# State of U.P. & Anr v. Dinesh Kumar Katiyar

- **Citation:** (2022) 9 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-25
- **Case number:** Writ A No. 2956 of 2022
- **Bench:** Rakesh Srivastava, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-dinesh-kumar-katiyar-48989
- **Pages:** 12

## Headnote

A. Service Law - Disciplinary Inquiry -
Punishment - Uttar Pradesh Government
Servant (Discipline and Appeal) Rules,
1999 - Rules 7, 8 & 9 - It is wellestablished principle of law that if manner
of doing a particular act is prescribed
under any statute then the act must be
done in that manner or not at all. An
Inquiry
Officer
is
a
quasi-judicial
authority. Therefore, he must perform his
functions fairly and reasonably which is
even otherwise the requirement of the
principles of natural justice. (Para 14, 16)

The prosecution has to prove the charges by
producing documents through witnesses and
placing such witnesses to be cross examined by
the charged Government servant. Even in the
absence of the charged Government servant,
the Inquiry Officer is obliged to examine the
evidence presented by the Department 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. A perusal of the charge-sheet
would show that the charges are based on the
preliminary inquiry report dated 31.07.2012 of
the Joint Director. Since no oral evidence
has
been
examined,
the
preliminary
inquiry report dated 31.07.2012 has not
been proved, and could not have been
taken into consideration to conclude that
the charges have been proved against the
respondent.

Prejudice is evident in cases where the
Department has not even proved the
documents and evidence which has been
presented on its own behalf, and the
governing
rules
have
been
blatantly
violated. In the absence of any oral inquiry,
any amount of reasoning given by the Inquiry
Officer regarding each and every one of the
instance in the inquiry report is not going to
validate the proceeding. Merely because the
Respondent in his reply to the charges didn't
express his desire for any cross-examination or
examination of his witnesses as alleged, it would
not absolve the Inquiry Officer from holding an
oral inquiry against the Respondent. (Para 11)
9 All. State of U.P. & Anr. Vs. Dinesh Kumar Katiyar
197
Inquiry proceedings stood vitiated for not
following the mandatory provisions of
Rule 7(vii) of the Rules. (Para 17)

B.
It
is
undoubtedly
open
for
the
disciplinary authority to deal with the
delinquency
and
once
charges
are
established,
to
award
appropriate
punishment. But when the charges are
same and identical in relation to one and
the same incident, then to deal with the
delinquents differently in the award of
punishment,
would
be
discriminatory.
(Para 22)

If all fish stink, to pick one and say only it
stinks is unfair in the matter of unanimous
decision of the Committee. (Para 21)

The fact that the disciplinary inquiry was
initiated against the Respondent, T.K. Sharma,
Mukhtar Khan and Javir Ali on the basis of the
preliminary inquiry report dated 31.07.2021 is
not in dispute is not in dispute. It is also not
disputed that the other officers were exonerated
by the Inquiry Officer, but on the same charges
the Respondent was found guilty. In the
punishment order, the St. Government has
failed to give any reason or justification as to
why the basis for exoneration of other three
employees is inapplicable to the case of
Respondent. (Para 20, 24)

C. There may be situations where because
of
a
long
time-lag
or
such
other
supervening circumstances the writ court
considers it unfair, harsh or otherwise
unnecessary to direct a fresh inquiry or
fresh order by the competent authority. It
is settled legal preposition, that once the court
sets aside an order of punishment, on the
ground that the inquiry was not properly
conducted, it must remit the case concerned to
the disciplinary authority for it to conduct the
inquiry from the point that stood vitiated, and
conclude the same. But that course may not
have been the only course open in a given
situation. (Para 25, 26)

In the present case, disciplinary inquiry was
initiated against the Respondent in the year

## Text

_Characters 0–39,968 of 40,522. This is a partial read: ask again with offset=39968 for what follows._

196 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In the entirety of circumstances, in
our considered opinion, the appellants have
erred in resisting petitioner-respondent
no.1's claim to the rectification of the date
of birth in the records of the Board and her
High School Certificate-cum-Mark Sheet.
It may be noticed that no decision, contrary
to the view expressed by the Division
Bench in Babu Ram's case, has been
brought to our notice by the learned
Additional
Chief
Standing
Counsel
appearing for the appellants. Also, we are
supported in the view that we take on
broader principle by the holding of the
Supreme Court in Jigya Yadav (Minor)
(Through Guardian/ Father Hari Singh)
v.
Central
Board
of
Secondary
Education and others, (2021) 7 SCC 535.

15. In the circumstances, we do not
find any infirmity in the order impugned
passed by the learned Single Judge, which
we hereby affirm. The appeal is dismissed,
but without any order as to costs.
----------
(2022) 9 ILRA 196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2022

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Writ A No. 2956 of 2022

State of U.P. & Anr. ...Petitioners
Versus
Dinesh Kumar Katiyar ...Respondent

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondent:

A. Service Law - Disciplinary Inquiry -
Punishment - Uttar Pradesh Government
Servant (Discipline and Appeal) Rules,
1999 - Rules 7, 8 & 9 - It is wellestablished principle of law that if manner
of doing a particular act is prescribed
under any statute then the act must be
done in that manner or not at all. An
Inquiry
Officer
is
a
quasi-judicial
authority. Therefore, he must perform his
functions fairly and reasonably which is
even otherwise the requirement of the
principles of natural justice. (Para 14, 16)

The prosecution has to prove the charges by
producing documents through witnesses and
placing such witnesses to be cross examined by
the charged Government servant. Even in the
absence of the charged Government servant,
the Inquiry Officer is obliged to examine the
evidence presented by the Department 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. A perusal of the charge-sheet
would show that the charges are based on the
preliminary inquiry report dated 31.07.2012 of
the Joint Director. Since no oral evidence
has
been
examined,
the
preliminary
inquiry report dated 31.07.2012 has not
been proved, and could not have been
taken into consideration to conclude that
the charges have been proved against the
respondent.

Prejudice is evident in cases where the
Department has not even proved the
documents and evidence which has been
presented on its own behalf, and the
governing
rules
have
been
blatantly
violated. In the absence of any oral inquiry,
any amount of reasoning given by the Inquiry
Officer regarding each and every one of the
instance in the inquiry report is not going to
validate the proceeding. Merely because the
Respondent in his reply to the charges didn't
express his desire for any cross-examination or
examination of his witnesses as alleged, it would
not absolve the Inquiry Officer from holding an
oral inquiry against the Respondent. (Para 11)
9 All. State of U.P. & Anr. Vs. Dinesh Kumar Katiyar
197
Inquiry proceedings stood vitiated for not
following the mandatory provisions of
Rule 7(vii) of the Rules. (Para 17)

B.
It
is
undoubtedly
open
for
the
disciplinary authority to deal with the
delinquency
and
once
charges
are
established,
to
award
appropriate
punishment. But when the charges are
same and identical in relation to one and
the same incident, then to deal with the
delinquents differently in the award of
punishment,
would
be
discriminatory.
(Para 22)

If all fish stink, to pick one and say only it
stinks is unfair in the matter of unanimous
decision of the Committee. (Para 21)

The fact that the disciplinary inquiry was
initiated against the Respondent, T.K. Sharma,
Mukhtar Khan and Javir Ali on the basis of the
preliminary inquiry report dated 31.07.2021 is
not in dispute is not in dispute. It is also not
disputed that the other officers were exonerated
by the Inquiry Officer, but on the same charges
the Respondent was found guilty. In the
punishment order, the St. Government has
failed to give any reason or justification as to
why the basis for exoneration of other three
employees is inapplicable to the case of
Respondent. (Para 20, 24)

C. There may be situations where because
of
a
long
time-lag
or
such
other
supervening circumstances the writ court
considers it unfair, harsh or otherwise
unnecessary to direct a fresh inquiry or
fresh order by the competent authority. It
is settled legal preposition, that once the court
sets aside an order of punishment, on the
ground that the inquiry was not properly
conducted, it must remit the case concerned to
the disciplinary authority for it to conduct the
inquiry from the point that stood vitiated, and
conclude the same. But that course may not
have been the only course open in a given
situation. (Para 25, 26)

In the present case, disciplinary inquiry was
initiated against the Respondent in the year
2014. The punishment order dated 11.08.2017
was served upon him on 31.08.2017, the date
on which the Respondent attained the age of
superannuation and retired from service. The
Respondent may by now must have turned 66
years of age. Any remand either to the inquiry
officer for a fresh inquiry or to the disciplinary
authority for a fresh order would thus be very
harsh and would practically deny to the
Respondent any relief whatsoever. Furthermore,
in light of the fact that the Respondent has been
discriminated against in the matter of imposition
of punishment, and that he is entitled to parity
qua other exonerated officers. The Tribunal has
rightly exercised its discretion in not remanding
the matter back. (Para 27)

Writ Petition dismissed. (E-4)

Precedent followed:

1. St. of Uttranchal & ors. Vs Kharak Singh,
(2008) 8 SCC 236 (Para 11)

2. Roop Singh Negi Vs Punjab National Bank &
Ors., (2009) 2 SCC 570 (Para 12)

3. St. of U.P. & ors. Vs Saroj Kumar Sinha,
(2010) 2 SCC 772 (Para 13)

4. Babu Verghese Vs Bar Council of Kerala,
(1999) 3 SCC 422 (Para 14)

5. Brajendra Singh Yambem Vs U.O.I., (2016) 9
SCC 20) (Para 14)

6. Union of India Vs Prakash Kumar Tandon,
(2009) 2 SCC 541 (Para 16)

7. Bongaigaon Refinery & Petrochemicals Ltd. v.
Girish Chandra Sarma, (2007) 7 SCC 206 (Para
21)

8. St. of U.P. & ors. Vs Raj Pal Singh, (2010) 5
SCC 783 (Para 22)

9. Tata Engineering and Locomotive Co. Ltd. Vs
Jitendra Prasad Singh & ors., (2001) 10 SCC 530
(Para 23)

10. Allahabad Bank Vs Krishna Narayan Tewari,
(2017) 2 SCC 308 (Para 26)

(Delivered by Hon'ble Rakesh Srivastava, J.
198 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble Ajai Kumar Srivastava-I, J.)

1. In the year 2014, Dinesh Kumar
Katiyar, the Respondent, was working as
Soil Conservation Officer in Samadesh
Bandhu, U.P. Civil Secretariat, Lucknow.
The State Government issued a chargesheet dated 21.04.2014 charging him as
follows:

"vkids fo:) fuEukafdr vkjksi yxk;s
tkrs gSa %&

vkjksi la0&1

Hkwfe laj{k.k bdkbZ] Mh0ih0,0ih0&mjbZ
esa izHkkjh Hkwfe laj{k.k vf/kdkjh ds :i esa fnukad
27-06-2008 ls 22-04-2010 rd dh rSukrh vof/k
esa vki }kjk Mh0ih0,0ih0 dh fofHkUu ifj;kstuk
ds MCyw0Mh0,Q0 [kkrksa ls :0 2]25]739-00 dk
vukf/kd`r :i ls vkgj.k dj jktdh; /ku dk
Nykgj.k dj nq:i;ksx fd;k x;k gS tc fd
gfj;kyh xkbM ykbUl ds iSjk&36 ds vuqlkj bl
/kujkf'k dks lkeqnkf;d dk;ksZa ij O;; fd;k tkuk
pkfg, FkkA

vr% vki gfj;kyh xkbM ykbUl ds
iSjk&29 ,oa 36 ds vUrxZr iznRr fn'kk funsZ'kksa o
Hkkjr ljdkj ,oa 'kklu ds funsZ'kksa ds mYya?ku
djrs gq, {ks=h; deZpkfj;ksa ds lkFk fey dj
v/;{k ,oa lfpo ds ek/;e ls MCyw0Mh0,Q0 ds
[kkrksa ls :0 2]25]739-00 dk vukf/kd`r :i ls
vkgfjr jktdh; /ku dk Nykgj.k djus] izHkkjh
Hkwfe laj{k.k vf/kdkjh in ds drZO;ksa ,oa nkf;Roksa
ds vuq:i dk;Z u djus rFkk m0iz0 ljdkjh
deZpkjh vkpj.k fu;ekoyh&1956 ds fu;e&3 ds
foijhr vkpj.k djus ds nks"kh gSA

mDr vkjksi dh iqf"V gsrq fuEu lk{;
iBuh; gksaxs&

1- la;qDr funs'kd d`f"k] jkexaxk
dek.M ifj;kstuk dkuiqj dk i= la[;k&
'k";@tkWp@Mh0,0ih0 mjbZ@2012&13 fnukad
31-07-2012 }kjk miyC/k djk;h xbZ tkWp vk[;k
,oa Hkwfe laj{k.k bdkbZ mjbZ ds dk;kZy; ds
lajf{kr vfHkys[kA

2- m0iz0 ljdkjh deZpkjh vkpj.k
fu;ekoyh] 1956 ds fu;e&3 dh izfrA

vkjksi la[;k&2

Hkwfe laj{k.k bdkbZ] Mh0ih0ih0&mjbZ esa
izHkkjh Hkwfe laj{k.k vf/kdkjh ds :i esa vkidh
rSukrh vof/k esa Mh0ih0,0ih0 dh ifj;kstukvkas ds
MCyw0Mh0,Q0 [kkrksa ls djk;s x;s :0 2]25]73900 ds mijksDr vkgj.k ls lEcfU/kr dksbZ Hkh
vfHkys[k rFkk LVhesV 1⁄4l{ke vf/kdkjh ls
vuqeksfnr i=koyh1⁄2 eki iqfLrdk lEcfU/kr okmpj
,oa nSfud Jfed fpV~Bk vkfn la;qDr funs'kd
d`f"k }kjk dh xbZ tkap ds le; bdkbZ dk;kZy;
esa miyC/k ugha ik;s x;sA

vr% vki fcuk vuqeksfnr bLVhesV
ekiu] ckmpj ,oa Jfed fpV~Bksa ds QthZ

1- la;qDr funs'kd d`f"k] jkexaxk
dek.M ifj;kstuk dkuiqj dk i= la[;k&
'k";@tkap@Mh0,0ih0 mjbZ@2012&13 fnukad
31-07-2012 }kjk miyC/k djk;h xbZ tkap vk[;k
,oa Hkwfe laj{k.k bdkbZ mjbZ ds dk;kZy; ds
lajf{kr vfHkys[kA

2- m0iz0 ljdkjh deZpkjh vkpj.k
fu;ekoyh] 1956 ds fu;e&3 dh izfrA"

 (emphasis supplied)

2.

On
13.07.2015,
the
State
Government issued a corrigendum to the
charge-sheet dated 21.04.2014, amending
the figure Rs. 2,25,739/-, wherever it
appeared in the charge-sheet by the figure
Rs.
3,96,500/-.
On
10.09.2015,
a
supplementary charge-sheet was issued to
the Respondent with an additional charge
of
withdrawal
of
Rs.
76,500/-.
On
09.08.2016, the Respondent submitted his
reply denying the charges levelled against
him. On 28.12.2016, the Inquiry Officer
submitted his inquiry report. Thereafter, a
show cause notice dated 16.01.2017 was
issued to the Respondent. On 07.02.2017,
the Respondent submitted his reply to the
said
show
cause
notice.
The
State
Government passed the punishment order
dated 11.08.2017, whereby the Respondent
was ordered to be reverted to the initial pay
scale and a sum of Rs. 4,72,000/- was
ordered to be recovered from him. The
9 All. State of U.P. & Anr. Vs. Dinesh Kumar Katiyar
199
order dated 11.08.2017 was served upon
the
Respondent
on
31.08.2017.
In
compliance of the order dated 11.08.2017,
the Administrator, Greater Sharda Sahayak
Command,
passed
an
order
dated
07.11.2017 fixing the salary of the
Respondent
at
Rs.
35,400/-
as
on
11.08.2017, in the basic pay scale of Junior
Engineer.

3. The Respondent assailed the
punishment order dated 11.08.2017, as well
as
the
consequential
order
dated
07.11.2017, before the U.P. State Public
Services Tribunal (for short 'the Tribunal')
in Claim Petition No. 2079 of 2017, Dinesh
Kumar Katiyar v. State of U.P. and another.
By
its
judgment
and
order
dated
04.10.2021, the Tribunal has allowed the
claim petition. The orders dated 11.08.2017
and 07.11.2017 have been quashed with all
consequential benefits. The amount, if any,
recovered from the Respondent has been
ordered to be refunded. Aggrieved by the
said judgment and order dated 04.10.2021
of the Tribunal, the Petitioners have
preferred the present writ petition.

4. Shri Vivek Kumar Shukla, learned
Additional
Chief
Standing
Counsel,
appearing for the Petitioners, submitted that
the Respondent, at any stage of the
proceedings, did not ask for any oral inquiry
and in the absence of the Respondent
showing any prejudice having been caused to
him, the Tribunal has erred in setting aside
the punishment order on the ground that no
oral inquiry was held. He further submitted
that, once the order of punishment was set
aside by the Tribunal on the ground that the
inquiry was not properly conducted, the
Tribunal was obliged to remit the case to the
disciplinary authority for it to conduct the
inquiry from the point that it stood vitiated,
and to conclude the same.

5. Shri Ajey Shanker Tewari, Advocate
appearing for the Respondent has supported
the impugned judgment.

6.
 The
relevant
facts
for
the
adjudication of this case are as follows: the
Respondent, was appointed as a Junior
Engineer on 08.10.1980. He was promoted to
the post of Soil Conservation Officer on
07.02.2013 on probation for a period of two
years. On 31.07.2012, the Joint Director
(Agriculture), Ramganga Command Project,
Kanpur submitted a preliminary inquiry
report holding the personnel named therein
responsible for wastage of money. On the
basis of the report dated 31.07.2012
mentioned above, disciplinary proceedings
were initiated against four persons, namely,
the Respondent, Shri T.K. Sharma, Deputy
Director, Shri Mukhtar Khan, Assistant Soil
Conservation Officer and Shri Javir Ali,
Junior Engineer. The Respondent was served
with a charge-sheet dated 21.04.2014,
containing two charges pertaining to the
period he was posted as Incharge Soil
Conservation Officer in Land Development
and Water Resources Department at Orai
w.e.f.
27.06.2008
to
22.04.2010.
The
Respondent denied the charges levelled
against him. The Inquiry Officer without
holding any oral inquiry submitted his
inquiry report which led to the passing of the
orders dated 11.08.2017 and 07.11.2017.

7. Admittedly, the inquiry against the
Respondent has been held under the Uttar
Pradesh Government Servant (Discipline
and Appeal) Rules, 1999 (for brevity "the
Rules"). The said Rules have been framed
by the Government of Uttar Pradesh in
exercise of powers conferred by the proviso
to Article 309 of the Constitution. The
Rules prescribe the detailed procedure to be
followed in the matters of enforcing
discipline
and
imposing
penalty/
200 INDIAN LAW REPORTS ALLAHABAD SERIES
punishment against Government servants
and
in
appeals
in
case
of
proven
misconduct. The procedure and the manner
in which an inquiry has to be conducted
before imposing any major penalty is laid
down in Rule 7 of the Rules. Sub-rule (v),
(vi), (vii) & (x) of Rule 7 being relevant are
being extracted below for ready reference:

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)
to
(iv)
(omitted
as
unnecessary)

(v) The charge-sheet, along with
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 charge-sheet shall be
served by publication in a daily newspaper
having wide circulation:

Provided
that
where
the
documentary
evidence
is
voluminous,
instead of furnishing its copy with chargesheet, the charge Government servant shall
be permitted to inspect the same before the
Inquiry Officer.

(vi)
Where
the
charged
Government servant appears and admits
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 charge the
Inquiry Officer shall proceed to call the
witnesses proposed in the charge-sheet and
record their oral evidence in presence of
the charge 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)
&
(ix)
(omitted
as
unnecessary)

(x)
Where
the
charged
Government servant does not appear on the
date fixed in the inquiry or at any stage of
the proceeding in spite 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)
to
(xii)
(omitted
as
unnecessary)"

 (emphasis supplied)

8. Rule 8 of the Rules provides that
after the inquiry is completed, the Inquiry
Officer shall submit his inquiry report to
the disciplinary authority along with all the
records of the inquiry. Rule 9 of the Rules
prescribes the procedure to be adopted by
the disciplinary authority after receiving the
inquiry report.

9. As per sub-rule (vi) of Rule 7 of the
Rules, it is only where the delinquent
Government servant appears and admits the
charges that the Inquiry Officer is at liberty
to submit his report to the disciplinary
authority on the basis of such admission.
However,
where
the
delinquent
Government servant denies the charges
levelled against him, sub-rule (vii) of Rule
7 enjoins upon the Inquiry Officer to hold
an oral inquiry in accordance with the
9 All. State of U.P. & Anr. Vs. Dinesh Kumar Katiyar
201
procedure prescribed in the said Rule. It is
only after the inquiry is completed, strictly
as per the procedure laid down for the
purpose, that the Inquiry Officer can submit
his inquiry report to the disciplinary
authority. The disciplinary authority, having
regard to the findings in the inquiry report,
and after giving an opportunity to show
cause, as specified, may by a speaking
order impose any penalty whether minor or
major specified in Rule 3 of the Rules.

10. By a catena of decisions, the Apex
Court has laid down the principles
regarding the manner in which disciplinary
proceedings are to be conducted and the
procedure to be followed therein. It is not
necessary to refer to all these decisions.
Suffice it to refer to a few decisions on this
topic.

11. In State of Uttranchal and others
v. Kharak Singh, (2008) 8 SCC 236, after
referring to some leading decisions on the
issue, the Apex Court consolidated the
principles to be followed in disciplinary
proceedings. The relevant portion of
Paragraph 15 of the said report is being
extracted below:

"15. From the above decisions,
the following principles would emerge:

(i)
The
enquiries
must
be
conducted bona fide and care must be taken
to see that the enquiries do not become
empty formalities.

(ii) omitted

(iii)
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent charged and give an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
he wants to lead any evidence and asked to
give any explanation about the evidence led
against him.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply a
copy of the enquiry report and all
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any.

 (emphasis supplied)

12. In Roop Singh Negi v. Punjab
National Bank & Ors., (2009) 2 SCC 570
the Apex Court reiterated that charges
levelled against the charged Government
servant must be proved by leading cogent
evidence. Paragraph 14 of the said report is
reproduced below: -

"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."

and then in paragraph 23 of the
said decision, the Apex Court held as
follows:

"......The materials brought on
record pointing out the guilt are required to
be proved. A decision must be arrived at on
some evidence, which is legally admissible.
202 INDIAN LAW REPORTS ALLAHABAD SERIES
The provisions of the Evidence Act may not
be applicable in a departmental proceeding
but the principles of natural justice are. As
the report of the Enquiry Officer was based
on merely ipse dixit as also surmises and
conjectures, the same could not have been
sustained. The inferences drawn by the
Enquiry Officer apparently were not
supported by any evidence. Suspicion, as is
well known, however high may be, can
under no circumstances be held to be a
substitute for legal proof."

 (emphasis supplied)

13. In State of U.P. and others v. Saroj
Kumar Sinha, (2010) 2 SCC 772, where the
delinquent
employee
had
not
even
submitted his reply to the charge-sheet,
while considering the impact of Rule 7 of
the Rules, the Apex Court observed as
under: -

"26. 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 inquiry officer can proceed
with the inquiry ex parte. Even in such
circumstances it is incumbent on the
inquiry 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 crossexamination
of
the
witnesses.
But
nonetheless in order to establish the
charges the Department is required to
produce the necessary evidence before the
inquiry officer. This is so as to avoid the
charge that the inquiry officer has acted as
a prosecutor as well as a judge. 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."

 (emphasis supplied)

14. It is a well-established principle of
law that if manner of doing a particular act
is prescribed under any statute then the act
must be done in that manner or not at all.
(see Babu Verghese v. Bar Council of
Kerala, (1999) 3 SCC 422 and Brajendra
Singh Yambem v. Union of India, (2016) 9
SCC 20).

15. In the case in hand, the
Respondent 1 had submitted his reply
denying the charges levelled against him.
Admittedly, the Inquiry Officer did not
hold any oral inquiry and has given his
report only on the basis of the reply
submitted by the Respondent. Sub-rule (vii)
of Rule 7 of the Rules mandates that in all
cases where the charged Government
servant denies the charges, the Inquiry
Officer shall proceed to call the witnesses
proposed in the charge-sheet and record
their oral evidence in the presence of the
charged Government servant, who shall
then be given an opportunity to crossexamine such witness. It is no more res
integra that the prosecution has to prove the
charges by producing documents through
witnesses and placing such witnesses to be
cross examined by the charged Government
servant. Even in the absence of the charged
Government servant, the Inquiry Officer is
obliged to examine the evidence presented
by the Department to see as to whether the
9 All. State of U.P. & Anr. Vs. Dinesh Kumar Katiyar
203
unrebutted evidence is sufficient to hold
that the charges are proved. In the present
case the aforesaid procedure has not been
observed. A perusal of the charge-sheet
would show that the charges are based on
the
preliminary
inquiry
report
dated
31.07.2012 of the Joint Director. Since no
oral evidence has been examined, the
preliminary
inquiry
report
dated
31.07.2012 has not been proved, and could
not have been taken into consideration to
conclude that the charges have been proved
against the Respondent. Prejudice is
evident in cases where the Department has
not even proved the documents and
evidence which has been presented on its
own behalf, and the governing rules have
been blatantly violated. In the absence of
any oral inquiry, any amount of reasoning
given by the Inquiry Officer regarding each
and every one of the instance in the inquiry
report is not going to validate the
proceeding.
Merely
because
the
Respondent in his reply to the charges did
not express his desire for any crossexamination
or
examination
of
his
witnesses as alleged, it would not absolve
the Inquiry Officer from holding an oral
inquiry against the Respondent.

16. In Union of India v. Prakash
Kumar Tandon, (2009) 2 SCC 541, while
dealing with the issue of prejudice in
departmental proceedings, the Apex Court
observed that an Inquiry Officer is a quasijudicial authority. Therefore, he must
perform his functions fairly and reasonably
which is even otherwise the requirement of
the principles of natural justice and held as
under:

"16. In M.V. Bijlani v. Union of
India this Court has held: (SCC p. 95, para 25)

"25. ... Although the charges in a
departmental proceeding are not required to
be proved like a criminal trial i.e. beyond
all reasonable doubt, we cannot lose sight
of the fact that the enquiry officer performs
a
quasi-judicial
function,
who
upon
analysing the documents must arrive at a
conclusion
that
there
had
been
a
preponderance of probability to prove the
charges on the basis of materials on record.
While doing so, he cannot take into
consideration any irrelevant fact. He cannot
refuse to consider the relevant facts. He
cannot shift the burden of proof. He cannot
reject the relevant testimony of the
witnesses only on the basis of surmises and
conjectures. He cannot enquire into the
allegations with which the delinquent
officer had not been charged with."

17.
If
the
disciplinary
proceedings
have
not
been
fairly
conducted, an inference can be drawn that
the delinquent officer was prejudiced
thereby.

18. In S.L. Kapoor v. Jagmohan
this Court has held that non-compliance
with the principles of natural justice itself
causes prejudice. We are not oblivious of
the fact that the said principle has since
been watered down but in a situation of this
nature, we are of the opinion that the
concurrent findings of the Tribunal, as also
the High Court cannot be said to be
unreasonable or suffering from any legal
infirmity warranting interference."

 (emphasis supplied)

17. In view of the above discussion,
this Court is constrained to uphold the
conclusion drawn by the Tribunal that the
inquiry proceedings stood vitiated for not
following the mandatory provisions of subRule (vii) of Rule 7 of the Rules.
204 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Turning to the second contention
of the Petitioner, it is to be seen that in his
reply dated 07.02.2017, to the show cause
notice dated 16.01.2017, the Respondent
had specifically stated that the departmental
proceedings were initiated against him,
Shri T.K. Sharma, Shri Mukhtar Khan and
Shri Javir Ali and on the basis of the
preliminary
inquiry
report
dated
31.07.2012 of the Joint Director. However,
except for the Respondent, all other officers
were exonerated. In the punishment order
dated 11.08.2017, the disciplinary authority
has stated some facts and extracted the
charges levelled against the Respondent,
the reply submitted by him to the said
charges, the findings recorded by the
Inquiry Officer in connection with the
respective charges and, thereafter, without
even adverting to the submissions made by
the Respondent, the disciplinary authority
has upheld the findings recorded by the
Inquiry Officer by a cryptic order.

19. The Tribunal after hearing the
counsel for the contesting parties and after
perusing the original records has returned a
finding that there was discrimination in
imposing punishment. Relevant paragraphs
of the judgment dated 04.10.2021 are
extracted below:

"17. Sri Shri T.K. Sharma Deputy
Director, Sri Javir ali, and Mukhtar Khan
all were charged along with the petitioner
on the basis of report of Joint Director
dated 31.07.2012.

18.
Enquiry
officer
Sri
Satyabhan, Additional Administrator found
charge No.1, 2 and 5 of the main
chargesheet and charge no.1 of the
Supplementary
Chargesheet
partially
proved
in
his
enquiry
report
dated
28.12.2016, This enquiry was in respect of
period
27.6.2008
to
22.04.2010.
Disciplinary
Authority
Chairman/
Administrator,
Ram
Ganga
Command
taking note of partially proved charges has
observed that measurement was done in
pursuance of the letter of Soil Conservation
Officer and payment of the work was
recommended according to standard. Shri
Javir Ali, Junior engineer was exonerated
as the payment was done and executed
work was found to be according to the
standard and up to the mark. Reference to
Javir Ali Junior Engineer was specially
made in his reply to enquiry officer on
09.08.2016.

19. Similarly, Shri Mukhtar Khan,
assistant soil Conservation Officer who got
repairing work done through Sri Javir Ali,
Junior engineer was also chargesheeted
similarly but he was let off with a warning
on
13.01.2016
by
the
Disciplinary
Authority/ Chairman of the Ram Ganga
Command. In this matter also enquiry
officer had found charge No.1, 2, 4, 5 and
charge
no.1
of
the
supplementary
chargesheet partially proved.

20. Shri T.K. Sharma, Deputy
Director was also charged similarly and the
enquiry officer had found charge no.1, 2, 3,
4 and 5 fully established and charge no.1 of
the supplementary chargesheet was not
found proved. State Government while
passing the final order came to the
conclusion that charge no.1, 2, 3, 4 and 5
were
found
not
established
and
consequently, he was exonerated. It was
specially observed that in the absence of
date, time and place of the enquiry, defence
of non production of measurement book
was liable to be accepted. Further, finding
of the enquiry officer was upset on the
basis of letter of Deputy Director who
found that necessary work was done and
disagreeing with the findings of the enquiry
officer, State Govt. exonerated Sri T.K.
Sharma.
9 All. State of U.P. & Anr. Vs. Dinesh Kumar Katiyar
205

21. Petitioner had referred to
these three names as these persons were
mentioned in the report dated 31.7.2012
submitted by Joint Director. This report
was basis of departmental enquiry and the
chargesheet was accordingly issued to the
petitioner as well as Sri T.K. Sharma, then
Deputy Director, Shri Javir Ali, Junior
Engineer and Shri Mukhtar Khan, Assistant
Soil Conservation Officer.

22. Since report of Joint Director was
made the basis of departmental enquiry, so
a look of said report is also necessary.

23. The relevant part of the report
dated 31.7.2012 is reproduced below: -

"i=koyh] ekiu iqfLrdk] fpV~Bk vkfn
miyC/k u gksus ds dkj.k dk;ZLFky dh tkap
fd;k tkuk lEHko ugha gks ik;k] tcfd fnukad 10
tuojh] 2012 dks ek0 ea=hth dh v/;{krk esa
ekfld leh{kk cSBd esa Jh 'kadjnhu mifuns'kd]
>kalh izFke us voxr djk;k Fkk fd ekiu dk
dk;Z iw.kZ gks x;k gS] lek;kstu dj fy;k
tk;sxkA miyC/k rF;ksa ls ;g Li"V gS fd ty
laxzg.k lfefr ds /ku dk tks gfj;kyh ckbM
ykbu ds iSjk&36 ds vuqlkj lkeqnkf;d dk;kZs ij
O;; fd;k tkuk Fkk] og xkbM ykbu ds vuqlkj
lkeqnkf;d dk;ksZ ij O;; u gksdj Hkwfe laj{k.k
vf/kdkjh Jh Mh0ds0 dfV;kj o mifuns'kd@Hkwfe
laj{k.k vf/kdkjh Jh Vh0ds0 'kekZ ds }kjk fogj.k
dh fu;r ls mDr /kujkf'k dk vkgj.k fd;k x;k
gSA MCyw0Mh0,Q0 ls vkgfjr /kujkf'k dks
fudkyus dk vf/kdkjh Hkwfe laj{k.k vf/kdkjh]
gfj;kyh xkbM ykbu ds izLrj&29 ,oa 36 dk
mYya?ku djrs gq, vkgj.k fd;k x;k gSA

mDr ds vykok vkbZ0MCyw0Mh0ih0
;kstukUrxZr vkbZ0MCyw0Mh0ih0 izFke dqBkSr Cykd
dh 10 ifj;kstukvksa esa MCYkw0Mh0,Q0 [krksa esa
tek /kujkf'k #0 28]80]459 esa ls #0 22]96]900
07 vxLRk 2010 ls 20 flrEcj 2010 rd Jh
Vh0ds0'kekZ mifuns'kd@Hkwfe laj{k.k vf/kdkjh ds
dk;Zdky esa vkgfjr dh xbZ gSA bl izdkj dh
Vh0ds0'kekZ ds dk;Zdky esa Mh0ih0,0ih0 ,oa
vkbZ0MCyw0Mh0ih0 ds fofHkUu ifj;kstukvksa ds
MCyw0Mh0,Q0 [kkrksa ls #0 60]71]372 ,oa Jh
Mh0ds0 dfV;kj izHkkjh Hkwfe laj{k.k vf/kdkjh ds
dk;Zdky esa #0 2]25]739]00 dk v/;{k ,oa lfpo
ds ek/;e ls vkgj.k djk;k x;kA mDr lEiw.kZ
vkgj.k ls lacaf/kr dksbZ LVhesV] Jfed fpV~Bk]
eki iqfLrdk lek;kstu gsrq dk;kZy; esa miyC/k
ugha gSA ------------------------------------------

vr% Hkwfe laj{k.k vf/kdkjh ,oa muds
{ks=h; deZpkfj;ksa }kjk MCyw0Mh0,Q0 esa miyC/k
/kujkf/k dk iw.kZr;k nq#i;ksx fd;k x;k] tks Hkwfe
laj{k.k vf/kdkjh@mifuns'kd ds vf/kdkj {ks= esa
ugha FkkA bl izdkj /ku ds viO;; ds fy,
foHkkxh; lfpo] voj vfHk;URkk] rFkk Hkwfe laj{k.k
vf/kdkjh iw.kZr;k ftEesnkj gSA 'kklu dks lgh
tkudkjh u nsus ds fy, fy;s Jh 'kadjnhu mi
funs'kd] >kalh izFke Hkh vius nkf;Roksa ds fuoZgu
esa foQy jgsa gSA"

On the basis of this report
enquiry
was
instituted
against
the
petitioner,
Sri
T.K.
Sharma,
Deputy
Director, Shri Mukhtar Khan, Assistant Soil
Conservation Officer and Sri Javir Ali,
Junior Engineer, Enquiry Officer submitted
his enquiry report finding most of the
charges
established
against
all
four
persons. shri Javir Ali, Junior Engineer
was exonerated and Shri Mukhtar Khan,
Assistant Soil Conservation Officer was
given stern warning by their punishing
authority. Tri T.K. Sharma, Deputy Director
was exonerated without without any
punishment by State Government. Only
petitioner has been punished on the basis of
said enquiry report."

(emphasis supplied)

20. The fact that disciplinary inquiry
was initiated against the Respondent, T.K.
Sharma, Mukhtar Khan and Javir Ali on the
basis of the preliminary inquiry report
dated 31.07.2012 is not in dispute. It is also
not disputed that the other officers were
exonerated by the Inquiry Officer, but on
the same charges the Respondent was
206 INDIAN LAW REPORTS ALLAHABAD SERIES
found guilty. In the punishment order, the
State Government has failed to give any
reason or justification as to why the basis
for exoneration of other three employees is
inapplicable to the case of the Respondent.

21. In Bongaigaon Refinery &
Petrochemicals Ltd. v. Girish Chandra
Sarma, (2007) 7 SCC 206, while dealing
with discrimination in imposition of
punishment, the Apex Court has stated as
under: -

"18. After going through the
report and the finding recorded by the
Division Bench of the High Court, we are
of opinion that in fact the Division Bench
correctly assessed the situation that the
respondent alone was made a scapegoat
whereas
the
decision
by
all
three
Committees was unanimous decision by all
these
members
participating
in
the
negotiations and the price was finalised
accordingly. It is not the respondent alone
who can be held responsible when the
decision was taken by the Committees. If
the decision of the committee stinks, it
cannot be said that the respondent alone
stinks; it will be arbitrary. If all fish stink,
to pick one and say only it stinks is unfair
in the matter of unanimous decision of the
Committee."

(emphasis supplied)

22. In yet another case in State of U.P.
and others v. Raj Pal Singh, (2010) 5 SCC
783, the Apex Court has observed as under:
-

"5. Though, on principle, the ratio
in aforesaid cases would ordinarily apply,
but in the case in hand, the High Court
appears to have considered the nature of
charges leveled against the 5 employees
who stood charged on account of the
incident that happened on the same day and
then the High Court came to the conclusion
that since the gravity of charges was the
same, it was not open for the disciplinary
authority to impose different punishments
for different delinquents. The reasonings
given by the High Court cannot be faulted
with since the State is not able to indicate
as to any difference in the delinquency of
these employees.

6. It is undoubtedly open for the
disciplinary authority to deal with the
delinquency
and
once
charges
are
established,
to
award
appropriate
punishment. But when the charges are
same and identical in relation to one and
the same incident, then to deal with the
delinquents differently in the award of
punishment, would be discriminatory. In
this view of the matter, we see no infirmity
with the impugned order requiring our
interference under Article 136 of the
Constitution."

(emphasis supplied)

23.

In
Tata
Engineering
and
Locomotive Co. Ltd. v. Jitendra Prasad
Singh and others, (2001) 10 SCC 530, the
Apex Court has upheld the finding
recorded by the High Court by observing as
under: -

"Since as many as three workmen
on almost identical charges were found
guilty of misconduct in connection with the
same
incident,
though
in
separate
proceedings, and one was punished with
only one month's suspension, and the other
was ultimately reinstated in view of the
findings recorded by the Labour Court and
affirmed by the High Court and the
Supreme Court, it would be denial of
justice to the appellant if he alone is singled
out for punishment by way of dismissal
from service."
9 All. Rina Vs. State of U.P. & Anr.
207

24. For the reasons stated above, it is
apparent that the Respondent has been
discriminated against in the matter of
imposition of penalty. In the facts and
circumstances of the case, the Respondent
is entitled to parity qua Shri T.K. Sharma,
Shri Mukhtar Khan and Shri Javir Ali.

25. It is a settled legal proposition,
that once the court sets aside an order of
punishment, on the ground that the inquiry
was not properly conducted, it must remit
the case concerned to the disciplinary
authority for it to conduct the inquiry from
the point that it stood vitiated, and conclude
the same.

26. That course could have been
followed even in the present case. The
matter could be remanded back to the
disciplinary authority or to the inquiry
officer for a proper inquiry and a fresh
report and order. But that course may not
have been the only course open in a given
situation. There may be situations where
because of a long time-lag or such other
supervening circumstances the writ court
considers it unfair, harsh or otherwise
unnecessary to direct a fresh inquiry or
fresh order by the competent authority. (see
Allahabad Bank v. Krishna Narayan
Tewari, (2017) 2 SCC 308)

27. In the present case, disciplinary
inquiry was initiated against the Respondent
in the year 2014. The punishment order dated
11.08.2017 was served upon him on
31.08.2017,
the
date
on
which
the
Respondent
attained
the
age
of
superannuation and retired from service. The
Respondent may by now must have turned 66
years of age. Any remand either to the inquiry
officer for a fresh inquiry or to the
disciplinary authority for a fresh order would
thus be very harsh and would practically deny
to the Respondent any relief whatsoever.
Furthermore, in light of the fact that the
Respondent has been discriminated against in
the matter of imposition of punishment, and
that he is entitled to parity qua Shri T.K.
Sharma, Shri Mukhtar Khan and Shri Javir
Ali, this Court is of the opinion that the
Tribunal has rightly exercised its discretion in
not remanding the matter back.

28. Resultantly, we do not perceive any
merit in this writ petition and the same is,
accordingly, dismissed.
----------
(2022) 9 ILRA 207
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

Writ A No. 6045 of 2022

Rina ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Vinod Kumar Pandey