# Suresh Ram v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1868
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-05
- **Case number:** Service Single No. 32680 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-ram-v-state-of-u-p-ors-45074
- **Pages:** 10

## Headnote

Appeal) Rules, 1999 - assailing-orderdirecting re-enquiry-after a delay of 7
years-since finding produced by the
enquiry officer-no reasons assigned-only
stating "enquiry conducted in a cursory
manner"-does
not
suffice-explanation
required-also
assailing
charge
sheetsubmitted right after the order of reenquiry-to be quashed-as consequential
proceeding to an illegal order.

B. Held, I am of the considered opinion
that since the impugned office order
dated 22.7.2019 is nullity in the eyes of
law, therefore, it cannot be sustained, so
its consequential proceedings i.e. charge
sheet dated 2.8.2019 stand automatically
vitiated and is liable to be declared non
est in view of the legal maxim 'SUBLATO
FUNDAMENTO CADIT OPUS'.

Writ Petition allowed. (E-8)

List of cases cited: -

## Text

1 All. Smt. Dulari Devi & Ors. Union of India & Ors.
1869
the writ petition. Admittedly, production
in Gorakhpur Unit was suspended in 1990
and it has never been restored. 900 and
odd employees working in Gorakhpur Unit
have accepted VSS except petitioners. A
few senior level officers were retained at
Gorakhpur Unit for the purpose of
completion of winding up of Unit and their
retention for the said purpose cannot be
construed as if Unit has continued to run.

92. There is one more suggestion that
some officials have been employed in other
organizations. Here also, explanation has been
given by respondents in the supplementary
counter affidavit that Hindustan FCL was
looking for technical hands and they desired
particulars of technical staff sought to be
retrenched. After consideration, some of them
have been employed there. It is not the case of
absorption or re-employment of staff of FCIL
Unit at Gorakhpur in any other establishment
but a separate and independent employment
given by concerned Employer to some
technical staff whom they (employees) found
suitable for their purpose.

93. Respondents have categorically
said with respect to other staff that an
attempt was made but various different
establishments communicated that there was
no vacancy. Therefore, I do not propose to
enter into this aspect for the reason that I
have already held that petitioners, as a matter
of right, could not have claimed their
absorption or continued employment in
different independent establishments who
constitutes different employer in their own
rights and are under no obligation, either in
the statute or otherwise, to absorb or reemploy petitioners.

94. In the result, I find no merit in
the writ petition. Dismissed.
----------
(2020)1ILR 1868

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 32680 of 2019

Suresh Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Kaushlendra
Tewari,
Santosh
Kumar
Yadav

Counsel for the Respondents:
C.S.C.

A. U.P. Government Servant (Discipline &
Appeal) Rules, 1999 - assailing-orderdirecting re-enquiry-after a delay of 7
years-since finding produced by the
enquiry officer-no reasons assigned-only
stating "enquiry conducted in a cursory
manner"-does
not
suffice-explanation
required-also
assailing
charge
sheetsubmitted right after the order of reenquiry-to be quashed-as consequential
proceeding to an illegal order.

B. Held, I am of the considered opinion
that since the impugned office order
dated 22.7.2019 is nullity in the eyes of
law, therefore, it cannot be sustained, so
its consequential proceedings i.e. charge
sheet dated 2.8.2019 stand automatically
vitiated and is liable to be declared non
est in view of the legal maxim 'SUBLATO
FUNDAMENTO CADIT OPUS'.

Writ Petition allowed. (E-8)

List of cases cited: -

1. K. R. Deb V/s. the Collector of Central
Excise, Shillong AIR 1971 SC 1447
1870 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Union of India V/s. M. L. Capoor and others
AIR 1974 SC 87

3. Nand Kumar Verma vs. State of Jharkhand
and others (2012) 3 SCC 580

4. Vijay Shankar Pandey vs. Union of India and
another (2014) 10 SCC 589

5. Vijay Shankar Pandey v. Union of India and
another, (2014) 10 SCC 589

6. In Badrinath v. State of Tamil Nadu & others,
AIR 2000 SC 3243

7. State of Kerala v. Puthenkavu N.S.S.
Karayogam & Anr,, (2001) 10 SCC 191

8. Mangal Prasad Tamoli (dead) by Lrs. v.
Narvadeshwar Mishra (dead) by Lrs. & Ors.,
(2005) 3 SCC 422

9. In C. Albert Morris v. K. Chandrasekaran &
Ors, (2006) 1 SCC 228

10. Upen Chandra Gogoi vs. State of Assam &
Ors.,, (1998) 3 SCC 381

11. Satchidananda Misra v. State of Orissa &
Ors.(2004) 8 SCC 599

12. Regional Manager, SBI v. Rakesh Kumar
Tewari,, (2006) 1 SCC 530

13. Ritesh Tewari & Anr. v. State of U.P. & Ors.,
AIR 2010 SC 3823)

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

1. Heard Sri I.P. Singh, learned
Senior
Advocate,
assisted
by
Sri
Kaushlendra Tewari, learned counsel for
the petitioner and Sri Vishal Verma,
learned State counsel for the Staterespondents.

2. By means of this petition, the
petitioner has assailed the order dated
22.7.2019 (Annexure No.1 to the writ
petition) passed by the Principal Secretary,
Public Works Department, U.P., Lucknow
directing
for
re-enquiry
against
the
petitioner appointing enquiry officer. The
petitioner has also assailed the charge
sheet dated 2.8.2019 (Annexure No.2 to
the writ petition) whereby the petitioner
has been directed to file defence reply to
the charge sheet.

3. Learned counsel for the petitioner
has informed that the petitioner has not
filed defence reply to the charge sheet nor
the
departmental
enquiry
has
been
conducted as yet.

4. The question for consideration is
that as to whether the disciplinary
authority may direct for re-enquiry without
assigning reasons in writing in view of
Section 9 of the U.P. Government Servant
(Discipline
&
Appeal)
Rules,
1999
(hereinafter referred to as "Rules, 1999").

5. The next question to be considered
is as to whether the contention of
disciplinary authority that departmental
enquiry has been conducted 'in a cursory
manner' would suffice and shall be treated
sufficient reason in terms of Rule 9 of the
Rules, 1999.

6. The next question to be considered
is that if the disciplinary authority keeps
the findings of enquiry officer for
substantially long period and thereafter
directs
for
re-enquiry
saying
the
disciplinary enquiry has been conducted in
a cursory manner may be permissible in
the eyes of law.

7. As to whether the departmental
enquiry against an employee may be
conducted
serving
the
charge
sheet
pursuant to the order of re-enquiry being
issued by the disciplinary authority, if the
1 All. Suresh Ram Vs. State of U.P. & Ors.
1871
very order of re-enquiry is quashed by the
Court treating the same as nullity in the
eyes of law.

8. All the detailed facts are being
shorn off and admitted position is being
considered
for
adjudication
of
the
aforesaid facts.

9. The petitioner was initially appointed
on the post of Assistant Engineer on 23.2.1995
at
Construction
Division
Deoria.
On
11.11.2011, a departmental enquiry has been
initiated against the petitioner under Rule 7 of
the Rules, 1999. On 14.12.2011, charge sheet
has been provided to the petitioner. The
petitioner submitted his defence reply to the
charge sheet on 9.4.2012. Thereafter, the
departmental enquiry against the petitioner was
conducted strictly in accordance with law. The
enquiry officer has concluded the departmental
enquiry examining the charge, considering
defence reply of the petitioner, appreciating the
comments of presenting officer and making
thorough analysis of the evidences. The
aforesaid departmental enquiry was concluded
and the findings of the enquiry officer have
been produced before the disciplinary authority
on 26.10.2012.

10. Admittedly, since 26.10.2012, no
order has been passed by the disciplinary
authority till 22.7.2019 when the direction
for re-enquiry has been given by the
disciplinary authority. The disciplinary
authority took about seven years in taking
decision that the matter of the petitioner
should be re-enquired as the enquiry
officer has conducted the departmental
enquiry in a cursory manner.

11. Notably, no other reason has
been assigned in the impugned office order
dated 22.7.2019 directing for re-enquiry of
the issue of the petitioner except that the
enquiry in the matter of the petitioner has
been conducted in a cursory manner.

12. On 28.11.2019, direction has
been issued to the State counsel to seek
complete instructions in the matter fixing
the date for 5.12.2019. On 5.12.2019, the
State counsel has produced a letter dated
4.12.2019 preferred by one Sri Sanjai
Kumar Upadhyaya, Special Secretary,
Government of U.P. addressing to the
Chief Standing Counsel, High Court,
Lucknow Bench, Lucknow. The aforesaid
letter provides that since the disciplinary
authority was not agreeable with the
findings of the enquiry report, which was
made available on 26.10.2012, therefore,
direction for re-enquiry has been issued
and the Chief Engineer, Ayodhya Kshetra,
Ayodhya has been appointed enquiry
officer, who has issued charge sheet on
2.8.2019
and
re-enquiry
shall
be
conducted in the case of the petitioner.

13. Since the issue in question is
squarely covered with the judgment and
order dated 5.4.2016 passed in Writ-A
No.10552 of 2016, Dr. Atul Darbari Vs.
State of U.P. and others, whereby the
Division Bench has set aside the identical
order of re-enquiry and this Court
following the decision in re; Dr. Atul
Darbari (supra) decided one writ petition
bearing Service Single No.32015 of 2019,
Rajesh Chaudhary Vs. State of U.P. and
another, vide judgment and order dated
2.12.2019 allowing the writ petition
quashing the identical impugned order of
re-enquiry, therefore, the present writ
petition is being decided on the basis of
legal submissions so advanced by the
learned counsel for the parties.

14. Learned counsel for the parties
are agreeable that the matter may be
1872 INDIAN LAW REPORTS ALLAHABAD SERIES
decided at the admission stage considering
their respective legal arguments and
material available on record and made
available from the department.

15. Heard learned counsel for the
parties and perused the material available
on record.

16. For the brevity, the impugned
office order dated 22.7.2019 is being
reproduced herein below:-

"mRRkj izns'k 'kklu
yksd fuekZ.k vuqHkkx&13
la[;k&1886@23&13&19&121⁄481⁄2bZ,e@11
y[kuÅ % fnukad 22 tqykbZ] 2019
dk;kZy; vkns'k

Jh lqjs'k jke] RkRdkyhu lgk;d
vfHk;Urk] izkUrh; [k.M] yks0fu0fo0] tkSuiqj }kjk
mDr [k.M esa rSukr jgrs gq, vuqcU/k
la[;k&8@,l0bZ0@05&06] fnukad 7-11-2005 ds
vUrxZr yqfEcuh&nqn~/kh ekxZ ds pSust 228 ls
236-40 rd ds pkSM+hdj.k ,oa lqn`<+hdj.k ds
dk;Z eSa fuEu xszM dh fcVqfeu gsrq mPp nj ij
Hkqxrku djus] foHkkxh; LVksj ls LkLrh nj ij
lkexzh fuxZr djds Bsdsnkj dks :0 24-90 yk[k
dk vuqfpr ykHk fn;s tkus rFkk 'kklu dks
vkfFkZd {kfr igqWpk;sa tkus vkfn vfu;ferrkvksa
ds n`f"Vxr muds fo:) m0iz0 ljdkjh lsod
1⁄4vuq'kklu ,oa vihy1⁄2 fu;ekoyh] 1999 ds
fu;e&7
ds
vUrXkZr
dk;kZy;
Kki
la[;k&5701@23&13&11&121⁄481⁄2bZ,e@11 fnukad
11-11-2011 }kjk vuq'kklfud dk;Zokgh lafLFkr
djrs gq, eq[; vfHk;Urk 1⁄4e/; {ks=1⁄2] yks0fu0fo0
y[kuÅ dks tkWp vf/kdkjh fu;qDr fd;k x;k
FkkA

2& tkWp vf/kdkjh @eq[; vfHk;Urk
1⁄4e/; {ks=1⁄2] yks0fu0fo0 y[kuÅ ds i= fnukad
26-10-2012 }kjk tkWp vk[;k miyC/k djk;h
x;hA tkWp vf/kdkjh }kjk izLrqr tkWp vk[;k ds
ijh{k.kksijkUr ;g ik;k x;k fd tkWp vf/kdkjh
}kjk vipkjh vf/kdkjh ij yxk;s x;s vkjksi ,oa
mlds leFkZu esa yxk;s x;s lk{;ksa@vfHkys[kksa dk
xgurkiwoZd ijh{k.k u dj ljljh rkSj ij tkWp
dk;Zokgh lEiUu dj tkWp vk[;k miyC/k djk;h
x;h gSA vr% m0iz0 ljdkjh lsod 1⁄4vuq'kklu
,oa vihy1⁄2 fu;ekoyh] 1999 ds fu;e&91⁄411⁄2 ds
vUrxZr tkWp vf/kdkjh }kjk izLrqr tkWp vk[;k
fnukad 26-10-2012 ,rn~}kjk vLohdkj dh tkrh
gSA

3& bl lEcU/k esa lE;d~ fopkjksijkUr
Jh lqjs'k jke] rRdkyhu lgk;d vfHk;Urk]
izkUrh; [k.M] yks0fu0fo0] tkSuiqj ds fo:)
izpfyr
mDr
vuq'kklfud
dk;Zokgh
esa
vkjksi&i= dk mRRkj fn;s tkus ds Lrj ls iqu%
tkWp djus gsrq eq[; vfHk;Urk] v;ks/;k {ks=]
v;ks/;k dks tkWp vf/kdkjh ukfer fd;s tkus dk
vkns'k Jh jkT;iky ,rn~}kjk iznku djrs gSaA

vf/k'kklh vfHk;Urk] izkUrh; [k.M]
yks0fu0fo0 tkSuiqj izLrqrdrkZ vf/kdkjh gksaxsA

Jh jkT;iky dh vkKk ls]

fufru jes'k xksd.kZ
izeq[k lfpo

la[;k&18861⁄411⁄2@23&13&19
rn~fnukad

izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa
vko';d dk;Zokgh gsrq iszf"kr&

1- izeq[k vfHk;Urk 1⁄4fodkl1⁄2 ,oa
foHkkxk/;{k] yks0fu0fo0] m0iz0 y[kuÅA"

17. For the convenience, Rule 9 of
the Rules, 1999 is being reproduced herein
below:-

"9. Action on Inquiry Report. -
(1) The disciplinary authority may, for
reasons to be recorded in writing, remit
the case for re-inquiry to the same or any
other Inquiry Officer under intimation to
the charged Government servant. The
Inquiry Officer shall thereupon proceed to
hold the inquiry from such stage as
directed by the disciplinary authority,
according to the provisions of Rule 7. (2)
The disciplinary authority shall, if it
disagrees with the findings of the Inquiry
Officer on any charge, record its own
1 All. Suresh Ram Vs. State of U.P. & Ors.
1873
findings thereon for reasons to be
recorded.(3) In case the charges are not
proved, the charged Government servant
shall be exonerated by the disciplinary
authority of the charges and inform him
accordingly;(4)
If
the
disciplinary
authority having regard to its findings on
all or any of charges is of the opinion that
any penalty specified in Rule 3 should be
imposed on the charged Government
servant, he shall give a copy of the inquiry
report and his findings recorded under
sub-rule (2) to the charged Government
servant and require him to submit his
representation if he so desires, within a
reasonable specified time. The disciplinary
authority shall, having regard to all the
relevant records relating to the inquiry
and
representation
of
the
charged
Government servant, if any, and subject to
the provisions of Rule 16 of these rules,
pass a reasoned order imposing one or
more penalties mentioned in Rule 3 of
these rules and communicate the same to
the charged Government servant."

18. Rule 9 (1) of the Rules, 1999
clearly mandates that the disciplinary
authority may, for the reasons to be
recorded in writing, remit the case for reenquiry to the same or any other enquiry
officer, meaning thereby if the disciplinary
authority remits the matter for re-enquiry,
reasons to that effect must be reduced in
writing. The impugned office order dated
22.7.2019 does not reveal any specific
reasons for remitting the case for reenquiry. Therefore, the office order dated
22.7.2019 is apparently in violation of
Rule 9 (1) of the Rules, 1999.

19. Since the Division Bench in re;
Dr. Atul Darbari (supra) has considered
the
identical
controversy
thoroughly,
therefore, paras 8, 13, 16, 17, 19, 20, 22,
23, 25, 27, 28 & 29 of the said judgment
are being reproduced herein below:-

"8. Be that as it may, the
question is whether the disciplinary
authority could have resorted to such a
practice
of
abandoning
the
Inquiry
already
undertaken
and
resort
to
appointment of a fresh enquiring officer.

13. The controversy in hand has
been subjected to detailed scrutiny by a
Constitution Bench of the Supreme Court in
K. R. Deb V/s. the Collector of Central
Excise, Shillong AIR 1971 SC 1447 in
which Hon'ble Apex Court has proceeded
to examine the question in the context of
Rule 15 (1) Rule 15(1) of the Central Civil
Services
(Classification,
Control
and
Appeal) Rules, 1957. It was a case where
an enquiry was ordered against a subInspector, Central Excise. The inquiry
officer held that the charge was not proved.
Thereafter
the
disciplinary
authority
appointed another inquiry officer "to
conduct a supplementary open inquiry".
Such supplementary inquiry was conducted
and a report that there was "no conclusive
proof" to "establish the charge" was made.
Not satisfied, the disciplinary authority
thought it fit that "another inquiry officer
should be appointed to inquire afresh into
the charge". In K.K. Deb's case (supra)
Hon'ble Supreme Court observed that an
Enquiry Officer may be asked by the
Disciplinary Authority to record further
evidence if there had been no proper
enquiry because of some serious defect or
because some important witnesses were not
examined. The Court categorically held
therein that the previous enquiry could not
be set aside on the ground that the report of
the Enquiry Officer did not appeal to the
disciplinary
Authority.
Relevant
paragraphs 12 and 13 of the judgement are
reproduced hereinafter:-
1874 INDIAN LAW REPORTS ALLAHABAD SERIES

"12. It seems to us that Rule 15,
on the face of it, really provides for one
inquiry but it may be possible if in a
particular case there has been no proper
enquiry because some serious defect has
crept into the inquiry or some important
witnesses were not available at the time of
the inquiry or for some other reason, the
Disciplinary Authority may ask the Inquiry
Officer to record further evidence. But
there is no provision in Rule 15 for
completely setting aside previous inquiries
on the ground that the report of the
Inquiring Officer or Officers does not
appeal to the Disciplinary Authority. The
Disciplinary Authority has enough powers
to reconsider the evidence itself and come
to its own conclusion under Rule 9.

13. In our view the rules do not
contemplate an action such as was taken
by the Collector on February 13, 1962. It
seems to us that the Collector, instead of
taking
responsibility
himself,
was
determined to get some officer to report
against the appellant. The procedure
adopted was not only not warranted by the
rules but was harassing to the appellant."

16. It appears that the respondent
no.1 dissatisfied with such earlier enquiry
reports, ordered a de novo enquiry under the
impugned
order
dated
4.2.2016
and
appointed Shri Rudra Kumar Gupta, Special
Secretary, Labour Department, Government
of UP as Enquiry Officer. This practice of the
respondent no.1 in carelessly and callously
discarding enquiry reports, which are not to
its liking and ordering for denovo enquiry
without even disclosing the reasons, which
weighed with it for rejecting the findings of
the previous enquiry Officer, is a clear
transgression of the law and requires to be
deprecated in the strongest terms.

17. In Union of India V/s. M. L.
Capoor and others AIR 1974 SC 87, the
Supreme Court observed:

"28. . . . Reasons are the links
between the materials on which certain
conclusions are based and the actual
conclusions. They disclose how the mind is
applied to the subject matter for a decision
whether it is purely administrative or
quasi-judicial. They should reveal a
rational
nexus
between
the
facts
considered and the conclusions reached.
Only in this way can opinions or decisions
recorded be shown to be manifestly just
and reasonable. . . . "

19. 'Reasons' are the milestones
which chart the journey of the 'decisionmaker'
in
reaching
his
destination.
Absence of reasons thus leaves the
decision-making process without a rudder
and open to arbitrariness. Viewed in this
light, the approach of respondent no.1 in
instituting denovo enquiry by appointing
Enquiry Officer afresh without even
setting aside the findings recorded by the
earlier
Enquiry
Officer,
giving
due
reasons therefore, is clearly unsustainable
in law.

20. In the present matter, it has
been urged that the impugned order is in
teeth of Rules 8 and 9 of Rules 1999. For
ready reference, Rules 8 and 9 of Rules
1999 are extracted:-

"8. Procedure
for
imposing
major penalties - (1) No order imposing
any of the major penalties specified in
Rule 6 shall be made except after an
inquiry is held as far as may be, in the
manner provided in this rule and Rule 10,
or, provided by the Public Servants
(Inquiries) Act, 1850 (37 of 1850) where
such inquiry is held under that Act.

(2) Whenever the disciplinary
authority is of the opinion that there are
grounds for inquiring into the truth of any
imputation of misconduct or misbehaviour
against a member of the Service, it may
appoint under this rule or under the
1 All. Suresh Ram Vs. State of U.P. & Ors.
1875
provisions
of
the
Public
Servants
(Inquiries) Act, 1850, as the case may be,
an authority to inquire into the truth
thereof.

(3) Where a Board is appointed
as the inquiring authority it shall consist
of not less than two senior officers
provided that at least one member of such
a Board shall be an officer of the service
to which the member of the service
belongs.

9. Action on Inquiry Report.--
(1) The Disciplinary Authority may, for
reasons to be recorded in writing, remit
the case for re-inquiry to the same or any
other Inquiry Officer under intimation tot
he charged Government servant. The
Inquiry Officer shall thereupon proceed to
hold the inquiry from such stage as
directed by the Disciplinary Authority,
according to the provisions of Rule 7.

(2) The Disciplinary Authority
shall, if it disagrees with the findings of
the Inquiry Officer on any charge, record
its own findings thereon for reasons to be
recorded.

(3) In case the charges are not
proved, the charged Government servant
shall be exonerated the Disciplinary
Authority of the charges and informed him
accordingly.

(4) If the Disciplinary Authority,
having regard to its findings on all or any
of charges is of the opinion that any
penalty specified in Rule 3 should be
imposed on the charged Government
servant, he shall give a copy of the inquiry
report and his findings recorded under
sub-rule (2) to the charged Government
servant and require him to submit his
representation if he so desires, within a
reasonable
specified
time.
The
Disciplinary
Authority
shall,
having
regard to all the relevant records relating
to the inquiry and representation of the
charged Government servant, if any, and
subject to the provisions of Rule 16 of
these rules, pass a reasoned speaking
order imposing one or more penalties
mentioned in Rule 3 of these rules and
communicate the same to the charged
Government servant."

22. Rule 9 prescribes action on
the enquiry report. Rule 9 (1) provides that
the
Disciplinary
Authority
may,
for
reasons to be recorded in writing, remit
the case for re-inquiry to the same or any
other Inquiry Officer under intimation to
the charged Government servant. The
Inquiry Officer shall thereupon proceed to
hold the inquiry from such stage as
directed by the Disciplinary Authority,
according to the provisions of Rule 7. Rule
9 (2) provides that the Disciplinary
Authority shall, if it disagrees with the
findings of the enquiry Inquiry Officer on
any charge, record its own findings
thereon for reasons to be recorded. Rule 9
(3) provides that in case the charges are
not proved, the charged Government
servant
shall
be
exonerated
the
Disciplinary Authority of the charges and
informed him accordingly. Rule 9 (4)
provides that If the Disciplinary Authority,
having regard to its finding on all or any
of charges is of the opinion that any
penalty specified in Rule 3 should be
imposed on the charged Government
Servant, he shall give a copy of the inquiry
report and his finding recorded under subrule (2) of Rule 9 to the charged
Government Servant and require him to
submit his representation if he so desires,
within a reasonable specified time. The
Disciplinary Authority shall having regard
to all the relevant records relating to the
inquiry and representation of the charged
Government Servant, if any, and subject to
the provisions of Rule 16 of these rules,
passes a reasoned order imposing one or
1876 INDIAN LAW REPORTS ALLAHABAD SERIES
more penalties mentioned in Rule 3 of
these and communicate the same to the
charged Government Servant.

23. It can be seen from the above
that the normal rule is that there can be
only one enquiry. Hon'ble Apex Court has
also recognized the possibility of a further
enquiry
in
certain
circumstances
enumerated
therein.
The
decision,
however, makes it clear that the fact, that
the report submitted by the enquiring
authority
is
not
acceptable
to
the
disciplinary authority, is not a ground for
completely setting aside the enquiry report
and ordering a fresh denovo enquiry.
Therefore, we are of the considered
opinion that the principle laid down in
K.R. Deb's case, would squarely apply to
the case in hand.

25. In our opinion, on general
principles, there can be only one enquiry
in respect of charges for a particular
misconduct and that is also what the Rules
usually provide. If, for some technical or
other
good
ground,
procedural
or
otherwise the first enquiry or punishment
or exoneration is found bad in law, there
is no principle that a second enquiry
cannot be initiated. Therefore, when a
completed enquiry proceedings is set aside
by a competent forum on a technical or on
the ground of procedural infirmity, fresh
proceedings on the same charges is
permissible.

27. A bare perusal of the order
impugned and the record in question this
much is accepted position that at no point
of time the disciplinary authority had
proceeded
to
give
any
reason
for
disagreeing with the earlier enquiry
reports in question. Therefore, in these
circumstances there is no justification for
conducting a second enquiry on the very
same charges. Law is clear on the subject,
and permits only disciplinary proceedings
and
same
cannot
be
approved
as
harassment and allowing such practice is
not in the interest of public service. Same
view has also been approved by Hon'ble
Apex Court in Nand Kumar Verma vs.
State of Jharkhand and others (2012) 3
SCC 580 and Vijay Shankar Pandey vs.
Union of India and another (2014) 10 SCC
589.
28. We, therefore, have no hesitation in
holding that the impugned order dated
4.2.2016 for denovo/ a fresh enquiry
against the petitioner on the same charges,
which were subject matter of the enquiry
reports dated 29.9.2014 and 14.10.2014,
is illegal and arbitrary; and hence, is
liable to be set aside. The impugned order
dated 4.2.2016 is consequently set aside.

29.
The
writ
petition
is
accordingly allowed and the respondent
no.1 is directed to take appropriate
decision in the light of the enquiry reports
dated 29.9.2014 and 14.10.2014 within a
period of two months from the date of
production of a certified copy of this order
before him. There shall be no order as to
costs."

20. So far as the term being used by
the disciplinary authority while directing
for re-enquiry that the enquiry officer has
conducted enquiry in a cursory manner,
the Hon'ble Apex Court in re; Vijay
Shankar Pandey v. Union of India and
another,
(2014)
10
SCC
589
has
interpreted the word 'cursory' in para-32.
Para 32 of the aforesaid judgment is being
reproduced herein below:-

"32. Coming to the first reasonthat the report is a cursory report. A copy
of the report is not made available to the
appellant. The content of the said report is
not known. The only admitted fact about
the report is that the appellant was
1 All. Suresh Ram Vs. State of U.P. & Ors.
1877
exonerated of all the charges made against
him. If such a conclusion is otherwise
justified, whether the report is cursory or
elaborate, should make no difference to
the legality of the report. What matters is
the
correctness
of
the
conclusions
recorded, not the length or the elegance of
the
language
of
the
report
which
determines the legality of the conclusions
recorded in it. Therefore, this ground is
equally untenable."

21. As per the Hon'ble Apex Court in
re; Vijay Shankar Pandey (supra) indicating
the word that enquiry officer has made
enquiry in a cursory manner would not
suffice but as to how the findings of the
enquiry officer are cursory should be
explained. In view of the aforesaid reason, the
Hon'ble Apex Court has disapproved using
the word 'cursory' without indicating the
reason as to how it was cursory.

22. Therefore, the impugned office
order dated 22.7.2019 is not in conformity
with Rule 9 (1) of the Rules, 1999 as no
reasons have been assigned and assigning
the reason that the enquiry in question has
been conducted in a cursory manner has
not been approved by the Hon'ble Apex
Court in re; Vijay Shankar Pandey
(supra), so I am of the considered opinion
that the office order dated 22.7.2019 is not
sustainable in the eyes of law.

23. I have also noted that the
disciplinary authority has not taken final
decision for about seven years after
receiving the findings of the enquiry
officer on 26.10.2012 without any cogent
reasons to that effect, therefore, such an
inordinate delay in taking final decision
after receiving the findings of enquiry
officer vitiates the entire purpose of
conducting re-enquiry.

24. Since I am of the considered
view that the impugned office order dated
22.7.2019 is non est in the eyes of law
being violative of Rule 9 (1) of the Rules,
1999, therefore, I also hold that the charge
sheet, which has been issued pursuant to
the office order dated 22.7.2019, is non est
in the eyes of law and no departmental
enquiry can be conducted against the
petitioner on the basis of the aforesaid
charge sheet in view of legal maxim
'SUBLATO FUNDAMENTO CADIT
OPUS'.

25. The Hon'ble Apex Court in re;
State of Punjab Vs. Davinder Pal Singh
Bhullar and others connected with
Sumedh Singh Saini Vs. Davinder Pal
Singh Bhullar and others, reported in
(2011) 14 SCC 770 has considered the
aforesaid maxim in paras-107 to 111,
which are being reproduced here-inbelow:-

"107. It is a settled legal
proposition that if initial action is not in
consonance with law, all subsequent and
consequential proceedings would fall
through for the reason that illegality
strikes at the root of the order. In such a
fact-situation, the legal maxim "sublato
fundamento cadit opus" meaning thereby
that
foundation
being
removed,
structure/work falls, comes into play and
applies on all scores in the present case.

108. In Badrinath v. State of
Tamil Nadu & others, AIR 2000 SC 3243;
and State of Kerala v. Puthenkavu N.S.S.
Karayogam & Anr,, (2001) 10 SCC 191,
this Court observed that once the basis of
a proceeding is gone, all consequential
acts, actions, orders would fall to the
ground automatically and this principle is
applicable to judicial, quasi-judicial and
administrative
proceedings
equally.
1878 INDIAN LAW REPORTS ALLAHABAD SERIES

109. Similarly in Mangal Prasad
Tamoli (dead) by Lrs. v. Narvadeshwar
Mishra (dead) by Lrs. & Ors., (2005) 3
SCC 422, this Court held that if an order
at the initial stage is bad in law, then all
further proceedings, consequent thereto,
will be non est and have to be necessarily
set aside.

110. In C. Albert Morris v. K.
Chandrasekaran & Ors, (2006) 1 SCC 228, this
Court held that a right in law exists only and only
when it has a lawful origin. (See also: Upen
Chandra Gogoi vs. State of Assam & Ors.,, (1998)
3 SCC 381; Satchidananda Misra v. State of
Orissa & Ors.,, (2004) 8 SCC 599; Regional
Manager, SBI v. Rakesh Kumar Tewari,, (2006) 1
SCC 530; and Ritesh Tewari & Anr. v. State of
U.P. & Ors., AIR 2010 SC 3823).

111. Thus, in view of the above,
we are of the considered opinion that the
orders impugned being a nullity, cannot be
sustained. As a consequence, subsequent
proceedings/ orders/ FIR/ investigation
stand automatically vitiated and are liable
to be declared non est."

26. In view of the aforesaid dictums
of the Hon'ble Apex Court considered in
re; Davinder Pal Singh Bhullar (supra), I
am of the considered opinion that since the
impugned office order dated 22.7.2019 is
nullity in the eyes of law, therefore, it
cannot be sustained, so its consequential
proceedings
i.e.
charge
sheet
dated
2.8.2019 stand automatically vitiated and
is liable to be declared non est in view of
the
legal
maxim
'SUBLATO
FUNDAMENTO CADIT OPUS'.

27. Accordingly, all the questions
have been answered in favour of the
petitioner.

28. A writ in the nature of certiorari
is issued quashing the office order dated
22.7.2019 passed by opposite party no.1,
which is contained in Annexure No.1 to
the writ petition and charge sheet dated
2.8.2019, which is contained in Annexure
No.2 to the writ petition.

29. A writ in the nature of mandamus
is issued commanding the opposite parties
to provide all consequential service
benefits, promotion, benefit of ACP etc.
with expedition, preferably within a period
of three months from the date of
production of certified copy of this order.

30. The writ petition is accordingly
allowed.
----------
(2020)1ILR 1877

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.01.2020

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 35429 of 2019

Avanindra Dikshit ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Neel Kamal Mishra

Counsel for the Respondents:
C.S.C.

A. U.P. Government Servant (Discipline
and Appeal) Rules, 1999 - Rule 4 -
suspension order is violative of Rule 4 -
petitioner
wrongly
applied
the
Government Order while providing the
benefit of revised pay scale to the Class
III employees of the department-major
punishment may not be given subject to
the
findings
of
enquiry
officer-the
suspension order is not sustainable in the
eyes of law-mandamus writ is issued to