Allahabad High Court

Eklavya Kumar vs State Of U.P. Thru Addl.Chief ... on 28 February, 2023

Bench: Vivek Chaudhary




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

[In Chamber]
 

 
Case :- WRIT - A No. - 26819 of 2019
 

 
Petitioner :- Eklavya Kumar
 
Respondent :- State Of U.P. Thru Addl.Chief Secy./Prin.Secy.Lko Nirmanandanr
 
Counsel for Petitioner :- Anwar Ashfaq,Rina Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Chaudhary,J.

Writ A No. 6838 of 2022 is decided by this Court in this bunch of writ petitions. A Correction application bearing I.A. No.04 of 2023 is moved in the same for correcting order of the said writ petition. The application is allowed by the Court by order dated 28.02.2023 with a direction to correct this order. The correction is effected in the original order.

Now, after correction the order reads as follows:

A.F.R.

Case :- WRIT - A No. - 26819 of 2019

Petitioner :- Eklavya Kumar

Respondent :- State Of U.P. Thru Addl.Chief Secy./Prin.Secy.Lko Nirmanandanr

Counsel for Petitioner :- Anwar Ashfaq,Rina Pandey

Counsel for Respondent :- C.S.C.

ALONG WITH:

(1) Case :- WRIT - A No. - 3171 of 2021

Petitioner :- Giriwar Singh

Respondent :- State Of U.P.Thru.Addl.Chief Secy. Revenue And Ors.

Counsel for Petitioner :- Mahendra Pratap Singh,Abhishek Dwivedi

Counsel for Respondent :- C.S.C.

(2) Case :- WRIT - A No. - 3909 of 2021

Petitioner :- Mithilesh Kumar

Respondent :- State Of U.P.Thru.Addl.Chief Secy./Prin.Secy.Sectt. And Ors.

Counsel for Petitioner :- Gaurav Mehrotra,Ritika Singh,Tushar Mittal

Counsel for Respondent :- C.S.C.

(3) Case :- WRIT - A No. - 19998 of 2021

Petitioner :- Saurabh Kumar

Respondent :- State Of U.P. Thru. Addl. Chief Secy. Transport And Ors. Counsel for Petitioner :- Gaurav Mehrotra,Abhineet Jaiswal,Rani Singh Counsel for Respondent :- C.S.C.,Ashok Shukla,R.K.Upadhyay

(4) Case :- WRIT - A No. - 23387 of 2021

Petitioner :- Sanjeev Kumar

Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation And Water Resources

Counsel for Petitioner :- Raj Kumar Upadhyaya R.K.,Shivani

Counsel for Respondent :- C.S.C.

(5) Case :- WRIT - A No. - 5364 of 2022

Petitioner :- Amar Nath Pandey

Respondent :- The State Of U.P. Thru. Prin. Secy. Of Minority Welfare And Waqf And 4 Others

Counsel for Petitioner :- Pt. S. Chandra,Ravi Kant Mishra

Counsel for Respondent :- C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya)

(6) Case :- WRIT - A No. - 7508 of 2022

Petitioner :- Mrityunjai Kumar

Respondent :- State Of U.P. Thru. Prin. Secy. Namami Ganga Evam Gramin Jalapurti Anubhag-4, Lko. And 2 Others

Counsel for Petitioner :- Mahendra Pratap Singh

Counsel for Respondent :- C.S.C.,Ratnesh Chandra

(7) Case :- WRIT - A No. - 8737 of 2022

Petitioner :- Madhur Milan Singh

Respondent :- State Of U.P. Thru. Prin. Secy. State Tax Govt. Of U.P. Lko. And Another

Counsel for Petitioner :- Madhav Chaturvedi,Apoorva Tewari

Counsel for Respondent :- C.S.C.

(8) Case :- WRIT - A No. - 8750 of 2022

Petitioner :- Prashant Shukla

Respondent :- State Of U.P. Thru. Its Addl. Chief Secy/ Prin. Secy. Deptt. Of Revenue Lko. And 2 Others

Counsel for Petitioner :- Gaurav Mehrotra,Akber Ahmad

Counsel for Respondent :- C.S.C.

(9) Case :- WRIT - A No. - 8860 of 2022

Petitioner :- Smt. Archana Tiwari

Respondent :- State Of U.P. Thru. Prin. Secy. Food And Civil Supplies Deptt. Lko. And Others

Counsel for Petitioner :- Jagdambika Prasad Tripathi,Indra Jeet Yadav,Vishwanath Prasad Tripathi

Counsel for Respondent :- C.S.C.

(10) Case :- WRIT - A No. - 8982 of 2022

Petitioner :- Arvind Kumar Singh

Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Finance, Lko. And 2 Others

Counsel for Petitioner :- Shiv P. Shukla,Rajendra Prasad,Rohit Tripathi

Counsel for Respondent :- C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya)

(11) Case :- WRIT - A No. - 108 of 2023

Petitioner :- Pradeep Kumar Srivastava

Respondent :- State Of U.P. Thru. Its Addl. Chief Secy./Prin. Secy Deptt. Of Appointment Govt. Lko. And Another

Counsel for Petitioner :- Radhey Shyam,Gaurav Mehrotra,Rani Singh,Santosh Kumar Tripathi

Counsel for Respondent :- C.S.C.

(12) Case :- WRIT - A No. - 388 of 2023

Petitioner :- Vijay Kumar

Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Appointment Lko. And Another

Counsel for Petitioner :- Niteesh Kumar,Rajeev Narayan Pandey

Counsel for Respondent :- C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya)

(13) Case :- WRIT - A No. - 940 of 2023

Petitioner :- Harish Chandra Pathak

Respondent :- State Of U.P. Thru. Addl. Chief Secy. Dept. Revenue U.P. Civil Secrett. Lko. And 4 Others

Counsel for Petitioner :- Shobhit Mohan Shukla,Manoj Kumar Chaurasiya,Nitesh Kumar Mishra

Counsel for Respondent :- C.S.C.

(14) Case :- WRIT - A No. - 6838 of 2022

Petitioner :- Dinesh Kumar Gupta

Respondent :- State Of U.P. Thru. Addl. Chief Secy. Finance U.P. Civil Secrett. Lucknow And Another

Counsel for Petitioner :- Hari Prasad Gupta,Hari Ram Gupta

Counsel for Respondent :- C.S.C.

(15) Case :- WRIT - A No. - 2922 of 2019

Petitioner :- Nitesh Kumar Singh

Respondent :- State Of U.P. Thru Secy. Agriculture Deptt. And Ors.

Counsel for Petitioner :- Ramesh Kumar Srivastava

Counsel for Respondent :- C.S.C.

(16) Case :- WRIT - A No. - 25694 of 2019

Petitioner :- Dhirendra Sahai

Respondent :- State Of U.P. Thru Addl. Chief Secy. Rural Engg.Dept. And Ors.

Counsel for Petitioner :- Girijesh Kumar Dwivedi,Mohd. Usman Ghani Khan

Counsel for Respondent :- C.S.C

(17) Case :- WRIT - A No. - 31943 of 2019

Petitioner :- Ram Shankar

Respondent :- State Of U.P.Thru Prin.Secy.Commercial Tax Deptt. Lko And Ors.

Counsel for Petitioner :- Priya Vrat

Counsel for Respondent :- C.S.C.

(18) Case :- WRIT - A No. - 32749 of 2019

Petitioner :- Ram Suchit Verma

Respondent:-StateOf U.P.Thru Prin.Secy.Mahila Evam Baal Vikas Lko and Ors

Counsel for Petitioner :- Vinay Misra

Counsel for Respondent :- C.S.C.

(19) Case :- WRIT - A No. - 3286 of 2020

Petitioner :- Smt.Anju Kumari

Respondent :- State Of U.P.Thru Prin.Secy.Food Andcivil Supplies Deptt. Andors

Counsel for Petitioner :- Jagdambika Prasad Tripath,Indra Jeet Yadav,Vishwanath Prasad Tripath

Counsel for Respondent :- C.S.C.

(20) Case :- WRIT - A No. - 4614 of 2020

Petitioner :- Krishna Mohan Srivastava

Respondent :- State Of U.P.Thru Prin.Secy. Food Andcivil Supplies Lko And Ors.

Counsel for Petitioner :- Jagdambika Prasad Tripath,Indra Jeet Yadav,Vishwanath Prasad Tripath

Counsel for Respondent :- C.S.C.

(21) Case :- WRIT - A No. - 24001 of 2020

Petitioner :- Ram Achal Koulik

Respondent :- State Of U.P.Thru.Prin.Secy.P.W.D. And Ors.

Counsel for Petitioner :- Dinesh Chandra Tewari,Phool Bux Singh

Counsel for Respondent :- C.S.C.

(22) Case :- WRIT - A No. - 8408 of 2022

Petitioner :- Avanindra Dikshit

Respondent :- State Of U.P. Thru. Addl.Secy. Finance Deptt. (Audit) Lko. And 5 Others

Counsel for Petitioner :- Neel Kamal Mishra,Siddhant Mishra

Counsel for Respondent :- C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya)

*****

Hon'ble Vivek Chaudhary,J.

Heard Shri Jaideep Narain Mathur and Shri Upendra Nath Mishra, learned senior advocates, Shri Gaurav Mehrotra, Shri Ramesh Kumar Srivastava, Shri Raj Kumar Upadhyaya, Shri Pt. S. Chandra, Shri Apoorva Tewari and other counsels for the petitioners. Sri Kuldeep Pati Tripathi, learned Additional Advocate General, Sri Ravi Singh Sisodiya, learned Chief Standing Counsel-III, Shri Ratnesh Chandra and learned counsel for the respective department appeared for the respondents.

The departmental inquiries with regard to the major punishment in the State of U.P. are in utter chaos since long. Day in and out, punishment orders are challenged before this Court wherein Rule 7 of U.P. Government Servant (Discipline & Appeal) Rules, 1999 (hereinafter referred to as 'Rules of 1999'), is violated. In fact, entire roster of a Judge can pass without a single case of major punishment being placed before him in which Rule 7 of Rules of 1999 is complied with. Rule 7 (iii) and (vii) of Rules of 1999 reads as under:-

"7. Procedure for imposing major penalties - Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner :

(iii) The charge framed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet.

...

(vii) Where the charged Government Servant denies the charge, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, 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."

The seriousness of the situation resulted in repeated orders passed by the Supreme Court, by this Court as well as Government Orders issued. Relevant amongst these read as follows:-

This Court in the case of Prakash Chandra Agrawal vs. State of U.P. and another (Writ-A No.2555 of 2022, decided on 7.5.2022, passed the following order:

"1. Present writ petition is filed by the petitioner challenging his punishment order dated 11.04.2022 passed by Additional Chief Secretary/Principal Secretary, Secretariat Administration Department, Lucknow (respondent no.2).

2. By the impugned order, petitioner is given a punishment of censure entry and reversion to the post of Section Officer from the post of Under-Secretary.

3. At the very outset, learned counsel for petitioner submits that the inquiry was conducted by the Special Secretary, Medical Education Services, U.P., who submitted her report on 25.08.2021. He submits that in the present case, the inquiry officer was never provided the documents to which she had relied upon in the inquiry. The said documents were summoned by the inquiry officer during the conduct of the inquiry and were also perused by her. However, neither copy of the said documents were provided to the petitioner nor the same were permitted to be perused by the petitioner. Learned counsel for petitioner further submits that a bare perusal of the report shows that the inquiry was conducted in violation of Rule-7 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinafter referred to as 'Rules of 1999'), as no date, time and place was fixed in the inquiry.

4. I have perused the inquiry report as well as the impugned punishment order. A bare perusal of the same shows that the inquiry officer has, in fact, not merely failed to follow the procedure provided by Rule-7 of Rules of 1999 but has also placed burden upon the delinquent employee to prove that he is not guilty. In the first line of discussion, the inquiry officer states, that, delinquent employee through his reply to the charge-sheet/statements could not submit any evidence which would prove that the delinquent employee is wrongly charged.

5. In the present case, the Additional Chief Secretary was summoned along with the record. Today he is present in Court along with the record and with his assistance as well as assistance of the counsels for parties, record is perused. Learned Standing Counsel also could not show from the record of the case that the procedure as prescribed under Rule-7 of Rules of 1999 is followed in conducting the inquiry and any date, time and place was fixed for evidence or evidence relied upon/summoned was provided to the petitioner.

6. Though the matter is simple as it is to be remanded back, but, in large number of cases filed before this Court, it is found that the inquiry with regard to major penalty is conducted in violation of Rule-7 of Rules of 1999. The present case is a glaring example of the same. Inquiry officer is a Special Secretary and the punishing authority is a Principal Secretary. Still a glaring error is committed in conduct of the inquiry by the inquiry officer and in failure to check the same by the punishing authority before punishment order was issued. It is not merely the duty of the inquiry officer to comply with the Rule-7 but also the duty of the punishing authority, while passing order of punishment, to ensure that the inquiry is conducted as per the procedure prescribed.

7. Such mistakes in large numbers are occurring for quite some time now in the State. The State Government as far back as on 22.04.2015 issued a detailed government order explaining at length the manner in which inquiry with regard to minor punishment or major punishment should be conducted. The government order explains at length what is already prescribed in Rule-7. When the inquiries were still not being conducted in proper manner, again under order of this Court dated 13.01.2021 passed in Writ-A No.12110 of 2020; 'State of U.P. & Others Vs. Vijay Anand Tiwari', a Government Order dated 10.02.2021 was issued by the State Government for compliance of Rule-7. Despite two aforesaid government orders, the inquiries are still not conducted in a proper manner. It is sad to note that the both the aforesaid government orders are also not being complied with by the officials. It is also noted that in large number of cases, after remand when the inquiry is re-conducted, the same procedural error is again made and again the inquiry report is submitted without following the due procedure as per Rule-7. This is also putting burden of unnecessary litigation upon this Court. It is the duty of the inquiry officer as well as the punishing authority to ensure compliance of Rule-7.

8. Since these incidences are abundant in number, therefore, this Court finds it necessary now to ensure that every inquiry officer, who at present is conducting an inquiry or appointed to conduct any inquiry in future, is provided proper training with regard to the manner and procedure for conducting the inquiry. Similarly the disciplinary authorities are also required to go through a training with regard to the manner in which the inquiries are to be conducted and, thereafter, punishment orders are to be passed. It goes without saying that the power exercised by the inquiry officers are quasi judicial in nature and for the same a judicially trained mind is required. The State Government is already having a Judicial Training and Research Institute (J.T.R.I.) which trains/educates the officers of the State Government on the legal compliances/procedures.

9. Therefore, Director, J.T.R.I., Lucknow is directed to forthwith prepare an appropriate program for training of the inquiry officers as well as for training of the disciplinary authorities so that such mistakes are not repeated. The J.T.R.I shall also issue an appropriate identifiable certificate to every officer after he/she completes the training session. The relevant details of the said training session/certificates shall be referred by the officer concerned in every inquiry report submitted by him/her or punishment order passed. All the officers who are conducting any inquiry at present in the State shall attend the training without any delay and such inquiry officers shall conclude their inquiries only after their training is completed. Similarly the punishing authority shall also go through the required training before passing any punishment order and also refer to their session/certificate. It is further directed that no inquiry officer in future shall be appointed for departmental inquiry who has not received the training from the J.T.R.I. The State government shall bear the cost of the aforesaid training at J.T.R.I. at its own cost.

10. Senior Registrar of this Court shall forthwith send a copy of this order to the Chief Secretary of the State of U.P. as well as Director, J.T.R.I., Lucknow for its compliance.

11. Since, in the present case, admittedly, there is violation of Rule-7 as the documents relied upon by the inquiry officer were never provided to the petitioner nor the inquiry is conducted following the procedure prescribed under Rule-7, i.e., by summoning the witnesses of the department, giving chance of cross examination, providing opportunity to the delinquent employee/petitioner to call his witnesses, therefore, impugned order dated 11.04.2022 cannot stand and is set aside.

12. The matter is remanded back to respondent no.2 for conducting fresh inquiry after following proper procedure as prescribed under Rule-7.

13. With the aforesaid, the writ petition is allowed."

Supreme Court in the case of State of U.P. and others vs. Vijaya Nand Tiwari: Special Leave to Appeal No.10331 of 2022, has passed following comments on 13.7.2022 with regard to working of the State Government:

"As the inquiry was found to be in breach of Rule 7 (vii) of the U.P. Government Servant (Discipline and Appeal), Rules, 1999 (for short of 1999"), as such the learned Tribunal rightly set aside the order of punishment. In fact, the learned Tribunal allowed the back wages to the extent of 50% only. The same is rightly confirmed by the High Court. Therefore, there is no merit in the Special Leave Petition and the same deserves to be dismissed and is accordingly dismissed.

At this stage, it is required to be noted that while passing the impugned order, the High Court has shown its displeasure and observed and issued directions to the Chief Secretary, State of U.P. to look into the matter and appropriately direct the Secretaries of concerned departments to ensure that inquiry is conducted after observing Rule 7 of the Rules of 1999 in strict terms and more specially to lead oral evidence to prove the charges. The High Court has passed the following order -

"Before parting with the judgment, it is necessary to indicate that time and again Tribunal is causing interference in the order of punishment finding violation of Rule 7(vii) of the Rules of 1999.

Rule 7(vii) of the Rules of 1999 provides for oral evidence and invariably not followed in the enquiry despite catena of judgments of this Court causing interference the order of punishment. The violation of the Rule 7(vii) of the Rules of 1999 results not only interference of order of punishment but financial burden on the Government in shape of back wages.

The Chief Secretary, State of U.P. is directed to look into the matter and appropriately direct the Secretaries of concerned departments to ensure that enquiry is conducted after observing Rule 7 of the Rules of 1999 in strict terms and more specially to lead oral evidence to prove the charges.

Necessary direction in compliance of this order would be issued by office of Chief Secretary, State of U.P. with an information to this Court in reference to the present order.

The registry is directed to send the copy of this order to Chief Secretary, State of U.P. for compliance within a period of one month from the date of its receipt."

Nothing is on the record to show any further steps taken by the Chief Secretary, State of U.P. in furtherance of the aforesaid directions issued by the High Court. Only for that purpose, the Registry is directed to notify the matter before this Bench on 18.07.2022 so as to enable the learned counsel for the petitioners. to place on record what steps are taken by the Chief Secretary, State of U.P. in compliance with the directions issued by this Court, as above.

Pending applications shall stand disposed of."

Further, the Supreme Court in the aforesaid case of Vijaya Nand Tiwari (supra) passed the following order on 18.7.2022.

"Pursuant to our earlier Order dated 13.07.2022, an Affidavit is filed on behalf of the State of U.P. The affidavit is filed by one Chintan, posted as Prabhagiya Nirdeshak, Van Vibagh, Mau, U.P. which ought to have been filed either by the Chief Secretary or from the office of the Chief Secretary. In the affidavit, it is pointed out that, pursuant to the impugned judgment and order passed by the High Court, the Chief Secretary has issued the Circular dated 10.02.2021, directing that in all the departmental enquiry proceedings in the State, Rule 7(vii) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 shall have to be followed.

When a pointed question was asked to the learned Senior Counsel appearing on behalf of the State that whether the Circular dated 10.02.2021 has been scrupulously thereafter followed or not. in the subsequent departmental enquires, he has stated that he has no further instructions in the matter and he cannot make any statement on that. Mere issuance of a Circular by the Chief Secretary to follow the rules is not sufficient. When the Chief Secretary has issued the Circular, it is his duty to see that his own Circular is followed.

Therefore, we direct the Chief Secretary to see that his own Circular dated 10.02.2021 to follow Rule 7 (vii) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 shall be followed by all concerned Officers in the departmental enquiries so that the order of punishment on conclusion of the departmental enquiry is not set aside on the technical ground of not following the procedure as required under Rule 7 (vii) of the Rules, 1999. The Chief Secretary, State of Uttar Pradesh is directed to act accordingly. He must also ensure that if his own Circular is not followed, in that case, a further departmental enquiry be initiated against the erring officers, which may be including the insubordination and not following the Circular issued by the Chief Secretary.

With this, we close the present proceedings."

The Government Order dated 10.8.2022 issued by the State Government reads as under:

loksZPPk izkFkfedrk

la[;k&[email protected]@[email protected]&1&[email protected]¼9½1998

isz"kd]

nqxkZ 'kadj feJ]

eq[; lfpo

mRRkj izns'k 'kkluA

lsok esa]

leLr vij eq[; [email protected][k [email protected]]

mRRkj izns'k 'kkluA

dkfeZd vuqHkkx&1 y[kuÅ% fnukad 10 vxLr] 2022

fo"k;& foHkkxh; dk;Zokfg;ksa (Departmental enquiries) esa lEcfU/kr vf/kdkfj;ksa }kjk mRRkj izns'k ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh] 1999 ds fu;e&7 (vii) dk vuqikyu u fd;s tkus ds laca/k esaA

egksn;]

ek0 mPpre U;k;ky; ds le{k nk;j ,l0,y0ih0 ¼flfoy½ la[;k&[email protected] mRRkj izns'k jkT; o vU; cuke fot;kuUn frokjh esa ek0 mPpre U;k;ky; }kjk ikfjr vkns'k fnukad 13-07-2022 lifBr vkns'k fnukad 18-07-2022 ds eq[; fdz;kRed va'k fuEuor~ gS&

"...... Mere issuance of a circular by the Chief Secretary to follow the rules is not sufficient. When the Chief Secretary has issued the circular, it is his duty to see that his own Circular is followed.

Therefore, we direct the Chief Secretary to see that his own circular dated 10.02.2021 to follow rule 7(vii) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 shall be followed by all concerned officers in the departmental enquiries so that the order of punishment on conclusion of the departmental enquiry is not set aside on the technical ground of not following the procedure as required under Rule 7 (vii) of the Rules, 1999. The Chief Secretary, State of Uttar Pradesh is directed to act accordingly. He must also ensure that if his own Circular is not followed, in that case, a further departmental enquiry be initiated against the erring officers, which may be including the insubordination and not following the circular issued by the Chief Secretary.

With this, we close the present proceedings."

2- ek0 mPpre U;k;ky; ds mi;qZDr vkns'kksa ds leknj esa vkidk /;ku 'kklukns'k la[;k&[email protected]@13¼9½1998&[email protected]&1&2021 fnukad&10-02-2021 dh vksj vkd`"V djrs gq, eq>s vkils ;g dgus dk funs'k gqvk gS fd izR;sd foHkkxh; tkap ds izdj.k esa m0iz0 ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh] 1999 ds fu;e&7 (vii) dk vfuok;Z :i ls vuqikyu lqfuf'pr djk;k tk;] ;fn mDr dk vuqikyu lqfuf'pr ugha fd;k tkrk gSa rks nks"kh (erring) vf/kdkfj;ks ds fo:n~/k foHkkxh; tkap lafLFkr djus dh dk;Zokgh Hkh dh tk;sA

The State Government issued Government Order dated 16.8.2022, which reads as under:

"la[;k&[email protected]@lSrkfyl&dk&[email protected]@13(3)@2022

izs"kd]

nqxkZ 'kadj feJ]

eq[; lfpo]

mRRkj izns'k 'kkluA

lsok esa]

leLr vij eq[; [email protected][k [email protected]]

mRRkj izns'k 'kkluA

dkfeZd vuqHkkx&1 y[kuÅ % fnukad 16 vxLr] 2022

fo"k;% mRRkj izns'k ljdkjh lsod ds vUrxZr foHkkxh; dk;Zokfg;ksa dk fu;ekuqlkj fuLrkj.k ds laca/k esa tk¡p vf/kdkfj;ksa dks izf'k{k.k fn, tkus ds laca/k esaA

d`i;k fjV ;kfpdk la[;k&[email protected] fjV&, izdk'k pUnz vxzoky cuke mRRkj izns'k jkT; o vU; esa ek0 mPp U;k;ky; }kjk ikfjr vkns'k fnukad 07 ebZ 2022 ds fo:) jkT; ljdkj }kjk ;ksftr fo'ks"k vihy la[;k&[email protected] esa ek0 mPp U;k;ky; }kjk fnukad&22-07-2022 dks ikfjr fd;s x, vkns'k dk lUnHkZ xzg.k djus dk d"V djsa] ftldk dk;Zdkjh va'k fuEuor~ gS%

"............At this stage, we are only examining the issue regarding training part of Enquiry Officers in the State. Learned Single Judge vide order dated May 7, 2022 issued direction that no Enquiry Officer in future shall be appointed for departmental inquiry, who has not received training from the Judicial Training & Research Institute (hereinafter referred to as "JTRI"). We find 2 Special Appeal Defective No.97 of 2022 that this sweeping direction will withhold number of inquires, which are pending in the different departments in the State keeping in view the infrastructure available in the JTRI. For conducting such inquiries, the importance of training to the officers, who have to hold the departmental inquiry, may not be lost sight of keeping in view the repeated violation of principles of natural justice and the rules governing such inquiries.

5. In the affidavit filed today, certain communications have been annexed and figures have been provided regarding training programs conducted after passing of the aforesaid order and from April 1, 2022 onwards. It is claimed that departmental inquiry is one of the subject in the training programme of the Officers but what we find prima facie is that the training being imparted is not yielding the results as required, as still the rules and principles of natural justice are found to be violated. The training programme for such Officers has to be more robust and specialised, for which the State is directed to place before the Court a comprehensive plan.

6. As the sweeping directions issued by the learned Signle Judge will withhold all the departmental inquiries, we stay those directions to the extent - ''that no Officer in future shall be appointed for departmental inquiry unless he has received training from JTRI'. However, we expect that in the pending inquiries, the Officers holding such inquiries shall be sensitised without any delay and further the training programs of the Officers shall be regular exercise."

2- ek0 mPp U;k;ky; ds vkns'k fnukad&22-07-2022 ds dze esa voxr djkuk gS fd mRRkj izns'k jkT; ds ljdkjh lsodksa ds fo:) vuq'kklfud dk;Zokfg;k¡ fd, tkus ds laaca/k esa mRRkj izns'k ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh] 1999 izFke la'kks/ku fu;ekoyh] 2014] 'kklukns'k dze'k% fnukad 22-04-2015] fnukad& 11-08-2015] fnukad 10-02-2021 vkSj fnukad 19-07-2022 eq[; :i ls fuxZr fd, x, gSaA

3- mRRkj izns'k ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh] 1999 ds fu;e&7 ds v/khu lafLFkr vuq'kklfud tk¡p ds izdj.k esa fu;qDr tk¡p vf/kdkfj;ksa ds ekxZn'kZu gsrq eq[; :i ls fuEukafdr fn'kk funsZ'k 'kklukns'k fnukad 19-07-2022 ds ek/;e ls fuxZr fd, x, gS%

¼v½&ftldk vuqikyu vko';d gS (Do's)-

(I) vipkjh dkfeZd }kjk ;fn vfHkys[kksa ds fujh{k.k dh vis{kk dh tkrh gks rks mls fujh{k.k dk volj vo'; iznku fd;k tk;sA

(II) vipkjh dkfeZd ls viuk fyf[kr Li"Vhdj.k 15 fnu ls 01 ekg ds vUnj izLrqr djus dks dgk tk;sA

(III) ;fn tkap] iwoZ fu;qfDr ds LFkku ls lacaf/kr gS rks vipkjh ljdkjh lsod dks ml LFkku ij tkus dh vuqefr ns nh tk;s] tgk¡ mls vfHkys[k vkfn ns[kus gSA

(IV) tk¡p vf/kdkjh }kjk vipkjh dkfeZd dks lk{; ds vUrxZRk fn;s x;s vfHkys[kksa dh Lohdk;Zrk ds laca/k esa vkifRRk izdV djus dk volj Hkh fn;k tk;sA

(V) vkjksfir ljdkjh lsod dks viuk i{k izLrqr djus dk ;qfDr;qDr volj fn;k tkuk pkfg,A ;fn vkjksfir ljdkjh lsod vkjksiksa ls bUdkj djrk gSa] ogka tkap vf/kdkjh vkjksi i= esa IkzLrkfor lkf{k;ksa (Witnesses)dks izfrijh{k.k (Cross-Examination) gsrq cqyk ldrk gSA tkap vf/kdkjh }kjk muds ekSf[kd lk{;ksa dks vkjksfir vf/kdkjh dh mifLFkfr esa vfHkfyf[kr fd;k tk;sA mi;qZDr lk{;ksa dks vfHkfyf[kr djus ds i'pkr tk¡p vf/kdkjh ml ekSf[kd lk{; dks ek¡xsxk vkSj mls vfHkfyf[kr djsxk ftls vkjksfir ljdkjh lsod us viuh izfrj{kk esa vius fyf[kr dFku esa izLrqr djuk pkgk FkkA

izfrcU/k ;g gS fd tk¡p vf/kdkjh ,sls dkj.kksa ls tks fyf[kr :i ls vfHkfyf[kr fd, tk,xsa] fdlh lk{kh dks cqykus ls bUdkj dj ldsxkA

(VI) tk¡p vf/kdkjh }kjk tk¡p ds nkSjku xokgksa ds c;ku vkjksfir ljdkjh lsod ds le{k rFkk fof/kor 'kiFk fnyokus ds mijkUr fy;k tk;sA

(VII) tk¡p vf/kdkjh }kjk laiw.kZ tkap dh dk;Zokgh esa d`r dk;Zokfg;ksa dk vkns'k i=d (order sheet) rS;kj fd;s tk;s ftl ij ;Fkkle; vkjksfir vf/kdkjh ,oa vU; lkf{k;ksa ds gLrk{kj djk;k tk;sA tk¡p vk[;k izLrqr djrs le; tk¡p vk[;k ds lkFk mDr vksn'k i=d dks layXud ds :i esa vuq'kklfud izkf/kdkjh dks iszf"kr fd;k tk;sA

¼c½&fu"ks/kkRed funsZ'k (Don'ts)-

(I) lkekU;r;k vipkjh dkfeZd dks viuk Li"Vhdj.k fn;s tkus gsrq 02 ekg ls vf/kd dk le; u fn;k tk;sA fdUrq vifjgk;Z ifjfLFkfr;ksa esa mDRk le; lhek esa ;qfDr&;qDr (Reasonable) o`f) dh tk ldrh gSA

(II) tk¡p vf/kdkjh dks tk¡p vk[;k esa izLrkfor n.M ds fo"k; esa dksbZ earO; vFkok laLrqfr vafdr ugh dh tk;sA

(III) fcuk mfpr dkj.k ds tkap dk;Zokgh yfEcr ugh j[kh tk;sA

(IV) lquokbZ] lk{; vFkok vU; dk;Zokgh gsrq fu;r frfFk;ksa dks vkxs u Vkyk tk;sA ;fn ,slk djuk vifjgk;Z gks rks mls ldkj.k vkns'k i=d esa mfYYkf[kr fd;k tk;sA

4- orZeku esa izpfyr vuq'kklfud dk;Zokfg;ksa ls lEcfU/kr tkap

vf/kdkfj;ksa dks izLrj&3 esa mfYYkf[kr funsZ'kksa dks miyC/k] djkrs gq, muls bl vk'k; dk izek.k i= izkIr dj fy;k tk;s fd muds }kjk mDr funsZ'kksa dks i<+dj Hkyh&Hkakfr le> fy;k x;k gSA Hkfo"; esa Hkh ftruh vuq'kklfud dk;Zokfg;ka lafLFkr dh tk,a muds tkap vf/kdkfj;ksa dks Hkh mudh fu;qfDr i= ds lkFk gh bldh izfr layXu djrs gq, bl vk'k; dk izek.k&i= izkIr dj fy;k tk;s fd muds }kjk bu funsZ'kksa dks i<+dj Hkyh&Hkkafr le> fy;k x;k gSA

5- mi;qZDr ds vkyksd esa vuqjks/k gS fd vius foHkkx ds fu;a=.kk/khu leLr izf'k{k.k laLFkkvksa dks mi;qZDr izLrj&2 esa mfYYkf[kr fu;ekofy;[email protected]'kklukns'kksa dh O;oLFkkvksa dk laKku ysrs gq, vk/kkj Hkwr izf'k{k.k (Induction Training) dk;Zdzeksa esa [email protected]% l= (Period) ,oa lsok dkyhu izf'k{k.k (In Service Training) ds dk;Zdzeksa esa ,[email protected] l= (Period) vuq'kklfud tk¡p dk;[email protected];k ds laca/k esa j[kk tk;sA blds lkFk gh 'kh"kZ izkFkfedrk ds vk/kkj ij] vf/kd ls vf/kd la[;k esa izHkkoh izf'k{k.k djk;s tkus gsrq O;kid ;kstuk (Comprehensive plan) rFkk izLrj&4 es mfYYkf[kr fcUnq ds lEcU/k esa dh xbZ dk;Zokgh dh lwpuk dkfeZd foHkkx dks fnukad 15-09-2022 rd miyC/k djkus dk d"V djsaA

6- mi;qZDRk izf'k{k.k dk;Zdzeksa esa mu vf/kdkfj;ksa dks ojh;rk iznku dh tk;s ftUgsa laizfr izpfyr fdlh vuq'kklfud dk;Zokgh esa tk¡p vf/kdkjh ukfer fd;k x;k gksA

A Division Bench of this Court in the case of State of U.P. and another vs. Prakash Chandra Agrawal (Special Appeal Defective No.97 of 2022) passed an order on 22.7.2022, relevant portion of the same reads:

"........4. At this stage, we are only examining the issue regarding training part of Enquiry Officers in the State. Learned Single Judge vide order dated May 7, 2022 issued direction that no Enquiry Officer in future shall be appointed for departmental inquiry, who has not received training from the Judicial Training & Research Institute (hereinafter referred to as "JTRI"). We find that this sweeping direction will withhold number of inquires, which are pending in the different departments in the State keeping in view the infrastructure available in the JTRI. For conducting such inquiries, the importance of training to the officers, who have to hold the departmental inquiry, may not be lost sight of keeping in view the repeated violation of principles of natural justice and the rules governing such inquiries.

7. Adjourned to August 24, 2022."

Thereafter, another Division Bench of this Court has also passed a detailed order on 5.9.2022 in the case of State of U.P. and another vs. Prakash Chandra Agarwal: Special Appeal No.351 of 2022. The order dated 5.9.2022 reads as under:

"This Court by means of an order dated 22.07.2022 had directed the State to place before the Court a comprehensive plan for training of officers of the State Government who are entrusted with conducting inquiries in the departmental proceedings and also those who are to take final decision in the matter in their capacity as appointing authorities/disciplinary authorities. On 02.09.2022 the Court again required the State to file the said affidavit.

In compliance of the said orders dated 22.07.2022 and 02.09.2022, an affidavit has been filed by the learned State Counsel sworn in by the Special Secretary, Secretariat Administration Department. The said affidavit is taken on record.

In the affidavit filed today, it has been stated that the Chief Secretary of the State of Uttar Pradesh has issued directions by means of his letter/order dated 16.08.2022 for continuing various training programmes in all the departments. The letter/order has been circulated by the Additional Chief Secretary in the Department of Karmik. According to the said letter/order, the departments have required to prepare a comprehensive plan for effective training of the officers in good numbers on priority basis and necessary information has also been directed to be furnished to the Karmik Department till 15.09.2022.

Learned State Counsel has submitted that the said information is to be received by the Karmik Department by 15.09.2022, as such once the necessary information is received, the affidavit as ordered vide order of the Court, dated 22.07.2022 shall be filed.

For the said purpose, we direct that after collecting the information as mentioned in the order dated 16.08.2022 of the chief Secretary of the State of U.P., an affidavit shall be filed before this Court by the next date of listing giving therein the details of the comprehensive plan for training.

Learned State Counsel has also submitted that as a result of the order passed by the learned Single Judge, which is under appeal herein, the departmental proceedings in the entire State of U.P. have been put to halt though the Court by means of the order dated 22.07.2022 had stayed certain direction issued by the learned Single Judge to the extent, "that no Officer in future shall be appointed for departmental inquiry unless he has received training from JTRI". However, it has further been stated that after the said stay order dated 22.07.2022 though now enquiry officers are being appointed for conducting the departmental enquiries without receiving the training from JTRI but so far as the appointing/disciplinary authorities are concerned, they are unable to take final decision in the matters where the enquiries have been taken to final stages.

Accordingly, we provide that the directions issued by the learned Single Judge to the extent "punishing authority shall go through the required training before passing any punishment order and also refer to their session/certificate" shall remain stayed. However, this order whereby a part of the order passed by learned Single Judge has been stayed, does not mean that the appointing/punishing authorities in the State of U.P. shall not undergo the requisite training as directed by learned Single Judge at JTRI.

We make it clear that directions issued by learned Single Judge are an expression of concerns of the Court relating to various irregularities which are noticed by the Court almost on everyday basis in the matters relating to departmental proceedings where on account of un-acquaintance with the exact procedure for conducting departmental proceedings and thereafter for passing the appropriate punishment orders, the erring officers many times go scot-free."

Since 2.1.2023 till date, more or less all the petitions which have come before this Court as fresh or for hearing, where order imposing major punishment is under challenge, are part of this bunch. The argument in each of these is with regard to violation of both Rule 7 (iii) and (vii) of the Rules of 1999. Thus, these all writ petitions can be decided on the same ground. However, learned Chief Standing Counsel-III requested the Court to decide each and every case separately.

On request of Sri Ravi Singh Sisodia, learned Chief Standing Counsel-III, this Court has taken up each and every case separately.

Writ-A No.26819 of 2019

In the leading Writ Petition No.26819 of 2019, the petitioner has approached this Court challenging the impugned punishment order dated 02.08.2019 passed by the State Government. Earlier also, the petitioner was punished by order dated 04.04.2013. The said order dated 04.04.2013 was set aside by this Court in Writ Petition No.30422 (S/B) of2016 (Eklavya Kumar Vs. State of U.P. and others). The writ petition was allowed on the ground that the inquiry was conducted in violation of Rule 7 of U.P. Government Servant (Discipline & Appeal) Rules, 1999 (hereinafter referred to as 'Rules of 1999'). This Court gave a categorical finding that the earlier inquiry was concluded merely after taking reply of the petitioner, without holding any oral inquiry as per Rule 7 of Rules,1999. The respondents again proceeded to hold an inquiry and passed the impugned order dated 02.08.2019. Now, learned counsel for the petitioner submits that the impugned order dated 02.08.2019, shows that on the charge sheet, reply of the petitioner was obtained and no oral inquiry took place, and thus again procedure prescribed in Rule 7, is not followed.

Learned counsel for the petitioner has placed before the Court the inquiry report dated 21.09.2018 (Annexure -9 to the writ petition). A perusal of the inquiry report shows that on the charge-sheet, only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. There is no reference to any oral evidence or documentary evidence and the manner in which the documentary evidence was proved, reflected in the inquiry report. On the basis of the said report final order of punishment dated 02.08.2019 is passed.

Learned counsel for the petitioner submits that the entire inquiry is in violation of Rule 7 of Rules of 1999; inasmuch as there is no oral evidence submitted by the department to prove the documents against the petitioner and no opportunity to petitioner was given to cross-examine the same. The inquiry is concluded only on the basis of the reply submitted by the petitioner.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned order dated 02.08.2019, cannot stand and is set aside. Consequences to follow.

Writ-A No.3171 of 2021

In this petition petitioner has challenged the impugned punishment order dated 13.1.2021 passed by respondent no.2.

A perusal of the impugned order dated 13.1.2021, shows that on the charge sheet, only the reply of the petitioner was obtained.

Learned counsel for the petitioner has placed the inquiry report dated 24.7.2020. A perusal of the inquiry report shows that on the charges, only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. There is non-consideration of any oral evidence or documentary evidence and the manner in which the documentary evidence was proved, reflected in the inquiry report. On the basis of the said report final order of punishment dated 13.1.2021 is passed.

Learned counsel for the petitioner submits that the entire inquiry is in violation of Rule 7 of Rules of 1999 as there is no oral evidence submitted by the department to prove the documents against the petitioner and no opportunity to petitioner was given to cross-examine the same. The inquiry is concluded only on the basis of the reply submitted by the petitioner.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in breach of Rule 7 of Rules of 1999.

In view thereof, the impugned order dated 13.1.2021, cannot stand and is set aside. Consequences to follow.

Writ-A No.3909 of 2021

In this petition, the petitioner has challenged the impugned punishment order dated 16.2.2016.

The petitioner was initially punished by order dated 16.02.2016. The said order was challenged by the petitioner by way of Claim Petition no.2251 of 2016 (Mithlesh Kumar Vs. State of U.P. and another) before the State Public Services Tribunal, Lucknow. The Tribunal by its judgment and order dated 27.03.2021, on finding that "Since gross irregularity in conducting the inquiry has been committed, it would be appropriate to remand back the matter for inquiry afresh from the stage of reply submitted by the petitioner", set aside the punishment order.

Thereafter, fresh inquiry was conducted against the petitioner and the inquiry report was submitted on 13.09.2019. A perusal of the inquiry report shows that no oral inquiry was conducted and no witnesses on behalf of the department were produced in inquiry to prove the evidence of the department and only on the basis of reply of the delinquent officer, the inquiry was concluded. On the basis of the said inquiry, impugned order dated 31.12.2020 is passed.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned order dated 31.12.2020, cannot stand and is set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.19998 of 2021

In this petition petitioner has challenged the impugned orders dated 16.6.2021 and 18.6.2021.

A perusal of the impugned orders dated 16.6.2021 and 18.6.2021, show that on the charge sheet, reply of the petitioner was obtained.

Learned counsel for the petitioner has placed the inquiry report dated 2.11.2020. A perusal of the inquiry report shows that on the charges, only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. Oral evidence was not produced by the department to prove the charge. On the basis of the said report, impugned orders dated 16.6.2021 and 18.6.2021 are passed.

Learned counsel for the petitioner submits that the entire inquiry is in violation of Rule 7 of Rules of 1999 as no opportunity to petitioner was given to cross-examine the witnesses. The inquiry is concluded only on the basis of the reply submitted by the petitioner.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned orders dated 16.6.2021 and 18.6.2021, cannot stand and are set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.23387 of 2021

In this petition, petitioner has challenged the impugned orders dated 13.11.2018 and 24.7.2019.

Learned counsel for the petitioner has placed the inquiry report dated 8.9.2016. A perusal of the inquiry report shows that no date, time and place was fixed for holding enquiry and that on the charges, only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. There is non-consideration of any oral evidence or manner in which the documentary evidence was proved. On the basis of the said report order of punishment dated 13.11.2018 is passed. Against the said order, the petitioner preferred an appeal, which is also rejected on 24.7.2019.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned orders dated 13.11.2018 and 24.7.2019, cannot stand and are set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.5364 of 2022

In this petition, petitioner has challenged the impugned punishment order dated 20.7.2022.

A perusal of the impugned order dated 20.7.2022, shows that on the charge sheet, reply of the petitioner was obtained.

Learned counsel for the petitioner has placed the inquiry report dated 13.02.2022. A perusal of the inquiry report shows that on the charge, only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. There is non-consideration of any oral evidence or documentary evidence and the manner in which the documentary evidence was proved, reflected in the inquiry report. On the basis of the said report final order of punishment dated 20.7.2022 is passed.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned order dated 20.7.2022, cannot stand and is set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.7508 of 2022

In this petition petitioner has challenged the impugned punishment order dated 22.9.2022.

A perusal of the impugned order dated 22.9.2022 shows that on the charge sheet reply of the petitioner was obtained.

Learned counsel for the petitioner has placed the inquiry report dated 22.4.2022. A perusal of the inquiry report shows that on the charge, only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. There is non-consideration of any oral evidence or documentary evidence and the manner in which the documentary evidence was proved, reflected in the inquiry report. On the basis of the said report final order of punishment dated 22.9.2022 is passed.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned order dated 22.9.2022, cannot stand and is set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.8737 of 2022

In this petition petitioner has challenged the impugned punishment order dated 18.10.2022. A perusal of the impugned order dated 18.10.2022, shows that on the charge sheet, reply of the petitioner was obtained. Learned counsel for the petitioner has placed the inquiry report dated 18.1.2020. A perusal of the inquiry report yet again shows that on the charge, only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. There is non-consideration of any oral evidence or documentary evidence and the manner in which the documentary evidence was proved. On the basis of the said report final order of punishment dated 18.10.2022 is passed.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned order dated 18.10.2022, cannot stand and is set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.8750 of 2022

In this petition petitioner has challenged the impugned punishment order dated 22.9.2022. An undated enquiry report along with the show cause notice dated 29.7.2022 was served upon the petitioner. When procedural irregularities were raised in reply to the show cause notice, the punishing authority has refused to consider the same as is noted in the impugned order dated 22.9.2022.

There is non-consideration of any oral evidence or documentary evidence and the manner in which the documentary evidence was proved reflected in the inquiry report. On the basis of the said report final order of punishment dated 22.9.2022 is passed.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned order dated 22.9.2022, cannot stand and is set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.8860 of 2022

In this petition petitioner has challenged the impugned orders dated 17.8.2022 and 5.12.2022.

Learned counsel for the petitioner has placed the inquiry report dated 12.4.2018. A perusal of the inquiry report shows that no date, time and place was fixed for holding enquiry and that on the charge, only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. There is non-consideration of any oral evidence or documentary evidence and the manner in which the documentary evidence was proved, reflected in the inquiry report. On the basis of the said report order of punishment dated 17.8.2022 is passed. Against the said order the petitioner preferred an appeal, which is also rejected on 5.12.2022.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned orders dated 17.8.2022 and 5.12.2022, cannot stand and are set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.8982 of 2022

In this petition petitioner has challenged the impugned punishment order dated 13.4.2022.

A perusal of the impugned order dated 13.4.2022, shows that on the charge sheet, reply of the petitioner was obtained.

Learned counsel for the petitioner has placed the inquiry report dated 22.1.2021. A perusal of the inquiry report shows that on the charge only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. There is non-consideration of any oral evidence or documentary evidence and the manner in which the documentary evidence was proved, reflected in the inquiry report. On the basis of the said report final order of punishment dated 13.4.2022 is passed.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned order dated 13.4.2022, cannot stand and is set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.108 of 2023

In this petition petitioner has challenged the impugned punishment order dated 13.9.2022.

The petitioner filed Writ Petition No.1685 (SB) of 2013 challenging the punishment order dated 11.10.2013 which was allowed on 05.08.2016 finding that no oral inquiry was conducted and directing that fresh inquiry be conducted from the stage of submitting reply to the charge sheet filed by the petitioner within five months from the date of the order. The Court had granted only five months time. Despite the same, five years have taken in holding inquiry against a person who is now retired.

An undated inquiry report was served upon the petitioner along with covering letter dated 25.08.2018.

A perusal of the inquiry report shows that the department did not produce any witnesses to prove their documents. Thus, the inquiry is conducted without any oral evidence

After submission of inquiry report on 04.12.2018, punishment order was passed on 13.09.2022, only on the basis of reply dated 6.3.2019 submitted by the petitioner.

Learned counsel for the petitioner submits that the entire inquiry is in violation of Rule 7 of Rules of 1999. The inquiry is concluded only on the basis of the reply submitted by the petitioner.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999 as no oral inquiry is conducted.

Hence, the impugned order dated 13.9.2022 cannot stand and is set aside. Consequences to follow.

The respondents may, if they so desire, proceed to hold a fresh inquiry against the petitioner by serving a fresh charge sheet along with documentary and oral evidence and following the proper procedure of law and complete inquiry positively within six months from today. In case of failure to complete the same within six months, the same shall stand lapsed.

The writ petition is allowed.

Writ-A No.388 of 2023

In this petition petitioner has challenged the impugned punishment order dated 31.10.2022 passed by the State Government.

A perusal of the impugned order dated 31.10.2022 shows that on the charge sheet reply of the petitioner was obtained. Learned counsel for the petitioner has placed the inquiry report dated 23.01.2020. A perusal of the inquiry report shows that on the charge, only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. There is non-consideration of any oral evidence or the manner in which the documentary evidence was proved. On the basis of the said report final order of punishment dated 31.10.2022 is passed.

Learned counsel for the petitioner submits that the entire inquiry is in violation of Rule 7 of Rules of 1999 as there is no oral evidence submitted by the department to prove the documents against the petitioner and no opportunity to petitioner was given to cross- examine the same. The inquiry is concluded only on the basis of the reply submitted by the petitioner.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999. Hence, the impugned order dated 31.10.2022, cannot stand and is set aside. Consequences to follow. The respondents may, if they so desire, proceed to hold a fresh inquiry against the petitioner by serving a fresh charge sheet along with documentary and oral evidence and following the proper procedure of law.

The writ petition is allowed.

Writ-A No.940 of 2023

In this petition petitioner has challenged the impugned punishment order dated 04.11.2022 passed by the State Government.

A perusal of the impugned order dated 04.11.2022 shows that on the charge sheet 23.10.2020 and additional charge-sheet dated 18.01.2021 reply of the petitioner was obtained. Learned counsel for the petitioner has placed the inquiry report dated 17.10.2022. A perusal of the inquiry report shows that on the charges only reply of the delinquent officer/petitioner is considered and thereafter the findings on the same are given. There is non-consideration of any oral evidence or documentary evidence or the manner in which the documentary evidence was proved. On the basis of the said report, final order of punishment dated 04.11.2022, is passed.

Learned counsel for the petitioner submits that the entire inquiry is in violation of Rule 7 of Rules of 1999; inasmuch as there is no oral evidence submitted by the department to prove the documents against the petitioner and no opportunity to petitioner was given to cross- examine the same. The inquiry is concluded only on the basis of the reply submitted by the petitioner.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned order dated 04.11.2022, cannot stand and is set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.6838 of 2022

In this petition petitioner has challenged the impugned punishment order dated 29.09.2022 passed by the State Government.

Earlier also petitioner was punished by order dated 28.07.2021. The said order dated 28.07.2021 was set aside by this Court in Writ-A No.445 of 2022 (Dinesh Kumar Gupta Vs. State of U.P. and others). The Court categorically found that the inquiry proceedings have been conducted in gross violation of principles of natural justice as well as provisions contained in Rule 7 of U.P. Government Servant (Discipline & Appeal) Rules, 1999 and no date, time and place was fixed by the inquiry officer. The writ petition was allowed permitting the department to conduct fresh inquiry in accordance with law.

A perusal of the impugned order dated 29.09.2022, shows that on the charge sheet 07.08.2020 reply of the petitioner was obtained. Learned counsel for the petitioner has placed the inquiry report dated 05.09.2022. A perusal of the inquiry report shows that on the charges, only reply of the delinquent officer/petitioner is considered and thereafter the findings of the same are given. There is non-submission of any oral evidence and the manner in which the documentary evidence was proved, reflected in the inquiry report. On the basis of the said report final order of punishment dated 29.09.2022 is passed.

Learned counsel for the petitioner submits that the entire inquiry is in violation of Rule 7 of Rules of 1999 as there is no oral evidence submitted by the department to prove the documents against the petitioner and no opportunity to petitioner was given to cross- examine the same. The inquiry is concluded only on the basis of the reply submitted by the petitioner.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned order dated 29.09.2022, cannot stand and is set aside. Consequences to follow.

"Since, the petitioner has already retired on 30.09.2022, hence, fresh inquiry, if the respondents so desire, shall be concluded by 30.06.2023. In case the respondents fail to conclude the inquiry within the aforesaid time, they are restrained from holding it further". (Corrected vide order dated 28.02.2023 passed on correction application I.A. No.04 of 2023 in Writ-A No.6838 of 2022).

The writ petition is allowed.

Writ-A No.2922 of 2019

In this petition petitioner has challenged the impugned punishment order passed by the respondent no. 4.

Learned counsel for the petitioner has drawn attention of this Court towards the inquiry report dated 27.07.2018. A perusal of the inquiry report shows that the Inquiry Officer has not fixed any date, time and place of and no oral evidence/inquiry has been conducted, as such there is gross violation of Rule (vii) of Rules of 1999. The Punishing Authority has not even considered the reply to the show cause notice. The impugned order is absolutely, non-speaking and no reason for recording the conclusion given, which was mandatory on the part of the punishing authority.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

In view thereof, the impugned punishment order dated 07.01.2019 is set aside. Consequences to follow.

Writ-A No.25694 of 2019

In this petition petitioner has approached this Court challenging the punishment order dated 7.10.2016 and the order dated 15.4.2019 and the inquiry report submitted along with the covering letter dated 20.7.2012.

Learned counsel for the petitioner submits that the impugned orders have been passed in a most arbitrary manner which are in violations of the Rules of 1999. After filing reply to the charge sheet by the petitioner, no oral inquiry was conducted and no date, time and place was fixed. The Inquiry Officer has submitted the enquiry report straightaway, after submission of the reply by the petitioner to the charge sheet. No witnesses have been examined by the Inquiry Officer to prove the documentary evidence.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

In view thereof, the impugned punishment order dated 07.10.2016 and the order dated 15.04.2019, are set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.31943 of 2019

In this petition also the common ground of challenge is that while passing the impugned order of punishment dated 10.6.2019 on the inquiry report dated 16.4.2019 that the respondents have not afforded the petitioner with an opportunity to cross-examine the witnesses and record their oral evidence against the charges levelled, in utter violation of Rule 7(vii) of Rules of 1999. While passing the impugned order the reply given by the petitioner has not been taken into account and a major punishment was imposed upon the petitioner. The appellate authority while passing the appellate order also did not apply its mind and considered the circumstances, the punishment and the appellate order are unlawful and the same cannot stand in the eyes of law.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned punishment order as well as the appellate order are set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.32749 of 2019

In this petition, the petitioner has approached the Court challenging the punishment order dated 11.1.2010 passed against the petitioner in the departmental proceedings as well as appellate order dated 16.1.2013 and the order passed on the review petition. Learned counsel for the petitioner has placed the inquiry report dated 8.7.2009. A perusal of the inquiry report shows that on the charge, only reply of the delinquent officer/petitioner is considered and thereafter the findings of the same are given. There is non-consideration of any oral evidence or documentary evidence and the manner in which the documentary evidence was proved, reflected in the inquiry report. On the basis of the said report, final order of punishment dated 8.7.2009, is passed.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned punishment order dated 11.1.2010 as well as the appellate order dated 16.1.2013 and the order dated 16.09.2019, passed in the review petition cannot stand and is set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.3286 of 2020

In this petition order under challenge is the punishment order dated 30.11.2018 passed by the respondent no.2.

Learned counsel for the petitioner has placed the inquiry report dated 12.9.2018. A perusal of the inquiry report shows that on the charge, only reply of the delinquent officer/petitioner is considered and thereafter the findings of the same are given. There is non-consideration of any oral evidence or documentary evidence and the manner in which the documentary evidence was proved, reflected in the inquiry report. On the basis of the said report, final order of punishment dated 30.11.2018, is passed.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999.

Hence, the impugned punishment order dated 30.11.2018 and the appellate order dated 1.11.2019, cannot stand and is set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.4614 of 2020

In this petition the order under challenge is the punishment order dated 19.10.2010 and the appellate order dated 29.11.2010 passed by the respondent nos.1 and 2.

Learned counsel for the petitioner has placed the inquiry report along with the covering letter dated 4.2.2010. A perusal of the inquiry report shows that on the charge, only reply of the delinquent officer/petitioner is considered and thereafter the findings of the same are given. There is non-consideration of any oral evidence or documentary evidence and the manner in which the documentary evidence was proved, reflected in the inquiry report. On the basis of the said report, final order of punishment dated 19.10.2010, is passed.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order have been passed in violation of Rule 7 of Rules of 1999.

Hence, the punishment order dated 19.10.2010 as well as the appellate order dated 29.11.2019, impugned herein cannot stand and are set aside. Consequences to follow.

The writ petition is allowed.

Writ-A No.24001 of 2020

In this petition the order under challenge is the dismissal order dated 7.8.2020 passed by the respondent no. 1.

As per the charge sheet dated 24.1.2020, two charges were framed against the petitioner and in the same certain documents were referred to as the evidence. The charge sheet does not even refer to any witness on the partment of the department to prove the said documents. The charge sheet seeks a reply from the petitioner within 15 days and also requires that in case he desires to any personal opportunity of hearing and if he wants to produce any witness and gives details of the same.

It is surprising that the department instead of bringing its witness to prove its documents, is asking the delinquent officer to submit his early evidence. No oral evidence, in fact, in the case of date and place of early evidence in the case has taken place, as is reflected from the impugned order, which is passed in furtherance of the show cause notice only without there being any inquiry.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order have been passed in breach of Rule 7 of Rules of 1999.

Hence, the impugned punishment order dated 7.8.2020, cannot stand and is set aside. Consequences to follow.

In case any inquiry is to be conducted the same shall be initiated by serving a fresh charge-sheet containing therein documentary as well as oral evidence and the same shall be concluded within a period of four months. In case the State fails to conclude the inquiry within four months, it is restrained from holding it further.

The writ petition is allowed.

Writ-A No.8408 of 2022

In this petition, the petitioner has challenged the impugned punishment order dated 24.1.2022 and review order dated 19.7.2022.

The facts of the present inquiry shows the manner in which the inquiries are being conducted in the State of U.P. The charge sheet dated 15.12.2018 was given to the petitioner in which only documentary evidence was referred to, and no oral evidence or names of the witnesses on behalf of the department were given. During course of inquiry also, no witnesses were produced by the department. The delinquent officer moved an application dated 27.02.2019 praying that Shri Deepak Mathur, Section Officer, may be summoned along with the note sheet and the complaint file. The said application was allowed by the inquiry officer i.e. Commissioner, Lucknow Region, Lucknow, by the order dated 18.03.2021 requiring Shri Deepak Mathur to be present on 25.03.2021. Thereafter, on the date fixed, i.e., 25.03.2021, the case was adjourned on the request of the State and thereafter, a final inquiry report dated 15.9.2021was submitted, without fixing any date for statement of witness summoned.

Attention of the Court is also drawn to the note sheet dated 03.09.2021, signed by Lallu Prasad, Head Assistant and Shri Ram Kumar, Administrative Officer in the office of the Commissioner, Lucknow Region, Lucknow. The concluding paragraphs of the same states that the Head Assistant and the Administrative Officer have prepared the final inquiry report and in case the inquiry officer agrees with the same, he may sign the same. The same reflects that the inquiry report was not prepared by the inquiry officer. There cannot be a more gross illegality committed by the department. The Inquiry Officer cannot delegate his responsibility of conducting inquiry and preparation of inquiry report to his subordinate clerical staff. The inquiry report dated 15.09.2021 also shows that the inquiry is conducted without any oral evidence.

Learned Chief Standing Counsel could not dispute the fact that the inquiry report as well as the punishment order are in violation of Rule 7 of Rules of 1999 and also the fact that the inquiry report is not prepared by the Inquiry Officer himself.

Hence, the impugned punishment order dated 24.01.2022 and review order dated 19.07.2022 cannot stand and are set aside. Consequences to follow.

List this case on 11.4.2023.

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From the aforesaid, it is also clear that in this State not even a single departmental inquiry for major punishment is being conducted in accordance with law. All the delinquent employees are discharged repeatedly as proper procedure is not followed. The orders of the Supreme Court, of this Court as well as the Government Orders issued by the Chief Secretary, Government of U.P. appear to be falling on deaf ears.

Sri Kuldeep Pati Tripathi, learned Additional Advocate General and Sri Ravi Singh Sisodia , learned Chief Standing Counsel-III agree that this cannot be permitted.

Learned Chief Standing Counsel-III makes a statement before this Court, on instructions, that the State shall ensure that appropriate departmental proceedings are initiated against the erring Inquiry Officers as well as the disciplinary authorities. He assures the Court that these proceedings shall also be brought to its logical conclusion, within a period of two months in accordance with law.

The statement of learned Chief Standing Counsel-III, is taken on record.

In view of the aforesaid statement, this Court is not issuing any further directions. It puts its faith in the Chief Secretary, that Government of U.P. shall stand true to its words.

In view thereof, in all the aforesaid writ petitions the impugned orders/charge-sheets are set aside as indicated in each petition and the authorities are permitted to proceed in accordance with law. All the writ petitions are allowed and finally disposed of except Writ-A No.8408 of 2022, which is not being disposed of finally to ensure compliance.

Put up Writ-A No.8408 of 2022 on 11.4.2023.

By the next date of listing, Chief Secretary shall ensure that a report with regard to the action taken is filed positively.

(Vivek Chaudhary, J.)

Order Date: 7.2.2023

Arjun/Sachin/Arti

Office is directed to issue certified copy of this corrected order, in future.

[Vivek Chaudhary J.]

Order Date :- 28.2.2023

-Amit K-