Naipal Singh vs U.P.Housing And Development ...
2023 Latest Caselaw 16895 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
[R E S E  R V E D]
 
Court No. - 5
 
Case :- WRIT - A No. - 2000885 of 2005
 
Petitioner :- Naipal Singh
 
Respondent :- U.P.Housing And Development Board Thru Secy.And Another
 
Counsel for Petitioner :- Ravindra Kumar,Gaurav Mehrotra,K.N.Vishwakarma,Rani Singh,Ravindra Kumar
 
Counsel for Respondent :- R.K.Mehrotra,Anurag Srivastava,Mahesh Chandra,Manoj Singh,O P Srivastava,Puneet Chandra
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri Gaurav Mehrotra, learned counsel for the petitioner and Sri Puneet Chandra, learned counsel for the respondent(s).

2. By means of present writ petition, the petitioner has prayed for issuance of a writ, order or direction in the nature of certiorari quashing the impugned dismissal order dated 29.07.2004 passed by respondent No.2 contained as Annexure-1 to the writ petition with a further prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to pay all benefits including post-retiral benefits to the petitioner.

3. Brief facts giving rise to the present writ petition are as under:

Sr. No.

Relevant Facts of the Case

a.

The petitioner was appointed as Assistant Engineer vide order dated 08.07.1970. In the year 1982, he was confirmed on the said post. Subsequently, he was promoted on the post of Executive Engineer in U.P. Housing Development Board (for short, "Board").

b.

In the year 1996, the State Government created a new district, namely, Ambedkar Nagar and the Board was given the work of constructing Collectorate Building. In pursuance thereof, a construction unit was established in the year 1996-97 and the petitioner was posted as Project Manager for the aforesaid unit.

c.

In the year 2002, an inspection was made by Sri R.N. Goel, Superintending Engineer, Lok Nirman Vibhag, U.P., who inspected the deposit work done by the petitioner as a Project Manager. The Superintending Engineer without seeking reply from the petitioner, submitted his report vide letter dated 27.07.2002 and recommended for initiation of departmental inquiry against the petitioner.

d.

On 27.07.2002, on the basis of said report departmental inquiry was initiated against the petitioner and he was charge sheeted. In the charge sheet dated 30.07.2002, eight charges were levelled against the petitioner.

e.

When the petitioner did not find necessary documents enclosed along with charge sheet, vide letters dated 01.08.202 and 14.08.2002, he requested to supply necessary documents and demanded measurement books, PCR files.

f.

Vide letter dated 07.10.2002, the petitioner submitted reply to avoid the delay, however, he mentioned that in spite of repeated requests, no documents have been made available to him.

g.

Out of eight charges, two charges have been found proved against the petitioner.

h.

On 24.06.2004, a show cause notice was issued to the petitioner, which was received by him on 01.07.2004 stipulating time of 15 days to submit reply along with relevant evidence.

i.

The petitioner submitted reply to the said show cause notice on 07.07.2004 through registered post and requested to supply copy of enquiry report and conclusion report of the board. In this regard, he also moved a reminder on 14.07.2004.

j.

The petitioner received copy of inquiry report dated 22.04.2004 on 20.07.2004. Vide letter dated 19.07.2004, he was asked to submit reply within a week.

k.

A perusal of impugned order shows that reply of the petitioner was not submitted within time.

l.

The news that several officers of the Housing Board had been punished, was published in news paper on 25.06.2004. The petitioner was General Secretary of Engineer's Association and other directly recruited engineers.

m.

The Engineers Association Evam Diploma Engineers Association, U.P. Avas Evam Vikas Parishad, Lucknow given a protest letter signed by the General Secretaries that in case of the petitioner, show cause notice was issued to the petitioner and reply of the same was awaited, even then the news had been published in daily news papers and has also been telecasted on TV channels.

n.

Just two days before petitioner's retirement i.e. 31.07.2005, the impugned order of dismissal was passed against the petitioner on 29.07.2005.

o.

The petitioner made several requests and approached the authorities for reconsideration of the matter, but when heed was paid to his requests, the present writ petition has been filed.

4. Submission of learned counsel for the petitioners is that the impugned order of dismissal dated 29.07.2005 is bad in law, illegal and is violative of principles of natural justice. He further submitted that the entire proceeding initiated against the petitioner is in blatant disregard of service regulation.

5. He next submitted that the disciplinary proceeding initiated against the petitioner has been conducted in utter disregard of Regulation of the Board. He submitted that the relevant documents in regard to charge sheet and inquiry report were never supplied to the petitioner nor he was allowed to inspect the same, which has caused serious prejudice to him.

6. He further submitted that the respondents with biased mind to oust the petitioner from service have not supplied relevant documents to the petitioner to furnish proper reply and passed the impugned order of dismissal against the petitioner.

7. He next submitted that the inquiry officer did not apply its own mind to the facts and circumstances of the case and has proceeded on the dictate of the authorities, which is itself evident from the fact that out of eight charges levelled against the petitioner, six charges are baseless, arbitrary and without assigning any reason.

8. He further submitted that the impugned order of dismissal is discriminatory in nature and is against the provisions of Article 14 and 16 of the Constitution of India.

9. He lastly submitted that the even if the charge Nos.3 & 6 are found proved against the petitioner, even then major punishment awarded to the petitioner is disproportionate to the charges, therefore, the quantum of punishment is excessive and arbitrary in nature. In support of his submissions, he placed reliance upon the following judgments:

On the point that availability of statutory alternative remedy is not an absolute bar, he placed reliance upon following judgments:

Judgment

Citation

Paragraphs

M/s Magadh Sugar & Energy Ltd. vs. The State of Bihar and others

Judgment and order dated 24.09.2021 passed in Civil Appeal No.5728 of 2021

19, 20, 21, 22 & 25

Whirlpool Corporation Vs. Registrar of Trade Marks

1998 (8) SCC 1

15, 16, 17, 18, 19, 20 & 21

Rajendra Prasad Upadhyaya Vs. State of U.P. and others

judgment and order dated 29.03.2012 passed in Special Appeal No.5827 of 2021 : (2012) 93 ALR 403 (All)

On the point that if a writ petition remained pending for a long time and pleadings have been exchanged, the matter may not be relegated to alternative remedy, he has placed reliance upon following judgments:

Judgment

Citation

Paragraphs

Durga Enterprise (P) Ltd. and another Vs. Principal Secretary Govt. of U.P. and others

(2004) 13 SCC 665

On the point that each charge need to be independently and separately proved by witnesses and oral enquiry is must, he has placed reliance upon following judgments:

Judgment

Citation

Paragraphs

State of U.P and Ors. Vs. Saroj Kumar Sinha

(2010) 2 SCC 772.

28, 29, 30, 33, 34, 35, 38, 39, 41 & 42

Roop Singh Negi Vs. Punjab National Bank

(2009) 2 SCC 570

14, 15, 17 & 21

Radhey Kant Khare Vs. U.P. Cooperative Sugar Factories Federation Ltd.

(2002) SCC Online All 1575

6, 7, 8, 9 & 22

On the point that enquiry officer is a quasi-judicial officer and not merely a representative of department, he has placed reliance upon following judgment:

Judgment(s)

Citation

Paragraphs

Smt. Mazda Begum and Ors. Vs. State of U.P. and others

(2017) SCC Online All 2909

On the point that documents relied upon by enquiry officer / disciplinary authority needs to be provided to delinquent employee, he has placed reliance upon following judgment:

Judgment(s)

Citation

Paragraphs

State of U.P. and Others Vs. Saroj Kumar Sinha

(2010) 2 SCC 772

24, 29 & 31

• On the point that courts exercising power of judicial review are entitled to consider as to whether relevant pieces of evidence have been taken into account or not, he has placed reliance upon following judgment:

Judgment(s)

Citation

Paragraphs

Moni Shankar Vs. Union of India and others

(2008) 2 SCC 484

On the point that order based on improper enquiry report, which is vitiated due to non-adherence to principles of natural justice is not sustainable, he placed reliance upon following judgment:

Judgment(s)

Citation

Paragraphs

MV Bijlani Vs. Union of India

(2006) 5 SCC 88

21, 25, 26, 27 & 28

On the point that mandatory requirement of disciplinary enquiry is holding an inquiry, where charges are refuted, he placed reliance upon following judgment:

Judgment(s)

Citation

Paragraphs

Chamoli District Cooperative Bank Ltd. Vs. Raghunath Singh Rana

(2016) 12 SCC 204

22.2 & 22.4

On the point that in absence of reasoning as to why the reply submitted by delinquent employee to show cause notice was not satisfactory, the punishment order passed cannot sustain, he place reliance upon following judgments:

Judgment(s)

Citation

Paragraphs

Smt. Chinta Yadav Vs. State of U.P. and others

(2008) SCC Online All 2125

59, 60 & 21

Subhas Yadav Vs. State of U.P. and others

(2008) SCC Online All 2121

8 & 9

On the point that quantum of punishment is so disproportionate to gravity of offence shocks the conscience of Hon'ble Court, he has placed reliance upon following judgments:

Judgment(s)

Citation

Paragraphs

S.R. Tewari vs. Union of India and another

(2013) 6 SCC 602

6, 17, 24, 25, 26, 30, 31 & 34

Union Bank of India Vs. Bodupalli Gopalaswami

(2011) 13 SCC 553

28, 30, 33, 34, 46, 47, 48 & 49

Charanjit Lamba Vs. Commanding Officer, Army Southern Comman and others

(2010) 11 SCC 314

12, 13, 14 & 19

On the point that award of punishment, which is grossly in excess to allegations cannot claim immunity and remains open for interference under limited scope of judicial review, he has placed reliance upon following judgment:

Judgment(s)

Citation

Paragraphs

Chairman-cum-Managing Director, Coal India Ltd. and another Vs. Mukul Kumar Choudhuri and others

(2009) 15 SCC 620

18, 19 & 20

On the point that fixing date, time and place of enquiry is must by the disciplinary authority for proving / disproving of charges, he has placed reliance upon following judgments:

Judgment(s)

Citation

Paragraphs

Dinesh Kumar Verma Vs. State of U.P. and another

judgment and order dated 24.03.2022 passed in Writ-A No.20837 of 2020.

5, 7, 11 & 12

Prakash Chandra Agarwal Vs. State of U.P. and another

judgment and order dated 07.05.2022 passed in Writ-A No.2555 of 2022

4, 5, 6, 7 & 11

Sanjay Misra vs. Director SGPGI and another

judgment and order dated 18.09.2019 passed in Writ Petition No.1192 (S/S) of 2008

15, 16, 17 & 18

On the point that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would not ipso fact constitute misconduct, he placed reliance upon following judgment:

Judgment(s)

Citation

Paragraphs

Union of India and others Vs. J. Ahmed

(1979) 2 SCC 286

7, 9 & 11

10. On the other hand, learned counsel for the respondents submitted that the audit department submitted special audit report, wherein financial irregularities were found against the petitioner in deposit work done at Ambedkar Nagar. Thereafter, taking into consideration the audit report, an inquiry was initiated against the petitioner. It has been submitted that the inquiry report has been submitted in accordance with law by affording full opportunity to the petitioner.

11. He next submitted that relevant documents relating to charges were supplied to the petitioner vide letter dated 14.07.2004. He submitted that after due inquiry, a charge sheet containing eight charges was served upon the petitioner on 30.07.2002 along with evidence and found the charge Nos.3& 6 to be proved against the petitioner.

12. He further submitted that the petitioner himself accepted the charges against him and made a request that he should be awarded minor punishment, which itself proves that the inquiry was just and proper. He submitted that show cause notice dated 24.06.2004 could not be served upon the petitioner as he was not available in his office / residence and his family members have also denied from receiving the same. Thereafter, the said notice was published in daily news papers Dainik Jagran and Times of India on 29.06.2004 for information upon the petitioner.

13. He lastly submitted that the inquiry report was based on documentary and other evidences and on the basis of same, the impugned order of dismissal has been passed against the petitioner, which is just and valid.

14. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

15. To resolve the controversy involved in the matter, the judgments relied upon by learned counsel for the petitioner are being quoted below:

• Judgment relied upon by learned counsel for the petitioner:

a) M/s Magadh Sugar & Energy Ltd. (Supra):

19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai 19 and Harbanslal Sahni Vs. Indian Oil Corporation Ltd.. Recently, in Radha Krishan Industries Vs. State of Himachal Pradesh and Others, a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:

"28. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."

The principle of alternate remedies and its exceptions was also reiterated recently in the decision in Assistant Commissioner of State Tax Vs. M/s Commercial Steel Limited. In State of HP VS. Gujarat Ambuja Cement Ltd., this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction. This Court observed:

"23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain Vs. ITO [(1970) 2 SCC 355: AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition."

20. The above principle was reiterated by a three-judge Bench of this Court in Executive Engineer Vs. Seetaram Rice Mill. In that case, a show cause notice/provisional assessment order was issued to the assessee on the ground of an unauthorized use of electricity under Section 126 (1) of the Electricity Act, 2003 and a demand for payment of electricity charges was raised. The assessee contended that Section 126 was not applicable to it and challenged the jurisdiction of the taxing authorities to issue such a notice, before the High Court in its writ jurisdiction. The High Court entertained the writ petition. When the judgement of the High Court was appealed before this Court, it held that the High Court did not commit any error in exercising its jurisdiction in respect of the challenge raised on the jurisdiction of the revenue authorities. This Court made the following observations:

"81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act.

82. It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the above stated class of cases. It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous--lex neminem cogit ad vana seu inutilia--the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail..." (emphasis supplied)

21. In Union of India v State of Haryana 25 the assessing authorities imposed sales tax on the rentals charged for supply of telephones. Writ petitions were filed in the High Court challenging the levy. The writ petitions were dismissed on the ground that an alternative remedy of a statutory appeal was available. An appeal against these orders was filed before this Court. The appeal was allowed and the matter was remanded back to the High Court for determination since it involved a question of law on whether the supply of telephones amounted to sale.

22. It is not the case of the appellant that the respondents have miscalculated the duty and penalty imposed on it. The appellant contends that the State Government does not have the power to levy tax on its sale of electricity to BSEB. Thus, the plea strikes at the exercise of jurisdiction by the Government. In view of the law discussed above on the rule of alternate remedy, the High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law.

25. We are of the considered view that the High Court made an error in declining to entertain the writ petition and it would be appropriate to restore the proceedings back to the High Court for a fresh disposal. In order to facilitate the decision on remand, we have recorded the broad submissions of the parties on merits but leave the matter open for a fresh evaluation by the High Court. We accordingly allow the appeal and set aside the judgement of the High Court dated 18 September 2017 arising out of CWJC No 4300 of 2015. The writ petition is restored to the file of the High Court for fresh determination. The appeal is disposed of in the above terms with no order as to costs.

b) Whirlpool Corporation (Supra):

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ, petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this poinit but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

16. Rashid Ahmed Vs. Municipal Board, Kairana laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son vs. Income Tax Investigation Commission which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances.

17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh as under:

"But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate remedies."

18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani and was affirmed and followed in the following words:

"The passages in the judgments of this Court we have extracted would indicate (I) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."

19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. Vs. ITO, Companies Distt. laid down:

"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act.

20. Much water has since flown under the bridge, but there has been no corrosive effect on there decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had pruported to usurp jurisdiction without any legal foundation.

21. That, being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "Tribunal".

c) Rajendra Prasad Upadhyaya (Supra):

So far as the legal proposition that the existence of alternative remedy is not an absolute bar, it does not require any adjudication as the law laid down by the Supreme Court as well as this High Court is well settled. In order to summarize the aforesaid legal position we reiterate the same as under-

(i) Statutory alternative remedy is not an absolute bar for the High Court to entertain a writ petition under Article 226 of the Constitution.

(ii) Refusal to entertain a writ petition on existence of statutory alternative remedy is a self imposed restriction broadly based on following considerations, namely;

(a) alternative remedy is adequate, efficacious and speedy.

(b) writ petitions involving complex and disputed question of facts may be relegated to statutory alternative forum;

(iv) If a writ petition has been entertained despite there being a statutory remedy, which may be adequate, and the said petition has remained pending for considerable long time then there would be little justification for relegating the petitioner to the alternative remedy, unless there are valid and cogent reasons for doing so.

(v) Even if there exists an adequate alternative, efficacious speedy remedy in the alternative forum, the High Court may entertain the writ petition in the following circumstances.

(a) for enforcement of any of the fundamental rights,

(b) where there has been a violation of principle of natural justice,

(c) where the order or proceedings are wholly without jurisdiction, or

(d) the vires of the Act is challenged.

It will depends upon the facts and circumstances of each case as to whether the discretion of entertaining the writ petition in the light of the availability of statutory remedy has to be exercised or not. There cannot be any straight jacket formula or a hard and fast rule so as to either entertain such writ petition or throw it away at the threshold asking the petitioner to approach the alternative forum.

The learned Single Judge while dismissing the writ petition on the ground of availability of alternative remedy did not address itself on the plea of violation of principles of natural justice in the departmental enquiry and relegated the appellant to avail departmental remedy, we are of the considered opinion that the impugned order requires interference. In cases of violation of principles of natural justice and denial of reasonable opportunity to defend in the disciplinary proceedings, the writ petition is fully maintainable and it shall not be normally dismissed on the ground of availability of alternative remedy, as was the position in the present case.

Since the writ petition was dismissed on the very first date without calling for counter affidavit, therefore, it would be appropriate that the matter may be remanded back to the learned Single Judge to decide the writ petition on merit.

In this view of the matter the special appeal is allowed and the order dated 30.1.2012 passed by the learned Single Judge in W.P. No. 529 (SS) of 2012 is hereby set aside. The matter is remanded back to the learned Single Judge with a request to decide the same on merits in accordance with law. The parties shall appear before the writ Court as and when the case is listed. Cost made easy.

d) Durga Enterprise (P) Ltd. and another (Supra):

3. The High Court, having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit.

e) State of U.P and Ors. (Supra):

28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority / Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been taken into consideration to conclude that the charges have been proved against the respondents.

29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.

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

33. As noticed earlier in the present case not only hte respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet.

34. This Court in Kashinath Dikshita v. Union of India had clearly stated the rationale for the rule requiring supply of copies of the documents sought to be relied upon by the authorities to prove the charges levelled against a government servant. In that case the enquiry proceedings had been challenged on the ground that non-supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at the preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority.

35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case, SCC pp.234-35, para 10)

"10. ........ When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary had asked itself the question: 'What is the harm in making available the material? and weighed the pros and cons, the disciplinary authority could not reasonable have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."

38. The aforesaid proposition of law has been reitereated in Tirlok Nath v. Union of India wherein it was held that non-supply of the documents amounted to denial of reasonable opportunity. It was held as follows: (SLR pp. 764-65)

".... Had he decided to do so, the documents would have been useful to the appellant for cross-examining the witnesses who deposed against him. Again had the copies of the documents been furnished to the appellant he might, after perusing them, would have exercised his right under the rule and asked for an oral enquiry to be held. Therefore, in our view the failure of the inquiry officer to furnish the appellant with copies of the documents such as the first information report and the statements recorded at teh Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry.

39. The proposition of law that a government employee facing a departmental enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this case we may re-emphasis the law as stated by this Court in State of Punjab v. Bhagat Ram: (SCC p.156, paras 6-8)

"6. The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.

7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innosence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statements are given to the government servant he will not be able to have an effective and useful cross examination.

8. It is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken."

41. In our opinion the appellants have deliberately misconstrued the directions issued by the High Court in Writ Petition No.937 of 2003. In terms of the aforesaid order the respondent was required to submit a reply to the charge - sheet upon supply of the necessary document by the appellant. It is for this reason that the High Court subsequently while passing an interim order on 7-6-2004 in Writ Petition No.793 of 2004 directed the appellant to ensure compliance of the order passed by the Division Bench on 23-7-2003. In our opinion the actions of the inquiry officers in preparing the reports ex parte without supplying the relevant documents has resulted in miscarriage of justice to the respondent. The conclusion is irresistible that the respondent has been denied a reasonable opportunity to defend himself if the enquiry proceedings.

42. In our opinion, the appellants have miserably failed to give any reasonable explanation as to why the documents have not been supplied to the respondent. The Division Bench of the High Court, therefore, very appropriately set aside the order of removal.

f) Roop Singh Negi (Supra):

14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.

15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.

17. In Moni Shankar Vs. Union of India and Anr. [(2008) 3 SCC 484], this Court held:

17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."

21. 15. Yet again in M.V. Bijlani vs. Union of India and ors. (2006) 5 SCC 88, this Court held:

"25 ..... Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

g) Radhey Kant Khare (Supra):

6. In a Division Bench of this Court in Subhash Chandra Sharma vs. U.P. Co-operative Spinning Mills, 1999 (4) AWC 3227 : 2000 (1) UPLBEC 541. in which one of us (Hon'ble M. Katju, J.) was a member, this law has been laid down. The law is as follows :

"After a charge-sheet is given to the employee, an oral enquiry is a must, whether the employee requests for it or not. Hence, a notice should be issued to him indicating him the date, time and place of the enquiry. On that date the oral and documentary evidence against the employee should first be led in his presence vide, A.C.C. Ltd. vs. Their Workmen (1963) U LLJ 396 (SC). Ordinarily, if the employee is examined first, it is illegal vide Anand Joshi v. M.S.F.C., 1991 LIC 1666 (Bom) ; S.D. Sharma v. Trade Fair Authority of India, (1985) II LLJ 193 and Central Railway vs. Raghubir Saran, (1983) II LLJ 26. No doubt, in certain exceptional cases, the employee may be asked to lead evidence first, vide Firestone Tyre and Rubber Co. Ltd. Vs. Their Workmen, AIR 1968 SC 236, but ordinarily the rule is that first the employer must adduce his evidence. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is Illegal vide P. C. Thomas v. Mutholi Co-operative Society Ltd.. 1978 LIC 1428 (ker and Meengles Tea Estate v. Their Workmen, AIR 1963 SC 1719.

7. It is also necessary that ordinarily the statement of all the witnesses of the employer should be recorded in presence of the employee unless there are compelling reasons to act otherwise vide Kesoram Cotton Mills v. Gangadhar, AIR 1964 SC 708 and Central Bank of India Vs. Prakash Chand, AIR 1969 SC 983, etc. If the witnesses are examined in the absence of the employee and their recorded statements were also not supplied to him this procedure is illegal vide Tata Oil Mills. Co. Ltd. Vs. Their Workmen, (1963) II LLJ 78 ; India General Navigation and Rly. Co. Ltd. V. Its Employees, (1961) II LLJ 372 (SC) ; Bharat Sugar Mills Co. Ltd. vs. Jai Singh, (1961) II LLJ 644 (SC) : Sur Enamel and Stamping Works Ltd. vs. Their Workmen. AIR 1963 SC 1914 and Vysya Bank v. N. M. Pat, 1994 LIC 1429 (Kant) etc.

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

9. In S.C. Girotra Vs. United Commercial Bank, 1995 (Supp) 3 SCC 212. the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. In State of U.P. Vs. C.S. Sharma. AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry, the witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine those witnesses and to lead evidence in his defence. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 (vide paragraph 66), the Supreme Court held that in such enquiries evidence must be recorded in presence of the charge-sheeted employee and he must be given opportunity to rebut such evidence."

22. In our opinion, there was total violation of the principles of natural justice in the alleged enquiry held on 12.6.1985 and hence it was not a valid enquiry at all in view of the decisions of the Supreme Court and this Court referred to above. Since a major punishment was being imposed on the petitioner, there should have been a proper oral enquiry before taking the action against the petitioner, but this was evidently not done.

h) Smt. Mazda Begum and Ors. (Supra):

33. This Court also has taken same view earlier in Subhash Chandra Sharma Vs. Managing Director, U.P. Co-op. Spinning Mills Federation Ltd., Kanpur and another, 2000(1) UPLBEC 541 and said:-

"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice." "In Meenglas Tea Estate v. The workmen., AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted".

i) State of U.P. and Others (Supra):

24. At this stage it would be appropriate to notice the charges that had been framed against the respondent which are as under:

"I. Work pertaining to Salon Jagat Pur Road, had been given to Sri Jitendra Mohan Bajpai, Contractor vide Tender No.5/AE-2 dated 10.06.1996 through 3054-PW Work Plan. The last payment of the Tender has been paid by the then Executive Engineer Sri Akash Deep Sonkar and accordingly payment of Rs.193047/- was to be paid vide cheque No.13/256064 dated 02.08.1996. Thereafter you have made this payment through No.142 dated 31.12.1998 to the amount of Rs.193047 through Cheque No.78/001355 dated 31.12.1998. At page 138 of the Cash Book Part-73, Entry No. illegible has been made. You have deliberately made aforesaid entry in order to cause loss to the Govt. and had made the payment twice through voucher No.142 for the amount 193047 dated 31.12.1998 and the amount of Rs.193047 has been changed to 134305. Therefore the payment of Rs.58742 which has already made has been shown to be not paid in the aforesaid entry.

In this manner you have deliberately caused loss to the Government by the fraudulent act conspiring for the same and had recovered Rs.58742/- from the contractor through voucher No.141 dated 21.3.2000, reason for which has been mentioned that Rs.58742 has been deducted due to excess payment made for the work at Salon Jagat Pur Road through voucher No.142 dated 31.12.1998. Nowhere in voucher No.142 dated 31.12.1998 it is mentioned that due to what reason deduction has been made after the issuing of cheque regarding the amount to be paid which shows bad intention on your part. You have made wrong entries regarding deduction mention in the voucher amount which is proved to be violation of financial handbook Section-5(Part-1) para 4 D and 83. Voucher No.141 dated 31.03.2000 and entry to such effect proves that the Divisional Accounts Officer has issued the cheque of Rs.0185777/- regarding the aforesaid payment through cheque and the cheque for amount Rs.0185777/- has been passed by the Assistant Engineer. At the time of issuing cheque deduction of Rs.58742/- from the amount to be paid makes your conduct suspicious and you are found responsible for the misconduct in this regard. Therefore, you are found guilty of misconduct according to Para 3 U.P. Govt. Servant Conduct Rules 1956. II. You had passed order for supply of mobile patcher 6 to M/s B.N. Traders, Karhal Mainpuri through letter Memo-2/Camp-

72-99 dated 17.07.1999, M/s B.N.

Traders, Karhal Mainpuri had submitted receipt No.149 regarding the aforesaid supply. The supply has been passed for the amount of Rs.129600/- by the Asstt. Engineer and had been passed by you for the amount of Rs.129600/- vide Cheque No.96/002075 dated 16.11.1999. The Cheque dated 16.11.1999 has been issued to your name which has been provided for the payment to B.N. Traders to Bank draft. In the place of this cheque you had issued Cheque No.005/003492 dated 13.11.1999 for Rs.129600/- to M/s B.N. Traders and had to be encashed by them.

It is clear from the documents that the original cheque dated 31.11.1999 has been cut and self has been inserted and the cheque has been encashed by you. In the counter filed of cheque book name of M/s B.N. Trader had been mentioned.

Therefore, the cheque has been wrongly encashed by you after making fraud entry by self name and the amount has not been taken in cash book. Therefore, the forgery in this regard is proved. You have made bank drafts in favour of M/s B.N. Traders on 08.03.2000 for Rs.129600/- from State Bank of India, Rai Bareilly. In the application of form of the draft the name of M/s B.N. Traders is mentioned whereas the order regarding supply of the draft to M/s B.N. Traders, Karhal, Mainpuri has been made in favour of the firm. Therefore bank draft was to be sent on the address of Mainpuri. M/s B.N. Traders, Karhal, Mainpuri had informed Chief Engineer, Lucknow on 28.07.2000 that you have made payment at the address of firm in Mainpuri. In this regard the bank draft has been made in the name of M/s B.N.

Traders and the draft amount has been received in the name of your relative and no payment as such has been made to M/s B.N. Traders. You had cut the cheque and had violated Para 77 of the financial handbook Section 6 and Para 19- 22 of financial handbook Section 5, Part-I. Receiving of payment after cutting the name of firm from the cheque and entering our own name (self) shows that the payment had been received after committing fraud. Again in order to conceal this Act you had made draft No.PL00008/392289 dated 08.03.2000 for Rs.129600/- from SBI, Rai Bareilly. The bank draft had been made for the address of Lucknow of the firm not of the address Karhal, Mainpuri so that the fraud can be committed and no payment as such has been made to the firm. The firm has alleged that you had received payment after committing fraud therefore, you are found guilty and misconduct regarding the misappropriation of amount of Rs.129600/- after committing fraud on the documents and violating the financial rules. You are also held guilty for mis- conduct according to para 3 U.P. Govt.

Servant Conduct Rules 1956.

III. Case No.37/98 has been instituted for adjudication between M/s Indian Coal Suppliers vs. Govt. of U.P. The case has been decided on 05.01.2000 according to which demand for Rs.26, 00,000/- along with interest has been made by the concerned firm from the Department. The fact has been in your knowledge that the option of appeal in the aforesaid case has been rejected by the Govt. In such situation you had not prepared the defence regarding validity of the agreement during framing of issues in proper manner. The case has been dismissed only on the ground of deficient Court Fees. You have deliberately appointed Special Advocate without permission of Govt., had not paid Court Fees and had colluded with M/s Indian Cola Suppliers to cause loss of Rs.26,00,000/- to the Govt. by presenting weak case before the court in order to cause benefit to the contractor. The aforesaid Act is violation of para 9.01, 9.02 and 9.03 of financial handbook and para 3 of U.P. Govt. Servant Conduct Rules 1956."

29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.

31. In Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said :

"procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."

j) Moni Shankar (Supra):

17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.

k) MV Bijlani (Supra):

21. While making the enquiry as against the Appellant, the Enquiry Officer made adverse comments about the correctness or otherwise of the statements made by the witnesses examined on behalf of the department without assigning any reasons therefor. They were examined by the department. If they deposed falsely, they should have been cross-examined. Only because their evidence was totally against the department, the same per se would not mean that they deposed falsely. The Enquiry Officer opined:

"He did not maintain ACE-8 as if the ACE-8 were maintained there was no necessity of preparing document No. 1 viz. numerical account of EST Jagdalpur prepared by Shri M.V. Bijlani, JET Jagdalpur, on 25.12.1973. If there was any ACE-8 prepared earlier by Shri Bijlani, he would have definitely objected to submit another ACE-8 (DOC-1) which is alleged to have been prepared on the basis of document shown to him by JE (Vigilance). According to SDOT Raipur, ACE-8 (document 20) issue of copper wire 150 lbs/mile to EST Jagdalpur had been mentioned on 22.10.1969, 30.10.1969 and 02.12.1969 as 2204 lbs., 2218 lbs and 4398 lbs respectively. There are no entries of the above quantity of wire in ACE-8 (DOC-1) of EST Jagdalpur."

25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.

26. The report of the Enquiry Officer suffers from the aforementioned vices. The orders of the disciplinary authority as also the appellate authority which are based on the said Enquiry Report, thus, cannot be sustained. We have also noticed the way in which the Tribunal has dealt with the matter. Upon its findings, the High Court also commented that it had not delved deep into the contentions raised by the Appellant. The Tribunal also, thus, failed to discharge its functions properly.

27. For the views we have taken, the impugned judgments are wholly unsustainable.

28. The appeal is, therefore, allowed. The consequence of the said order would have been to remit the matter back to the disciplinary authority. We, however, do not intend to do so as the charges relate to the year 1969-1970. The Appellant, due to pendency of these proceedings, has suffered a lot. He is, therefore, directed to be reinstated in service, if he has not reached the age of superannuation. However, keeping in view the fact that, he has not worked for a long time, we direct that he may only be paid 50% of the back wages. He is also entitled to costs of this appeal. Counsel's fee assessed at Rs.5000/-.

l) Chamoli District Cooperative Bank Ltd. (Supra):

22.2. Mandatory requirement of a disciplinary inquiry i.e. is holding of an inquiry when the charges are refuted and serving the inquiry report to the delinquent has been breached in the present case.

22.4. The disciplinary authority issued show-cause notice dated 4-5-1993 to respondent 1 employee without holding of an inquiry and subsequent resolution by disciplinary authority taken in the year 2000 without there being any further steps is clearly unsustainable. The High Court has rightly quashed the dismissal order by giving liberty to the Bank to hold de novo inquiry within a period of six months, if it so desires.

m) Smt. Chinta Yadav (Supra):

60. The charges which we have discussed, amply prove that despite the finding given by this Court in earlier writ petition filed by the petitioner simply because liberty was given to the State to hold a fresh inquiry, the same charges have been found to be proved, but, in substance, with no proof any by ignoring the relevant admissible material which was available with the enquiry officer. All the charges were not supported by any material evidence and formal enquiry on the basis of such report was held only with a view to oust the petitioner though there is no material against her for such an action.

61. The sequence of events and the manner in which the enquiry has been initiated earlier on the complaint of Sri Umesh Chandra Yadav, belonging to a political party then again on the compliance of Sri K.N. Kharwar, who was Upper Mukhya Adhikari against whom allegations of ...... and mala fide have been made, coupled with the fact that though complaint was not supported by an affidavit and was not in accordance with the Rules of 1997 but was entertained and that despite the fact that the charges which have been dealt with separately, do not make out any case against the petitioner, show that the impugned order has been passed for ceasing her administrative and financial powers and for proceeding with the formal enquiry on non existent charges. The order, therefore, is liable to be set aside, which is hereby quashed. The petitioner shall be allowed to discharge his functions, financial and administrative both, herenceforth.

n) Subhas Yadav (Supra):

8. Now on the touchstone of the judgment quoted above, the facts of the present case are being adverted to. In the present case show cause notice has been issued to the petitioner to which petitioner has submitted his reply on 14.2.2008. District Magistrate in impugned order has also taken note of the reply submitted by the petitioner and District Magistrate has proceeded to mention that reply which has been issued to the petitioner and pursuant to which petitioner has submitted his reply. District Magistrate has furhter proceeded to mention that reply which has been submitted by the petitioner is unsatisfactory without assigning any reasons as to why said reply is not satisfactory. Once reply has been submitted then reason ought to have been given as to why said reply is unsatisfactory by the District Magistrate . Once no reason has been indicated as to why reply submitted by the petitioner is unsatisfactory then the very purpose of issuance of show cause notice stands frustrated and breached. On this score that admittedly reply has been submitted and District Magistrate while passing order has proceeded to mention that reply submitted by the petitioner is unsatisfactory and as no reason whatsoever has been disclosed as to why reply submitted by petitioner is unsatisfactory, the order passed cannot be sustained.

9. Consequently, order dated 11.7.2008 passed by District Magistrate, Bareilly is hereby quashed. District Magistrate, Bareilly is directed to take fresh decision in the matter after taking into consideration the reply so submitted by the petitioner within next six weeks from the date of production of certified copy of this order.

o) S.R. Tewari (Supra):

6. Thus, the questions that arise for consideration of this Court are whether the punishment of compulsory retirement awarded by the Disciplinary Authority is proportionate to the delinquency proved and whether the respondents in the contempt petitions wilfully violated the order dated 5.10.2012 passed by this Court holding that the punishment should not be given effect to until it is produced before the court at the time of the next hearing.

17. We have reconsidered the case within permissible limits. The case remained limited to the charge nos. 4 and 6 only as all other charges have lost the significance at one stage or the other, and we have to advert only to the said charges.

24. The question of interference on the quantum of punishment, has been considered by this Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution.

In Ranjit Thakur v. Union of India and Ors., AIR 1987 SC 2386, this Court observed as under:

"But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." (Emphasis added) (See also: Union of India and Anr. V. G. Ganayutham (dead by Lrs.), AIR 1997 SC 3387; State of Uttar Pradesh and Ors. V. J.P. Saraswat, (2011) 4 SCC 545; Chandra Kumar Chopra Vs. Union of India and Ors., (2012) 6 SCC 369; and Registrar General, Patna High Court v. Pandey Gajendra Prasad & Ors., AIR 2012 SC 2319).

25. In B.C. Chaturvedi v. Union of India and Ors., AIR 1996 SC 484, this Court after examining various its earlier decisions observed that in exercise of the powers of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority.

26. In V. Ramanna V. A.P. SRTC and ors., AIR 2005 SC 3417, this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof.

30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

31. Hence, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible.

34. The proved charges remained only charge nos.4 and 6 and in both the cases the misconduct seems to be of an administrative nature rather than a misconduct of a serious nature. It was not the case of the department that the appellant had taken the escort vehicle with him. There was only one vehicle which was an official vehicle for his use and charge no.6 stood partly proved. In view thereof, the punishment of compulsory retirement shocks the conscience of the court and by no stretch of imagination can it be held to be proportionate or commensurate to the delinquency committed by and proved against the appellant. The only punishment which could be held to be commensurate to the delinquency was as proposed by the Government of India to withhold two increments for one year without cumulative effect. It would have been appropriate to remand the case to the disciplinary authority to impose the appropriate punishment. However, considering the chequered history of the case and in view of the fact that the appellant had remained under suspension for 11 months, suffered the order of dismissal for 19 months and would retire after reaching the age of superannuation in December 2013, the facts of the case warrant that this court should substitute the punishment of compulsory retirement to the punishment proposed by the Union of India i.e. withholding of two increments for one year without having cumulative effect.

p) Union Bank of India (Supra):

28. This takes us to the last question as to whether the punishment of dismissal is shockingly disproportionate to the gravity of the charges. The principles relating to judicial review of punishment imposed, as a part of the decision making process by Court Martial, have been explained, in Ranjit Thakur Vs. Union of India - 1987 (4) SCC 611, where this Court interfered with the punishment imposed by a court martial on the ground that it was strikingly disproportionate to the gravity of offence on the following reasoning :

"Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."

30. The charges that are held to be proved against the first respondent, are:

(i) Being the Contract Operating Officer for dressed meat, the first respondent with intent to defraud, caused the acceptance of meat from the contractor with `heart' as part of the meat knowing that the same was not acceptable part of carcasses as per para 86 of special conditions of the contract (vide first charge);

(ii) The first respondent, as the Commandant incharge of the Supply Depot failed to ensure that required stocks were maintained as reserve, in the Butchery as required by para 51(a) of the special conditions of contract (vide fourth charge);

(iii) The first respondent as the Commandant responsible for the overall control of the operation of the Butchery improperly failed to implement the standard operating procedure for Butchery resulting in `passed' animals not being segregated and being allowed to mix with the other animals of the contractor.

q) Charanjit Lamba (Supra):

12. The doctrine of proportionality which Lord Diplock saw as a future possibility is now a well recognized ground on which a Writ Court can interfere with the order of punishment imposed upon an employee if the same is so outrageously disproportionate to the nature of misconduct that it shocks conscience of the Court. We may at this stage briefly refer to the decisions of this Court which have over the years applied the doctrine of proportionality to specific fact situations.

13. In Bhagat Ram v. State of Himachal Pradesh (1983) 2 SCC 442 this Court held that if the penalty imposed is disproportionate to the gravity of the misconduct, it would be violative of Article 14 of the Constitution.

11. In Ranjit Thakur v. Union of India and Ors. (1987) 4 SCC 611, this Court was dealing with a case where the petitioner had made a representation about the maltreatment given to him directly to the higher officers. He was sentenced to rigorous imprisonment for one year for that offence. While serving the sentence imposed upon him he declined to eat food. The summary court martial assembled the next day sentenced him to undergo imprisonment for one more year and dismissal from service. This Court held that the punishment imposed upon the delinquent was totally disproportionate to the gravity of the offence committed by him. So also in Ex-Naik Sardar Singh v. Union of India and Ors. (1991) 3 SCC 213 instead of one bottle of brandy that was authorized the delinquent was found carrying four bottles of brandy while going home on leave. He was sentenced to three months rigorous imprisonment and dismissal from service which was found by this Court to be disproportionate to the gravity of the offence proved against him.

19. That the punishment imposed upon a delinquent should commensurate to the nature and generally of the misconduct is not only a requirement of fairness, objectivity, and non-discriminatory treatment which even those form quality of a misdemeanour are entitled to claim but the same is recognized as being a part of Article 14 of the Constitution. It is also evident from the long time of decisions referred to above that the courts in India have recognized the doctrine of proportionality as one of the ground for judicial review. Having said that we need to remember that the quantum of punishment in disciplinary matters is something that rests primarily with the disciplinary authority. The jurisdiction of a Writ Court or the Administrative Tribunal for that matter is limited to finding out whether the punishment is so outrageously disproportionate as to be suggestive of lack of good faith.

r) Chairman-cum-Managing Director, Coal India Ltd. and another (Supra):

18. 25. Again, in Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. and another this court considered the doctrine of proportionality and it was held :

"19. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the "doctrine of proportionality".

18. "Proportionality" is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise--the elaboration of a rule of permissible priorities.

19. de Smith states that "proportionality" involves "balancing test" and "necessity test". Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; see also Wade & Forsyth: Administrative Law (2005), p. 366.]

20. In Halsbury's Laws of England (4th Edn.), Reissue, Vol. 1(1), pp. 144-45, para 78, it is stated:

"The court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is (2007) 4 SCC 669 well established in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness."

21. The doctrine has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no "pick and choose", selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a "sledgehammer to crack a nut". As has been said many a time; "where paring knife suffices, battle axe is precluded".

22. In the celebrated decision of Council of Civil Service Union v. Minister for Civil Service(1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL) Lord Diplock proclaimed: (All ER p. 950h-j) "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality', the second `irrationality' and the third `procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality'...." (emphasis supplied)

23. CCSU has been reiterated by English courts in several subsequent cases. We do not think it necessary to refer to all those cases.

24. So far as our legal system is concerned, the doctrine is well settled. Even prior to CCSU, this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a court to interfere with such penalty in appropriate cases.

25. In Hind Construction & Engg. Co. Ltd. V. Workmen (AIR 1965 SC 917), some workers remained absent from duty treating a particular day as holiday. They were dismissed from service. The Industrial Tribunal set aside the action. This Court held that the absence could have been treated as leave without pay. The workmen might have been warned and fined. (But) "It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner." (AIR p. 919, para 7) (emphasis supplied) The Court concluded that the punishment imposed on the workmen was "not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed".

      (AIR pp.     919-20, para 7)    (emphasis
 
      supplied)
 

26. In Federation of Indian Chambers of Commerce and Industry v. Workmen [(1972) 1 SCC 40], the allegation against the employee of the Federation was that he issued legal notices to the Federation and to the International Chamber of Commerce which brought discredit to the Federation--the employer. Domestic inquiry was held against the employee and his services were terminated. The punishment was held to be disproportionate to the misconduct alleged and established. This Court observed that: (SCC p. 62, para 34) "[T]he Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation."

27. In Ranjit Thakur referred to earlier, an army officer did not obey the lawful command of his superior officer by not

eating food offered to him. Court-martial proceedings were initiated and a sentence of rigorous imprisonment of one year was imposed. He was also dismissed from service, with added disqualification that he would be unfit for future employment.

28. Applying the doctrine of proportionality and following CCSU, Venkatachaliah, J. (as His Lordship then was) observed: (SCC p. 620, para 25) "The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review." (emphasis supplied)

19. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

20. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.

s) Dinesh Kumar Verma (Supra):

5. On a plain reading of paragraph 15 of the impugned judgment, extracted herein above, we gather that the Tribunal has clearly recorded that the delinquent employee in his reply to the charge sheet has either admitted the charges or the reply submitted by him is not in consonance with law, therefore, the case was such that it did not require adducing of any further evidence. As such, the disciplinary authority has rightly proceeded to pass the punishment order adverting to the explanation submitted by the petitioner. It is this finding of the tribunal which has been assailed before this Court and it is strongly argued that the petitioner while submitting his reply in response to the charge sheet has denied all the charges leveled against him, therefore, recital of admission on the part of the petitioner to have admitted any charge is manifestly perverse and the Tribunal ought not have recorded any such finding contrary to the pleadings available on record. It is further argued that once there was a denial on the part of the petitioner in respect of all the charges imputed against him, the inquiry officer ought to have proceeded in accordance with law by affording due opportunity, i.e. by fixing date, time and place for holding disciplinary proceedings. It is also argued that the charges levelled against the petitioner relied upon certain documentary evidences in support thereof, therefore, the same could not have been proved by mere consideration of the reply submitted by the petitioner in response to the charge sheet. Learned counsel for the petitioner to buttress his submission has placed reliance upon several judgments reported in Writ-A No.10552 of 2016 : Dr. Atul Darbari Vs. State of U.P. and others; Writ Petition No.32680 (S/S) of 2019 (Suresh Ram Vs. State of U.P. and others); (2009) 2 SCC 570 : Roop Singh Negi v. Punjab National Bank; (2006) 5 SCC 88 : M.V. Bijlani v. Union of India; (2005) 1 UPLBEC 276 : Atul Kumar v. U.P. Export Corporation; (2006) 3 SCC 167 : Union of India and another vs. SC Parashar; (2008) ESC (All) 1673 : Smt. Chinta Yadav vs. State of U.P. and others; (2009) 1 UPLBEC 189 : Subhas Yadav vs. State of U.P. and others; (2003) 11 SCC 519 : Raj Kishore Jha v. State of Bihar and others; Writ Petition No.992 (S/B) of 2010 : Amar Kumar v. Central Administrative Tribunal Lucknow and others; (2011) 4 SCC 591 : S.N. Narula v. Union of India and others; (2011) 4 SCC 589 : Union of India and others v. S.K. Kapoor; (2009) 13 SCC 603 : Harbhajan Singh vs. State of Punjab; (2013) 2 SCC 41 : Manager, National Insurance Company Ltd. vs. Saju P Paul and another. It is also gathered that the petitioner had disputed the contents of documents relied upon in support of charges levelled against him and the pleadings to this effect were made in the claim petition. Therefore, the findings recorded by the tribunal contrary to the what was pleaded in defence is clearly erroneous. The court has further been taken through the reply in response to the show cause notice where the petitioner has reiterated his grievance but the disciplinary authority has nevertheless proceeded to rely upon the enquiry report by ignoring such a defence. The affirmation of the impugned order passed by the disciplinary authority under the seal of the learned tribunal, it is argued, is glaringly wrong and perverse.

7. We may reiterate that the inquiry proceedings held by the inquiry officer are not an empty formality. The purpose of such proceedings is to bring home the material findings which the inquiry officer may record by exposing the oral and documentary evidences to scrutiny for the purposes of judging its admissibility as per the standard of proof attracted in an issue. Where the evidence lead is found admissible, a finding on that premise is open to recorded by the inquiry officer and it is only thereafter that the inquiry report becomes a reliable material for imposing any penalty. Howsoever serious the charges may be, as is the case at hand, the enquiry proceedings had to be held as per the norms prescribed and this quasi judicial function is convincingly shown to us as faulty. Likewise a document on the face of it with respect to date and the signature may not be denied yet its contents may be disputed. In order to prove the contents, the presenting officer may have to call such an officer to substantiate the contents with due opportunity to the delinquent employee. The attack on the procedural infirmity as regards holding enquiry and reliance placed on such a report, we are convinced, is writ large.

11. We also take note of the fact that the disciplinary proceedings held by the State authorities by and large do not adhere to the well settled principles of law in the matter of holding inquiry as is the case at hand. This amounts to a dereliction of duty embodied under the U.P. Government Servant (Discipline and Appeal) Rules, 1999. The irregularities in the enquiry leave enough scope for indiscipline and the guilty go unpunished in all those cases where the procedural violations shield their misconduct. The discrepancies also prolong the disciplinary action contrary to the objects of service jurisprudence. The dormant role on the part of the State not to have a trained staff for disciplinary enquiry cannot be viewed lightly in every case. The disciplinary action must culminate into reformation and discipline. We would have imposed cost on the State recoverable from the officer, failing to hold inquiry as per law, but looking to the fact that a fresh inquiry is left open, the court reserves exercise of such a power in an appropriate case.

12. For the reasons recorded above, the writ petition is allowed. The impugned judgment as well as the punishment order dated 23rd January, 2019 is hereby set aside. Liberty is, however, granted to the disciplinary authority to proceed with the inquiry from the stage of reply submitted by the petitioner in response to the charge sheet issued to him. The inquiry proceedings shall be concluded by the disciplinary authority not later than a period of six months, strictly in accordance with law.

t) Prakash Chandra Agarwal (Supra):

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.

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.

u) Sanjay Misra vs. Director SGPGI and another (Supra):

13. The U.P. Government (Discipline and Appeal) Rules of 1999 which are admittedly applicable upon the petitioner clearly indicate the procedure that is required to be followed in departmental proceedings with regard to affording a proper and ample opportunity of hearing to the delinquent employee to submit his case in the enquiry proceedings. One of the main facets of the said opportunity is clearly the opportunity to be provided to the delinquent employee to rebut the evidence that is presented against him in the said enquiry proceedings. The said opportunity is in the nature of rebutting not only the documents but also extends to cross-examining the witnesses that are produced in the enquiry proceedings against the petitioner.

15. A perusal of the entire enquiry report and the impugned order clearly indicate only to the fact that the petitioner has been held guilty and has been dismissed from service only on account of police report had been submitted against him. The learned counsel for the petitioner has relied upon the case of State of U.P. and others vs. Saroj Kumar Sinha reported in 2010 Volume 2 SCC Page 772 which clearly indicates the procedure which is required to be followed in any departmental enquiry which is in the nature of a quasi judicial proceedings. The Hon'ble Supreme Court in the said judgment has clearly held that if no oral evidence has been examined and documents have not been proved, they cannot be taken into consideration to conclude that the charges have been proved against the delinquent employee. It has been further held that the enquiry proceedings cannot be conducted with the closed mind and the enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of Rules of Natural Justice is to ensure that the delinquent employee is given a fair hearing in proceedings which may culminate in the imposition of a major penalty.

16. With regard to the previous conduct of the petitioner that has been taken into account in the enquiry proceedings, the learned counsel for the petitioner has relied upon the case of Mohd. Yunus Khan vs. State U.P. and others reported in 2010 Volume 10 SCC Page 539 in which it has been clearly held that in case the disciplinary authority wants to consider the past conduct of an employee in imposition of punishment, the delinquent is entitled to notice thereof and charge-sheet should contain such an article or at least he should be informed of the same at the stage of show-cause-notice before imposing the punishments.

17. A perusal of the aforesaid judgment of the Hon'ble Supreme Court clearly indicated that they are perfectly applicable upon the present circumstances inasmuch as the procedure indicated by the Hon'ble Supreme Court in the case of Saroj Kumar Sinha (supra) has not been followed at all, although the same were required to be followed in terms of the Rules of 1999. Furthermore, the petitioner has been held to be guilty of the charges levelled against him on account of his earlier conduct but neither the charge-sheet nor the show-cause-notice indicates any such charge to have been levelled against him and therefore, the aforesaid findings are also against the judgment of the Hon'ble Supreme Court in the case of Mohd. Yunis Khan (supra).

18. As a conclusion it can be said that the aforesaid two basis of holding the petitioner guilty i.e. the police report and the earlier conduct of the petitioner do not hold good and as such the entire enquiry proceedings against the petitioner are vitiated as is the dismissal order.

v) Union of India and others Vs. J. Ahmed (Supra):

7. To appreciate the contention it is better to have a look at the charges framed against the respondent. They are as under:

"(i) Completely failed to take any effective preventive measures against widespread disturbances breaking out in Nowgong District in spite of adequate warning being conveyed.

(ii) Showed complete lack of leadership when the disturbances actually did break out and failed to give proper direction to your subordinate Magistrates and co-ordinate co-operations with the police to restore Law and Order;

(iii) Did not personally visit the scenes of disturbances within the town or in the Rural areas, in time to take personal control of the situation and to exercise necessary supervision;

(iv) Did not keep Government informed of the actual picture and extent of the disturbances;

(v) Showed complete inaptitude, lack of foresight, lack of firmness and capacity to take quick and firm decision and were, thus largely responsible for complete break down of Law and Order in Nowgong town as well as the rural areas of Nowgong District. Thus you proved yourself completely unfit to hold any responsible position".

9. The five charges listed above at a glance would convey the impression that the respondent was not a very efficient officer. Some negligence is being attributed to him and some lack of qualities expected of an officer of the rank of Deputy Commissioner are listed as charges. to wit, charge No. 2 refers to the quality of lack of leadership and charge No. 5 enumerates inaptitude, lack of foresight, lack of firmness and indecisiveness. These are qualities undoubtedly expected of a superior officer and they may be very relevant while considering whether a person should be promoted to the higher post or not or having been promoted, whether he should be retained in the higher post or not or they may be relevant for deciding the competence of the person to hold the post, but they cannot be elevated to the level of acts of omission or commission as contemplated by Rule 4 of the Discipline and Appeal Rules so as to incur penalty under rule 3. Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules. The words 'acts and omission' contemplated by rule 4 of the Discipline and Appeal Rules have to be understood in the context of the All India Services (Conduct) Rules, 1954 ('Conduct Rules' for short). The Government has prescribed by Conduct Rules a code of conduct for the members of All India Services. Rule 3 is of a general nature which provides that every member of the service shall at all times maintain absolute integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly en-

tail penalty. Failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute failure to maintain devotion to duty. The expression 'devotion to duty' appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation. But rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or ommission may as well constitute misconduct. Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general rule 3 prescribing devotion to duty. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings.

11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct [see Pierce v. Foster(1)]. A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle .(Indicator Newspapers) (2)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur(1), and Satubha K. Vaghela v. Moosa Raza(2). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:

"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct".

In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Unio nof India(4), the mamnner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil [see Navinchandra Shakerchand shah v. Manager, Ahmedabad Co- op. Department Stores Ltd.(1)]. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.

16. On the other hand, learned counsel for the respondent(s) placed before this Court the enquiry report dated 22.04.2004, report of the hearing of the petitioner dated 12.04.2004, charge sheet dated 30.07.2002, reply of show cause notice dated 24.07.2004, letter of non receipt of punishment order dated 31.07.2004, office order dated 29.07.2004, rules of punishment of the department, requisition of the petitioner in regard to necessary documents dated 07.07.2004, letter dated 19.07.2004 and show cause notice dated 24.06.2004.

17. On overall consideration of the matter as well as on perusal of record and judgments relied upon by learned counsel for the petitioner, it is reflected that financial irregularities were found against the petitioner in deposit work done at District Ambedkar Nagar and on the basis of audit report, the inquiry was initiated against the petitioner and relevant documents relating to charges were supplied to the petitioner and a charge sheet containing eight charges was served upon the petitioner and charge Nos.3&6 were found to be proved against the petitioner.

18. Moreover, the petitioner himself accepted the charges against him and made a request that he should be awarded minor punishment, which itself proves that the charges were proved against him. The show cause notice could not be served upon the petitioner as he was not available in his office / residence and his family members have also denied from receiving the same and thereafter, the said notice was published in daily news papers, namely, Dainik Jagran and Times of India on 29.06.2004 for information upon the petitioner.

19. From the aforesaid, it is crystal clear that the charge Nos.3&6 were rightly proved against the petitioner and he was afforded proper opportunity of hearing while initiating inquiry proceeding against him.

20. This Court is of the considered opinion that the impugned order dated 29.07.2004 has rightly been passed against the petitioner and there is no illegality. The judgments relied upon by learned counsel for the petitioner do not help the petitioner and are distinguishable to the present facts and circumstances of the case.

21. The writ petition lacks merit and is hereby dismissed.

Order Date :- 29.05.2023

Adarsh K Singh