc. & Tech. & Ors

- **Citation:** (2021) 2 ILRA 782
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-08
- **Case number:** Service Single No. 16156 of 2020
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-kumar-v-director-general-council-of-sc-tech-ors-46809
- **Pages:** 11

## Headnote

A. Constitution of India - Article 226 - Writ
- Maintainability - Alternative remedy of
Appeal - Three exceptions, when writ
petition
is
maintainable
even
despite
availability of alternative remedy - Such
exceptions are enforcement of fundamental
rights, violation of principles of natural
justice, where order or proceedings are
without jurisdiction and where vires of an
Act is challenged - Whirlpool Corporation's
case followed - Pleadings regarding lack of
jurisdiction and violation of principles of
natural justice is there in the writ petition -
Held, writ petition is maintainable. (Para
10.3, 10.4 and 10.5)
B. Civil Law - Council of Science &
Technology,
Uttar
Pradesh
(Service)
Regulations, 1989 - Regulations 68(iv) and
71 - Departmental Enquiry - Punishment -
Censure and reduction of pay - No Prima
facie
satisfaction
recorded
before
full
fledged
enquiry
-
Non-compliance
of
procedure prescribed in Regulation 68(iv) -
Effect - Held, Non-compliance of the
provision
would
completely
defeat
its
object, failure to adhere the provision would
lead to severe consequences - Provisions of
Regulation 68 (iv) of the Regulations of
1989 are mandatory in nature. (Para 11.14
and 11.15)
C. Civil Law - Council of Science &
Technology,
Uttar
Pradesh
(Service)
Regulations, 1989 - Regulation 68 (v) and
2 All. Rajendra Kumar Vs. Director General, Council of Sc. & Tech. & Ors.
783
(vi) - Departmental Enquiry - Opportunity
of hearing - Delinquent employee failed to
submit reply and choose not to participate
in enquiry - Effect - Entire purpose of a
departmental enquiry is not to hold the
employee guilty but to arrive at a
conclusion upon consideration of evidence
whether the charges leveled against the
delinquent employee are proved or not -
This procedure is to be followed by
enquiry officer in an objective and fair
manner - Enquiry officer has a bounden
duty to enquire into the charges levelled
against the delinquent employee upon
consideration
of
not
only
oral
but
documentary evidence as well to be
produced by the department even in case
the delinquent employee chooses not to
participate in the enquiry proceedings.
(Para 12.7)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

782 INDIAN LAW REPORTS ALLAHABAD SERIES
orientation or gender identity includes any
discrimination, exclusion, restriction or
preference, which has the effect of
nullifying or transposing equality by the
law or the equal protection of laws
guaranteed under our Constitution, and
hence we are inclined to give various
directions to safeguard the constitutional
rights
of
the
members
of
the
TG
community."

19. In Smt. Vimla Srivastava v. State of
U.P. & Anr. - Writ - C No.60881 of 2015
Dated 04.12.2015, a Division Bench of this
Court has struck down the word 'unmarried'
in Rule 2 (c) (iii) of Dying-in-Harness Rules
and hold that exclusion of married daughters
from the ambit of the expression "family" in
Rule 2 (c) of the Dying-in-Harness Rules is
illegal and unconstitutional, being violative of
Articles 14 and 15 of the Constitution.

20. In view of the above, the instant
petition is allowed.

21. Impugned order dated 11.04.2016
passed
by
respondent
no.2/Executive
Engineer, Irrigation Division, Rae Bareli is
hereby quashed.

22. A mandamus is issued to the
Executive Engineer, Irrigation Division, Rae
Bareli to consider the petitioner's claim for
compassionate appointment, in accordance
with law, which shall mean without reference
to her marital status, within a period of three
months from the date of production of a copy
of this order.

23. No order as to costs.
----------
(2021)02ILR A782
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.01.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

Service Single No. 16156 of 2020

Rajendra Kumar ...Petitioner
Versus
Director General, Council of Sc. & Tech. &
Ors. ...Respondents

Counsel for the Petitioner:
Shivam Sharma

Counsel for the Respondents:
Ajit Kumar

A. Constitution of India - Article 226 - Writ
- Maintainability - Alternative remedy of
Appeal - Three exceptions, when writ
petition
is
maintainable
even
despite
availability of alternative remedy - Such
exceptions are enforcement of fundamental
rights, violation of principles of natural
justice, where order or proceedings are
without jurisdiction and where vires of an
Act is challenged - Whirlpool Corporation's
case followed - Pleadings regarding lack of
jurisdiction and violation of principles of
natural justice is there in the writ petition -
Held, writ petition is maintainable. (Para
10.3, 10.4 and 10.5)
B. Civil Law - Council of Science &
Technology,
Uttar
Pradesh
(Service)
Regulations, 1989 - Regulations 68(iv) and
71 - Departmental Enquiry - Punishment -
Censure and reduction of pay - No Prima
facie
satisfaction
recorded
before
full
fledged
enquiry
-
Non-compliance
of
procedure prescribed in Regulation 68(iv) -
Effect - Held, Non-compliance of the
provision
would
completely
defeat
its
object, failure to adhere the provision would
lead to severe consequences - Provisions of
Regulation 68 (iv) of the Regulations of
1989 are mandatory in nature. (Para 11.14
and 11.15)
C. Civil Law - Council of Science &
Technology,
Uttar
Pradesh
(Service)
Regulations, 1989 - Regulation 68 (v) and
2 All. Rajendra Kumar Vs. Director General, Council of Sc. & Tech. & Ors.
783
(vi) - Departmental Enquiry - Opportunity
of hearing - Delinquent employee failed to
submit reply and choose not to participate
in enquiry - Effect - Entire purpose of a
departmental enquiry is not to hold the
employee guilty but to arrive at a
conclusion upon consideration of evidence
whether the charges leveled against the
delinquent employee are proved or not -
This procedure is to be followed by
enquiry officer in an objective and fair
manner - Enquiry officer has a bounden
duty to enquire into the charges levelled
against the delinquent employee upon
consideration
of
not
only
oral
but
documentary evidence as well to be
produced by the department even in case
the delinquent employee chooses not to
participate in the enquiry proceedings.
(Para 12.7)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Authorised Officer, St. Bank of Travancore Vs
Mathew K.C., (2018) 3 SCC 85
2. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors., (1998) 8 SCC 1
3.St. of Jharkhand & ors. Vs Ambay Cements &
anr. (2005) 1 SCC 368
4. Devinder Singh & ors. Vs St. of Punj. & ors.,
(2008) 1 SCC 728
5. Sharif-ud-Din Vs Abdul Gani Lone, AIR 1980 SC
303
6. Ram Asrey Baiswar v. Subedar Pandey & ors.,
AIR 1964 All 169
7. Chamoli District Cooperative Bank Ltd. & anr. Vs
Raghunath Singh Rana & ors., AIR 2016 SC 2510
8.St. of U.P. & ors. Vs Saroj Kumar Sinha, (2010) 2
SCC 772
9. Roop Singh Negi Vs P.N.B. & ors., AIR 2008 SC
(supp) 921
10. Marathwada University Vs Seshrao Balwantrao
Chavan, (1989) 3 SCC 132

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Shivam Sharma, learned
counsel for petitioner and Mr. Ajit Kumar,
learned counsel for opposite parties.

2. Under challenge is the punishment
order dated 21.07.2020, the enquiry report
dated 13.12.2019 and the charge sheet
dated
17.06.2019.
A
further
prayer
directing
opposite
parties
to
grant
consequential benefits upon quashing of the
aforesaid orders has also been sought.

3. Learned counsel submits that while
petitioner was working with opposite
parties on the post of Artist-cum- Publicity
Assistant, he was issued a show cause
notice on 10.04.2019 levelling certain
allegations. It is submitted that petitioner
submitted
his
reply
on
24.05.2019
whereafter the charge sheet was issued to
him and upon submission of enquiry report,
the impugned punishment order has been
passed whereby punishment of censure and
reduction of pay to a lower stage in the
time-scale has been awarded.

4. Learned counsel for petitioner has
submitted that petitioner is governed by the
Council of Science & Technology, Uttar
Pradesh (Service) Regulations, 1989 which
prescribes the procedure for initiation and
conclusion of enquiry. Learned counsel has
drawn attention to Regulations 67 onward
with Regulation 66 prescribing punishment
for misconduct as per Regulation 69.
Procedure of enquiry into misconduct is
prescribed under Regulation 68 with nature
of penalties being indicated in Regulation
70. Provision of appeal has been provided
in Regulation 71.

5. Learned counsel for petitioner
submits that as per Regulation 68, in case
there is any reason to believe that an
employee has been guilty of misconduct, it
784 INDIAN LAW REPORTS ALLAHABAD SERIES
is incumbent upon the employer-authority
to order an enquiry to be instituted into
his/her conduct whereupon the employee is
to be served with a show-cause notice
setting forth the nature of misconduct and
calling for an explanation. It is submitted
that explanation is to be furnished by the
employee to enquiry officer who shall
submit a report to the appointing authority
indicating whether in his opinion the
explanation is satisfactory or not. As per
clause (iv) of Regulation 68, in case the
explanation is found to be unsatisfactory,
the appointing authority has occasion either
to administer warning to employee or
impose censure or direct charges to be
framed against the employee whereafter
regular departmental enquiry shall ensue.

6. Learned counsel for petitioner
submits that the aforesaid provision is
mandatory in nature and opposite parties
were bound to comply with the same.
However, after the explanation submitted by
petitioner, it was the enquiry officer and not
the appointing authority who had rejected the
explanation submitted by petitioner. It is,
thus, submitted that Regulation 68 being
mandatory in nature, it was incumbent upon
appointing authority to have taken decision
on the explanation submitted by petitioner
and not the enquiry officer. As such, it is
submitted that the very initiation of enquiry
proceedings against petitioner by issuance of
charge sheet without first deciding the
explanation submitted by petitioner is dehors
the rules and thereby vitiated.

7. Learned counsel for petitioner has
also drawn attention to enquiry report and the
punishment order with the submission that
the same has been passed without adhering to
procedure prescribed as per the service
regulations inasmuch as each of the charge
has been found proved against petitioner
without any application of mind and without
considering the evidence merely on the
ground that petitioner had not furnished his
reply. It is submitted that it is settled law as
enunciated by Hon'ble the Supreme Court
that even in case the delinquent employee
fails to submit his reply, it is incumbent upon
the employer to enquire into the charges
levelled against the delinquent employee,
independently. That having not been done, it
is submitted, not only the enquiry report but
punishment order as well is vitiated on that
score as well.

8. Learned counsel for opposite party
has raised a preliminary objection with
regard to maintainability of petition in view
of the fact that Regulation 71 specifically
prescribes an appeal to be filed before the
appellate authority, i.e. the Managing
Director
against
any
such order
of
punishment. Learned counsel for opposite
parties has strenuously and repeatedly
argued that petitioner is liable to be
relegated to the forum of appeal without the
writ petition being entertained. It has been
further submitted that punishment order has
been passed by the Secretary, who is the
appointing authority of petitioner and
therefore petitioner has the provision of
filing an appeal. It has also been submitted
that petitioner failed to avail himself of the
opportunity to submit his reply to charge
sheet and deliberately did not participate in
the enquiry proceedings, for which he
himself is to be blamed and as such he
cannot be permitted to take benefit of his
own wrongs.
Even
otherwise,
it
is
submitted, all the grounds as taken in the
writ petition can very well be looked into
by the appellate authority.

9. Upon consideration of material on
record and submissions advanced by
learned counsel for the parties, the three
2 All. Rajendra Kumar Vs. Director General, Council of Sc. & Tech. & Ors.
785
questions requiring adjudications are as
follows:-

1.Whether this Court is mandatorily
required to refer the dispute to Appeal in
view of preliminary objection?

2. Whether the provisions in Regulation
68 of the Service Regulations would be
mandatory in nature inasmuch as whether
appointing authority is required to first
adjudicate upon reply submitted to show
cause notice, prior to issuance of charge sheet
or not?; and

3. Whether even in absence of reply by
petitioner/delinquent employee, the enquiry
officer was required to look into veracity of
charges levelled against petitioner or whether
the enquiry proceedings can be concluded
only on the basis that petitioner had failed to
submit his reply.

10. Question No.1: Whether this
Court is mandatorily required to refer the
dispute to Appeal in view of preliminary
objection?

Learned counsel for opposite parties has
strenuously objected to maintainability of
writ petition in view of remedy of appeal
being available with petitioner. He has also
placed reliance on judgment rendered by
Hon'ble the Supreme Court in Authorised
Officer, State Bank of Travancore v.
Mathew K.C. reported in (2018) 3 SCC 85.

10.1 Learned counsel for petitioner in
response thereto has submitted that it is
settled law that availability of alternative
remedy
does
not
absolutely
bar
maintainability of writ petition. He has placed
reliance on judgment rendered by Hon'ble the
Supreme Court in Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai &
others, reported in(1998) 8 SCC 1.

10.2 Upon consideration of the aforesaid
submissions and judgments cited by learned
counsel for the parties, it is apparent that in
Authorised
Officer,
State
Bank
of
Travancore(supra), no specific embargo has
been enunciated by Hon'ble the Supreme
Court regarding non-maintainability of writ
petition on account of availability of
alternative remedy. Aforesaid judgment is
also distinguishable in view of the fact that
the said matter pertained to recovery of
public money under the Securitisation and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002,
particularly
regarding
loans,
timely
repayment is required to ensure liquidity to
facilitate loan to another in need by
circulation of money which cannot be
permitted to be blocked by frivolous
litigation. Another aspect of the matter was
that the writ petition had been held to be
maintainable
without
assigning
special
reasons and without granting opportunity to
other side to contest maintainability of writ
petition.

10.3 In the present case, the matter
pertains to service dispute and not the
Securitisation
and
Reconstruction
of
Financial Assets and Enforcement of Security
Interest Act. Further more, Hon'ble the
Supreme Court in the case of Whirlpool
Corporation (supra) has clearly indicated
the exceptions where writ petition is
maintainable even despite availability of
alternative remedy. Such exceptions being
enforcement of fundamental rights, violation
of principles of natural justice, where order or
proceedings are without jurisdiction and
where vires of an Act is challenged.

10.4 The aforesaid factors are required
to be seen considering the pleadings in the
writ petition. In the present case, pleadings
in the writ petition have clearly been made
regarding lack of jurisdiction and violation
of principles of natural justice.

10.5 In view of aforesaid, the matter in
hand is clearly coming within the scope of
786 INDIAN LAW REPORTS ALLAHABAD SERIES
exceptions as enunciated by Hon'ble the
Supreme Court in the case of Whirlpool
Corporation (supra). As such, the writ
petition is held to be maintainable.

11. Question No.2 : Whether the
provisions in Regulation 68 of the Service
Regulations would be mandatory in nature
inasmuch as whether appointing authority
is required to first adjudicate upon reply
submitted to show cause notice, prior to
issuance of charge sheet or not?

11.1 The second question requiring
adjudication is as to whether Regulation 68 of
the Service Regulations would be mandatory
or merely directory in nature.

11.2 With regard to aforesaid, learned
counsel for petitioner has submitted that
Regulation 68 of the Service Regulations
pertaining to enquiry into misconduct is
mandatory in nature inasmuch as upon
receipt of explanation from the employee, the
enquiry officer is required to submit a report
to appointing authority indicating whether in
his opinion the explanation is satisfactory or
not. Regulation 68 (iv) states that in case the
explanation is found to be unsatisfactory, the
appointing authority may administer a
warning to the employee or censure or direct
that charges be framed against the employee.

11.3 In view of aforesaid provisions,
learned counsel for petitioner submits that
once a penal clause is indicated in Regulation
68(iv),
the
aforesaid
provision
would
necessarily be mandatory.

11.4 In support of his submissions,
learned counsel for petitioner has placed
reliance on the following judgments:-

(a) State of Jharkhand and others v.
Ambay Cements and another, reported in
(2005) 1 SCC 368;

(b) Devinder Singh & others v. State
of Punjab and others, reported in (2008) 1
SCC 728;

(c) Sharif-ud-Din v. Abdul Gani Lone,
reported in AIR 1980 SC 303; and

(d) Ram Asrey Baiswar v. Subedar
Pandey and Ors., reported in AIR 1964 All
169.

11.5 A reading of Regulation 68
indicates that where there is any reason to
believe that an employee has been guilty of
misconduct, the appointing authority may
order an enquiry to be instituted. Upon
such an order being issued, the employee is
to be served with a show cause notice by
enquiry officer setting forth the charges
levelled against him to which the employee
is
required
to
furnish
explanation.
Subsequently upon receipt of explanation
from employee, the enquiry officer is
required to submit a report to appointing
authority indicating his opinion whether the
explanation is satisfactory or not. In case
the competent authority is of the view that
the explanation is satisfactory, no further
action is required to be taken and the
proceedings are required to be dropped.

11.6 However, Regulation 68 (iv)
clearly indicates the procedure in case the
explanation is found to be unsatisfactory
and states that the appointing authority
(emphasis supplied) may administer a
warning to employee or censure or direct
that
charges
be
framed
against
the
employee whereafter a proper departmental
enquiry is to ensue.

11.7 The aforesaid provision clearly
indicates the facts that once explanation is
submitted by the employee, the appointing
authority is required to apply his mind to
the explanation and thereafter reach a
conclusion as to whether the proceedings
are required to be dropped or are required
to be continued. Even in case the
proceedings are not required to be dropped,
it is the further bounden duty of the
appointing authority to first reach a
conclusion as to whether the charges are
2 All. Rajendra Kumar Vs. Director General, Council of Sc. & Tech. & Ors.
787
not grave enough and the matter can be
ended by administering a warning to the
employee or censuring him. It is only in
case the appointing authority reaches a
conclusion that the explanation submitted is
not satisfactory and the charges against him
are serious enough that direction is to be
issued for charges to be framed against the
employee
for
holding
a
proper
departmental enquiry.

11.8 Clearly, the purpose of the
aforesaid proceedings is firstly, whether the
charges are required to be enquired into at
all or are to be dropped when the
explanation submitted by the employee is
considered satisfactory. Secondly, in case
the appointing authority reaches a prima
facie satisfaction that the explanation is
unsatisfactory but the charges are not
serious enough to merit a full departmental
enquiry, the matter can be closed by
administering a warning or censure to
employee concerned. Thirdly, it is only in
case where the aforesaid conditions are not
met that a full fledged departmental
enquiry is required to be resorted to by the
appointing authority.

11.9 In the considered opinion of this
Court, the very purpose of Regulation 68
(iv) would be rendered nugatory in case the
steps as required are not followed by the
appointing authority and a full fledged
departmental enquiry is required to ensue
after submission of explanation by the
employee,
without
any
prima
facie
satisfaction of the appointing authority with
regard to explanation so submitted.

11.10 The issue whether a particular
statute or rule is mandatory or directory has
been dealt with in detail by Hon'ble the
Supreme Court in the case of Sharif-udDin (supra) in the following manner:-

"9.
The
difference
between
a
mandatory rule and a directory rule is that
while the former must be strictly observed,
in the case of the latter, substantial
compliance may be sufficient to achieve the
object regarding which the rule is enacted.
Certain broad propositions which can be
deduced from several decisions of courts
regarding the rules of construction that
should be followed in determining whether
a provision of law is directory or
mandatory may be summarized thus: The
fact that the statute uses the word 'shall'
while laying down a duty is not conclusive
on the question whether it is a mandatory
or directory provision. In order to find out
the true character of the legislation, the
Court has to ascertain the object which the
provision of law in question is to sub-serve
and its design and the context in which it is
enacted. If the object of a law is to be
defeated by non-compliance with it, it has
to be regarded as mandatory. But when a
provision of law relates to the performance
of any public duty and the invalidation of
any act done in disregard of that provision
causes serious prejudice to those for whose
benefit it is enacted and at the same time
who have no control over the performance
of the duty, such provision should be
treated as a directory one. Where however,
a provision of law prescribes that a certain
act has to be done in a particular manner
by a person in order to acquire a right and
it is coupled with another provision which
confers an immunity on another when such
act is not done in that manner, the former
has to be regarded as a mandatory one. A
procedural rule ordinarily should not be
construed as mandatory if the defect in the
act done in pursuance of it can be cured by
permitting appropriate rectification to be
carried out at a subsequent stage unless by
according such permission to rectify the
error later on, another rule would be
contravened. Whenever a statute prescribes
that a particular act is to be done in a
788 INDIAN LAW REPORTS ALLAHABAD SERIES
particular manner and also lays down that
failure to comply with the said requirement
leads to a specific consequence, it would be
difficult to hold that the requirement is not
mandatory and the specified consequence
should not follow."

11.11
Similarly,
with
regard
to
aforesaid factor, Hon'ble the supreme Court
in the case of Ambay Cements(supra) has
held as follows:-

"26. Whenever the statute prescribes
that a particular act is to be done in a
particular manner and also lays down that
failure to comply with the said requirement
leads
to
severe
consequences,
such
requirement would be mandatory. It is the
cardinal rule of interpretation that where a
statute provides that a particular thing
should be done, it should be done in the
manner prescribed and not in any other
way. It is also settled rule of interpretation
that where a statute is penal in character, it
must be strictly construed and followed.
Since the requirement, in the instant case,
of obtaining prior permission is mandatory,
therefore, non-compliance with the same
must result in cancelling the concession
made in favour of the grantee, the
respondent herein."

11.12 The issue when the word 'may'
can be considered to be mandatory and not
directory has been dealt with in detail by a
Division Bench of this Court in Ram
Asrey Baiswar(supra) in the following
terms:-

"The use of the word "shall" might
prima facie go to indicate that the
legislature
probably
wanted
the
requirement to be of a mandatory type. In a
particular context, however, the word
"shall" also might be used in respect of a
directory provision of law. similarly
although the word "may" is ordinarily used
in connection with directory provisions. In
the particular circumstances of a case and
in the context m which the said word is
used, it may have the effect of making the
particular provision a mandatory one.
Reference in this connection might be made
to the cases of Bhikraj Jaipuria v. union of
India AIR 1952 S. C. 113 and Collector of
Monghyr v. Keshav Prasad Goenka AIR
1962 S. C. 1694."

11.13 Even in case a rule is held to be
directory and not mandatory, Hon'ble the
Supreme Court in Devinder Singh (supra)
has held that the same should be
substantially complied with and cannot be
ignored in its entirety only because the
provision is held to be directory and not an
imperative one.

11.14 Regulation 68(iv) also indicates
that prior to issuance of a charge-sheet for
holding a full fledged enquiry, it is
incumbent upon the appointing authority to
record a prima facie satisfaction that the
explanation submitted by the employee is
unsatisfactory and thereafter proceed to
either
administer
a
warning
to
the
employee or visit him with censure. The
appointing authority is further required to
record his prima facie satisfaction that not
only is the explanation submitted by the
employee unsatisfactory but the charges are
serious enough to hold a full fledged
departmental enquiry, the said factor is also
to be recorded in the order required to be
passed in terms of the said provision. The
expression of prima facie opinion by the
appointing authority is 'must' and has to be
based on the material on record. With
regard to expression of such opinion by the
appointing authority and the procedure of
its effecting, Hon'ble the Supreme Court in
Devinder Singh (supra) has held as
follows:-
2 All. Rajendra Kumar Vs. Director General, Council of Sc. & Tech. & Ors.
789

"33. When an order is passed without
jurisdiction, it amounts to colourable
exercise of power. Formation of opinion
must precede application of mind. Such
application of mind must be on the
materials brought on record. The materials
should be such which are required to be
collected
by
the
authorities
entitled
therefor. The authorities must act within
the four corners of the statute. An opinion
formed even on the basis of an advice by an
authority which is not contemplated under
the statute renders the decision bad in law.
A statutory authority is bound by the
procedure laid down in the statute and
must act within the four corners thereof."

11.15 The purpose of Regulation 68(iv)
has already been indicated herein above and
in the considered opinion of this Court, noncompliance of the said provision would
completely defeat the object of the said
provision. Further more, non-compliance of
the aforesaid provision would also cause
serious prejudice to the employee concerned.
Once the said provision has prescribed a
particular act to be done in a particular
manner, the failure to adhere to such a
provision would lead to severe consequences
and therefore it is held that the provisions of
Regulation 68 (iv) of the Council of Science
& Technology Uttar Pradesh (Service)
Regulations, 1989 are mandatory in nature.

12. Question No. 3: Whether even in
absence of reply by petitioner/delinquent
employee, the enquiry officer was required
to look into veracity of charges levelled
against petitioner or whether the enquiry
proceedings can be concluded only on the
basis that petitioner had failed to submit
his reply:

12.1 The issue whether even in the
absence of reply by the delinquent
employee the procedure required to be
followed is also to be seen from the service
regulations and the law on that subject.

12.2
Regulation
68(v)
and
(vi)
provides that once the appointing authority
has directed that charges be framed against
the employee, the enquiry officer shall
frame the charges against the employee
concerned and communicate the same in
writing to the employee who will be
required to reply in writing to those
charges. Thereafter the enquiry officer is
required to conduct the enquiry to ascertain
the truth of the charges after affording
adequate
opportunity
to
the
charged
employee of being heard and shall record
his findings in respect each charge,
whereupon the competent authority shall
impose any one or some of the penalties
specified in Regulation 70 upon the
charged employee being found guilty in the
enquiry proceedings.

12.3 Although the aforesaid provisions
do not indicate any specific procedure to be
followed with regard to departmental
enquiry but at the same time clearly
indicate that adequate opportunity of
hearing is required to be afforded to the
charged employee by the enquiry officer.

12.4 Recently, Hon'ble the Supreme
Court in Chamoli District Co-operative
Bank Ltd. and another v. Raghunath
Singh Rana and others reported in AIR
2016 SC 2510 has held as follows:-

"19. The compliance of natural justice
in
domestic/disciplinary
inquiry
is
necessary has long been established. This
Court has held that even there are no
specific
statutory
Rule
requiring
observance
of
natural
justice,
the
compliance of natural justice is necessary.
Certain ingredients have been held to be
constituting integral part of holding of an
inquiry. The Apex Court in Sur Enamel and
790 INDIAN LAW REPORTS ALLAHABAD SERIES
Stamping
Works
Pvt.
Ltd.
v. Their
Workmen reported in (1964) 3 SCR 616 :
AIR 1963 SC 1914 has laid down
following:

... An enquiry cannot be said to have
been properly held unless, (i) the employee
proceeded against has been informed
clearly of the charges levelled against him,
(ii) the witnesses are examined - ordinarily
in the presence of the employee - in respect
of the charges, (iii) the employee is given a
fair
opportunity
to
cross-examine
witnesses, (iv) he is given a fair opportunity
to examine witnesses including himself in
his defence if he so wishes on any relevant
matter, and (v) the inquiry officer records
his findings with reasons for the same in
his report."

12.5 Hon'ble the Supreme Court in
State of Uttar Pradesh and others v.
Saroj Kumar Sinha reported in (2010) 2
SCC 772 has held as under:-

"28.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."

12.6 Further Hon'ble the Supreme
Court in Roop Singh Negi v. Punjab
National Bank and others reported in
AIR 2008 SC (supp) 921 has specifically
held that the authority conducting an
enquiry against a delinquent employee
clearly discharges a quasi-judicial function
and is, therefore, required to act in a fair
and impartial manner. It is obligatory upon
the said authority not only to deal with the
reply submitted by the delinquent employee
but also a duty is cast upon him to find out
the truth of the allegations leveled against
the delinquent employee. The purpose of an
enquiry is not to establish a delinquent
employee guilty of the charges levelled
against him. The relevant portion reads as
follows:-

"Indisputably,
a
departmental
proceeding is a quasi judicial proceeding.
The Enquiry Officer performs a quasi
judicial function. The charges leveled
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."

12.7 Upon a consideration of the
aforesaid enunciation of law by Hon'ble the
Supreme Court, it is clear that the enquiry
officer is required to act fairly and as a
quasi judicial authority in order to ascertain
the truth behind the charges levelled
against the charged employee. The entire
purpose of a departmental enquiry is not to
2 All. Rajendra Kumar Vs. Director General, Council of Sc. & Tech. & Ors.
791
hold the employee guilty but to arrive at a
conclusion upon consideration of evidence
whether the charges levelled against the
delinquent employee are proved or not. The
said procedure is to be followed by enquiry
officer in an objective and fair manner. It is
also clear from the aforesaid case laws that
even if an employee prefers not to
participate in the enquiry proceedings, it is
the department that has to establish the
charges against the said employee by
adducing not only oral but documentary
evidence as well to substantiate and
corroborate the charges levelled against the
delinquent employee. In view of said
matter, it is held that the enquiry officer has
a bounden duty to enquire into the charges
levelled against the delinquent employee
upon consideration of not only oral but
documentary evidence as well to be
produced by the department even in case
the delinquent employee chooses not to
participate in the enquiry proceedings. Any
other meaning given to departmental
proceedings would render the very purpose
of holding departmental enquiry nugatory.

Conclusion:

13. Upon applicability of aforesaid
factors in the present case, it is clear that
there is no recording of any subjective
satisfaction by the appointing authority in
terms of Regulation 68(iv) inasmuch as
there is no document on record to indicate
that the appointing authority applied its
mind to explanation submitted by the
petitioner as required. It is only the enquiry
officer who has in the charge sheet
indicated that the explanation submitted by
petitioner did not merit any consideration.
No reasons for recording such a finding
have been indicated in the charge sheet
either. Even otherwise, in view of the
specific provision of Regulation 68 (iv), it
is only the appointing authority who is
required
to
record
his
prima
facie
subjective
satisfaction
regarding
the
explanation submitted by the delinquent
employee being unsatisfactory.

14. Hon'ble the Supreme Court in
Marathwada
University
v.
Seshrao
Balwantrao Chavan reported in (1989) 3
SCC 132 while referring to Halsbury's
Laws of England (Vol. I, 4th End., para 32)
has held as follows:-

"20. Counsel for the appellant argued
that the express power of the ViceChancellor to regulate the work and
conduct of officers of the University implies
as well, the power to take disciplinary
action against officers. We are unable to
agree with this contention. Firstly, the
power to regulate the work and conduct of
officers cannot include the power to take
disciplinary action for their removal.
Secondly, the Act confers power to appoint
officers on the Executive Council and it
generally includes the power to remove.
This power is located under Section
24(1)(xxix) of the Act. It is, therefore, futile
to contend that the Vice-Chancellor can
exercise that power which is conferred on
the Executive Council. It is a settled
principle that when the Act prescribes a
particular body to exercise a power, it must
be exercised only by that body. It cannot be
exercised by others unless it is delegated.
The law must also provide for such
delegation. Halsbury's Laws of England
(Vol. I, 4th End., para 32) summarises
these principles as follows:

"32. Sub-delegation of powers.? In
accordance with the maxim delegatus non
potest delegare, a statutory power must be
exercised only by the body or officer in
whom it has been confided, unless subdelegation of the power is authorised by
792 INDIAN LAW REPORTS ALLAHABAD SERIES
express words or necessary implication.
There is a strong presumption against
construing a grant of legislative, judicial or
disciplinary power as impliedly authorising
sub-delegation; and the same may be said
of any power to the exercise of which the
designated body should address its own
mind."

15. In terms of aforesaid, it is clear
that the provisions of Regulation 68(iv)
of the Service Regulations of 1989 have
been completely ignored with regard to
petitioner
and
as
such
the
entire
proceedings are clearly vitiated on that
account.

16. Even otherwise, it is clear from
a perusal of impugned orders that the
entire enquiry proceedings have been
concluded treating the charges levelled
against the delinquent employee to be
true only on account of the fact that no
reply was submitted by him within the
time stipulated. Such a procedure is
totally contrary to the law enunciated by
Hon'ble the Supreme Court as referred to
herein above and clearly are against the
principles of natural justice as were
required to be followed by the enquiry
officer in terms of Regulation 68.

17. Considering the aforesaid
aspects, it is clear that the entire
proceedings against the petitioner were
clearly vitiated for non-compliance of
provisions of Regulation 68 of the
Service Regulations of 1989.

18. Consequently, a writ in the
nature of Certiorari is issued quashing the
punishment order dated 21.07.2020, the
enquiry report dated 13.12.2019 and the
charge sheet dated 17.06.2019.

19. Since it is admitted between the
parties and as specifically pleaded in the
counter affidavit that the Secretary of the
Council is the appointing authority of the
petitioner, the matter is remitted to the
said authority with a further writ in the
nature
of
Mandamus
to
first
pass
appropriate orders in consonance with
Regulation
68(iv)
and
to
take
consequential action in pursuance thereof
within a period of six weeks from the
date a copy of this order is served upon
the said authority. In case the said
authority
reaches
a
prima
facie
satisfaction
that
a
full
fledged
departmental enquiry is required to be
held the said enquiry proceedings shall be
completed within a period of six months
form the date the petitioner is required as
a last date to submit his reply.

20. Consequently, the writ petition
stands allowed in terms of aforesaid.
----------
(2021)02ILR A792
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 204 of 2021
(Defective Appeal No. 386 of 2005)

Vishnu ....Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Shweta Singh Rana (appointed by State
Service Legal Authority), Kamini Pandey, Sri
Anand Pandey