# Rajesh Kumar v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 89
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-01
- **Case number:** Service Single No. 15151 of 2020
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-v-state-of-u-p-ors-47327
- **Pages:** 10

## Headnote

A. Service Law - Vigilance Enquiry - the
vigilance enquiry cannot be initiated on the
same set of facts which has been inquired into
vide a departmental enquiry. In the present
case the vigilance enquiry conducted against the
petitioner is regarding disproportionate assets
which is entirely different from the grounds of
the departmental enquiry. (para 31)

Writ Petition Dismissed. (E-8)

List of Cases cited:-

## Text

8 All. Rajesh Kumar Vs. State of U.P. & Ors.
89
authority under the Rules,1995 for the
reason that the order impugned has been
passed by the Highest Authority of the
Home Department of the State of U.P.
Therefore, the impugned office memo
dated 01.07.2021 is not only unwarranted
and uncalled for being passed without
having any prescription under the relevant
service Rules, 1991 but has been passed by
such authority against which no appeal or
revision or representation can be filed
before the Competent Authority. The
impugned office memo dated 01.07.2021 is
prima facie an order passed without
jurisdiction, therefore, it may not sustain in
the eyes of law.

8. The right of appeal or revision or
statutory representation of an employee
may not be curtailed/ washed off and if
such inaction has been done by any of the
authority, the said punishment order would
be nullity in the eyes of law.

9. In view of the above, the writ
petition succeeds and is allowed.

10. A writ in the nature of certiorari is
issued
quashing
the
order
dated
01.07.2021, passed by the Additional Chief
Secretary,
Department
of
Home,
Government of U.P., Civil Secretariat,
Lucknow, which is contained as Annexure
No.1 to the writ petition, being illegal,
unwarranted and without jurisdictional
order and also in violation of the dictum of
Hon'ble Apex Court in re: Vijay Singh
(supra) as the impugned punishment has
not been prescribed under the Rules, 1991.

11. Consequences to follow.

12. However, it is always open to the
authority/ authorities concerned to pass
appropriate orders, but by following due
procedure of law.

13. No order as to costs.
----------
(2021)08ILR A89
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.08.2021

BEFORE

THE HON'BLE RAJESH SINGH
CHAUHAN, J.

Service Single No. 15151 of 2020

Rajesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajendra Kumar, Aarohi Bhalla, Sunil
Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Vigilance Enquiry - the
vigilance enquiry cannot be initiated on the
same set of facts which has been inquired into
vide a departmental enquiry. In the present
case the vigilance enquiry conducted against the
petitioner is regarding disproportionate assets
which is entirely different from the grounds of
the departmental enquiry. (para 31)

Writ Petition Dismissed. (E-8)

List of Cases cited:-

1. Dr. Dinesh Chandra Mishra Vs St. of U.P. &
ors. Writ Petition No. 112 (S/B) of 2004

2. The St. of Assam & anr. Vs J.N. Roy Biswas
AIR 1975 SC 2277

3. U.O.I. & ors. Vs Kunisetty Satyanarayana
(2006) 12 SCC 28
90 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Radhey Shyam Kejriwal Vs St. of W.B. & anr.
(2011) SCC OnLine SC 363

5. Ashoo Surendranath Tewari Vs Deputy
Superintendent of Police, EOW, CBI & anr.
(2020) 9 SCC 636

6. Tata Cellular Vs U.O.I. (1994) 6 SCC 651

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

1. Heard Sri Vivek Raj Singh, learned
Senior Advocate assisted by Sri Rajendra
Kumar, learned counsel for the petitioner
and Sri Vivek Kumar Shukla, learned
Additional Chief Standing Counsel for the
State-respondents.

2. The order under challenge is an
order dated 02.06.2020 passed by the
Under Secretary, Department of Vigilance,
Anubhag-3, Government of U.P., Civil
Secretariat, Lucknow, which is contained as
Annexure No.1 to the writ petition,
initiating an open vigilance enquiry against
the
petitioner
on
the
allegation
of
corruption having disproportionate assets
beyond known source of income.

3. The petitioner has however not
assailed the Annexure No.2, which is a
letter dated 13.04.2018 preferred by the
Joint
Secretary,
Department
of
Appointment, Anubhag-7, Government of
U.P. addressing to the Under Secretary,
Vigilance, Anubhag-3, Government of U.P.,
whereby the permission/ consent was
granted for conducting vigilance enquiry
against the petitioner.

4. The brief facts of the case are that
the petitioner was erstwhile member of
Provincial Civil Services and promoted in
the
year
2007. On
31.07.2016,
the
petitioner retired from the post of ViceChairman, Ayodhya Vikas Pradhikaran,
Ayodhya.

5. The disciplinary proceeding was
initiated
against
the
petitioner
on
16.09.2016 and the charge-sheet was
served upon him on 30.09.2016. He
submitted his defence reply to the chargesheet
on
24.11.2016.
The
enquiry
concluded
against
the
petitioner
on
05.12.2017 and Enquiry Officer found
Charge No.2 is partially proved. On
16.01.2018, the petitioner was served a
show cause notice providing him findings
of enquiry report and the petitioner
submitted his reply to the show cause
notice on 24.01.2018.

6. On 20.02.2018, the Disciplinary
Authority
completely
exonerated
the
petitioner, however, in the meantime, vide
order dated 12.01.2018 issued by the Under
Secretary, Vigilance Department, Anubhag3, Government of U.P., the vigilance
enquiry against the petitioner started on the
allegation that the petitioner has acquired
disproportionate assets by corruption. On
07.03.2018,
the
Under
Secretary,
Department of Vigilance has issued a letter
to the Joint Secretary, Department of
Appointment, Government of U.P., making
request that the details of the assets of the
petitioner, so furnished to the department,
be provided for conducting vigilance
enquiury. In the aforesaid letter dated
07.03.2018, it has been categorically
indicated that there are serious allegations
against
the
petitioner
regarding
disproportionate
assets
indicating
the
details of some assets of the petitioner.

7. Replying to the aforesaid letter
dated 07.03.2018 the Joint Secretary of the
Department of Appointment apprised the
Under Secretary of Vigilance Department
8 All. Rajesh Kumar Vs. State of U.P. & Ors.
91
that after being promoted in the year 2007
the petitioner has not furnished the property
details to the department. Further, if any
vigilance enquiry is conducted against the
petitioner, the government shall have no
objection to that effect.

8.

Pursuant
to
the
aforesaid
correspondences an open vigilance enquiry
has been initiated against the petitioner by
means
of
impugned
order
dated
02.06.2020.

9. The sole ground to assail the
aforesaid order dated 02.06.2020 is that an
open vigilance enquiry has been initiated
on the same set of facts, which have
already been considered by the Disciplinary
Authority so the same may not be permitted
to be conducted. The petitioner has
however not assailed the order dated
13.04.2018 whereby the permission to
conduct open vigilance enquiry has been
granted.

10. Sri V. R. Singh, learned Senior
Advocate for the petitioner has submitted
that the State Government is reversing its
own decisioin taken in the disciplinary
proceedings against the petitioner which
has attained finality. Therefore, it is a futile
and punitive exercise just to harass and
humiliate the petitioner for no cogent
reason.

11. Sri V.R. Singh has placed reliance
of the judgment of the Division Bench of
this Court rendered in re: Writ Petition
No.112 (S/B) of 2004; Dr. Dinesh
Chandra Mishra vs. State of U.P. & others
by
submitting
that
in
the
identical
circumstances the Division Bench of this
Court considering the decision of Hon'ble
Apex Court rendered in re: The State of
Assam and another vs. J.N. Roy Biswas
reported in AIR 1975 SC, 2277 has held
that if the departmental enquiry has been
concluded against an employee, the said
employee may not be subjected to further
enquiry in the same issue unless there is
some fresh or new material is found out of
which no enquiry has been conducted.

12. Sri V. R. Singh, learned Senior
Advocate has further submitted that the
aforesaid decision of the Division Bench in
re: Dr. Dinesh Chandra Misra (supra) has
attained its finality inasmuch as the Hon'ble
Apex Court has rejected the appeal as well
as the review of the State Government.

13. Sri V. R. Singh, learned Senior
Advocate has also placed reliance upon the
decisions of Hon'ble Apex Court rendered
in re: Union of India and another vs.
Kunisetty
Satyanarayana
reported
in
(2006) 12 SCC 28, Radhey Shyam
Kejriwal vs. State of West Bengal and
another reported in (2011) SCC OnLine
SC 363 and Ashoo Surendranath Tewari
vs. Deputy Superintendent of Police,
EOW, CBI and another reported in (2020)
9 SCC 636 supporting this aforesaid
contention that if the departmental enquiry
has already concluded, the employee
should not be subjected to further enquiry
on the same charges.

14. Sri V. R. Singh, learned Senior
Advocate has referred para-18 of Kunisetty
Satyanarayana (supra), which reads as
under:-

"18. We agree with the learned
counsel for the respondent that if the
charge which has been levelled under the
memo dated 23.12.2003 had earlier been
eqnuired into in a regular enquiry by a
competent authority, and if the respondent
had been exonerated on that very charge, a
92 INDIAN LAW REPORTS ALLAHABAD SERIES
second enquiry would not be maintainable.
However, in the present case, we are of the
opinion that the charges levelled against
the respondent under the charge memo
dated 23.12.2003, had not been enquired
into by any authority and he had not been
exonerated on those charges. Hence, we
are of the opinion that it is not a case of
double jeopardy."

15. In the case of Radheshyam
Kejriwal
(supra),
para-38
has
been
referred, which reads as under:-

"38. The ratio which can be
culled out from these decisions can broadly
be stated as follows :-

(i) Adjudication proceeding and
criminal prosecution can be launched
simultaneously;

(ii) Decision in adjudication
proceeding
is
not
necessary
before
initiating criminal prosecution;

(iii) Adjudication proceeding and
criminal proceeding are independent in
nature to each other;

(iv) The finding against the
person
facing
prosecution
in
the
adjudication proceeding is not binding on
the proceeding for criminal prosecution;

(v) Adjudication proceeding by
the
Enforcement
Directorate
is
not
prosecution by a competent court of law to
attract the provisions of Article 20 (2) of
the Constitution or Section 300 of the Code
of Criminal Procedure;

(vi)
The
finding
in
the
adjudication proceeding in favour of the
person facing trial for identical violation
will depend upon the nature of finding. If
the exoneration in adjudication proceeding
is on technical ground and not on merit,
prosecution may continue; and

(vii) In case of exoneration,
however, on merits where allegation is
found to be not sustainable at all and
person held innocent, criminal prosecution
on the same set of facts and circumstances
can not be allowed to continue underlying
principle being the higher standard of proof
in criminal cases."

16. Sri V. R. Singh, learned Senior
Advocate has submitted that in the case of
Ashoo Surendra Nath Tewari (supra), the
Hon'ble Apex Court has followed the dictum
of Radheshyam Kejriwal (supra) referring
paras-13, 14 & 15, which read as under:-

"13.
It
finally
concluded:
(Radheshyam Kejriwal case, SCC p.598,
para 39).

"39. In our opinion, therefore, the
yardstick would be to judge as to whether the
allegation in the adjudication proceedings as
well as the proceeding for prosecution is
identical and the exoneration of the person
concerned in the adjudication proceedings is
on merits. In case it is found on merit that
there is no contravention of the provisions of
the Act in the adjudication proceedings, the
trial of the person concerned shall be an
abuse of the process of the court."

14. From our point of view, para
38(vii) is important and if the High Court had
bothered to apply this parameter, then on a
reading of the CVC report on the same facts,
the appellant should have been exonerated.

15.
Applying
the
aforesaid
judgments to the facts of this case, it is clear
that in view of the detailed CVC order dated
22.12.2011, the chances of conviction in a
criminal trial involving the same facts appear
to be bleak. We, therefore, set aside the
judgment of the High Court and that of the
Special Judge and discharge the appellant
from the offences under the Penal Code."

17. Per contra, Sri Vivek Kumar
Shukla, learned Additional Chief Standing
8 All. Rajesh Kumar Vs. State of U.P. & Ors.
93
Counsel has submitted that by means of
this writ petition the petitioner has assailed
the order dated 02.06.2020 by which a
decision has been taken by the State
Government to initiate an open enquiry
against the petitioner. An open enquiry is
more or less a fact finding inquiry to collect
the
relevant
informations
from
the
employee strictly in terms of the modalities
indicated under Section 3 of U.P. Vigilance
Establishment Act, 1965 (here-in-after
referred to as the "Act, 1965") read with
notification issued on 29.08.1977. For
convenience, Section 3 of the Act, 1965 is
being reproduced here-in-below:-

"3. Offences to be investigated
by the Vigilance Establishment.

The State Government may, by
notification in the Gazette, specify the
offences or clauses of offences which are to
be investigated by the Uttar Pradesh
Vigilance Establishment."

18. In exercise of powers confer by
sub-section (2) of sub-section (3) of
Section 2 and sub-section (1) of Section 4
of the Act, 1965, the Governor was pleased
to issue the notification dated 29.08.1977
regulating the working and conduct of
inquiries
by
the
U.P.
Vigilance
Establishment. Clause 2 of the aforesaid
notification describes functions of the
Vigilance
Establishment.
For
brevity,
clause 2 is being reproduced here-inbelow:-

"2. Functions- The Vigilance
Establishment shall perform the following
functions:

(a)
Keep
the
Government
informed of all the cases of corruption,
bribery, misconduct, misbehavior and other
malpractice involving public servants that
come to its notice;

(b) Collect intelligence on its own
initiative or on the orders of Government in
the Vigilance Department relating to
corruption of any individual public servant
or
public
servants
belonging
to
a
department, class or category;

(c) Make inquiries, secret or
open, and investigations into cases of
corruption,
bribery,
misconduct,
misbehavior or other malpractices, that
may be referred to it from time to time by
the
Government
in
the
Vigilance
Department. This condition shall not apply
to
trap
cases
against
non-gazetted
government servants and public servants of
similar rank covered by *order No.UPA7/65-Order/76 (Fifth), dated August 16,
1976;

Provided that -

(1) The Vigilance Establishment
is as before authorized to take up enquiry
without prior permission of Government
against a non-gazetted government servant,
whose conduct may be involved with the
conduct of a gazetted officer, against whom
an enquiry had already been authorized by
Government, but

(2) for taking up an independent
enquiry or investigation against a nongazetted
official,
prior
orders
of
Government shall be obtained by the
Vigilance Establishment."

19. Clause 3 of the aforesaid
notification provides mechanism to enquire
the case of corruption in case of public
servant or against the private concern. In
the present case, the order impugned has
been passed well within the four corners of
law defined under the Act, 1965 read with
notification dated 29.08.1977.

20. Sri Vivek Kumar Shukla, learned
Additional Chief Standing Counsel has
further submitted that the allegation of the
94 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner
that
open
vigilance
enquiry
initiated against the petitioner is the second
enquiry in the same charges which have
already
been
adjudicated
under
the
departmental trial is misconceived inasmuch
as the departmental trial/ proceedings were
instituted against the petitioner by issuing the
charge-sheet wherein only two charges were
levelled, first the petitioner has allegedly
exploited one Computer Operator Sri Ashok
Kumar and compelled him to recharge his
personal Mobile Phone and make payment of
his house tax, electricity charges and other
miscellaneous
domestic
expenses.
The
second charge reads that one Sri Halim Pappu
and Sri Manoj Jaiswal made complaint
against the petitioner that petitioner has
accumulated money by making corruption
and the said allegation may be verified from
the Saving Bank Accounts, the details thereof
has been given in such complaint. The
enquiry was conducted and as per the
findings of the Enquiry Officer, charge No.1
could not be proved, however, in respect of
charge No.2 this much has been proved that
family members/ Co-account Holders have
made transactions, therefore, the petitioner
should have taken care of such transactions
made by the family members and Co-account
Holders.

21. Sri Shukla has also submitted that
the wife and children of the petitioner were
the Co-account Holders with the petitioner.
The Disciplinary Authority has passed the
final order on 20.02.2018 whereby despite
taking cognizance of the fact that charge
No.2 was partially proved against the
petitioner but the departmental enquiry was
finalized without awarding any punishment
to the petitioner.

22. Sri Shukla has submitted that the
aforesaid order dated 20.02.2018 passed by
the Disciplinary Authority is in violation of
Rule 9 (2) of the Government Servant
(Discipline & Appeal) Rules, 1999 which
categorically provides that the Disciplinary
Authority shall, if disagreed with the
findings of the Enquiry Officer on any
charge, records its own findings thereof for
the reasons to be recorded. Therefore, he
has submitted that despite the Charge No.2,
which was serious in nature, having been
proved partially, the Disciplinary Authority
if was not in agreement with the findings of
the Enquiry Officer, he must have recorded
the reasons in the order finalizing the
departmental proceedings without awarding
any
punishment.
Since
unexplained
transaction was made in the accounts
wherein either the wife or the children of
the petitioner were Co-account Holders,
therefore, either the petitioner should have
been called fresh explanation to that effect
considering the seriousness of the charge or
any appropriate punishment should have
been awarded to the petitioner. Even if the
Disciplinary Authority was of the view that
despite
the
aforesaid
facts
and
circumstances no punishment would be
awarded to the petitioner, the specific
reasons should be indicated in the final
order in terms of Rule 9 (2) of the Rules,
1999.

23. Sri Shukla has further referred
Rule 9, sub-rule 3 of the Rules, 1999 which
provides that the government servant may
be exonerated in case the charges are not
proved, but in the present case, one serious
charge was partially proved against the
petitioner, therefore, the petitioner could
have not been exonerated from the charge.

24. Sri Shukla has further drawn
attention of this Court towards the letter
dated 12.01.2018 preferred by the Vigilante
Department addressing to the Additional
Chief
Secretary,
Department
of
8 All. Rajesh Kumar Vs. State of U.P. & Ors.
95
Appointment seeking approval/ consent for
conducting vigilance enquiry against the
petitioner.
Further,
the
letter
dated
07.03.2018 was issued by the Vigilance
Department to the Secretary of the
Appointment
Department
seeking
the
details of the petitioner regarding his
movable and immovable properties. As per
the information, so received to the
Vigilance Department, the petitioner had
accumulated huge properties at Lucknow
having three storied house casting about
crores, he is having six Bank Accounts with
his wife and children having deposited
huge amount, he has purchased one Flat at
NOIDA having its value in crores after
selling out, one property at Faizabad and he
is having one CRETA Car worth Rs.15:00
lakhs in the name of his wife.

25. As per Sri Shukla learned
Additional Chief Standing Counsel, the
aforesaid four charges are entirely different
from the charge in which the departmental
enquiry
was
conducted
against
the
petitioner wherein he was exonerated by
the Disciplinary Authority despite the
second charge having been proved against
him partially.

26. Sri Shukla has lastly submitted
that initiation of vigilant enquiry is well
within the forecorners of law and the said
enquiry being the fact finding enquiry,
therefore, only after completion of the
aforesaid fact finding enquiry it will be
ascertained and decided that whether any
formal / regular enquiry is necessary to be
initiated against the petitioner or not.
Referring the dictum of Hon'ble Apex
Court in re: Tata Cellular vs. Union of
India reported in (1994) 6 SCC 651 has
submitted that the scope of judicial review
into
administrative
decision
is
not
permitted. The Hon'ble Apex Court has
held that the Court does not sit as a Court
of appeal but merely reviewed the manner
in which the administrative decision was
made. The Court does not have expertise to
correct the administrative decision. If the
review
of
administrative
decision
is
permitted, it will be substituting its own
decision, without the necessary expertise
which itself may be fallible.

27. Sri Shukla has therefore submitted
that in the given circumstances, as
submitted above, there is no infirmity or
illegality in the impugned order dated
02.06.2020, so the writ petition may be
dismissed with cost.

28. Having heard learned counsel for
the parties and having perused the material
available on the record as well as the case
laws, so cited by the respective parties, I
am of the considered opinion that initiation
of open vigilance enquiry vide order dated
02.06.2020 has been made in terms of the
provisions of the Act, 1965 read with
notification dated 29.08.1977.

29. I have noted that the departmental
enquiry was conducted and concluded
against the petitioner for two charges, as
considered above, and both the charges are
different from the allegations levelled
against the petitioner, for which, the open
vigilance enquiry has been initiated. For
sake of repetition, the enquiry against the
petitioner was conducted for examining
two charges. First charge is that the
petitioner had exploited one Computer
Operator serving in Ayodhya-Faizabad
Development Authority when the petitioner
was serving as Vice-Chairman, AyodhyaFaozabad Development Authority. As per
the complaint of the said Computer
Operator, the petitioner has compelled such
employee to deposit the house tax,
96 INDIAN LAW REPORTS ALLAHABAD SERIES
electricity charges, personal and domestic
expenses, recharge the Mobile Phone, to
make payment of other miscellaneous
expenses of the petitioner etc. Whereas the
second charge is based on the complaint of
Sri Halim Pappu and Sri Manoj Jaiswal
whereby both the persons apprised the
department
that
the
petitioner
has
accumulated huge property by making
corruption, the details of Saving Banks
Accounts were also provided. The Enquiry
Officer after conducting enquiry found that
the second charge is partially proved
inasmuch as the petitioner could not
explain the reasons as to how his joint
accounts with his family members have
been operated/ transacted without his
information. However, the Disciplinary
Authority despite taking cognizance of the
aforesaid facts indicated by the Enquiry
Officer exonerated the petitioner from the
said charge without assigning specific
reasons in violation of Rule 9 (2) (3) of the
Rules,
1999.
The
aforesaid
rules
categorically provide that the employee can
be exonerated if the charges are not proved
and in case the charge is proved then while
exonerating
such
employee
the
Disciplinary Authority shall assign specific
reason as to why he is exonerating the
employee concerned. In the exoneration
order dated 20.02.2018 (Annexure No.8)
no reasons of any kind whatsoever have
been assigned, therefore, to that extent the
final order dated 20.02.2018 is unwarranted
and uncalled for.

30. I have also noted that the material
available with the Vigilance Department,
pursuant to which the open vigilance
enquiry has been initiated, is entirely
different from the charges which have been
examined through the departmental trial.
The open vigilance enquiry has been
initiated to investigate mainly four charges,
first, the petitioner has got three storied big
house at Lucknow having value of one
crores. Second, the petitioner has got six
Bank Accounts, of which, the Joint
Account Holders are either his wife or his
children wherein huge amount has been
deposited
and
transacted.
Third,
the
petitioner has purchased one Flat at
NOIDA of the value of crores after selling
out his property at Village-Asarafpur
Gangrela, Tehsil-Rudauli, District-Faizabad
in 52 lakhs. Fourth, the petitioner has
purchased one CRETA Car worth Rs.15:00
lakhs in the name of his wife. All the
aforesaid four charges are absolutely
different from the charges inquired by the
Enquiry Officer through the departmental
trial.

31. Therefore, in view of the above,
the sole ground to assail the impugned
order dated 02.06.2020 that the vigilance
enquiry has been initiated on the same set
of fact which has been inquired into vide a
detailed
departmental
enquiry
is
not
sustainable in the eyes of law, rather, the
aforesaid ground is misconceived. The case
laws so cited by the learned counsel for the
petitioner would not be applicable in the
present case inasmuch as the facts and
circumstances of the present case are
entirely different from the cases so cited by
the learned counsel for the petitioner. Not
only the above, the petitioner has enclosed
the Annexure No.13 with the writ petition,
which is the judgment and order dated
11.09.2008 passed by the Division Bench
of this Court in re: Dr. Dinesh Chandra
Misra vs. State of U.P. & others (supra) by
submitting that in the identical facts and
circumstances this Court had quashed the
order dated 20.01.2004 whereby the
vigilance enquiry was initiated against that
petitioner to conduct the enquiry regarding
disproportionate
assets.
The
aforesaid
8 All. Rajesh Kumar Vs. State of U.P. & Ors.
97
judgment and order dated 11.09.2008 was
challenged before the Hon'ble Apex Court
by filing Special Leave to Appeal (Civil)
No(s). 30044 of 2008 and the said appeal
was rejected by the Hon'ble Apex Court
vide order dated 27.04.2009, therefore, as
per learned counsel for the petitioner, the
judgment and order dated 11.09.2008 has
attained its finality. So as to appreciate the
ratio of the judgment of the Division Bench
of this Court rendered in Dr. Dinesh
Chandra
Misra
(supra),
the
last
paragraphs thereof are being reproduced
here-in-below:-

"Learned
counsel
for
the
petitioner
further
relying
upon
the
provisions of the Uttar Pradesh Vigilance
Establishment Act, 1965 contended that
there is absolutely no provision for holding
an enquiry on the subject on which an
enquiry has already been held.

Learned
counsel
for
the
respondents submitted that the employer
has right to hold an enquiry and the order
holding enquiry that to say enquiry by
Vigilance Establishment is justified and the
writ petition is liable to be dismissed.

So far as the proposition of right
to hold the enquiry is concerned, we are not
disputing that proposition, but as held in
the case of State of Assam (supra), the
enquiry having come to its logical ends by
either resulted into the punishment of the
employee concerned or exoneration, the
matter should come to an end and unless
there is some fresh or new material no
enquiry should be held because ultimately
that will affect the functioning of the
government servant and efficiency in
performing the government work.

In this view of the matter since
nothing has been brought to the notice of
this Court except what has been submitted
before us by learned counsel for the
parties, this writ petition therefore succeeds
and is allowed. The impugned order dated
20.01.2004 Annexure-'12' to the writ
petition is quashed. It is further directed
that no enquiry shall be conducted by the
respondents, unless there is some fresh
materials against the petitioner. Needless to
say that pendency of the writ petition
without affect the petitioner's right, if any,
of promotion to the higher post."

32. In the aforesaid judgment, the
submission of learned counsel for the
petitioner was that no vigilance enquiry
should be conducted on the subject on
which an enquiry has already been held.
However,
the
submission
of
the
respondents before the Division Bench was
that the employer has right to hold an
enquiry and the order holding that to say
enquiry by the Vigilance Establishment is
justified.
The
Division
Bench
has
categorically observed that in view of the
decision of Hon'ble Apex Court in re: State
of Assam and another vs. J.N. Roy Biswas
AIR 1975 SC 2277, the enquiry having
come to its logical ends by either resulted
into the punishment of the employee
concerned or exoneration, the matter
should come to an end unless there is some
fresh or new material no enquiry should be
held because ultimately that will affect the
functioning of the government servant and
efficiency in performing the government
work. Therefore, it is very much clear
perusing the judgment of the Division
Bench in re: Dr. Dinesh Chandra Misra
(supra) that in case there are some fresh or
new
material
with
the
Government/
Vigilance Department, the enquiry may be
initiated.

33. In the present case, there is no
dispute that all the four allegations pursuant
to which the open vigilance enquiry has
98 INDIAN LAW REPORTS ALLAHABAD SERIES
been initiated are altogether different from
two charges of which the departmental
enquiry has been conducted. Besides,
despite the second charge having been
proved partially the Disciplinary Authority
has exonerated the petitioner without
assigning any reason to that effect,
therefore, such exoneration order dated
20.02.2018 is not only unwarranted and
uncalled for but the same is violative of
Rule 9 (2) (3) of the Rules, 1999.

34. In view of what has been
considered above, I do not find any
infirmity or illegality in the order dated
02.06.2020
passed
by
the
Vigilance
Department initiating the open vigilance
enquiry against the petitioner, which is
contained as Annexure No.1 to the writ
petition. However, it is needless to say that
while conducting the open vigilance
enquiry the authority concerned shall
follow the due procedure of law. The
petitioner shall be afforded an opportunity
of hearing strictly in accordance with law
and no prejudice shall be caused to the
petitioner for the reason that he has
approached this Court assailing the order
dated 02.06.2020.

35. Accordingly, the writ petition is
devoid of merits, deserves to be dismissed,
and is hereby dismissed.

36. No order as to costs.
----------
(2021)08ILR A98
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAVI NATH TILHARI, J.

Service Bench No. 15161 of 2019

State of U.P. & Ors. ...Petitioners
Versus
Smt. Brajesh Kumari & Ors. ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
Bir Bahadur Singh, Ratnesh Chandra

A. Practice & Procedure - Once a final
order of punishment has been passed,
then merely because appeal has been filed
and during its pendency the appellantemployee dies, the punishment order by
itself will not abate nor will it get nullified.
The legal heirs can pursue the appeal on
the basis of available records in a case of
dismissal,
removal
etc.
which
has
monetary consequences for them. (Para
16)

Shri Mukesh Pal Singh was visited with the
punishment of dismissal from service while he
was alive and had preferred an appeal against
it. He died during the pendency of that appeal.
The legal heirs of Shri Mukesh Pal are entitled to
pursue the appeal filed by him, but instead they
preferred the abovementioned claim petition for
the monetary reliefs and also for seeking
compassionate
appointment.
However,
the
appellate authority had rejected the appeal
subsequent to the death of late Mukesh Pal on
merits and not as having abated which is
erroneous in the eyes of law. The appellate
authority could not have passed the order on
merits in appeal against a dead person. The
Court opined that the appropriate course would
be to allow an opportunity to the legal heirs of
late Mukesh Pal to pursue the appeal as it was
not only a question of punishment, but
consequences which would flow from such
punishment, especially the monetary benefits to
which his legal heirs would be disentitled as a
consequences thereof. (Para 21)

Writ Petition Allowed. (E-8)

List of Cases cited:-