# Wing Commander Rajesh Kumar Nagar v. State of U.P

- **Citation:** (2021) 7 ILRA 464
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-14
- **Case number:** Service Bench No. 2562 of 2016
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/wing-commander-rajesh-kumar-nagar-v-state-of-u-p-47204
- **Pages:** 25

## Headnote

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules 1999 - Rule
3
&
7
-
Aircraft
(Investigation
of
Accidents and Incidents) Rule, 2012 -
Rules 3(1) & 3 (2) - Departmental enquiry
- Petitioner was on deputation from
Indian Air Force - Termination by the
borrowing department on the allegation of
misconduct or negligence during service -
Validity - Held, Services of an employee
on deputation cannot be terminated by
the borrowing department - In case of
any negligence or misconduct, he can only
be repatriated to his parent department
along with the report about his conduct -
Principle laid down by Apex Court in Kunal
Nanda's case followed. (Para 12, 34 and
42)
B. Service Law - Termination - Charge
sheet at a belated stage - No explanation
of inordinate delay - Effect - Delayed
initiation of proceedings is bound to give
room for allegations of bias, mala-fides
and misuse of power - Such delay is likely
to cause prejudice to the delinquent
officer in defending himself - Held, the
delay and laches on the part of the
employer
in
conducting
departmental
enquiry
without
any
satisfactory
explanation for the inordinate delay are
sufficient to vitiate the entire disciplinary
proceeding. (Para 12, 34 and 47)
C. Service Law - Departmental enquiry -
Principle of Natural Justice -Application
thereof - Frequent changes of Inquiry
Officer - No supply of relevant documents
for the preparation of the reply - No
proper opportunity to submit the reply of
the show cause notice - No case of
ignorance of any warning about the wake
turbulence given by Air Traffic Controller -
Held, the enquiry is vitiated and is not
sustainable in the eyes of law; further
held, not only the proceedings are bad on
account of placing of reliance upon the
report
of
preliminary
investigating
authority
but
it
also
appears
that
authorities had already made up their
mind to dismiss the petitioner from
service. (Para 52, 60 and 61)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,429 of 84,081. This is a partial read: ask again with offset=39429 for what follows._

464 INDIAN LAW REPORTS ALLAHABAD SERIES

18. A direction is issued to the
respondents to grant notional benefits of
promotion to the petitioner as Additional
Director and Director as and when it falls
due in accordance with the Rules as
notified on 11th August, 2004 and the pay
shall be re-fixed and payment of arrears of
salary on such re-calculation shall be made
as expeditiously as possible, preferably
within three months from today. The
consequential benefits of pension, gratuity
and other retiral dues shall also be available
to the petitioner. In the event the payment
is delayed beyond three months, the same
shall carry 6% simple interest from the date
of this judgment to the date of payment.
----------
(2021)07ILR A464
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Bench No. 2562 of 2016
With
Service Bench No. 7624 of 2017

Wing Commander Rajesh Kumar Nagar
 ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Dineysh Agrawaal, Anupriya Agarwal, Hari
Mohan Mathur, Rajani B Bajpai

Counsel for the Respondent:
C.S.C., Upendra Nath Mishra

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules 1999 - Rule
3
&
7
-
Aircraft
(Investigation
of
Accidents and Incidents) Rule, 2012 -
Rules 3(1) & 3 (2) - Departmental enquiry
- Petitioner was on deputation from
Indian Air Force - Termination by the
borrowing department on the allegation of
misconduct or negligence during service -
Validity - Held, Services of an employee
on deputation cannot be terminated by
the borrowing department - In case of
any negligence or misconduct, he can only
be repatriated to his parent department
along with the report about his conduct -
Principle laid down by Apex Court in Kunal
Nanda's case followed. (Para 12, 34 and
42)
B. Service Law - Termination - Charge
sheet at a belated stage - No explanation
of inordinate delay - Effect - Delayed
initiation of proceedings is bound to give
room for allegations of bias, mala-fides
and misuse of power - Such delay is likely
to cause prejudice to the delinquent
officer in defending himself - Held, the
delay and laches on the part of the
employer
in
conducting
departmental
enquiry
without
any
satisfactory
explanation for the inordinate delay are
sufficient to vitiate the entire disciplinary
proceeding. (Para 12, 34 and 47)
C. Service Law - Departmental enquiry -
Principle of Natural Justice -Application
thereof - Frequent changes of Inquiry
Officer - No supply of relevant documents
for the preparation of the reply - No
proper opportunity to submit the reply of
the show cause notice - No case of
ignorance of any warning about the wake
turbulence given by Air Traffic Controller -
Held, the enquiry is vitiated and is not
sustainable in the eyes of law; further
held, not only the proceedings are bad on
account of placing of reliance upon the
report
of
preliminary
investigating
authority
but
it
also
appears
that
authorities had already made up their
mind to dismiss the petitioner from
service. (Para 52, 60 and 61)
Writ Petition allowed. (E-1)
Cases relied on :-
1. S.B.I. & ors. Vs Narendra Kumar Pandey;
(2013) 2 SCC 740
7 All. Wing Commander Rajesh Kumar Nagar Vs. State of U.P.
465
2. Chairman L.I.C. & ors. Vs A. Masilamani;
(2013) 6 SCC 530
3. St. of U.P. Vs Ram Naresh Lal; (1970) 3 SCC
173
4. Kunal Nanda Vs U.O.I.; (2000) 5 SCC 362
5. K. Kanagasabapathy Vs City Supply Officer,
Civil; (1978)1 MLJ 184
6. B.L. Satyarthi Vs St. of M.P.; 2014 SCC
OnLine MP 5735
7. St. of M.P. Vs Bani Singh & anr.; 1990 (Supp)
SCC 738
8. St. of Punj. & ors. Vs Chaman Lal Goyal;
(1995) 2 SCC 570
9. U.O.I. Vs Ashok Kacker; 1995 Supp (1) S.C.C.
180
10. Civil Appeal No. 10913 of 2016; H.P. State
Electricity Board Ltd. Vs Mahesh Dahiya decided
by Supreme Court
11. M. V. Bijlani Vs U.O.I. & ors.; (2006) 5 SCC
88
12. St. of U.P. Vs Shatrughan Lal & anr.; (1998)
6 SCC 651
13. Writ Petition No. 55836 of 2005; Chandrika
Yadav Vs St. of Uttar Pradesh & ors. decided by
Allahabad High Court
14. Philip Silverman, Vortex Cases : At a
Turbulent Crossroads; 39 J. Air L. & Com. 325
(1973)
15. Sanbutch Properties Vs United States; 343
F. Supp. 611 (ND Cal 1972)
(Delivered by Hon'ble Chandra Dhari
Singh, J.)

1. Since both the petitions involve
common questions of law and fact and co-relate
to same person, therefore, both were connected
with each other vide order dated 12.04.2017
rendered in Writ Petition No.7624 (SB) of
2017, hence both have been heard together and
are being decided by this common order.

2. The writ petition No.2562 (SB)
of 2016 has been filed with the following
main prayer(s) :

(a) Issue a writ, order, or
direction in the nature of certiorari to quash
the order dated 05.02.2016 passed by the
respondent as contained in Annexure 10 to
the writ petition.

(b) issue a writ order or direction
in
the
nature
of
PROHIBITION
commanding the respondent from passing
any order of Major Penalty under second
Part of Rule 3 of the U.P. Government
Servant (Discipline and Appeal) Rules
1999 and issue a writ order or direction in
the nature of certiorari to quash the chargesheets dated 31.03.2014 and 16.05.2014 as
contained in Annexure 1 and 2 to the writ
petition along with any adverse order
which may be intended to be passed by the
respondent.

(c) issue a writ order or direction
in the nature of mandamus commanding
the respondent not to impose any penalty
whatsoever in the light of the averments
made in the writ petition.

(d) issue a
writ order or
direction in the nature of mandamus
commanding the respondent to provide
full
salary,
allowances
and
other
emoluments with retrospective effect for
the suspension period w.e.f. 04.08.2014
to 13.01.2016 with all consequential
benefits and provide full salary for the
subsequent period.

Subsequently, the writ petition
no. 7624 (SB) of 2017 has been filed with
the following main prayers :
466 INDIAN LAW REPORTS ALLAHABAD SERIES

i. issue a writ, order or direction
in the nature of mandamus declaring the
office memorandum dated 24.04.2014
issued by the State of U.P. as firstly ultravires to Rule 3(1) and 3 (2) of the 'Aircraft
(Investigation of Accidents and Incidents)
Rule 2012 secondly, ultra-vires to the U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999 and thirdly ultra vires
to the Constitution of India.

ii. issue a writ, order or direction
in the nature of mandamus commanding
the respondent to quash the impugned order
dated 25.04.2016 contained at Annexure 1
of the instant writ petition and honourably
reinstate the petitioner.

iii. issue a writ, order or direction
in the nature of mandamus commanding
the respondent to provide full salary,
allowances and other emoluments with all
consequential benefits i.e. seniority and
safeguard of promotional avenues etc.

iv. to award an exemplary cost of
five crore rupees on the respondent State of
U.P. on account of inflicting mental pain,
agony, humiliation, loss of honour, pride,
opportunity to the petitioner besides also
causing shrinkage of his piloting skill and
denting his future prospects of employment
in the aviation industry by a farce and
misconceived inquiry instituted against him
by the respondent.

3. Brief facts of the case are that the
petitioner joined the Air Force through
N.D.A. as Pilot in Transport Stream. On
14.01.2008, the petitioner was sent on to
fly Aircrafts of the State of U.P. on
deputation for a period of three years.
which was extended for one year more.
Later, after premature retirement from
Indian Force, the petitioner was given the
post of Pilot (Fixed Wing) on contract basis
w.e.f. 01.08.2011 and subsequently, he was
appointed on the same post on regular basis
w.e.f. 22.12.2011.

4. The backdrop of filing the writ
petition No.2562 of 2016 (SB) is that on
22.02.2008, the State Plane King Air C90A V.T.-UPZ being flown by the
petitioner met with an accident at Airstrip
of Air Force Station Allahabad. After the
investigation
the
DGCA
New
Delhi
permitted the resumption of flight duties
after
imparting
corrective/additional
training.

5. On 31.03.2014, the respondents
issued a charge-sheet against the petitioner
for the incident dated 22.02.2008. The
petitioner challenged the said charge-sheet
by filing the W.P. No. 2562 (S/B) of 2016
(supra). After the inquiry proceedings, the
petitioner has been terminated from the
services vide order dated 05.02.2016 which
has been challenged in the aforesaid W.P.
No. 2562 (S/B) of 2016 (supra) by way of
amendment.

6. The backdrop of filing the writ
petition No.7624 (SB) of 2017 is that on
22.09.2012 the petitioner along with copilot Sri G.P. Singh were tasked to fly
Premier 1A aircraft to Indira Gandhi
International Airport Delhi from Lucknow.
The aircraft met with an accident on
Runway 27 at Indira Gandhi International
Airport Delhi. At the time of the said
accident, it is admitted fact that the said
Aircraft was operated by the petitioner as
Pilot
in
command.
A
technical
investigation/enquiry of the said accident
was conducted by the Aircraft Accident
Investigation Bureau (for short 'A.A.I.B.'),
Ministry of Civil Aviation, New Delhi and
after
the
approval
of
the
Central
7 All. Wing Commander Rajesh Kumar Nagar Vs. State of U.P.
467
Government, the said investigation of the
enquiry report dated 13.11.2013 was made
available to the State Government by
'A.A.I.B.' and on the basis thereof, the
D.G.C.A. New Delhi vide letter dated
08.01.2014 directed the State of U.P. to
permit the flying duties to the petitioner
after refresher/corrective training to the
petitioner and allow normal flight duties to
the petitioner.

7. The respondents have instituted the
enquiry of both the incidents/accidents
against the petitioner and they are running
concurrently.

8. The respondent - State Government
communicated the petitioner an office
memorandum dated 24.04.2014 issued by
Civil
Aviation
Department
regarding
institution of departmental enquiry under
Rule 7 of the U.P. Government Servant
(Discipline and Appeal) Rules 1999 which
was received by the petitioner on 29.04.2014.
On 16.05.2014, the Inquiry Officer served a
charge-sheet on the petitioner . The petitioner
sent a preliminary objection to the tenability
and viability of the charge-sheet dated
16.05.2014 to the inquiry officer.

9. The petitioner received a letter
dated 11.07.2014 regarding the change of
the Inquiry Officer and one Sri Manoj
Kumar Singh was appointed as Inquiry
Officer in place of Sri Rahul Bhatnagar. On
04.08.2014, the petitioner was suspended.
On 03.11.2014, again the Inquiry Officer
has been changed and Mr. Anant Kumar
Singh was appointed as Inquiry Officer.
The Inquiry Officer asked the petitioner to
file his reply within fifteen days vide notice
dated 02.12.2014. The petitioner submitted
his detailed reply to the Inquiry Officer
vide his letter dated 08.12.2014.

10. The Inquiry Officer Sri Anant
Kumar Singh has again been changed and
another inquiry officer namely Sri K. S.
Atoria was appointed. Vide letter dated
19.01.2015, he also asked the petitioner to
file his reply. The Inquiry Officer Sri K.S.
Atoria
submitted
the
report
to
the
respondent. The respondent issued the
show cause notice dated 26.11.2015 along
with the inquiry report to the petitioner.
The petitioner submitted detailed reply
dated 21.12.2015/ 06.01.2016 to the show
cause
notice
dated
26.11.2015.
The
competent authority passed the impugned
order dated 25.04.2016 removing the
petitioner from the services with the
consultation/consent of the U.P. Public
Service Commission. The impugned order
was served on the petitioner on 26.04.2016.

11 . In Writ Petition No. 2562 (S/B) of
2016,
both
the
charge-sheets
dated
31.03.2014 & 16.05.2014 (related to
aircraft accident of 2008 and of 2012) as
well as the termination order dated
05.02.2016 (related to aircraft accident of
2008) has been challenged.

In Writ Petition No. 7624 (S/B)
of 2017, the termination order dated
25.04.2016 (related to aircraft accident of
2012) has been challenged.

12. With the aforesaid background,
Sri Prashant Chandra, learned Senior
Counsel assisted by Ms. Radhika Singh,
learned Counsel for the petitioner has
submitted
that
the
respondents
have
abruptly issued a charge sheet at a belated
stage against the petitioner for the incident
dated 22.02.2008 on 31.03.2014 ignoring
the fact that the petitioner was not in
employment of the State Government at the
relevant date but he was on deputation from
468 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Air Force. It also ignored the fact
that on 22.12.2011, the State Government
has permanently appointed the petitioner,
thus nothing remained against him.

13. It is also submitted that a
deputationist continues to be governed by
the rules of his/her parent department and is
deemed to be under disciplinary control of
his/her parent department unless absorbed
permanently in the transferee department,
therefore, the borrowing department i.e.
State Government had no jurisdiction to
take any disciplinary action against him.

14. It is also submitted that the chargesheet dated 31.03.2014 is highly belated by
six years. The petitioner was neither
repatriated nor any recommendation for any
action was made against the petitioner to the
I.A.F. (the parent department) from the State
of U.P. (the borrowing department) but on the
other hand, vide order dated 22.12.2011, the
petitioner was permanently appointed by the
State of U.P. on the post of Pilot (Fixed
Wing). After the appointment there, remained
nothing to be investigated against the
petitioner. Thus, the disciplinary action taken
against the petitioner in respect to aircraft
accident of 2008 is illegal, arbitrary and an
abuse of the process of law.

15. It is submitted that in the instant
case, there is delay of six years in serving the
charge-sheet. It is trite to say that such
disciplinary proceeding must be conducted
soon after the irregularities are committed or
soon after discovering the irregularities. They
cannot be initiated after lapse of considerable
time.

16. It is also submitted that the
incident of the year 2008 was investigated
by the DGCA, New Delhi and instead of
recommending any action against the
petitioner, he was allowed to resume flight
duties after certain refresher/corrective
training. The law does not permit to inquire
the matter again, hence the entire action of
respondents deserves to be quashed.

17. Sri Chandra, learned Senior
Counsel has further submitted that the
petitioner, in the year 2012, was on the
duties as Pilot in Command of the Premier
1-A Aircraft and the second Pilot of the
said Aircraft was Captain G.P. Singh. The
Aircraft took off from Lucknow for Delhi
IGI Airport on 22.09.2012 at around 10:30
a.m. It is submitted that the entire flight
was under command of the petitioner but at
the time of landing, when it was around 3035 ft from ground, the Aircraft got caught
in an unusual phenomena of 'Wake
Turbulence' and as a consequence impacted
the runway with unusual rate of descent
and
attitude.
The
inevitable
impact
happened in a flash of seconds and the
petitioner could do nothing to safely
maneuver the aircraft thereupon but post
impact on the runway displayed an
exceptional
skill
and
expertise
in
preventing the aircraft from losing direction
and balance thereby preventing it from
becoming a ball of fire.

18. It is submitted that the impugned
order of removal dated 25.04.2016 of the
petitioner from services on the post of Pilot
has been passed at the first instance making
apportionment of blame and fixing of
liability on the petitioner on account of
negligence solely having based it on the
investigation
report
of
'AAIB'
dated
13.11.2013 which had no such finding by
the Ministry of Civil Aviation (for short
'MCA') through 'AAIB' as per Rule 11 of
the Aircraft (Investigation of Accidents and
Incidents) Rules 2012 (for short 'Rules
2012).
7 All. Wing Commander Rajesh Kumar Nagar Vs. State of U.P.
469

19. It has been submitted by the
learned Senior Counsel that Rules 3(1) of
'Rules 2012' provides that the sole objective
of such an investigation of accidents and
incidents shall be prevention of accidents
or incidents and not to apportion blame and
liability. Therefore, the respondents primafacie misconceived the investigation report
and
passed
the
impugned
order
in
colourable exercise of power specially
when Rule 3(2) unequivocally provides that
such an investigation, as aforesaid, shall be
separate from any judicial or administrative
proceedings to apportion blame or liability.
Learned Senior Counsel submits that the
impugned order is thus, void ab-initio and
nullity. It is submitted that the office
memorandum
dated
24.04.2014
is
manifestly ultra virus on the ground that it
is contrary to Rules 3(1) and 3(2) of the
Rules 2012 and also contrary to the U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999 (for short 'Rules
1999')

20. It is further submitted that after
receiving the impugned charge-sheet, the
petitioner had requested the first Inquiry
Officer for supply of the necessary records
but the same has not been supplied to the
petitioner for submitting the reply to the
show cause notice issued to the petitioner.
The inquiry officer has also not obtained
the records of the 'AAIB' report. It is
submitted that the respondent decided to
hold inquiry in the accident of Premier 1A
Aircraft without taking the contents of the
'AAIB' Report in correct prospective and he
has made out the case against the petitioner
taking the selective observations from the
'AAIB' report. It is also submitted that
while awarding the major penalty of
removal from services to the petitioner,
another co-pilot Sri G.P. Singh and Sri
Pragyesh Mishra were completely let
off from the responsibility of the said
alleged accident. It is also vehemently
submitted that the entire inquiry against the
petitioner is illegal, arbitrary and violative
of the principal of natural justice. It is also
submitted that for conducting the inquiry,
the single inquiry officer was appointed
under the said office memorandum who
was neither a technically qualified person
nor trained to conduct any inquiry of
technical nature related to the field of
aviation and also he did not include any
member having expertise of holding such
an inquiry. Learned senior counsel also
submitted that four inquiry officers have
been changed, which is clear cut abuse of
the process of the law and the reply which
has been submitted by the petitioner was
also arbitrarily ignored and not properly
deliberated before passing the impugned
order.

21. Learned Senior Counsel Sri
Prashant Chandra also submitted that the
respondents in the incident of 2012 passed
an order of removal of the petitioner from
the services of Pilot (Fixed Wing) on
25.04.2016 after allegedly taking approval
of the UPPSC on 24.02.2016. It is
submitted that in this order, the respondent
awarded the same punishment, which was
awarded in the first incident of 2008
without
application
of
mind
in
a
mechanical and stereo type manner. It has
also been submitted that the 'AAIB' is the
authorized agency which concludes its
inquiry on 13.11.2013 in which the real
cause of the incident/accident has been
given, which has been totally ignored by
the inquiry officer with the malafide
intention. It is submitted that in the said
inquiry of 'AAIB' no role was attributed to
the petitioner for causing of the accident on
470 INDIAN LAW REPORTS ALLAHABAD SERIES
22.09.2012.
Learned
Senior
Counsel
submitted that the departmental inquiry
conducted by the respondent is ultra vires
not based on any proper evidence and
discriminatory in nature. It is submitted that
the petitioner ought not to have awarded
any punishment instead he should have
rewarded for saving six human lives due to
his sheer and skill and expertise on the
Aircraft in the event of unavoidable
circumstances. It is submitted that as
regards the huge financial loss of the State
of U.P., if any, it was due to sheer
negligence on the part of the State itself
inasmuch as it did not insure the Aircraft
with a authorized insurer as the aircraft was
involved in a high risk activity of flying.
Learned Senior Counsel submits that in
view of the facts and circumstances, the
impugned order passed by the respondent is
bad in law and contrary to the provisions as
established by the Hon'ble Apex Court as
well as by this Hon'ble Court. Thus, the
same is liable to be quashed and the writ
petition is liable to be allowed.

22. Per contra, Sri Pratyush Tripathi
learned
Standing
Counsel
vehemently
opposed the submissions of petitioner for
the State has vehemently opposed the
submissions of counsel for petitioner and
submitted that the DGCA has conducted
the detailed inquiry into the accident of
2008 in which the aircraft "King Air C- 90"
got completely destroyed at Allahabad. In
the
inquiry
report
of
DGCA dated
16.11.2009, it was found that the mistake
of pilot was the main cause of accident and
categorically recommended "action as
deemed appropriate be taken against the
Pilot for the lapses as indicated in the
findings"

23. Learned Standing Counsel for the
State also submitted that when petitioner
was appointed by the State Government,
the matter regarding the Allahabad accident
of 2008 was under consideration and the
same was not finalized prior to his
induction
in
the
State
Government.
Subsequently,
after
rejection
of
his
objection to the DGCA's report and
submission of a three member committee
of
the
State
Government
regarding
implementation of said report of DGCA, he
was charge-sheeted. Therefore, it is not
permissible for him to escape from his
responsibility of facing the inquiry by
raising the objection in respect of delay or
being a deputant at the time of accident
because in the technical inquiry carried out
by the DGCA, he was found primarily
responsible for causing complete damage to
the State Aircraft due to negligence and
lapses caused by him.

24. It is submitted that the petitioner
has neither disowned the occurrence of the
aviation accident nor refused to admit the
fact that at the time of accident it was the
petitioner who was flying the aircraft. The
petitioner also did not challenge the
technical inquiry report submitted by the
Air Safety Expert of DGCA wherein lapses
of the Pilot were reported to be the main
cause of accident.

25. It is also submitted that Hon'ble
Apex Court in case of State Bank of India
and others Vs Narendra Kumar Pandey
(2013) 2 SCC 740 (relevant paragraph 22
and 23) has held that if the charges born
out from the documents, kept in normal
course of business, no oral enquiry is
necessary to prove those charges.

26. It is also submitted that the
petitioner failed to prove the procedural
irregularity or violation of principals of
natural justice in the enquiry; however, if at
7 All. Wing Commander Rajesh Kumar Nagar Vs. State of U.P.
471
any stage if it is found by the Hon'ble Court
that any procedural irregularity is there, the
respondents submits that the matter is liable
to be remanded back for the completion of
the enquiry from the stage of such defect
and the petitioner has no right to be
reinstated in service; as per the law settled
on the subject matter, in case of Chairman
Life Insurance Corporation of India and
others Vs A. Masilamani, reported in
(2013) 6 SCC 530 (relevant paragraph
16).

27. Learned counsel for the State has
further argued that on 22.09.2012, the
Plane/Aircraft of the State Government
Premier1-A (B.T.-U.P.N.) met with an
accident during the course of landing at
Indira Gandhi Airport, New Delhi. It is
submitted that at that time of the said
accident, the said Plane/Aircraft was
operated by the petitioner as a Pilot in
Command.
The
technical
investigation/enquiry
of
the
aforesaid
accident was conducted by the "A.A.I.B."
Ministry of Civil Aviation, New Delhi and
after
the
approval
of
the
Central
Government, the said investigation/enquiry
report
dated
13.11.2013
was
made
available to the State Government by the
'A.A.1.B.'

28. Learned counsel appearing on
behalf of the State has submitted that after
examination
of
the
aforesaid
investigation/enquiry by the 'A.A.I.B.', the
petitioner was prima-facie found guilty for
the aforesaid accident of the State Plane,
hence
a
departmental
enquiry
was
constituted against the petitioner under
Rule 7 of Uttar Pradesh Government
Servant (Discipline and Appeal) Rules
1999, vide office memorandum dated
24.04.2014 in which Mr. Rahul Bhatnagar,
the then Principal Secretary, department
of Sugar Industries and Cane Development
was appointed as inquiry officer and after
the transfer of Mr. Rahul Bhatnagar, Mr.
Manoj Kumar Singh, the then Principal
Secretary,
Secondary
Education
was
appointed as inquiry officer vide office
order dated 11.07.2014. Later, Mr. Manoj
Kumar Singh joined in the Central
Government on deputation then Mr. Anant
Kumar Singh, the then Principal Secretary,
Pashudhan, Matsya Evam Dugdh Vikas
was appointed as inquiry officer vide office
order dated 03.11.2014. After sometime,
Mr. Anant Kumar Singh also went on
deputation in the Central Government then,
Mr. K. S. Atoria was appointed as inquiry
officer vide office order dated 19.01.2015.
The charge-sheet was prepared against the
petitioner
vide
office
order
dated
16.05.2014, which was served upon the
petitioner along with the report of 'A.A.I.B.'
dated 13.11.2013.

29. Learned counsel for the State has
also submitted that there were two
departmental proceedings running against
the petitioner due to which the petitioner
was kept under suspension vide order dated
04.08.2014. The petitioner submitted his
defence
by
means
of
letter
dated
29.04.2014 and the petitioner had also
submitted his reply to the charge-sheet
dated
16.05.2014
vide
letters
dated
29.04.2014, 23.06.2014, 27.06.2014 and
08.12.2014. The main contentions in the
said reply was that the unusual condition of
weather was the responsible factor for the
said accident and he is not at fault for the
same. It is submitted that the Inquiry
Officer vide letter dated 11.08.2015 has
given an opportunity of personal hearing to
the petitioner and fixed a date on
25.08.2015. It is also asked by the Inquiry
472 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer to the petitioner that the petitioner
may submit the additional reply or the
additional documents in addition to his
earlier reply, if he wants so. The petitioner
has written a letter to the inquiry officer in
which he has requested that he may be
given an opportunity of personal hearing on
14.08.2015 in place of 28.05.2014 and on
his request, the date of personal hearing
was fixed on 14.08.2015. It is submitted
that the petitioner appeared before the
inquiry officer and submitted the additional
reply, which was taken into consideration
by the Inquiry Officer. It is also submitted
that
during
the
course
of
inquiry
proceedings, all the papers/documents
available with the department were made
available to the petitioner and the inquiry
was completed by the inquiry officer in
accordance with law and submitted the
inquiry report dated 10.11.2015 to the State
Government.

30. Learned counsel for the State has
submitted that as per the inquiry report, the
charges levelled against the petitioner were
found to be proved and he was found
guilty. Therefore, a show cause notice
dated 26.11.2015 was issued to the
petitioner, which was served upon the
petitioner on 01.12.2015 and the petitioner
was given three weeks time to submit his
reply to the show cause notice. The
petitioner submitted his reply to the show
cause notice vide letter dated 21.12.2015
and also he has given a representation dated
23.12.2015 to the State Government. The
petitioner has again submitted another
representation dated 05.01.2016 to the State
Government and the same was forwarded
to
the
disciplinary
authority
for
consideration and taking decision.

31. Learned counsel for the State has
submitted that the reply and representations
submitted by the petitioner were not within
the time as prescribed in the show cause
notice. It is submitted that on 14.01.2016,
the entire file of the petitioner was
submitted
before
the
Hon'ble
Chief
Minister as he was the then Minister of the
Department for taking the necessary
approval. The matter was also sent to the
U.P. Public Service Commission vide letter
dated
04.02.2016
for
necessary
consultation/consent as required under the
provisions of the U.P. Public Service
Commission
(Limitation
of
Function)
Regulation 1954 as amended from time to
time and also required under Rule 16 of the
'Rules 1999'. The consent from the U.P.
Public Service Commission was received to
the State Government by letter of U.P.
Public
Service
Commission
dated
24.02.2016 after which the decision was
taken for the removal of the petitioner from
the service which does not disqualify for
further employment vide order dated
25.04.2016.

32. Learned counsel for the State has
vehemently
submitted
that
earlier
a
disciplinary inquiry was also conducted
against the petitioner with respect to an
accident took place at Allahabad, which
resulted into major penalty against the
petitioner. It is also submitted that at the
time of passing of the aforesaid punishment
order dated 25.04.2016, the petitioner was
not in service. Learned counsel for the
State has submitted that the inquiry
conducted by the 'A.A.I.B.' was not for
deciding the liability of anybody or to
punish anybody but it was for searching the
reasons behind the particular accident so
that the occurrence may not be repeated in
future. It is also submitted that in the
technical
inquiry
conducted
by
the
'A.A.I.B', it was found that the handling of
the Aircraft by the Pilot was a contributory
7 All. Wing Commander Rajesh Kumar Nagar Vs. State of U.P.
473
factor to the accident. Further, after
examination of the investigation/inquiry
report of the 'A.A.I.B.', the petitioner was
prima-facie found guilty for the aforesaid
accident of the State Plane, hence the
enquiry
was
conducted
against
the
petitioner under the 'Rules 1999' and after
conducting
the
enquiry
against
the
petitioner in accordance with law, the
petitioner was found guilty for the accident
of
the
State
Plane,
therefore,
the
punishment order dated 25.04.2016 was
passed and the petitioner was removed
from the services. It is submitted that there
are no illegality in the enquiry and the
enquiry
was
conducted
as
per
the
prescribed procedure established in the
statute as well as in accordance with the
law settled by the Hon'ble Apex Court and
also of this Hon'ble Court. During the
enquiry, the principle of natural justice has
been
followed
and
all
the
documents/materials which were necessary
for submitting the reply by the petitioner
were served upon the petitioner. There
were no lacuna in the enquiry conducted by
the State under the Rules 1999. Finding
was very clear that the petitioner was found
guilty and due to his negligence, the said
accident had taken place. Learned counsel
for the State has submitted that the instant
petition being devoid of merit is liable to be
dismissed.

33 . Counter and Rejoinder Affidavits
have been exchanged between the parties and I
have heard both the parties at length and gone
through the pleadings/materials on record.

34. Two issues are involved in Writ
Petition No.2562 (S/B now S/S) of 2016
which are as under :-

1. Whether the services of an
employee on deputation can be terminated
by the borrowing department on the
allegation of misconduct or negligence
during service ?

2.
Whether
unexplained
inordinate delay in framing charges would
amount to violation of principles of Natural
Justice and vitiate the entire disciplinary
proceedings ?

The third issue is involved in both
the Writ Petition No.2562 (S/B now S/S) of
2016 and 7624 (S/B now S/S) of 2017
which is as under : -

3.
Whether
the
preliminary
inquiry report/fact finding report can be
relied upon by the disciplinary authority to
terminate the services of the delinquent
employee on the ground of the misconduct
or negligence ?

35. For adjudication of the aforesaid
issues, the Rules and orders relevant to the
instant case are as follows:

36. Under the 'Rules 2012' the
objective of investigating an accident or
incident has been provided. The relevant
rules germane to the issue are being
extracted here in below:-

"3. Objective of the investigation
of accidents and incidents.

(1) The sole objective of the
investigation of an accident or incident
shall be the prevention of accidents and
incidents and not to apportion blame or
liability.
474 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Any investigation conducted
in accordance with the provisions of these
rules shall be separate from any judicial or
administrative proceedings to apportion
blame or liability.

8. Aircraft Accident Investigation
Bureau.-

(1) For the purposes of carrying
out investigation into accidents, serious
incidents and incidents referred to in subrules (1), (2) and (4) of rule, the Central
Government shall set up a Bureau in the
Ministry of Civil Aviation known as the
Aircraft Accident Investigation Bureau of
India and appoint such number of officers
familiar with aircraft accident investigation
procedures and other persons, as it deems
fit from time to time.

(2)
The
Aircraft
Accident
Investigation Bureau shall function under
overall
supervision
and
control
of
Government of India, Ministry of Civil
Aviation.

(3)
The
Aircraft
Accident
Investigation Bureau shall discharge the
following functions, namely: ⎯

(a) obtaining preliminary report
under rule 9 from any person or persons
authorised either under sub rule (1) of rule
9 or under sub rule(2) of rule 7;

(b)
assisting
the
Central
Government in setting up of Committee of
Inquiry and formal investigation under
these rules;

(c) to facilitate the investigation
and administrative work of the Committees
and Courts, whenever necessary.

(d) processing of the reports of
Courts and Committees of Inquiry received
by the Central Government, which includes
-

(i) forwarding of the reports to
the States for consultation under sub‐rule
(1) of rule 14;

(ii) forwarding the report made
public by the Central Government under
sub‐ rule (2) of rule 14 to the States as
required under Annex 13;

(iii) forwarding the report made
public by the Central Government under
sub‐ rule (2) of rule 14 to ICAO if the mass
of the aircraft involved in accident or
incident is more than 5,700 kg;

(e) follow‐up the recommendations
made by Courts and Committees of inquiry and
to ensure that are implemented by the
concerned agencies;

(f) to process cases for a
resolution by the Central Government of
disputes between the Bureau and any
agency regarding implementation of a
recommendation;

(g)
to
formulate
safety
recommendation on the basis of safety
studies,
including
induction
of
new
technology to enhance safety, conducted
from time to time.

(h) establish and maintain an
accident and incident database to facilitate
the effective analysis of information on
actual or potential safety deficiencies
obtained, including that from its incident
reporting systems, and to determine any
preventive actions required;
7 All. Wing Commander Rajesh Kumar Nagar Vs. State of U.P.
475

(i) to process obligations of the
Central Government under Annex 13 to the
Convention relating to International Civil
Aviation signed at Chicago on the 7th day
of December, 1944 as amended from time
to time; and

(j) any other functions, which the
Central Government may ask the Bureau to
perform from time to time under these
rules.

(4)
The
Aircraft
Accident
Investigation Bureau may, by notification
in the Official Gazette, and with the
previous
approval
of
the
Central
Government,
make
procedures,
not
inconsistent with the provisions of the Act
to carry out the purposes of these rules and
the functions referred to in sub‐rule (3).

(5) In particular, and without
prejudice to the generality of the foregoing
power, such procedures may provide for all
or any of the following matters, namely:--

(a) the persons required to notify
the accidents and incidents;

(b) the notifications of accidents
and serious incidents to International Civil
Aviation Organisation and the States for
participation in the investigation;

(c) the investigation of aircraft
accident and incidents;

(d) the format of preliminary and
reports of Committee of Inquiry and
Formal Investigation conducted under
these rules;

(e)
the
consolidation
and
follow‐up of safety recommendations made
by the Committee of Inquiry and Formal
Investigation with the agencies required to
Page 9 of 15 implement the recommendations and require action taken reports
from these agencies; and

(f) Any other matter subsidiary or
incidental to aircraft accident and incident
investigation. "

37. The objectives as are contained in
Rule 3 of the Rules is to provide only for
prevention of accidents and incidents and
no enquiry or investigation is done to
apportion blame or liability. In fact, it is
specifically provided under Rule 3(2) of the
Rules that any investigation conducted in
accordance with the Rules shall be separate
from
any
judicial
or
administrative
proceedings to apportion blame or liability.
It is thus clear that an investigation made
for
analysis
by
'AAIB'
is
not
for
ascertaining the fault, blame or liability but
only for the purposes of using the report for
utilizing it for safety purposes and to
prevent a re-occurrence.

38. The 'AAIB' is attached to the
government of India, Ministry of Civil
Aviation and discharges the function as
have been prescribed under Rule 8(3),
which indicates that it does not conduct any
investigation or inquiry for ascertaining
delinquency of any person.

Issue No. 1 is dealt as follows :

39. A 'deputationist' is an employee
who
has
been
assigned
to
another
department from his/her parent department.
The law regarding employees on deputation
is well settled. As regards the matter of
disciplinary control, the Hon'ble Apex
Court in State of U.P. v. Ram Naresh
476 INDIAN LAW REPORTS ALLAHABAD SERIES
Lal, (1970) 3 SCC 173 has observed that a
deputationist continues to be governed by
the rules of his/her parent department and is
deemed to be under the disciplinary control
of
his/her
parent
department
unless
absorbed permanently in the transferee
department.

40. In Kunal Nanda v. Union of India,
(2000) 5 SCC 362, it was further observed by
Hon'ble Supreme Court that the basic
principle underlying deputation is that the
person concerned can always and at any time
be repatriated back to his parent department.
Therefore, a deputationist stands on an
altogether different footing than a direct
recruit of the Organisation/ Department. A
deputationist can be repatriated back to
his/her parent department and in cases of
misconduct, necessary action can also be
initiated against him/her as per the conditions
of
service
governing
his/her
parent
department.

41.

In
the
case
of
K.
Kanagasabapathy Vs.