Aish Mohammad vs State Of U.P. And 6 Others
2025 Latest Caselaw 2341 ALL

Allahabad High Court

Aish Mohammad vs State Of U.P. And 6 Others on 21 July, 2025

Author: Ajit Kumar

Bench: Ajit Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:118433
 
A.F.R.
 

 
Court No. - 4
 

 
Case :- WRIT - A No. - 7443 of 2025
 

 
Petitioner :- Aish Mohammad
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Shiv Sagar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ajit Kumar,J.
 

1. Heard learned counsel for the parties and perused the records.

2. Learned Standing Counsel has placed before this Court the original records relating to the disciplinary proceedings drawn against the petitioner pursuant to the order dated 1st July, 2025 and before the Court opens the original records, learned Standing Counsel fairly concedes that no oral hearing was conducted in the matter of departmental inquiry/ domestic inquiry conducted by the inquiry officer.

3. Upon perusal of the records it transpires that petitioner was issued with a chargesheet on 6th December, 2022 inviting his explanation by the inquiry officer vide letter dated 25th March, 2023. Since petitioner did not submit any reply, therefore, departmental inquiry was proceeded with against him on the basis of records available and report was submitted on 6th October, 2023.

4. Upon perusal of the records I further find that on 31st October, 2022, Consolidation Commissioner appointed Deputy Director Consolidation, Basti as inquiry officer to conduct the domestic inquiry in terms of Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (herein after referred to as 'Rules, 1999'). Thereafter a letter was written as a reminder by the Deputy Director, Consolidation, Basti to Mr. Aish Mohammad, namely the petitioner, the then consolidation officer to submit his reply as more than four months have passed, failing which the Deputy Director Consolidation during this inquiry has proceeded ex parte and thereafter inquiry report got submitted on 6th October, 2023.

5. Upon perusal of the record it transpires that the Deputy Director Consolidation, Basti wrote a letter to the Settlement Officer, Maharajganj and as a consequence thereto it appears that Deputy Director Consolidation, Basti proceeded to conclude the inquiry and submit report on 6th October, 2023.

6. Upon perusal of the report dated 6th October, 2023 which is available on record in original, I do not find there to be any reference of any letter fixing a date for personal hearing or inviting any departmental witness to be examined, before the inquiry officer proceeded to submit report bringing home the charge in respect of all the allegations and charges framed against the petitioner. I find that he has held petitioner guilty on the basis of his own assessment of records.

7. It is interesting to notice that the charges relate to the discharge of quasi judicial exercise of power of the petitioner and consolidation officer in the matter of objection being decided under Sections 9 and 12 the U.P. Consolidation of Holdings Act, 1953 and therefore, the authority was to consider and appreciate the documents available on record relating to the disposal of the proceedings and then the relevant departmental witnesses ought to have examined. For ready reference, Rule 7 of the Rules, 1999 is reproduced hereunder:

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

(i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges.

(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority:

Provided that where the appointing authority is Governor, the charge- sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department.

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

(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be in- formed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte.

(v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation:

Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.

(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission.

(vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence:

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

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

(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to dis- cover the truth or to obtain proper proof of facts relevant to charges.

(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in- spite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.

(xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits:

Provided that this rule shall not apply in following cases:

(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or

(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an manner provided in these rules."

8. Upon a bare reading of the aforesaid rule it clearly transpires that in the event the delinquent employee refuses to accept the charge, in other words, denies the same and even if he does not submit or offer his explanation, the inquiry officer is still bound in law to hold an oral inquiry in terms of the examination of departmental witnesses. The chargesheet itself relies upon documents in the form of the report of Deputy Director Consolidation, Siddharth Nagar and also records relating to the proceedings concerned and, therefore, in the considered view of the Court, the Deputy Director Consolidation, Siddharth Nagar, who had submitted report ought to have examined and recorded the statement of the person on the basis report was submitted.

9. In the case of Salahuddin Ansari v. State of U.P. & others, (2008) (4) ADJ 58, the Court has very clearly held that oral inquiry is sine qua non in matter of disciplinary proceedings if drawn against the delinquent employee for major penalty. This Court in the case of Kishor Kumar v. State of U.P. and others (Writ - A No.- 10177 of 2019) decided on 9th October, 2023 has held vide paragraph 12 thus:

"12. In my above view, I find support in the division bench judgment of this Court in the case of Salahuddin Ansari vs. State of UP & ors; 2008 (4) ADJ 58, wherein the Bench has relied upon an earlier division bench judgment in the case of Subhash Chandra Sharma vs. Managing Director & anr, MANU/UP/0757/1999 in which it was held that imposition of penalty in the nature of major penalty without holding inquiry was bad. The said judgment came to be affirmed by Supreme Court in SLP as the SLP against the judgment stood dismissed on 16.08.2000. Citing the aforesaid judgment and another judgment of the Supreme Court in the case of State of UP & anr vs. T.P. Lal Srivastava; 1997 (1) LLJ 831, the Division Bench in the case of Salahuddin Ansari (supra) vide paragraphs 11, 13 and 14, held thus:

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

13. The aforesaid exposition of law makes it clear that the delinquent employee has a right to defend himself at different stages. When the charge sheet is served upon him, he has a right to submit his reply and in case he does not submit reply, that itself would not amount to admission of guilt or that the charge stand proved. If the allegations are serious and may result in major penalty, the disciplinary authority may appoint Inquiry Officer. Such Inquiry Officer, thereafter would have to fix a date for oral evidence. At this stage the delinquent employee has a right to participate in the oral inquiry, examine witnesses, if produced by the department, and after the evidence of the department is completed, the delinquent employee may produce evidence in his defence. During the course of oral inquiry, the delinquent employee has right to participate at every stage and date and if there is any failure in participation on one or more occasions, the Inquiry Officer cannot deny him participation from the subsequent stage. The delinquent employee can participate at subsequent other stage also. The Inquiry Officer, after completion of oral inquiry, will submit its report after discussing the entire material and if any charge is proved, the disciplinary authority shall supply a copy of the inquiry report to the delinquent employee and he would again have a right to submit reply to the inquiry report.

14. Non holding of oral inquiry, therefore, is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment."

10. Thus a disciplinary proceedings qua charges that may invite major penalty, in the absence of oral inquiry is per se bad and, therefore, any consequential action pursuant thereto is liable to be held void ab initio. In other words, the Court holds that in the matters where the rule contemplates full fledged inquiry inclusive of oral inquiry even in the cases where the replies to the chargesheet have not been submitted it is imperative on the part of the inquiry officer to hold oral enquiry and, therefore, in the absence of oral enquiry, inquiry report if submitted, it deserves to be quashed and so also the resultant action. In the case of Satyendra Singh v. State of U.P. and another, 2024 SCC OnLine SC 3325, the Supreme Court vide paragraphs 13, 14, 15 and 16 has held thus:

"13. This Court in a catena of judgments has held that the recording of evidence in a disciplinary proceeding proposing charges of a major punishment is mandatory. Reference in this regard may be held to Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570 and Nirmala J. Jhala v. State of Gujarat (2013) 4 SCC 301.

14. In the case of Roop Singh Negi (supra), this Court held that mere production of documents is not enough, contents of documentary evidence have to be proved by examining witnesses. Relevant extract thereof reads as under:?

"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the 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. The 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.

?

19. The judgment and decree passed against the respondent in Narinder Mohan Arya case [(2006) 4 SCC 713 : 2006 SCC (L&S) 840] had attained finality. In the said suit, the enquiry report in the disciplinary proceeding was considered, the same was held to have been based on no evidence. The appellant therein in the aforementioned situation filed a writ petition questioning the validity of the disciplinary proceeding, the same was dismissed. This Court held that when a crucial finding like forgery was arrived at on evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This Court emphasised that a finding can be arrived at by the enquiry officer if there is some evidence on record. ?"

15. Same view was reiterated in State of Uttar Pradesh v. Saroj Kumar Sinha (2010) 2 SCC 772, wherein, this Court held that even in an ex-parte inquiry, it is the duty of the Inquiry Officer to examine the evidence presented by the Department to find out whether the unrebutted evidence is sufficient to hold that the charges are proved. The relevant observations made in Saroj Kumar Sinha13 are as follows:?

"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 examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

?.

33. As noticed earlier in the present case not only the 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."

16. In the case of Nirmala J. Jhala (supra, this Court held that evidence recorded in a preliminary inquiry cannot be used for a regular inquiry as the delinquent is not associated with it and the opportunity to cross-examine persons examined in preliminary inquiry is not given. Relevant extract thereof reads as under:?

"42. A Constitution Bench of this Court in Amalendu Ghosh v. North Eastern Railway [AIR 1960 SC 992], held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held.

43. Similarly in Champaklal Chimanlal Shah v. Union of India [AIR 1964 SC 1854] a Constitution Bench of this Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution of India. Preliminary inquiry may be held ex parte, for it is merely for the satisfaction of the Government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry. But at that stage, he has no right to be heard as the inquiry is merely for the satisfaction of the Government as to whether a regular inquiry must be held. The Court further held as under : (AIR p. 1862, para 12)

"12. ? There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the government servant is entitled to the protection of that article [, nor prior to that]."

44. In Narayan Dattatraya Ramteerthakhar v. State of Maharashtra [(1997) 1 SCC 299 : 1997 SCC (L&S) 152 : AIR 1997 SC 2148] this Court dealt with the issue and held as under:

"? a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. Once regular enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice of (sic) nor, remains of no consequence."

45. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice.

(emphasis supplied)

11. The principle of compliance of prescribed procedure and to act in the same manner as prescribed under the rules, is a well settled legal position in matters of discharge of duties by administrative authorities. In the case of Tata Chemical Ltd. v. Commissioner of Customs (2015) 11 SCC 628 and Krishna Rai v Banaras Hindu University (2022) 8 SCC 713, it has been held that when a procedure is laid down to do a thing then it should be done in that manner alone.

12. In view of the above, the order impugned dated 27th March, 2025 is hereby quashed, however, Petitioner's status will be the same as was at the time of inquiry till the fresh inquiry report is submitted and consequential action is taken in the light of the judgment of Supreme Court in the case of Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others (1993) 4 SCC 727.

13. Accordingly, the respondent is directed to appoint new inquiry officer within a period of four weeks from the date of production of certified copy of this order. Soon after the appointment of inquiry officer as directed herein above, the petitioner shall be submiting reply to the chargesheet within a further period of four weeks. The inquiry officer thereafter shall proceed to hold oral inquiry and petitioner shall be participating in the same. The oral inquiry would include the oral examination of the petitioner as well as the departmental witness, if any. After the oral examination is completed, the inquiry report shall be submitted within a maximum period of two months from the date of reply submitted by the petitioner and thereafter the disciplinary authority shall proceed to pass final order in the matter strictly in accordance with law and as per the procedure prescribed under the Discipline and Appeal Rules, 1999 within a further period of two months.

14. Thus, the writ petition succeeds and is allowed as above.

15. The original records are returned.

Order Date :- 21.7.2025

Atmesh