# Sunil Kumar Srivastava v. State of U.P

- **Citation:** (2022) 7 ILRA 347
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-10
- **Case number:** Writ A No. 24045 of 2020
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-srivastava-v-state-of-u-p-48889
- **Pages:** 18

## Headnote

Law
-
Uttar
Pradesh
Development
Authorities
Centralised
348 INDIAN LAW REPORTS ALLAHABAD SERIES
Services Rules, 1985 - Rule 33-challenge
to-adverse
entry-Increment
of
the
Petitioner
withheld-Petitioner
was
a
Junior Engineer-Charges leveled against
the
petitioner
against
two
other
employees were identical to the charges
leveled against the Petitioner-Petitioner's
reply to the charge sheet is almost
identical to that of other two employeesthe Petitioner has been discriminated in
the matter of imposition of penalty-Hence,
the Petitioner is entitled to parity-the
order passed by the Respondent cannot be
sustained.(Para 1 to 46)

B. The requirement of recording reasons
by
every
quasi
judicial
or
even
in
administrative authority entrusted with
the task of passing an order adversely
affecting an individual and communication
thereof to the affected person is one of
the recognized facets of the rules of
natural justice and violation thereof has
the effect of vitiating the order passed by
the authority concerned.(Para 35)

C. It is well settled 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
unrebutted evidence is sufficient to hold
that the charges are proved.(Para 26)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,996 of 61,002. This is a partial read: ask again with offset=39996 for what follows._

7 All. Sunil Kumar Srivastava Vs. State of U.P.
347
Section 3 of Repeal Act, 1960, sub-sections
(1), (2), (3) and (4) of Section 1 of the Act,
1949 as well as Repeal Act, 2004 shows
that what was saved by Section 3 of the
Act, 1960 was the application of any statute
repealed by it in relation to India and to
persons and things in any way belonging to
or connected with India, in any country to
which India (Consequential Provision) Act,
1949 extended, therefore, assuming that the
said provision saved the application of the
Indian Church Act, 1927, the same stood
repealed w.e.f. 20.02.2004 but this aspect
of the matter was not considered by the
Deputy Registrar. Moreover, the Deputy
Registrar did not at all consider the
question as to whether the CIBC was in
existence defacto or not and further neither
the appellant nor any other person claiming
under CIBC or CIPBC had staked any
claim to the management of the respondent
no.1/society since 1970, hence their defacto
existence was seriously questionable. In
our view, these findings recorded by the
learned Single Judge have substance as the
aforesaid points are relevant for proper
adjudication of the case and the Deputy
Registrar has erred in not considering the
aforesaid fact. Thus, the learned Single
Judge has rightly remanded back the matter
to the Deputy Registrar to take a decision
afresh in the light of Section 4 and 4-B of
the Act, 1860 keeping in mind the
directions of the Apex Court in case of the
A.P. Aboobaker Vs. District Registrar
(G) Kozhikode and others : (2004) 11
SCC 247 and the observations made in the
body of the judgment subject to any order
or declaration by any court in favour of
appellant in a pending or fresh suit, if filed
by him or his associates.

80. The learned Single Judge has also
clarified that the discussions made in the
impugned judgment are only for the
purpose of adjudicating the validity of the
order of the Deputy Registrar and any
observations made shall be prejudice the
rights of the parties pending adjudication in
any proceedings before any Court. Thus,
the
plea
of
the
appellant
that
the
observation of the learned Single Judge that
the appellant was a stranger and if this
finding of the learned Single Judge is not
set-aside,
the
appellant
shall
suffer
irreparable loss in a pending issue, has no
substance and is also rejected.

(F) Conclusion

81. In view of the aforesaid
discussions, this Court is of the considered
opinion that there is no illegality or
infirmity in the impugned judgment and
order dated 28.05.2015 passed by the
learned Single Judge.

82. The intra Court appeal lacks merit
and is, accordingly, dismissed.
----------
(2022)07ILR A347
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.02.2022

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Writ A No. 24045 of 2020

Sunil Kumar Srivastava ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Vikas Singh

Counsel for the Respondent:
C.S.C.

A.
Service
Law
-
Uttar
Pradesh
Development
Authorities
Centralised
348 INDIAN LAW REPORTS ALLAHABAD SERIES
Services Rules, 1985 - Rule 33-challenge
to-adverse
entry-Increment
of
the
Petitioner
withheld-Petitioner
was
a
Junior Engineer-Charges leveled against
the
petitioner
against
two
other
employees were identical to the charges
leveled against the Petitioner-Petitioner's
reply to the charge sheet is almost
identical to that of other two employeesthe Petitioner has been discriminated in
the matter of imposition of penalty-Hence,
the Petitioner is entitled to parity-the
order passed by the Respondent cannot be
sustained.(Para 1 to 46)

B. The requirement of recording reasons
by
every
quasi
judicial
or
even
in
administrative authority entrusted with
the task of passing an order adversely
affecting an individual and communication
thereof to the affected person is one of
the recognized facets of the rules of
natural justice and violation thereof has
the effect of vitiating the order passed by
the authority concerned.(Para 35)

C. It is well settled 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
unrebutted evidence is sufficient to hold
that the charges are proved.(Para 26)

The writ petition is allowed. (E-6)

List of Cases cited:

1. St. of Uttaranchal & ors. Vs Kharak Singh
(2008) 8 SCC 236

2. Roop Singh Negi Vs PNB & ors. (2009) 2 SCC 570

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

4. Brij Bihari Singh Vs Bihar St. Finance Corp.
(2015) 17 SCC 541
(Delivered by Hon'ble Rakesh Srivastava, J.)

1. The order dated 04.08.2020 passed
by the State of Uttar Pradesh whereby one
increment of the Petitioner has been
withheld with cumulative effect and an
adverse entry has been ordered to be made
in his character roll is under challenge in
the present writ petition.

2. The Petitioner is a member of the Uttar
Pradesh
Development
Authorities
Centralised Services created under the
Uttar
Pradesh
Urban
Planning
and
Development Act, 1973. He was initially
appointed to the post of Junior Engineer on
08.08.1986 and was posted at Ghaziabad
Development Authority. From there he was
transferred to Allahabad Development
Authority. In the year 2005, he was
transferred
to
Lucknow
Development
Authority (for short the ''Authority'). It
appears that in the Gomti Nagar Extension
Scheme, under the River View Apartment
Phase-1, the Authority had constructed
1245 flats known as Ganga, Yamuna,
Saraswati,
Sharda
and
Vanasthali
Apartments through the agency of Larsen
& Toubro Limited. The construction of the
said Apartments was started in the year
2008 and was completed in October, 2011.
After almost three years thereafter, on
06.07.2014, the Chief Minister of the State
made a surprise inspection of the 'Saraswati
Apartments'. During his visit, the allottees
inter alia made a complaint regarding water
logging in the basement of the Apartment.
In this regard the 'River View Jan Kalyan
Samiti', an association of the residents of
the River View Apartments also submitted
a representation to the District Magistrate,
Lucknow.

3. On 06.07.2014, the then Vice Chairman
of the Authority submitted a report to the
7 All. Sunil Kumar Srivastava Vs. State of U.P.
349
Principal Secretary to the Chief Minister. In
his report, the Vice Chairman stated that at
the time of inspection on 06.07.2014 the
water logging in the basement of the
Apartment was on account of the faulty
construction carried out by the construction
agency. It was also stated that engineers
namely, S.N. Tripathi, R.N. Singh, D.S.
Chauhan and Kailash Singh continued to
remain in the said project from the time the
construction started till the time of its
completion. On 16.07.2014, the Vice
Chairman again submitted a report in
which it was reiterated that water logging
in the basement was due to the defective
design and certain short comings in the
construction work carried out by the
construction agency. The name of the Vice
Chairman, Secretaries and the engineers
who were posted in the said project was
also mentioned. The name of engineers and
the duration of their posting in the said
project as indicated in the said letter is
extracted below: -

Dze
vfHk;Urk

dk
uke
fnukad
1Jh
,l0,u0
f=ikBh]
eq[;
vfHk;ark
27-05-2009 ls 21-11-2011

2Jh
vkj0,u0
flag]
vf/k0
vfHk;Urk
27-05-2009 ls 21-11-2011
3Jh
Mh0,l0
pkSgku]
lgk;d
vfHk;ark
27-05-2009 ls 21-11-2011
4Jh
dSYkk'k
flag]
voj
vfHk;ark
27-05-2009 ls 21-11-2011
5Jh
lquhy
JhokLro]
voj
vfHk;ark
27-05-2009 ls 16-05-2011

4. On the basis of the information
furnished by the Vice Chairman of the
Authority, the State Government vide letter
dated
23.07.2014
instituted
disciplinary
proceedings against S.N. Tripathi (Retd.), the
then Chief Engineer, R.N. Singh, the then
Executive Engineer, Dhirendra Singh Chauhan,
Assistant Engineer, Kailash Singh, Junior
Engineer and the Petitioner. The Commissioner,
Lucknow Division, Lucknow was appointed as
Inquiry Officer. On 23.07.2014, the Petitioner
was placed under suspension in contemplation
of a departmental inquiry.

5. On 13.10.2014, a charge-sheet dated
24.09.2014, containing three charges, was
served upon the Petitioner. The relevant portion
of the charge-sheet dated 24.09.2014 is
extracted below: -

"vkjksi la[;k&1

 vkids }kjk xkserh uxj fOkLrkj ;kstuk ds
vUrxZr fjoj O;w vikVZesUV Qst&1 ds ljLorh
vikVZesUV dk fuekZ.k djk;k x;k FkkA ek0 eq[;ea=h
th }kjk fnukad 06-07-2014 dks fd;s x;s vkdfLed
fujh{k.k ds le; Hkouksa ds csLkesUV esa fLFkr ikfdZax
,fj;k es ty Hkjko ik;k x;k] ftldk eq[; dkj.k
cslesUV dh nhokjksa ,oa Nrksa esa gks jgs ty fjlko rFkk
csLkesUV esa rhu eksVj@iEi] tks fd fuf'pr LFkku ij
LFkkfir fd;s tkus Fks] le; jgrs ugha fd;s x;sA
QYkLo:i ty Hkjko dh leL;k ls vkoafV;ksa dks
dfBukbZ dk lkeuk djuk iM+k] ftlds dkj.k
izkf/kdj.k dh tulkekU; esa Nfo /kwfey gqbZ] ftlds
fy, vki nks"kh gSA

 mDr vkjksi ds leFkZu esa fuEufyf[kr lk{;
iBuh; gS%&

1- ek0 eq[;ea=h th dks lEcksf/kr fjoj O;w tu
dY;k.k lfefr ds izR;kosnu fnukad 06-07-2014 dh
izfrA

2- ftykf/kdkjh] y[kuÅ dh cSBd fnukad 1208-2014 dk dk;Zo`RRkA

vkjksi la[;k&2

 xkserh uxj foLrkj ;kstuk ds vUrxZr fjoj
O;w vikVZesUV Qst&1 ds ljLorh vikVZesUV ds
vkoafV;ksa dks dCtk fn;s tkus ls iwoZ voj vfHk;Urk ds
:i esa vkidk ;g nkf;Ro Fkk fd lhoj fudklh dh
leqfpr O;oLFkk gsrq dk;Zokgh dh tk;sA LFky ij
vkoafV;ksa dks dCtk fn;s tkus ls iwoZ ;g O;oLFkk
lqfuf'pr u gksus ds QyLo:i vkoafV;ksa dks lhoj
cSd¶yks ds :i esa cslesUV ds ty Hkjko dk lkeuk
djuk iM+k] ftlds dkj.k tulkekU; esa izkf/kdj.k dh
Nfo /kwfey gqbZ ftlds fy, vki nks"kh gSA
350 INDIAN LAW REPORTS ALLAHABAD SERIES

 mDr vkjksi ds leFkZu esa fuEufyf[kr lk{;
iBuh; gS%&

1- ek0 eq[;ea=h th dks lEcksf/kr fjoj O;w tu
dY;k.k lfefr ds izR;kosnu fnukad 06-07-2014 dh
izfrA

2- ftykf/kdkjh] y[kuÅ dh cSBd fnukad 1208-2014 dk dk;Zo`RRkA

vkjksi la[;k&3

xkserh uxj foLrkj ;kstuk ds vUrxZr fjoj O;w
vikVZesUV Qst&1 ds ljLorh vikVZesUV ds vkoafV;ksa
}kjk f'kdk;r dh x;h fd txg&txg cslesUV dh
nhokjksa ,oa Nrksa ij ØSDl n`f"Vxkspj gq, gS ftlls
ty fjlko gqvk gSA blds vfrfjDr ldqZys'ku ,fj;k
esa fd;s x;s dk;ksZa esa vleku

1- ek0 eq[;ea=h th dks lEcksf/kr fjoj O;w tu
dY;k.k lfefr ds izR;kosnu fnukad 06-07-2014 dh
izfrA

 2- ftykf/kdkjh] y[kuÅ dh cSBd fnukad
12-08-2014 dk dk;Zo`RRkA"

6. On 22.10.2014, the Petitioner
submitted a detailed reply to the chargesheet denying the charges levelled against
him. On 12.01.2015, the Petitioner as
well as R.N. Singh, Dhirendra Singh
Chauhan
and
 Kailash
Singh
were
summoned by the Inquiry Officer. The
Inquiry Officer put some questions to the
Petitioner and secured his answers to the
same. Thereafter, the Petitioner was
asked to leave.

7. The record reveals that the
Inquiry Officer submitted a separate
report
dated
08.06.2015
to
the
Disciplinary Authority with regard to
R.N.
Singh
and
D.S.
Chauhan
exonerating them of the charges levelled
against them. The said report was not
accepted by the State Government and by
an order dated 20.08.2015, the Housing
Commissioner, U.P. Awas and Vikas
Parishad was directed to hold an inquiry
with regard to two issues (a) how did the
water get into the basement and (b) the
engineers who failed to install pumps of
adequate capacity. The relevant portion of
the order dated 20.08.2015 is reproduced
below: -

^^3- vk;qDr] y[kuÅ e.My] y[kuÅ }kjk
vius i= fnukad 08 twu] 2015 ds lkFk Jh
vkj0,u0flag]
rRdkyhu
vf/k'kklh
vfHk;Urk
1⁄4flfoy1⁄2 lEizfr eq[; vfHk;Urk 1⁄4flfoy1⁄2 ,oa Jh
Mh0,l0pkSgku] lgk;d vfHk;Urk 1⁄4flfoy1⁄2 ds
lEcU/k esa tkap vk[;k miyC/k djkbZ xbZA vk;qDr
}kjk miyC/k djkbZ tkap vk[;k esa mDr nksuks
vfHk;Urkvksa ds fOk:) yxk;s x;s vkjksi fln~/k ugha
ik;s x;sA mDr tkap vk[;k ds vk/kkj ij fu.kZ;
ysus gsrq i=koyh ek0 eq[;ea=h th dks izLrqr dh
x;hA

4- bl lEcU/k esa eq>s ;g dgus dk funs'k
gqvk gS fd mDr ds lEcU/k esa ek0 eq[;ea=h th
}kjk ;g tkudkjh pkgh xbZ gS fd cslesaV esa ikuh
dSls vk;k vkSj blds fy, i;kZIr {kerk ds iEi u
yxk;s tkus gsrq ftEesnkjh lEcfU/kr vfHk;Urkvksa dh
gSA ek0 eq[;ea=h th }kjk iwjs izdj.k dh iqu% tkap
dj ftEEksnkjh fu/kkZfjr djrs gq;s izLrko miyC/k
djk;s tkus ds vkns'k fn;s x;s gSaA vr% d`i;k
rn~uqlkj iw.kZ izdj.k dh iqu% tkap dj
vk[;k@izLrko 'kklu dks ,d lIrkg ds vUnj
fuf'pr :i ls miyC/k djkus dk d"V djsaA^^

 (emphasis supplied)

8. The Housing Commissioner after
holding an inquiry submitted his report
dated 09.02.2016. With regard to the first
issue M/s Kailash Singh, Junior Engineer,
Manoj
Kumar
Upadhyaya, Assistant
Engineer
and
Shri
Rohit
Khanna,
Executive Engineer were held responsible
and with regard to the second issue the
Housing
Commissioner
held
the
construction agency (Larsen & Toubro)
responsible. The two issues in regard to
which the inquiry was held by the Inquiry
Officer and the conclusion drawn by him
are extracted below: -

^^okafNr tkWp vk[;k ds lnHkZ esa nks fcUnq
fopkj.kh; gSa%&
7 All. Sunil Kumar Srivastava Vs. State of U.P.
351

1& cslesUV esa ikuh dSls vk;k\

2& blds fy;s i;kZIr {kerk ds iEi yxk;s tkus
gsrq ftEesnkjh lEcfU/kr vfHk;Urkvksa dh gSA^^

* * * * *

^^fcUnq la0&1

fu"d"kZ&

lfpo] y[kuÅ fodkl izkf/kdj.k }kjk vius i=
ds fcUnq la0&13 esa Li"V :i ls mYYks[k fd;k x;k gS
fd ikbZiksa dh yhdst Bhd djkus dk dk;Z esllZ
,y0,.MVh0 fy0 }kjk gh djk;k tkuk FkkA ifjlj dh
lqj{kk ,oa vuqj{k.k gsrq izkf/kdj.k }kjk rSukr QeZ dks
ek= flD;ksfjVh xkMZ] lk/kkj.k lQkbZ] tykiwfrZ
O;oLFkk ,oa Mh0th0 lsV ds lapkyu vkfn dk dk;Z gh
djk;k tkuk FkkA ifjlj dks esllZ ,y0,.MVh0 fy0
}kjk izkf/kdj.k dks gLrkUrfjr u fd;s tkus ds dkj.k
fuekZ.k dk;ksZa lEcU/kh esUVhusUl dk dk;Z esllZ
,y0,.MVh0 fy0 }kjk gh djk;k tk jgk FkkA i= esa
miyC/k djk;s x;s layXud&6 esa vuqj{k.k gsrq esllZ
,y0,.MVh0 fy0 }kjk miyC/k djk;s x;s foLr`r
izksxzke esa MfDVax Dyksaftx] okVj izwfQax ,oa cksj iSafdx
gsrq fnukad 05-09-2014 dh frfFk izLrkfor dh x;h Fkh]
ftlls Li"V gS fd mDRk dk;Z esllZ ,y0,.MVh0 fy0
}kjk djk;k tkuk FkkA ijUrq ;Fkkle; mDr dk;Z
lEikfnr u djus ,oa vuqj{k.k ij mfpr /;ku u nsus
ds fy;s esllZ ,y0,.MVh0 fy0 mRRkjnk;h gSA
vfHkys[kksa ls ;g Li"V gS fd cslesUV esa ikuh dqN
LFkkuksa ij lhist@yhdst rFkk cslesUV esa yxs gq;s
lhoj ds ih0oh0lh0 ikbi esa dqN LFkkuksa esa yhdst
gksus ds dkj.k HkjkA ;fn vuqj{k.k gsrq rSukr izkf/kdj.k
LVkQ }kjk Hkh bl ij /;ku fn;k tkrk vkSj rRle;
gh mDr dk;Z ds fy, mRRkjnk;h QeZ 1⁄4eSllZ
,y0,.MVh fy01⁄2 dks crk;k tkrk rks dnkfpr ;g
fLFkfr mRiUu ugha gksrhA vLrq vuqj{k.k ds dk;Z gsrq
ns[kjs[k dh ftEEksnkjh izkf/kdj.k ds lEcfU/kr
vf/kdkfj;ksa }kjk leqfpr izdkj ls ugha fuHkk;h x;h]
ftlds fy, vuqj{k.k gsrq RkRle; rSukr Jh dSyk'k
flag] voj vfHk;Urk] Jh eukst dqekj mik/;k;]
lgk;d vfHk;Urk ,oa Jh jksfgr [kUuk] vf/k'kklh
vfHk;Urk Hkh vkaf'kd :i ls mRRkjnk;h izrhr gksrs
gSaA^^^

* * *
* *

^^fcUnq la0&2

fu"d"kZ&
fnukad 25-08-2015 dks v/kksgLrk{kjh ds fujh{k.k ds le;
;g ik;k x;k fd cslesUV ds ikuh dh fudklh gsrq
fofHkUu LFkkuksa ij MDV cuk;s x;s gSa ftuesa iEi LFkkfir
dj ikuh ckgj fudkyk tkuk FkkA lfpo] y[kuÅ
fodkl izkf/kdj.k }kjk miyC/k djk;h x;h lwpuk esa
mYYks[k fd;k x;k gS fd fujh{k.k ds le; 0-5 ,p0ih0
ds 03 iEi yxs Fks] ftUgsa gVkdj orZeku esa 2-5 ,p0ih0
ds 03 iEi esLklZ ,y0,.MVh0 fy0 }kjk yxk;s x;s gSaA
vfHkys[kksa ds ifj'khyu ls ;g Li"V gS fd fuekZ.k laLFkk
}kjk laLFkkfir fd;s tkus okys iEiksa dh {kerk ds lUnHkZ
esa dksbZ ifjdYiuk Lohd`r ugh djk;h x;h gS orZeku esa
,y0,.MVh0 }kjk cslesUV esa vkus okys cjlkrh ikuh ds
lEcU/k esa ,d vgLrk{kfjr x.kuk lhV miyC/k djk;h
x;h gS] ftlesa rhu ,y0ih0,l0 fMLpktZ dks 10 ehVj
gsM ds lkFk iEi fMtkbu fd;s tkus dk mYYks[k fd;k
x;k gS] ijUrq iEi dh {kerk gsrq dksbZ x.kuk ugha dh
x;h gSA ,y0,.MVh0 }kjk miyC/k djk;s x;s mfYYkf[kr
MsVk ds vk/kkj ij rhu ,y0ih0,l0 fMLpktZ ds lkFk 10
ehVj gsM ds lkFk ifEiax gsrq iEi dh {kerk gsrq ifj"kn
Lrj ls x.kuk djk;h x;h gS] ftlesa izR;sd lEi gsrq 0-5
gklZ ikoj dh {kerk dk iEi yxk;k tkuk mfpr ik;k
x;k gS ftlls Li"V gS fd ek= cjlkrh ikuh vkus ij
0-5 gklZ ikoj ds iwoZ LFkkfir iEi ikuh fudklh gsrq
i;kZIr Fks] ijUrq muds fdz;k'khy u gksus ,oa vU; ek/;eksa
ls cslesUV esa ikuh vkus ds dkj.k ty Hkjko dh fLFkfr
mRiUu gqbZA pwafd ikuh fudklh ls LkEcfU/kr vuqj{k.k dk
nkf;Ro ,y0,.MVh0 dk gh FkkA vr% ty Hkjko dh
fLFkfr gsrq izFke n`"V;k fuekZ.kdrkZ QeZ esllZ
,y0,.MVh0 fy0 nks"kh izrhr gksrh gSaA^^^
 (emphasis supplied)

9. On 09.06.2016, the Petitioner was
served with a show cause notice dated
16.05.2016 along with a copy of the inquiry
report dated 04.09.2015. In his report, the
Inquiry Officer found Charges 1 and 2 proved
and Charge 3 was found to be partly proved
against the Petitioner.

10. On 23.06.2016, the Petitioner
submitted his reply to the show cause notice
dated
16.05.2016.
On
12.03.2019,
in
connection with the show cause notice, the
State Government called the Petitioner for
personal
hearing.
On
12.03.2019,
the
Petitioner again submitted a representation.
Thereafter, the order impugned in the present
writ petition was passed.

11. Shri Vikas Singh, learned counsel
for the Petitioner has raised the following
four contentions:
352 INDIAN LAW REPORTS ALLAHABAD SERIES

a. No oral enquiry, whatsoever, was
held against the Petitioner.

b. Copies of the documents relied
upon by the Inquiry Officer in his inquiry
report were not supplied to the Petitioner.

c. The order impugned is a nonspeaking order and cannot be sustained.

d.
The
Petitioner
has
been
discriminated in the matter of punishment
inasmuch as for the same charge the other
officers have been exonerated whereas the
Petitioner has been punished.

12. Shri Ajay Kumar Singh, learned
Additional Chief Standing Counsel appearing
for the State-Respondent has supported the
impugned order.

13. Heard the learned counsel for the
parties and perused the record.

14. The service condition of the
Petitioner is governed by the Uttar Pradesh
Development
Authorities
Centralised
Services Rules, 1985. As per Rule 33 of the
said Rules, the rules regarding disciplinary
proceedings, appeals and representations
against punishments, as are applicable to the
Government Servants apply to the officers
and other employees of the service, subject to
such modifications as the Government may
make from time to time.

15. In exercise of the power conferred
by the proviso to Article 309 of the
Constitution, the Rules known as the Uttar
Pradesh Government Servant (Discipline and
Appeal) Rules, 1999 (for brevity ''the Rules'),
have been framed by the Government of
Uttar Pradesh. The Rules prescribe the
detailed procedure to be followed in the
matters of enforcing discipline and imposing
penalty/punishment
against
Government
servants and in appeals in case of proven
misconduct.

16. Rule 3 of the Rules specifies the
minor and major penalties which can be
imposed
on
a
Government
servant.
Withholding of increments with cumulative
effect is one of the major penalties which can
be inflicted upon a Government servant.

17. The procedure and the manner in
which an inquiry has to be conducted
before imposing any major penalty on a
Government servant 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 charge-sheet, 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
7 All. Sunil Kumar Srivastava Vs. State of U.P.
353
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)

18. 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.

19. With regard to the first contention,
it is alleged that after the Petitioner
submitted his reply to the charge-sheet, the
Petitioner, alongwith R.N. Singh, D.S.
Chauhan and Kailash Singh was summoned
by the Inquiry Officer on 12.01.2015. The
Inquiry Officer put some questions to the
Petitioner, and after obtaining his answers
to the same, the Petitioner was asked to
leave. In Paragraph 12 of the writ petition,
the Petitioner has categorically stated that
no oral inquiry, whatsoever, was held by
the Inquiry Officer against the Petitioner;
no evidence was led by the Respondents
and the charges were not proved. The
Respondent's Reply to the above assertions
can be found in Paragraph 15 of the counter
affidavit. Paragraph 12 of the writ petition
and Paragraph 15 of the counter affidavit
are being reproduced below for ready
reference: -

PARAGRAPH 12 OF THE WRIT
PETITION

"12. That the petitioner begs to submit
that after submission of reply to the chargesheet denying the charges by the delinquent
officer, it is the obligation upon the inquiry
officer before calling the delinquent officer
to prove his innocence to ask the
department to prove the charges against the
delinquent and thereafter the delinquent be
given an opportunity to rebut the same in
order to prove his innocence and any
departure from this requirement is in
violation of the principle of the natural
justice. In the present case, the inquiry
officer never fixed any date for the
department to prove the charges levelled
against the petitioner or any of the three
officers mentioned above. For the first
time, after submission of the reply of the
petitioner on 22.10.2014 to the chargesheet dated 04.10.2014, the inquiry officer
summoned on 12.01.2015 not only the
petitioner but also three other officers
namely S/Shri R.N. Singh Executive
Engineer, D.S. Chauhan Assistant Engineer,
Kailash
Singh
Junior
Engineer
for
conducting inquiry and on 12.01.2015, only
the petitioner along with three above
mentioned chargesheeted officers were
present before the inquiry officer but no
354 INDIAN LAW REPORTS ALLAHABAD SERIES
one on behalf of the department was
present on that date before the inquiry
officer to prove the charges against the
petitioner on the basis of only two
documentary evidence in support of the
above charges. Except on 12.01.2015, no
other date was fixed by the inquiry officer
to hold inquiry in respect of the chargesheet
dated 04.10.2014 by the inquiry officer
against the petitioner."

 (emphasis supplied)

PARAGRAPH
15
OF
THE
COUNTER AFFIDAVIT

"15. That the contents of paragraphs 8
to 18 of the writ petition needs no
comments.

20. Thus, it is not in dispute that no
oral inquiry, as provided in sub-rule (vii) of
Rule 7 of the Rules, was held by the
Inquiry Officer.

21. 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.

22. 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.
Paragraphs
15
(relevant
portion) and 17 of the said report are 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.

* * *

17. On the other hand, one Mr P.C.
Lohani, Dy. Divisional Forest Officer,
Nandhaur acting as an enquiry officer after
putting certain questions and securing
answers submitted a report on 16-11-1985.
No witnesses were examined. Apparently
there was not even a presenting officer. A
perusal of the report shows that the
enquiry officer himself inspected the areas
in the forest and after taking note of
certain alleged deficiencies secured some
answers from the delinquent by putting
some questions. It is clear that the enquiry
officer
himself
has
acted
as
the
investigator, prosecutor and judge. Such a
procedure is opposed to principles of
natural justice and has been frowned upon
by this Court."

 (emphasis supplied)

23. 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: -
7 All. Sunil Kumar Srivastava Vs. State of U.P.
355

"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.
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)

24. 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: -

"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 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.

28. An inquiry officer acting in a
quasi-judicial authority is in the position of
an independent adjudicator. He is not
supposed to be a representative of the
department/
disciplinary
authority/
Government. His function is to examine the
evidence presented by the Department,
even in the absence of the delinquent
official to see as to whether the unrebutted
evidence is sufficient to hold that the
charges are proved."

 (emphasis supplied)

25. In Brij Bihari Singh v. Bihar State
Financial Corpn., (2015) 17 SCC 541 the
Apex Court observed as under: -

''9. It is well settled that a person who
is required to answer a charge imposed
356 INDIAN LAW REPORTS ALLAHABAD SERIES
should know not only the accusation but
also the testimony by which the accusation
is supported. The delinquent must be given
fair chance to hear the evidence in support
of the charge and to cross-examine the
witnesses who prove the charge. The
delinquent must also be given a chance to
rebut the evidence led against him. A
departure from this requirement violates the
principles of natural justice. Furthermore,
the materials brought on record pointing
out the guilt are required to be proved. If
the enquiry report is based on merely ipse
dixit and also conjecture and surmises, it
cannot be sustained in law.'

(emphasis supplied)

26. Thus, it is well settled 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
unrebutted evidence is sufficient to hold
that the charges are proved.

27. A perusal of the charge-sheet
would show that all the three charges are
based on the alleged complaint dated
06.07.2014 of the Jan Kalyan Samiti
addressed to the Chief Minister and the
proceeding
of
the
meeting
dated
12.08.2014. Admittedly, the Petitioner had
given a detailed reply to the charge-sheet
denying the charges levelled against him.
However, the Inquiry Officer did not hold
any oral inquiry and has given his report
only on the basis of the reply submitted by
the Petitioner. 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 Governmnet
servant, who shall then be given an
opportunity to cross-examine such witness.
In the present case the aforesaid procedure
has not been observed. Since no oral
evidence
has
been
examined,
the
documents cannot be said to have been
proved, and could not have been relied
upon to hold the Petitioner guilty in the
matter. In the absence of any oral inquiry,
no amount of reasoning given by the
Inquiry Officer is going to validate the
proceeding. In view of the above, this
Court is constrained to hold that the inquiry
proceedings
stands
vitiated
for
not
following the mandatory provisions of subrule (vii) of Rule 7 of the Rules.

28. The second contention of the
learned counsel for the Petitioner also has
merit. As already mentioned above, the
Petitioner was summoned by the Inquiry
Officer on 12.01.2015. On the said date,
after eliciting the Petitioner's reply to the
questions put by the Inquiry Officer, no
further proceedings were held. A perusal of
the
inquiry
report
shows
that
after
12.01.2015, the Inquiry Officer entered into
correspondence with the Vice Chairman of
the Authority and thereafter submitted his
report after taking into account the
information
furnished
by
the
Vice
Chairman. The relevant portion of the
inquiry report, to which attention of this
Court was drawn by the learned counsel for
the Petitioner, is extracted below: -

"3- vipkjh voj vfHk;Urk }kjk fnukad 22-102014 dks vfHkys[kh; lk{;ksa lfgr vkjksi&i= dk
mRRkj izLrqr fd;k x;kA rRi'pkr~ vipkjh voj
vfHk;Urk dks fnukad 12-01-2015 dks O;fDrxr lquokbZ
dk volj iznku fd;k x;kA fnukad 12-01-2015 dks
O;fDrxr lquokbZ ds le; vipkjh voj vfHk;Urk
7 All. Sunil Kumar Srivastava Vs. State of U.P.
357
}kjk mDRk vkjksiksa ds lEcU/k esa viuk Vafdr vfHkdFku
Hkh izLrqr fd;k x;kA

4- lfpo] y[kuÅ fodkl izkf/kdj.k dks bl
dk;kZy; ds i= la[;k&1280@28&79 1⁄42013&20141⁄2
fnukad 13-01-2015 }kjk fuEufyf[kr fcUnqvksa ij
vk[;k dh vis{kk dh x;h%&

 1 to 7 omitted

rRi'pkr~
vuqLekjd
i=
la[;k&1344@28&791⁄42013&20141⁄2 fnukad 15-01-2015
}kjk mDr foHkkxh; dk;Zokgh ls lEcfU/kr fuEufyf[kr
fcUnqvksa ij foLr`r lwpuk ,oa lqlaxr vfHkys[k miyC/k
djk;s tkus dh vis{kk dh x;h%&

 1 to 5 omitted

5- lfpo] y[kuÅ fodkl izkf/kdj.k] y[kuÅ
ds i= la[;k&797bZbZ@II] fnukad 14-01-2015 }kjk
fuEufyf[kr vk[;k ,oa blls lEcfU/kr vfHkys[kksa dh
Nk;kizfr;ka miyC/k djk;h x;h%&

 1 to 7 omitted

6& rRi'pkr~ lfpo] y[kuÅ fodkl izkf/kdj.k]
y[kuÅ ds i= la[;k&833@,,2&3@15] fnukad 2801-2015 }kjk mDRk fcUnqvksa ds lEcU/k esa fuEukuqlkj
vk[;k ,oa blls lEcfU/kr dfri; vfHkys[kksa dh
Nk;kizfr;k¡ miyC/k djk;h x;h%&

 1 to 3 omitted

vipkjh voj vfHk;Urk }kjk izLrqr fd;s x;s
mRrj& Li"Vhdj.k rFkk i=koyh ij vfHkys[kh; lk{;ksa
ds vk/kkj ij vkjksiokj foLr`r tkWp vk[;k fUkEuor~
gS%&

omitted

 (emphasis supplied)
* * * *

29. The supply of copies of the
documents sought to be relied upon by the
authorities to prove the charges levelled
against
a
Government
servant
are
necessarily required to be provided to the
delinquent employee. The Apex Court,
through numerous judgments, has clearly
laid down the rationale for the rule. The
proposition of law that a Government
employee facing a departmental enquiry is
entitled to all the relevant statements,
documents and other materials to enable
him to have a reasonable opportunity to
defend himself in the departmental enquiry
against the charges is too well established
to need any further reiteration. In Kashinath
Dikshita v. Union of India, (1986) 3 SCC
229, the importance of access to relevant
documents which are to be used against the
Government servant was explained. It was
held that access to such documents is
necessary for the Government servant to
effectively meet the charges against him. In
the said case, the enquiry proceedings had
been challenged on the ground that nonsupply of the statements of the witnesses
and copies of the documents had resulted in
the breach of rules of natural justice. The
appellant therein had requested for supply
of the copies of the documents as well as
the statements of the witnesses at the
preliminary enquiry. The request made by
the appellant was turned down by the
disciplinary authority. The Apex Court
observed as follows: -

"10. ... When a government servant is
facing a disciplinary proceeding, he is
entitled to be afforded a reasonable
opportunity to meet the charges against him
in an effective manner. And no one facing a
departmental enquiry can effectively meet
the charges unless the copies of the relevant
statements and documents to be used
against him are made available to him. In
the absence of such copies, how can the
concerned employee prepare his defence,
cross-examine the witnesses, and point out
the inconsistencies with a view to show that
the allegations are incredible?"

 (emphasis supplied)

30. In the case at hand, the Inquiry
Officer has, admittedly, taken into account
a large number of documentary evidences
furnished by the Authority behind the back
of the Petitioner and utilised them against
the Petitioner, but copies thereof were
never supplied to the Petitioner. Thus the
358 INDIAN LAW REPORTS ALLAHABAD SERIES
Petitioner was denied an opportunity to
make an effective representation against the
charges levelled against him. In these
circumstances, the inquiry proceeding,
which has been held in violation of the
principles of natural justice stands vitiated.

31. This brings this Court to the third
submission of the learned counsel for the
Petitioner. The impugned order has been
assailed on the ground of the same being a
non-speaking order.

32. In the impugned order, the State
Government has stated some facts and
extracted the charges levelled against the
Petitioner, the reply submitted by the
Petitioner 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 Petitioner, the
findings recorded by the Inquiry Officer
have been upheld by a cryptic order. The
relevant portion of the order pertaining to
Charge 1 is extracted below: -

^^ekSf[kd lquokbZ fnukad 12-03-2019 dks Jh
JhokLro }kjk ekSf[kd dFkuksa ds vfrfjDr fyf[kr
foospu Hkh miyC/k djk;k x;kA lquokbZ ds nkSjku
mDr vfHk;Urkvksa }kjk fyf[kr :i ls miyC/k djk;s
x;s fooj.k esa] blh izdj.k esa vUrxzZLr vU; vfHk;Urk
Jh vkj0,u0flag] rRdkyhu vf/k'kklh vfHk;Urk o Jh
ch0,l0 pkSgku rRdkyhu lgk;d vfHk;Urk ds fo:)
vf/kjksfir vkjksiksa ds lEcU/k esa tkap vf/kdkjh ds
vfHker dks mfYyf[kr djrs gq, Jh JhokLro }kjk
Lo;a dks vkjksiksa ls eqDr fd;s tkus dk mYYks[k fd;k
x;k gSA pwafd fdlh izdj.k esa voj vfHk;Urk] lgk;d
vfHk;Urk ,oa vf/k'kklh vfHk;Urk ds dk;Z ,oa nkf;Ro
fHkUu fHkUu izdkj ds gks ldrs gSa] vr,o mu ij
vf/kjksfir vkjksiksa ds lEcU/k esa tkap vf/kdkjh ds
fu"d"kZ fHkUu fHkUUk gks ldrs gSaA vr% Jh JhokLro
}kjk mu ij vf/kjksfir vkjksiksa ds lEcU/k esa dgs x;s
dFku ,oa Lo;a dks funksZ"k crk;k tkuk lehphu ugha
gSA^^

 (emphasis supplied)

Charges 2 and 3 have also been dealt
with in a similar manner.

33. The necessity of giving reasons by
a body or authority in support of its
decision has come up for consideration
before the Apex Court in several cases.

34. In Union of India v.