# Sushil Kumar Shukla v. State of U.P. & Ors

- **Citation:** (2024) 8 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-13
- **Case number:** Writ-A No. 7138 of 2020
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-shukla-v-state-of-u-p-ors-52320
- **Pages:** 9

## Headnote

Law
-
U.P.
Government
Servant (Discipline and Appeal) Rules,
1999 - Rule 7 (vii) & (viii) - The Civil
Service Regulations - Regulation 351-A -
Importance of natural justice and due
process - Right to Know Accusations - Fair
Chance
to
Respond
-
Oral
Inquiry
Required - Independent Inquiry Officer -
No Automatic Proof - Ex-Parte Inquiry -
Bona Fide Inquiry. (Para - 9)

(B)
Word
of
phrases
-
"sublato
fundamento cadit opus" - If the very
foundation of any structure goes, the
superstructure erected thereon would also
fall - 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 - 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, quasijudicial and administrative proceedings
equally - a right in law exists only and
only when it has a lawful origin. (para -
10,11)

Petitioner's challenge to validity of 3 specific
orders
-
Punishment
order
passed
by
Collector/District Magistrate - which reverted
petitioner to their initial/basic pay as a
Stenographer
without
following
prescribed
procedure under Rules, 1999 - no departmental
inquiry - no fixing date, time and place for oral
inquiry - Order passed by Appellate Authority -
Revisional order.(Para - 3,8,)

HELD: - Impugned punishment order set
aside/quashed because departmental inquiry
report was defective & inquiry process violated
natural justice principles so its consequential
orders i.e. appellate order and revisional order
stand automatically vitiated and are liable to be
declared non-est in view of the legal maxim
"sublato fundamento cadit opus". Opposite
parties must pass consequential orders, ignoring
the quashed punishment orders. Competent
authority may initiate new proceedings under
Regulation
351-A
of
the
Civil
Service
Regulations. (Para -10,12 to15)

Petition allowed. (E-7)

List of Cases cited:

## Text

314 INDIAN LAW REPORTS ALLAHABAD SERIES
to the petitioner and the order dated
24.07.2024, passed by the authorized
controller of the college placing the
petitioner under suspension are hereby
quashed. All the opposite parties are
directed to ensure that the petitioner is
given charge of the post of Officiating
Principal of the college forthwith.

29. So far as the fresh charges
levelled
against
the
petitioner
are
concerned, the opposite parties will be at
liberty to hold an enquiry strictly in
accordance
with
law,
after
giving
adequate opportunity of hearing to the
petitioner.
----------
(2024) 8 ILRA 314
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.08.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ-A No. 7138 of 2020

Sushil Kumar Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Alok Kumar Tripathi

Counsel for the Respondents:
C.S.C.

(A)
Service
Law
-
U.P.
Government
Servant (Discipline and Appeal) Rules,
1999 - Rule 7 (vii) & (viii) - The Civil
Service Regulations - Regulation 351-A -
Importance of natural justice and due
process - Right to Know Accusations - Fair
Chance
to
Respond
-
Oral
Inquiry
Required - Independent Inquiry Officer -
No Automatic Proof - Ex-Parte Inquiry -
Bona Fide Inquiry. (Para - 9)

(B)
Word
of
phrases
-
"sublato
fundamento cadit opus" - If the very
foundation of any structure goes, the
superstructure erected thereon would also
fall - 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 - 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, quasijudicial and administrative proceedings
equally - a right in law exists only and
only when it has a lawful origin. (para -
10,11)

Petitioner's challenge to validity of 3 specific
orders
-
Punishment
order
passed
by
Collector/District Magistrate - which reverted
petitioner to their initial/basic pay as a
Stenographer
without
following
prescribed
procedure under Rules, 1999 - no departmental
inquiry - no fixing date, time and place for oral
inquiry - Order passed by Appellate Authority -
Revisional order.(Para - 3,8,)

HELD: - Impugned punishment order set
aside/quashed because departmental inquiry
report was defective & inquiry process violated
natural justice principles so its consequential
orders i.e. appellate order and revisional order
stand automatically vitiated and are liable to be
declared non-est in view of the legal maxim
"sublato fundamento cadit opus". Opposite
parties must pass consequential orders, ignoring
the quashed punishment orders. Competent
authority may initiate new proceedings under
Regulation
351-A
of
the
Civil
Service
Regulations. (Para -10,12 to15)

Petition allowed. (E-7)

List of Cases cited:

1. Roop Narain Pandey Vs U.P. Cooperative
Institutional Service Board & ors., [2019 (37)
LCD 978]

2. Meenglas Tea Estate Vs The workmen, AIR
1963 SC 1719
8 All. Sushil Kumar Shukla Vs. State of U.P. & Ors.
315
3. St. of U.P. Vs C. S. Sharma, AIR 1968 SC 158

4.
Punj.
National
Bank
Vs
A.I.P.N.B.E.
Federation, AIR 1960 SC 160

5. S.C. Girotra Vs United Commercial Bank,
1995 Supp. (3) SCC 212

6. Subhas Chandra Sharma Vs Managing
Director & anr., 2000 (1) UPLBEC 541

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

8. Roop Singh Negi Vs Punj. National Bank,
(2009) 2 SCC 570

9. Subhash Chandra Gupta Vs St. of U.P., 2012
(1) UPLBEC 166

10. Salahuddin Ansari Vs. St. of U.P. & ors.,
2008 (3) ESC 1667

11. Subash Chandra Sharma Vs. Managing
Director & anr., 2000 (1) U.P.L.B.E.C. 541

12. Mahesh Narain Gupta Vs St. of U.P. & ors.,
(2011) 2 ILR 570

13. Chamoli District Co-operative Bank Ltd. Vs.
Raghunath Singh Rana & ors., AIR 2016 SC
2510

14. St. of Punj. Vs. Davinder Pal Singh Bhullar &
ors. connected with Sumedh Singh Saini Vs
Davinder Pal Singh Bhullar & ors., (2011) 14
SCC 770

15. Badrinath Vs St. of Tamil Nadu & ors., AIR
2000 SC 3243

16. St. of Kerala Vs Puthenkavu N.S.S.
Karayogam & Anr, (2001) 10 SCC 191

17. Mangal Prasad Tamoli (dead) by Lrs. Vs
Narvadeshwar Mishra (dead) by Lrs. &ors.,
(2005) 3 SCC 422

18. C. Albert Morris Vs K. Chandrasekaran & ors,
(2006) 1 SCC 228

19. Upen Chandra Gogoi Vs St. of Assam & ors.
(1998) 3 SCC 38;
20. Satchidananda Misra Vs St. of Orissa & ors.
(2004) 8 SCC 599

21. Regional Manager, SBI Vs Rakesh Kumar
Tewari, (2006) 1 SCC 530

22. Ritesh Tewari & anr. Vs St. of U.P. & ors.,
AIR 2010 SC 3823)

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

1. Heard Sri Upendra Nath Mishra,
learned Senior Advocate, assisted by Sri Alok
Kumar Tripathi, learned counsel for the
petitioner and Sri Prashant Singh Atal, learned
Chief Standing Counsel-I for the State-opposite
parties.

2. By means of this petition, the petitioner
has prayed following reliefs:-

"(i) to issue a writ, order or direction
in the nature of Certiorari quashing the
impugned orders dated 30.8.2006, 2/6.2.2008
and 28.12.2019 as contained as Annexure Nos.
1, 2 & 3 respectively to this writ petition.

(ii) to issue a writ, order or
direction in the nature of Mandamus
commanding
the
respondents
to
pass
appropriate order for restoring the pay scale
of petitioner, which would have been
applicable to the petitioner in absence of
impugned
order
dated
30.8.2006
and
thereafter pay regular salary accordingly.

(iii) to issue a writ, order or
direction in the nature of Mandamus
directing the respondents to pay arrears of
salary after restoring it to the level it would
have been in absence of impugned order
dated 30.8.2006.

(iv) to pass such other order or
direction, which this Hon'ble Court deems it fit
and proper under the circumstances of the case.

(vii) to allow the writ petition
with costs in favour of the petitioner."
316 INDIAN LAW REPORTS ALLAHABAD SERIES

3. By means of the instant writ
petition, the petitioner is challenging the
validity of the punishment order dated
30.08.2006, passed by the opposite party
no.3 i.e. Collector/District Magistrate,
Sitapur, whereby major punishment of
reversion
of
the
petitioner
to
the
initial/basic pay of his substantive post of
Stenographer was passed without following
the prescribed procedure contained in
statutory Rules, i.e. U.P. Government
Servant (Discipline and Appeal) Rules,
1999 (hereinafter referred to as "the Rules,
1999"). The petitioner is also challenging
the validity of the order dated 2/6.02.2008,
passed by the Appellate Authority i.e.
opposite party no.2 as well as the order
dated 28.12.2019, passed by opposite party
no.2 in the statutory revision filed by the
petitioner inasmuch as both the orders were
mechanically passed in violation of the
Rules, 1999 as well as without application
of mind, hence not tenable in law.

4. The petitioner was appointed on the
post of Typist in the office of Tehsildar,
Biswan, District- Sitapur through direct
appointment on 23.06.1987. Meanwhile,
another direct recruitment was advertised
on the post of Stenographer in which the
petitioner qualified the written examination
of shorthand and typing and got substantive
appointment of Stenographer in the office
of Sub Divisional Magistrate, Sidhauli,
Sitapur on 18.03.1993 and his services
were confirmed as such on 04.02.1998. As
per the date of birth, the petitioner retired
from service on 30.06.2024.

5. The precise contention of the
learned counsel for the petitioner is that the
impugned punishment order has been
passed on the basis of illegal departmental
inquiry whereby the departmental inquiry
has been conducted and concluded without
fixing date, time and place for oral inquiry
and without giving any opportunity to the
petitioner to adduce his evidence/witnesses.
Attention
has
been
drawn
towards
Annexure No.12 of the writ petition, which
is the findings of the inquiry report, which
is undated, however, the same has been
served upon the petitioner on 25.07.2006
alongwith show cause notice. The findings
of the Inquiry Officer clearly reveals that
the charge sheet was served upon the
petitioner on 22.05.2006 and the petitioner
submitted his defence reply to the show
cause notice on 12.06.2006. Thereafter,
without fixing any date, time and place for
oral inquiry, the petitioner was called for
personal hearing on 14.07.2006 and on the
basis of aforesaid exercise, the inquiry has
been concluded.

6. On being confronted the learned
Standing Counsel as to whether oral
inquiry has been conducted or not, learned
Standing Counsel has fairly submitted that
no oral inquiry has been conducted.

7. Learned counsel for the petitioner
has also stated that the aforesaid fact has
not been disputed in the counter affidavit
inasmuch as the recital to this effect has
been given in paragraphs no.12, 13 & 14 of
the writ petition and those paragraphs have
not been denied in the counter affidavit
vide paragraphs no.13, 14 & 15. In para-14
of
the
writ
petition,
it
has
been
categorically indicated that none of the
submissions of defence reply has been
considered by the Inquiry Officer and the
aforesaid fact has not been disputed in the
counter affidavit properly.

8. Having heard learned counsel for
the parties and having perused the material
available on record, the precise question for
consideration before this Court is that as to
8 All. Sushil Kumar Shukla Vs. State of U.P. & Ors.
317
whether any inquiry report, which has been
prepared
without
conducting
the
departmental inquiry strictly in accordance
with law, by fixing date, time and place for
oral inquiry, would sustain in the eyes of
law, particularly in view of the fact that on
the basis of aforesaid inquiry report, major
punishment has been awarded to the
delinquent employee/ petitioner. If the
inquiry report would not sustain in the eyes
of law, as to whether the punishment order,
appellate order and revisional order would
sustain in the eyes of law? Undisputedly,
the
departmental
inquiry
has
been
conducted and concluded in violation of
Rule 7 (vii) & (viii) of the Rules, 1999,
which reads as under:-

"7. (vii) 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 presence
of the charged- Government servant who
shall be given opportunity to cross-examine
such
witnesses.
After
recording
the
aforesaid evidences, the Inquiry Officer
shall call and record the oral evidence
which the charged Government servant
desired in his written statement to be
produced in his defence:

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

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

9. I had occasion to deal the identical
issue in re; Roop Narain Pandey Vs. U.P.
Cooperative Institutional Service Board
and Others, [2019 (37) LCD 978] and
considering the relevant decisions of the
Apex Court, I allowed the aforesaid writ
petition; paragraphs no.13 to 25 thereof are
being reproduced herein below:-

"13. In the case of Meenglas Tea
Estate v. The workmen, AIR 1963 SC 1719,
the Hon'ble Supreme Court observed that it
is an elementary principle that a person
who is required to answer a charge must
know not only the accusation but also the
testimony by which the accusation is
supported. He must be given a fair chance
to hear the evidence in support of the
charge and to put such relevant questions
by way to cross-examination as he desires.
Then he must be given a chance to rebut
the evidence led against him. This is the
barest requirement of an enquiry of this
character and this requirement must be
substantially fulfilled before the result of
the enquiry can be accepted.

14. In State of U.P. v. C. S.
Sharma, AIR 1968 SC 158, the Hon'ble
Apex Court held that omission to give
opportunity to the officer to produce his
witnesses and lead evidence in his defence
vitiates the proceedings. The Court also
held that in the enquiry witnesses have to
be examined in support of the allegations,
and opportunity has to be given to the
delinquent
to
cross-examine
these
witnesses and to lead evidence in his
defence.

15. In Punjab National Bank v.
A.I.P.N.B.E. Federation, AIR 1960 SC 160,
(vide para 66), the Hon'ble Apex Court
held that in such enquiries evidence must
be recorded in the presence of the chargesheeted employee and he must be given an
opportunity to rebut the said evidence. The
same view was taken in A.C.C. Ltd. v. Their
Workmen, (1963) II LLJ. 396, and in Tata
318 INDIAN LAW REPORTS ALLAHABAD SERIES
Oil Mills Co. Ltd. v. Their Workmen,
(1963) II LLJ. 78 (SC).

16. In S.C. Girotra v. United
Commercial Bank, 1995 Supp. (3) SCC
212, the Hon'ble Apex Court set aside a
dismissal order which was passed without
giving employee an opportunity of crossexamination.

17.
This
Court
in
Subhas
Chandra Sharma v. Managing Director
and another, 2000 (1) UPLBEC 541 has
held as under:-

"In
our
opinion
after
the
petitioner replied to the charge-sheet a
date should have been fixed for the enquiry
and the petitioner should have been
intimated the date, time and place of the
enquiry and on that date the oral and
documentary
evidence
against
the
petitioner should have been led in his
presence and he should have been given an
opportunity to cross-examine the witnesses
against him and also he should have been
given an opportunity to produce his own
witnesses and evidence. If the petitioner in
response to this intimation had failed to
appear for the enquiry then an ex parte
enquiry should have been held but the
petitioner's service should have not been
terminated without holding an enquiry. In
the present case it appears that no regular
enquiry was held at all. All that was done
that after receipt of the petitioner's reply to
the charge-sheet he was given a showcause notice and thereafter the dismissal
order was passed. In our opinion this was
not the correct legal procedure and there
was violation of the rules of natural justice.
Since no date for enquiry was fixed nor any
enquiry held in which evidence was led in
our opinion the impugned order is clearly
violative of natural justice."

18. In the State of Uttar Pradesh
v. Saroj Kumar Sinha, reported in (2010) 2
SCC 772, the Hon'ble Apex Court held
that:-

"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. In the present case the
aforesaid procedure has not been observed.
Since no oral evidence has been examined
the documents have not been proved, and
could
not
have
been
taken
into
consideration to conclude that the charges
have been proved against the respondents.

When a departmental enquiry is
conducted against the government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The inquiry
officer has to be wholly unbiased. The rules
of natural justice are required to be
observed to ensure not only that justice is
done but is manifestly seen to be done. The
object of rules of natural justice is to
ensure that a government servant is treated
fairly in proceedings which may culminate
in imposition of punishment including
dismissal/removal from service."

19. Similar view was taken by the
Hon'ble Apex Court in Roop Singh Negi v.
Punjab National Bank, (2009) 2 SCC 570
as under:-

"Indisputably,
a
departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
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
8 All. Sushil Kumar Shukla Vs. State of U.P. & Ors.
319
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."

20. In another case in Subhash
Chandra Gupta v. State of U.P., 2012 (1)
UPLBEC 166, the Division Bench of this
Court after survey of law on this issue
observed as under:

"It is well settled that when the
statute provides to do a thing in a
particular manner that thing has to be done
in that very manner. We are of the
considered opinion that any punishment
awarded on the basis of an enquiry not
conducted in accordance with the enquiry
rules meant for that very purposes is
unsustainable in the eye of law. We are
further of the view that the procedure
prescribed under the inquiry rules for
imposing major penalty is mandatory in
nature and unless those procedures are
followed, any out come inferred thereon
will be of no avail unless the charges are so
glaring and unrefutable which does not
require any proof. The view taken by us
find support from the judgement of the
Apex Court in State of U.P. & another Vs.
T.P.Lal Srivastava, 1997 (1) LLJ 831 as
well as by a Division Bench of this Court in
Subash Chandra Sharma Vs. Managing
Director & another, 2000 (1) U.P.L.B.E.C.
541.

21. A Division Bench decision of
this Court in the case of Salahuddin Ansari
Vs. State of U.P. and others, 2008 (3) ESC
1667 held that non holding of oral inquiry
is a serious flaw which can vitiate the order
of disciplinary proceeding including the
order of punishment has observed as
under:-

" 10....... Non holding of oral
inquiry in such a case, is a serious matter
and goes to the root of the case.

11. A Division Bench of this
Court in Subash Chandra Sharma Vs.
Managing Director & another, 2000 (1)
U.P.L.B.E.C. 541, considering the question
as to whether holding of an oral inquiry is
necessary or not, held that if no oral
inquiry is held, it amounts to denial of
principles
of
natural
justice
to
the
delinquent employee. The aforesaid view
was reiterated in Subash Chandra Sharma
Vs. U.P.Cooperative Spinning Mills &
others, 2001 (2) U.P.L.B.E.C. 1475 and
Laturi
Singh
Vs
U.P.Public
Service
Tribunal & others, Writ Petition No. 12939
of 2001, decided on 06.05.2005."

22. Even if the employee refuses
to participate in the enquiry the employer
cannot straightaway dismiss him, but he
must hold and ex-parte enquiry where
evidence must be led vide Imperial
Tobacco Co. Ltd. v. Its Workmen, AIR 1962
SC 1348, Uma Shankar v. Registrar, 1992
(65) FLR 674 (All).

23. The Division Bench of this
Court in the case of Mahesh Narain Gupta
v. State of U.P. and others, (2011) 2 ILR
570 has held as under:-

"At this stage, we are to observe
that in the disciplinary proceedings against
a delinquent, the department is just like a
plaintiff and initial burden lies on the
department to prove the charges which can
certainly be proved only by collecting some
oral evidence or documentary evidence, in
presence and notice charged employee.
Even if the department is to rely its own
record/document
which
are
already
available, then also the enquiry officer by
320 INDIAN LAW REPORTS ALLAHABAD SERIES
looking into them and by assigning his own
reason after analysis, will have to record a
finding that hose documents are sufficient
enough to prove the charges.

24. In no case, approach of the
Enquiry Officer that as no reply has been
submitted, the charge will have to be
automatically proved can be approved.
This will be erroneous. It has been
repeatedly said that disciplinary authority
has a right to proceed against delinquent
employee in exparte manner but some
evidence will have to be collected and
justification to sustain the charges will
have to be stated in detail. The approach of
the enquiry officer of automatic prove of
charges on account of non filing of reply is
clearly misconceived and erroneous. This
is against the principle of natural justice,
fair play, fair hearing and, thus, enquiry
officer has to be cautioned in this respect.

25. Recently the entire law on the
subject has been reviewed and reiterated in
Chamoli District Co-operative Bank Ltd.
Vs. Raghunath Singh Rana and others, AIR
2016 SC 2510 and the Hon'ble Apex Court
has culled out certain principles as under:

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

ii) If an officer is a witness to any
of the incidents which is the subject matter
of the enquiry or if the enquiry was
initiated on a report of an officer, then in
all fairness he should not be the Enquiry
Officer. If the said position becomes known
after the appointment of the Enquiry
Officer, during the enquiry, steps should be
taken to see that the task of holding an
enquiry is assigned to some other officer.

(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."

10. In view of what has been
considered above and also in view of the
settled proposition of law by the Apex
Court, I am of the view that the findings of
the Inquiry Officer/ inquiry report is liable
to be set aside/ quashed inasmuch as the
departmental inquiry has been conducted
and concluded without fixing date, time
and place for oral inquiry and without
affording ample opportunity of hearing to
the petitioner. Since the very foundation of
the impugned order dated 30.08.2006
passed pursuant to the defective inquiry
report is not liable to be sustained in the
eyes of law, therefore, the impugned
punishment order dated 30.08.2006 is liable
to be set aside/ quashed. Consequently, the
impugned appellate order and revisional
order dated 2/6.02.2008 and 28.12.2019 are
also liable to be set aside/ quashed on the
basis of maxim "sublato fundamento cadit
opus", which means that if the very
foundation of any structure goes, the
superstructure erected thereon would also
fall.

11. 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
8 All. Sushil Kumar Shukla Vs. State of U.P. & Ors.
321
Singh Bhullar and others, (2011) 14 SCC
770, has considered the aforesaid maxim in
paras-107
to 111,
which
are
being
reproduced here-in-below:-

"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 factsituation,
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.

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."

12. In view of the aforesaid dictums
of the Apex Court considered above, I am
of the considered opinion that since
impugned
punishment
order
dated
30.08.2006 passed on the basis of defective
inquiry report is nullity in the eyes of law,
therefore, it cannot be sustained, so its
consequential orders i.e. appellate order
and revisional order stand automatically
vitiated and are liable to be declared nonest in view of the legal maxim "sublato
fundamento cadit opus".

13. Accordingly, the impugned orders
dated
30.08.2006,
2/6.02.2008
and
28.12.2019 as contained in Annexure
Nos.1, 2 & 3 to the writ petition
respectively are hereby quashed.

14. Opposite parties are directed to
pass consequential orders ignoring the
impugned
punishment
order
dated
30.08.2006 as well as the appellate order
and the revisional order.

15. Since the punishment orders have
been quashed only for the reason that the
Inquiry Officer had conducted the defective
inquiry violating the relevant provisions of
Rule 7 of the Rules, 1999, therefore, liberty
is given to the competent authority to
conduct
de-novo
proceedings/
inquiry
against the petitioner but the petitioner has
already retired during the pendency of this
writ petition, therefore, such exercise may
322 INDIAN LAW REPORTS ALLAHABAD SERIES
be undertaken, if it is so desired, by
adopting legal recourse of Regulation 351A of the Civil Service Regulations.

16. Accordingly, the writ petition is
allowed.

17. No order as to costs.
----------
(2024) 8 ILRA 322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 7169 of 2024

Sushil Chandra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ashok Kumar Rai

Counsel for the Respondents:
C.S.C., Diptiman Singh, Rohit Pandey

(A) Service Law - Writ petition under
Article 226 not maintainable for disputes
arising from private contracts of service
without statutory force or backing, and
where the petitioner has not approached
the court with clean hands - Remedy
under Article 226 - Remedy available only
when
twin
tests
are
satisfied
(i)
Authority/person
discharges
public
function/public duty (ii) Action challenged
falls within public law domain.(Para -
11,12,13)

Petitioner challenged termination of his service -
as Assistant Workshop Superintendent at Raj
Kumar Goel Institute of Technology - Institute
produced petitioner's resignation letter and
proof of payment of dues. (Para - 2)

HELD: - Petitioner's service contract was
private, without statutory force or backing.
Resignation letter and payment of dues were
not disclosed in the writ petition. Petitioner's
amended plea of forged resignation appeared to
be an afterthought. Petitioner did not approach
court with clean hands. No merit. (Para -13 to
16)

Petition dismissed. (E-7)

List of Cases cited:

1. C/M Pratibha Inter College, Barabanki
through Manager & Anr. Vs St. of U.P. through
Principal Secy., Dept. of Secondary Education,
U.P. Govt, Special Appeal No. 115 of 2024

2. St. Mary's Education Society & anr. Vs
Rajendra Prasad Bhargava & ors., (2023) 4 SCC
498

3. Uttam Chand Rawat Vs St. of U.P. & ors . ,
(2021) 9 ADJ 304

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Ashok Kumar Rai - the
learned counsel for the petitioner, Sri
Saurabh, the learned Standing Counsel
representing the opposite party no. 1 - the
State of U.P., Sri Rohit Pandey - the
learned counsel for the opposite party no. 2
- Dr. A.P.J. Abdul Kalam Technical
University, U.P. and Sri. Diptiman Singh,
the learned counsel for the opposite party
no. 3 - Raj Kumar Goel Institute of
Technology, Ghaziabad.

2. By means of the instant writ
petition filed under Article 226 of the
Constitution of India, the petitioner has
challenged validity of termination of his
service
as
Assistant
Workshop
Superintendent, Department of Mechanical
Engineering in Raj Kumar Goel Institute of
Technology, Ghaziabad.