# Renu Yadav v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-20
- **Case number:** Writ-A No. 6609 of 2023
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/renu-yadav-v-state-of-u-p-ors-49324
- **Pages:** 14

## Headnote

under Rule 7 of the U.P. Government Servants
(Discipline and Appeal) Rules, 1999, which
requires the Inquiry Officer to fix a date, time,
and place for oral inquiry, record evidence,
allow
cross-examination,
and
permit
the
delinquent employee to produce evidence in
defense. The Inquiry Officer failed to follow
these procedures, submitting the inquiry report
10 All. Renu Yadav Vs. State of U.P. & Ors.
1277
without conducting an oral inquiry or recording
evidence. Further, the Disciplinary Authority
violated Rule 9(4) by not providing the
petitioner with a copy of the inquiry report or
issuing a show cause notice before imposing the
punishment of withholding two increments with
cumulative effect. The Appellate Authority's
order rejecting the petitioner's appeal was
unsustainable for failing to address these
procedural violations. The punishment order
dated 24.06.2021 and the appellate order dated
06.02.2023 were quashed, with liberty to the
respondents to proceed afresh from the stage of
submission of the reply to the charge-sheet.
(Paras 21-31)

Case Law Discussed:

## Text

_Characters 0–39,872 of 46,690. This is a partial read: ask again with offset=39872 for what follows._

1276 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner would, as we have held earlier,
result in a situation where a candidate
would be entitled to assert that despite the
stipulated last date and a prescribed
consequence of invalidation which has
been drawn to the notice of the candidates,
the Commission would be bound to
scrutinise applications which are received
together with the hard copies beyond the
prescribed date. This, in our view, would
not be permissible. We may also note that
in a judgment in Secretary, UP Public
Service
Commission
Vs
S
Krishna
Chaitanya7, the Supreme Court has held
that the Commission cannot be directed to
declare
the
final
results
when
the
application form of a candidate had not
been
received
within
the
prescribed
period."

14.

Respectfully
following the
judgments in the case of the Neena
Chaturvedi (supra) and Rajendra Patel
(supra), applying the law culled out in the
judgment in the case of Neena Chaturvedi
(supra) and Rajendra Patel (supra) in the
present facts of the case it is apparently
clear beyond any shadow of doubt that the
though the post office acts as an agent of
the respondent but the respondents cannot
be bound by any delay on the receipt of the
application
form
and
further
the
respondents cannot be allowed to wait for
time immemorial in that regard. There is an
additional factor which also needs to be
considered that the terms set out in the
Government Orders as referred to above
and the advertisement in question are quite
specific, loud and clear and they cannot be
allowed to be twisted or tailored in a
manner which suits to the individual
applicants. The Courts of law, in case,
gives elasticity and leverage as sought by
the writ petitioner then obviously the
selection proceedings cannot be concluded
as even otherwise law is very clear that cut
of date is sometime painful to one and
beneficial to other. Since in the present
case the application so submitted (hard
copy was received after the due date) thus
merely because the writ petitioner had
communicated the same through Email on
19.06.2023 would not make any difference
as the two exercises are dependent which in
entirety has not been adhered to.

15. For the reasons above, this Court
does not find the present case to be a fit
case to accord any consideration on the
claim of the writ petition and accordingly,
the writ petition is dismissed.

----------
(2023) 10 ILRA 1276
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.07.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 6609 of 2023

Renu Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Arti Raje

Counsel for the Respondents:
C.S.C., Smt. Archana Singh, Sri Bhupendra
Yadav, Sri Shailendra Singh
Held: The inquiry conducted against the
petitioner, a Head Mistress, was vitiated due to
non-compliance with the mandatory procedure
under Rule 7 of the U.P. Government Servants
(Discipline and Appeal) Rules, 1999, which
requires the Inquiry Officer to fix a date, time,
and place for oral inquiry, record evidence,
allow
cross-examination,
and
permit
the
delinquent employee to produce evidence in
defense. The Inquiry Officer failed to follow
these procedures, submitting the inquiry report
10 All. Renu Yadav Vs. State of U.P. & Ors.
1277
without conducting an oral inquiry or recording
evidence. Further, the Disciplinary Authority
violated Rule 9(4) by not providing the
petitioner with a copy of the inquiry report or
issuing a show cause notice before imposing the
punishment of withholding two increments with
cumulative effect. The Appellate Authority's
order rejecting the petitioner's appeal was
unsustainable for failing to address these
procedural violations. The punishment order
dated 24.06.2021 and the appellate order dated
06.02.2023 were quashed, with liberty to the
respondents to proceed afresh from the stage of
submission of the reply to the charge-sheet.
(Paras 21-31)

Case Law Discussed:

1. St. of U.P. Vs Saroj Kumar Sinha, (2010)
2 SCC 772

2. Rakesh Kumar Pandey Vs St. of U.P.,
2019 SCC OnLine All 4004

3. Dinesh Kumar Sharma Vs St. of U.P.,
2018 SCC OnLine All 5533

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard Ms. Arti Raje, learned
counsel appearing for the petitioner,
learned Standing Counsel appearing for the
Respondent No.1 and Ms. Archana Singh,
learned
counsel
appearing
for
the
Respondents No.2 and 3.

2. Petitioner has filed this writ
petition challenging therein the order dated
24.6.2021 passed by the District Basic
Education Officer, Firozabad, whereby
punishment in the form of withholding of
two increments with cumulative effect
has been imposed. Petitioner through this
writ petition has also challenged the
order dated 6.2.2023 passed by the
Secretary, U.P. Basic Education Board,
Prayagraj, whereby appeal filed by the
petitioner against the punishment order
dated 24.6.2021 has been rejected.

3. Facts of the case, in brief, are
that
the
District
Basic
Education
Officer, Firozabad passed an order on
4.3.2021, whereby petitioner's services
were
placed
under
suspension
in
contemplation
of
the
disciplinary
proceedings. In the suspension order
dated 4.3.2021, it was mentioned that
one Smt. Simra Devi, who was working
as cook in Primary School Rasoolabad,
Block Tundla, District Firozabad, was
cleaning the kitchen and due to leakage
in the gas cylinder, she suffered serious
injuries. Petitioner at that point of time
was posted as Head Mistress in the said
school, but she was on child care leave
from 5.2.2021 to 16.3.2021. Though on
receiving the information in respect of
the aforesaid incident petitioner, came
in the school and took Smt. Simra Devi
to Primary Health Centre but from there
Smt. Simra Devi was referred to S.N.
Hospital, Agra. Petitioner did not
extend cooperation in the medical
treatment of Smt. Simra Devi and came
back to her home.

4. The Inquiry Officer issued a
charge-sheet
to
the
petitioner
on
25.3.2021, wherein five charges were
levelled and the petitioner was required
to submit her reply to the charges
within fifteen days.

5. Petitioner submitted her reply to
the
aforesaid
charge-sheet
dated
25.3.2021
on
3.4.2021,
wherein
petitioner categorically stated that every
help which was possible on the part of
the petitioner was extended to Smt.
Simra Devi in respect of her treatment
but since the behaviour of the villagers
and the family members of Smt. Simra
Devi was very violent towards the
petitioner and her husband, therefore the
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, in the night at about 9.00 p.m.,
came back to her home.

6. The Block Education Officer,
Block Tundla, District Firozabad, after
receiving the aforesaid reply of the
petitioner, straightaway submitted inquiry
report to the District Basic Education
Officer, Firozabad on 21.6.2021. The
Inquiry Officer in the aforesaid inquiry
report dated 21.6.2021 has recorded finding
that all the charges levelled against the
petitioner in the charge-sheet have been
found proved. The Disciplinary Authority
i.e. the District Basic Education Officer,
Firozabad, on the basis of the findings
recorded by the Inquiry Offifer in the
inquiry report dated 21.6.2021, passed an
order on 24.6.2021 whereby punishment of
withholding
of
two
increments
with
cumulative effect has been imposed against
the petitioner.

7. Petitioner against the aforesaid
punishment order dated 24.6.2021 passed
by the Disciplinary Authority filed an
appeal as contemplated in Rule 7 of The
U.P. Basic Education Staff Rules, 1973,
wherein categorical ground was taken by
the petitioner that Inquiry Officer has not
followed due procedure prescribed under
the rules for the purpose of inquiry. It was
categorically stated in the appeal that no
date, time and place was fixed for holding
inquiry. The Inquiry Officer after receiving
reply of the petitioner to the charge-sheet,
has straightaway submitted inquiry report
on 21.6.2021. Petitioner in her appeal also
took categorical ground that after receiving
the inquiry report dated 21.6.2021, the
Disciplinary Authority did not issue any
show cause notice and also did not provide
copy of the inquiry report to the petitioner
to submit reply against the findings
recorded
in
the
inquiry
report
and
straightaway has passed the punishment
order on 24.6.2021. Petitioner in her appeal
categorically stated that since the procedure
prescribed for holding disciplinary inquiry
under the rules has not been followed and
copy of the inquiry report was not provided
to her and even she was not given show
cause notice by the Disciplinary Authority,
therefore the entire inquiry stands vitiated
and thereby
punishment
order
dated
24.6.2021 whereby major penalty has been
imposed against her, is not sustainable in
the eyes of law.

8. Since the Appellate Authority did
not decide the appeal filed by the
petitioner, therefore she filed Writ-A
No.10716 of 2022 before this Court, which
was finally disposed of vide order dated
26.7.2022, whereby direction was issued to
the Secretary, U.P. Basic Education Board,
Allahabad to consider and decide the
petitioner's appeal filed on 20.9.2021, by a
reasoned and speaking order within three
months from the date of service of certified
copy of the order. After passing of the
aforesaid order dated 26.7.2022, the
Appellate Authority has passed an order on
6.2.2023 whereby the appeal filed by the
petitioner has been rejected.

9. Learned counsel appearing for the
petitioner has submitted that disciplinary
proceedings against Assistant Teachers and
Head Teachers of the primary schools run
by the U.P. Basic Education Board are
governed by the provisions made in the
U.P. Basic Education Staff Rules, 1973
(hereinafter referred to as the "Rules of
1973"). Rule 3 of the Rules of 1973
provides the punishments which can be
imposed on the teachers and further the
Rule 5(3) of the Rules of 1973 provides
that the procedure prescribed under the
U.P. Government Servants (Discipline and
10 All. Renu Yadav Vs. State of U.P. & Ors.
1279
Appeal) Rules, 1999 (hereinafter referred
to as the "Rules of 1999") shall apply in the
matters of the disciplinary proceedings
against teachers.

10. Learned counsel appearing for the
petitioner has further submitted that Rule 7
of the Rules of 1999 provides a detailed
procedure to be adopted in the matters of
imposition of major penalties. Rule 7 of the
Rules of 1999 is extracted as under:-

"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
evidences and the name of the witnesses
proposed to prove the same alongwith oral
evidences, if any, shall be mentioned in the
charge-sheet.

(iv) The charged Government
Servant shall be required to put in a written
statement of his defence in person on a
specified date which shall not be less than
15 days from the date of issue of chargesheet and to state whether he desires to
cross-examine any witness mentioned in the
charge-sheet and whether desires to give or
produce evidence in his defence. He shall
also be informed that in case he does not
appear or file 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
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 chargesheet 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
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
record their oral evidence in presence of
the charged Government Servant who shall
be given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidences, the Inquiry Officer shall call and
record the oral evidence which the charged
Government Servant desired in his written
statement to be produced in his defence :

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

(viii) The Inquiry Officer may
summon any witnesses to give evidence or
require any person to produce documents
before him in accordance with the
provisions
of
the
Uttar
Pradesh
Departmental Inquiries (Enforcement of
Attendance of Witnesses and Production of
Documents) Act, 1976.

(ix) The Inquiry Officer may ask
any question he pleases, at any time of any
witness or from person charged with a view
to discover the truth or to obtain proper
proof of facts relevant to charges.

(x)
Where
the
charged
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 :

(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."

11. Learned counsel appearing for the
petitioner has argued that the procedure
which has been provided under Rule 7 of
the Rules of 1999 mandates that the Inquiry
Officer after receipt of the reply of the
charge-sheet, shall fix date, time and place
for holding oral inquiry. It has further been
provided that the Inquiry Officer will
record the evidence of the witnesses in
support of the charges levelled in the
charge sheet and shall provide opportunity
10 All. Renu Yadav Vs. State of U.P. & Ors.
1281
to the delinquent employee to crossexamine the witnesses. The Inquiry Officer
thereafter will also provide opportunity to
the
delinquent
employee
to
produce
evidence in his defence. Only after
adopting the aforesaid procedure, the
Inquiry Officer will submit the inquiry
report to the Disciplinary Authority.

12. Learned counsel appearing for the
petitioner has vehemently argued that in the
case of the petitioner the procedure
prescribed under Rule 7 of the Rules of
1999 has not been followed at all and the
Inquiry Officer has not fixed any date, time
and place for holding oral inquiry. The
Inquiry Officer has not recorded evidence
in support of the charges and has not
provided opportunity to the petitioner to
cross examine the witnesses and further no
opportunity was provided to the petitioner
to produce any evidence in her defence.
The Inquiry Officer without adopting due
procedure prescribed under the aforesaid
Rule 7 of the Rules of 1999, after receipt of
the reply of the petitioner to the chargesheet has sraightaway submitted inquiry
report to the Disciplinary Authority on
21.6.2021. Learned counsel appearing for
the petitioner has thus argued that since the
procedure prescribed under Rule 7 of the
Rules of 1999 has not been followed, the
entire inquiry in the matter of the petitioner
stands vitiated.

13. Learned counsel appearing for the
petitioner has also invited attention of this
Court towards Rule 9(4) of the Rules of
1999 wherein it is provided that after
submission of the inquiry report if the
Disciplinary Authority is of the opinion
that any penalty specified under the rules
should be imposed on the charged
government servant, he shall provide a
copy of the inquiry report to the charged
government servant and require him to
submit his reply to the findings recorded
by
the
Inquiry
Officer,
within
a
reasonable time, whereas in the case of
the petitioner, the Disciplinary Authority
has not provided copy of the inquiry
report to her and even did not issue any
show cause notice thereby requiring the
petitioner to submit her response to the
findings recorded in the inquiry report,
therefore the mandatory provisions of
Rule 9(4) of the Rules of 1999 have been
violated and thus, the punishment order
passed by the Disciplinary Authority
without
following
the
procedure
prescribed under Rule 9(4) of the Rules
of 1999, is unsustainable in the eyes of
law.

14. Learned counsel appearing for
the petitioner has further submitted that
the Appellate Authority, while rejecting
the appeal has not considered the
categorical
grounds
taken
by
the
petitioner in her appeal in respect of
violation of Rule 7 and Rule 9(4) of the
Rules of 1999 and straightaway has
rejected her appeal vide order dated
6.2.2023, as such the order passed by the
Appellate Authority is unsustainable in
the eyes of law.

15. Learned counsel appearing for
the petitioner has relied upon the
judgments of this Court rendered in the
case of Rakesh Kumar Pandey vs. State
of U.P. and others, reported in 2019
SCC OnLine All 4004 and in the case of
Dinesh Kumar Sharma vs. State of U.P.
and others, reported in 2018 SCC
Online
All
5533.
Learned
counsel
appearing for the petitioner has also
relied upon the judgment of the Hon'ble
Supreme Court rendered in the case of
State of Uttar Pradesh and others vs.
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
Saroj Kumar Sinha, reported in (2010) 2
SCC 772.

16. Learned counsel appearing for the
petitioner has vehemently argued that in the
aforesaid judgments, law in respect of the
procedure to be followed in the disciplinary
proceedings
against
the
government
servants in the State of U.P. has already
been thrashed out and it has been
categorically held that the Inquiry Officer
after receipt of the reply of the charge-sheet
by the delinquent employee has to conduct
oral inquiry by fixing date, time and place
and further evidence in support of charge
has
to
be
recorded
and
delinquent
employee is also required to be given the
opportunity to cross examine the witnesses
and only thereafter the Inquiry Officer
should submit the inquiry report. If the
Inquiry Officer has not followed the
procedure prescribed under Rule 7 of the
Rules of 1999, then entire inquiry stands
vitiated and the punishment order passed
on the basis of the said inquiry report
cannot sustain in the eyes of law.

17. Counter affidavit has been filed
on behalf of the Respondents No. 2 and 3,
wherein the fact that the Inquiry Officer did
not fix date, time and place for holding oral
inquiry has not been denied and it has also
not been denied that the Disciplinary
Authority did not issue show cause notice
to the petitioner annexing therewith the
copy of the inquiry report and requiring the
petitioner to submit her response to the
findings recorded by the Inquiry Officer.

18. Learned counsel appearing for the
Respondents No.2 and 3 though could not
justify the violation of procedure prescribed
under Rule 7 and Rule 9(4) of the Rules of
1999 but has vehemently argued that the
charges levelled against the petitioner are
serious in nature and they have been found
fully proved by the Inquiry Officer.
Learned
counsel
appearing
for
the
Respondents No.2 and 3 has further argued
that the cook working in the primary school
where the petitioner is Head Mistress,
suffered serious injuries due to fire as a
result of leakage in the gas cylinder but
petitioner was reluctant in providing help in
her treatment and thereby petitioner has
committed misconduct. It has been further
argued that since the serious charges
levelled against the petitioner have been
found fully proved, the Disciplinary
Authority after considering the inquiry
report in detail, has passed the punishment
order on 24.6.2021, therefore there is
neither any illegality nor infirmity in the
punishment order. It has also been argued
that the Appellate Authority has considered
all the facts and grounds raised by the
petitioner in her appeal and thereafter has
rejected the appeal.

19. Learned counsel appearing for the
Respondents No.2 and 3 has concluded her
arguments
by
contending
that
the
punishment order as well as the appellate
order do not suffer from any infirmity
therefore, no interference is required by this
Court.

20. I have considered the rival
submissions advanced by the learned
counsels appearing for the parties.

21. I find that charge sheet was issued
to the petitioner on 25.3.2021. Petitioner
submitted her reply to the charge-sheet on
3.4.2021. Thereafter, the Inquiry Officer
without fixing any date, time and place for
holding oral inquiry, straightaway has
submitted inquiry report to the Disciplinary
Authority on 21.6.2021. I also find that
Rule 7 of the Rules of 1999 mandates the
10 All. Renu Yadav Vs. State of U.P. & Ors.
1283
Inquiry Officer to follow the procedure
prescribed therein. As per procedure
prescribed under Rule 7 of the Rules of
1999, the Inquiry Officer, after receipt of
the reply to the charge-sheet, has to fix
date, time and place for holding oral
inquiry. The Inquiry Officer has to record
evidence of the witnesses produced in
support of the charges and the delinquent
employee
is
also
to
be
provided
opportunity to cross examine the witnesses.
The Inquiry Officer is also under obligation
to provide opportunity to the delinquent
employee to produce witnesses in his
defence.

22. I find that in the case of the
petitioner, the Inquiry Officer has not
followed the procedure prescribed under
Rule 7 of the Rules of 1999 though it was
mandatory for him. The Inquiry Officer
,without following the procedure prescribed
under Rule 7 of the Rules of 1999
straightaway has submitted the inquiry
report to the Disciplinary Authority on
21.6.2021.

23. The Hon'ble Supreme Court in its
judgment rendered in the case of State of
Uttar Pradesh and others vs. Saroj
Kumar Sinha, reported in (2010) 2 SCC
772 has considered the provisions of the
Rule 7 of the Rules of 1999 and has held
that the procedure prescribed under Rule 7
of the Rules of 1999 is mandatory and if
the said procedure is not followed, then the
inquiry stands vitiated and punishment
order, based on the said inquiry, cannot
sustain in the eyes of law. The relevant
paragraphs of the aforesaid judgment of the
Hon'ble Supreme Court are extracted as
under:-

26. The first inquiry report is
vitiated also on the ground that the inquiry
officers failed to fix any date for the
appearance of the respondent to answer the
charges. Rule 7(x) clearly provides as
under:

"7.
(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."

27. A bare perusal of the
aforesaid sub-Rule shows that when the
respondent had failed to submit the
explanation to the charge sheet it was
incumbent upon the inquiry officer to fix a
date for his appearance in the inquiry. It is
only in a case when the Government
servant despite notice of the date fixed
failed to appear that the enquiry officer can
proceed with the inquiry ex parte. Even in
such circumstances it is incumbent on the
enquiry officer to record the statement of
witnesses mentioned in the charge sheet.
Since the Government servant is absent, he
would clearly lose the benefit of cross
examination
of
the
witnesses.
But
nonetheless in order to establish the
charges the department is required to
produce the necessary evidence before the
enquiry officer. This is so as to avoid the
charge that the enquiry officer has acted as
a prosecutor as well as a judge.

28. An 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
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

29. Apart from the above by
virtue of Article 311(2) of the Constitution
of India the departmental inquiry had to be
conducted in accordance with rules of
natural justice. It is a basic requirement of
rules of natural justice that an employee be
given a reasonable opportunity of being
heard in any proceeding which may
culminate in a punishment being imposed
on the employee.

30. When a department 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 enquiry
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.

24. This Court in its judgment
rendered in the case of Rakesh Kumar
Pandey vs. State of U.P. and others,
reported in 2019 SCC OnLine All 4004
has considered the provisions of the Rule 7
of the Rules of 1999 and has held that the
procedure prescribed under Rule 7 of the
Rules of 1999 is mandatory and where the
said procedure is not followed by the
Inquiry Officer, the inquiry stands vitiated.
The relevant paragraphs of the aforesaid
judgment are extracted as under:-

22- The Division Bench of this
Court after considering the catena of
judgments on the issue of holding of
departmental/ disciplinary proceedings in
the judgment dated 28.11.2016 passed in
Writ Petition No.-34093 (S/B) of 2018 (
State of U.P. and Others Vs. Deepak
Kumar and Another) has observed as
under:-

"It is settled by the catena of
judgments that it is the duty of Enquiry
Officer to hold ''Regular Enquiry'. Regular
enquiry means that 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 his evidence in defence. The
opportunity of personal hearing should
also be given/awarded to the delinquent
employee. Even if the charged employee
does not participate/co-operate in the
enquiry, it shall be incumbent upon the
Enquiry Officer to proceed ex-parte by
recording oral evidence. For regular
enquiry, it is incumbent upon the Enquiry
Officer to fix date, time and place for
examination and cross-examination of
witnesses for the purposes of proving of
charges and documents, relied upon and
opportunity to delinquent employee should
also be given to produce his witness by
fixing
date,
time
and
place.
After
completion of enquiry the Enquiry Officer
is required to submit its report, stating
therein all the relevant facts, evidence and
10 All. Renu Yadav Vs. State of U.P. & Ors.
1285
statement of findings on each charge and
reasons thereof, and thereafter, prior to
imposing any punishment, the copy of the
report should be provided to charged
officer for the purposes of submission of his
reply on the same. The punishment order
should be reasoned and speaking and must
be passed after considering entire material
on record. (vide: Jagdish Prasad Vs. State
of U.P. 1990 (8) LCD 486; Avatar Singh
Vs. State of U.P. 1998 (16) LCD 199; Town
Area Committee, Jalalabad Vs. Jagdish
Prasad 1979 Vol. I SCC 60; Managing
Director,
U.P.
Welfare
Housing
Corporation Vs. Vijay Narain Bajpai 1980
Vol. 3 SCC 459; State of U.P. Vs.
Shatrughan Lal 1998 (6) SCC 651;
Chandrama Tewari Vs. Union of India and
others AIR 1998 SC 117; Anil Kumar Vs.
Presiding Officer and others AIR 1985 SC
1121; Radhey Kant Khare Vs. U.P. Cooperative Sugar Factories 2003 (21) LCD
610; Roop Singh Negi Vs. Punjab National
Bank and others (2009) 2 SCC 570; M.M.
Siddiqui Vs. State of U.P. and others 2015
(33) LCD 836; Moti Ram Vs. State of U.P.
and others 2013 (31) LCD 1319; Kaptan
Singh Vs. State of U.P. and others 2014 (4)
ALJ 440. Rules 7, 8 and 9 of Rules 1999
are also relevant".

23- It reveals from the enquiry
report that the enquiry officer without
waiting
for
reasonable
period
for
submission of reply by the petitioner and
without fixing date, time and place for
producing
the
witnesses
by
the
petitioner/delinquent employee, conducted
the enquiry and being so failed to conduct
the enquiry in the manner/Principles settled
by this Court and as such also the enquiry
report is unsustainable.

24- This Court considered the
order of punishment dated 31.08.2016 and
on due consideration, this Court feels that
while passing the order dated 31.08.2016
the disciplinary authority/opposite party
no.-2 has ignored the fact that (i) enquiry
officer conducted the enquiry in utter
violation of Rule 7(4) of the Rules of 1999,
(ii) the enquiry officer failed to conduct the
enquiry in accordance with the procedure
prescribed under Rule 7 of the Rules of
1999. It also reflects from the order dated
31.08.2016 that the same is based on
enquiry report dated 17.08.2016, which
this Court has already held in preceding
paragraphs that the same is in violation of
Rules of 1999 and Principles of Natural
Justice."

25. This Court in its judgment
rendered in the case of Dinesh Kumar
Sharma vs. State of U.P. and others,
reported in 2018 SCC Online All 5533 has
considered the provisions of Rule 7 of the
Rules of 1999 and has held that where the
Inquiry Officer did not fix date, time and
place for holding inquiry, the inquiry stands
vitiated and the punishment order, based on
the said inquiry, cannot sustain in the eyes
of law. The relevant paragraphs of the
aforesaid judgment are extracted as under:-

27. Indisputably, a departmental
proceeding is a quasi judicial proceeding.
The inquiry Officer performs a quasi
judicial function. The charges leveled
against the delinquent officer must be
found to have been proved. The inquiry
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
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses merely tendered the documents
and did not prove the contents thereof.
Reliance, inter alia, was placed by the
inquiry Officer on the FIR which could not
have been treated as evidence. We have
noticed hereinbefore that the only basic
evidence whereupon reliance has been
placed by the inquiry Officer was the
purported confession made by the appellant
before the police. According to the
appellant, he was forced to sign on the said
confession, as he was tortured in the police
station. Appellant being an employee of the
bank, the said confession should have been
proved. Some evidence should have been
brought on record to show that he had
indulged in stealing the bank draft book.
Admittedly, there was no direct evidence.
Even there was no indirect evidence. The
tenor of the report demonstrates that the
inquiry Officer had made up his mind to
find him guilty as otherwise he would not
have proceeded on the basis that the
offence was committed in such a manner
that no evidence was left.

28. In Union of India Vs. H.S.
Goel [(1964) 4 SCR 718], it was held :

"....The
two
infirmities
are
separate and distinct though, conceivably,
in some cases, both may be present. There
may be cases of no evidence even where the
Government is acting bona fide; the said
infirmity
may
also
exist
where
the
Government is acting mala fide and in that
case, the conclusion of the Government not
supported by any evidence may be the
result of mala fides, but that does not mean
that if it is proved that there is no evidence
to
support
the
conclusion
of
the
Government, a writ of certiorari will not
issued without further proof of mala fides.
That is why we are not prepared to accept
the learned Attorney-General's argument
that sine no mala fides are alleged against
the appellant in the present case, no writ of
certiorari can be issued in favour of the
respondent.

That takes us to the merits of the
respondent's contention that the conclusion
of the appellant that the third charged
framed against the respondent has been
proved, is based on no evidence. The
learned Attorney-General has stressed
before us that in dealing with this question,
we ought to bear in mind the fact that the
appellant is acting with the determination
to root out corruption, and so, if it is shown
that the view taken by he appellant is a
reasonably possible view, this Court should
not sit in appeal over that decision and
seek to decide whether this Court would
have taken the same view or not. This
contention is no doubt absolutely sound.
The only test which we can legitimately
apply in dealing with this part of the
respondents case is, is there any evidence
on which a finding can be made against the
respondent that charge No. 3 was proved
against him ? In exercising its jurisdiction
under Art. 226 on such a plea, the High
Court cannot consider the question about
the sufficiency or adequacy of evidence in
support of a particular conclusion. That is
a matter which is within the competence of
the authority which dealt with the question;
but the High Court can and must enquire
whether there is any evidence at all in
support of the impugned conclusion. In
other words, if the whole of the evidence
led in the inquiry is accepted as true, does
the conclusion follow that the charges in
question is proved against the respondent ?
This approach will avoid weighing the
evidence. It will take the evidence as it
stands and only examine whether on that
evidence legally the impugned conclusion
follows or not. Applying this test, we are
10 All. Renu Yadav Vs. State of U.P. & Ors.
1287
inclined to hold that the respondent's
grievance is well-founded because, in our
opinion, the finding which is implicit in the
appellant's order dismissing the respondent
that charge number 3 is proved against him
is based on no evidence."

29. In Moni Shankar v. Union of
India and Anr. [(2008) 3 SCC 484], this
Court held:

"17.
The
departmental
proceeding is a quasi judicial one.
Although the provisions of the Evidence Act
are not applicable in the said proceeding,
principles of natural justice are required to
be complied with. The Court exercising
power of judicial review are entitled to
consider as to whether while inferring
commission of misconduct on the part of a
delinquent
officer
relevant
piece
of
evidence has been taken into consideration
and irrelevant facts have been excluded
therefrom. Inference on facts must be based
on evidence which meet the requirements of
legal principles. The Tribunal was, thus,
entitled to arrive at its own conclusion on
the premise that the evidence adduced by
the department, even if it is taken on its
face value to be correct in its entirety, meet
the requirements of burden of proof,
namely - preponderance of probability. If
on such evidences, the test of the doctrine
of proportionality has not been satisfied,
the Tribunal was within its domain to
interfere. We must place on record that the
doctrine of unreasonableness is giving way
to the doctrine of proportionality."

30. In the case of Capt. M. Paul
Anthony v. Bharat Gold Mines Ltd. [(1999)
3 SCC 679] the Apex Court held as under :

"41. We may not be understood to
have laid down a law that in all such
circumstances the decision of the civil
court or the criminal court would be
binding on the disciplinary authorities as
this Court in a large number of decisions
points point that the same would depend
upon other factors as well. See e.g.
Krishnakali Tea Estate v. Akhil Bharatiya
Chah Mazdoor Sangh and Anr. (2004) 8
SCC 200 and Manager, Reserve Bank of
India Bangalore v. S. Mani and Ors. (2005)
5 SCC 100. Each case is, therefore,
required to be considered on its own facts.

42. It is equally well settled that
the power of judicial review would not be
refused to be exercised by the High Court,
although despite it would be lawful to do
so. In Manager, Reserve Bank of India
Bangalore (supra) this Court observed:

39. The findings of the learned
Tribunal, as noticed hereinbefore, are
wholly perverse. It apparently posed unto
itself wrong questions. It placed onus of
proof wrongly upon the appellant. Its
decision is based upon irrelevant factors
not germane for the purpose of arriving at
a correct finding of fact. It has also failed
to take into consideration the relevant
factors. A case for judicial review, thus,
was made out."

31. In the case of M.V. Bijlani vs.
Union of India & ors. (2006) 5 SCC 88, the
Apex Court held: