Allahabad High Court
Dinesh Kumar Kureel vs State Of U.P. Thru. Prin. Secy. Public ... on 4 March, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 6
Case :- WRIT - A No. - 2154 of 2025
Petitioner :- Dinesh Kumar Kureel
Respondent :- State Of U.P. Thru. Prin. Secy. Public Works Deptt. Lko. And 2 Others
Counsel for Petitioner :- Sudeep Kumar,Rajan Mishra,Umesh Chandra Tripathi
Counsel for Respondent :- C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya)
Hon'ble Alok Mathur,J.
1. Heard Sri Sudeep Kumar, learned counsel for petitioner as well as learned Standing Counsel for respondents and Sri R.K. Upadhyaya, learned counsel for respondent.
2. The grievance raised by the petitioner in the present writ petition is with regard to order dated 06.01.2024 passed by the State of U.P. thereby inflicting the punishment of stoppage of three increments permanently with cumulative effect on conclusion of the disciplinary proceedings initiated against the petitioner.
3. It has been submitted by learned counsel for petitioner that present controversy relates to progress of the Harchandpur - Sirsaghat Road which was for a length of 0.968 kms. which in the review meeting Chaired by the concerned Minister was shown to have been completed.
4. It has been submitted that during an inquiry conducted by the Chief Engineer Central Public Works Department, Lucknow on 13.10.2022, it was found that 47 meters of the road had not been completed and work was still remaining. Accordingly, it is for the incorrect information supplied to the authorities, the disciplinary proceedings were initiated against the petitioner and other persons who were responsible for the same.
5. Learned counsel for the petitioner has submitted that charge-sheet was submitted to the petitioner on 16.11.2022 containing four charges where the preliminary inquiry conducted on 13.10.2022 was also to be relied by the respondents in support of the said charges. It has been submitted that the petitioner was never associated with the preliminary inquiry and there is no doubt with regard to the fact that during inquiry proceedings, no further steps were taken to determine the allegations against the petitioner as to whether the entire length of the disputed road was completed or not and as to whether the petitioner was guilty for giving the wrong information.
6. It is stated that the question as to whether a preliminary inquiry report can be a basis for bringing the charges against the government servant was considered by the Supreme Court in the case of Nirmala J. Jhala Vs. State of Gujrat, 2013 (4) SCC 301 where it has been held that evident recorded in the disciplinarian inquiry cannot be used in 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.
7. He has drawn the attention of this Court to the inquiry report as well as impugned order of punishment indicating that for approving the charges against the petitioner heavy reliance has been placed on the report of the inquiry committee. He has further submitted that the inquiry was concluded on 15.02.2023 and subsequently, the Inquiry Officer had suo motto directed the respondents to submit copy of the M.B. (Measurement Book) and other material which was handed over to him on 09.05.2023 and the additional material so produced was never given to the petitioner nor he was given any opportunity to confront with the additional material and the inquiry officer as well as disciplinary authority has relied upon the said material and contents of the M.B. (Measurement Book) to prove the charges against the petitioner resulting in the impugned order of punishment. It was stated that the inquiry proceeded in total violation of principles of natural justice and is therefore, liable to be set aside.
8. Learned Standing Counsel on the other hand has opposed the writ petition on the basis of written instructions received from the Executive Engineer, Prantiya Khand, P.W.D., Raibareily stating that the inquiry proceedings against petitioner have been conducted in accordance with law and all the provisions contained in U.P. Government Servant (Discipline and Appeal) Rules, 1999 have been followed and full opportunity of hearing has been given to the petitioner. He has further submitted that even after submission of inquiry report, the Disciplinary Authority has given full opportunity of hearing to the petitioner and only thereafter has passed the order of punishment and submits that there is no infirmity in the inquiry proceedings conducted against petitioner and prays for dismissal of the writ petition.
9. Heard learned counsel for the parties and perused the record.
10. The issue which falls for consideration before this Court is as to whether disciplinary proceedings against petitioner have been conducted adhering to the golden principle of Natural Justice where the petitioner has been given full opportunity of hearing or not?
11. It is noticed that the allegation levelled against petitioner was that erroneous information was given to the higher officers with regard to completion of work of widening and strengthening of Harchandpur-Sirsaghat Road of length 0.968Km in Raebareli district, where 47 meters of road had not been completed while higher authorities were informed to the contrary that entire road has been constructed.
12. On the basis of aforesaid information preliminary inquiry was conducted and on the basis of preliminary inquiry report, disciplinary proceedings were initiated against petitioner. It is stated that though petitioner was never associated with the preliminary inquiry, but the copy of the preliminary inquiry report was handed over to the petitioner as the same was sought to be relied upon by the respondents in support of the charges.
13. It is noticed that there was no other cogent material in support of the charges and merely relying upon the preliminary inquiry report, the petitioner was held to be guilty of the charges levelled against him.
14. In the aforesaid circumstances, this Court is of the considered view that preliminary inquiry was conducted prior to taking a decision for conducting a regular inquiry to test the veracity of the allegations made in the complaint and it is only when the allegations were found to be correct, decision is taken to initiate regular disciplinary proceedings against a Government servant who is responsible for the misconduct.
15. It is in the aforesaid circumstances, preliminary inquiry has limited role which starts with testing the veracity of the allegations and ends when its recommendations with regard to the initiation of regular disciplinary proceedings or otherwise, against a Government servant. When decision is taken to initiate disciplinary proceedings against a Government servant, then it is incumbent upon the prosecution to establish the charges levelled against him during the course of disciplinary proceedings/inquiry. It is the very purpose of the inquiry where evidence and material sought to be proved against a Government servant, have to be tested during the course of such inquiry. This can be in the shape of documentary evidence or oral evidence or any other material evidence which can relate/lead towards culpability of the Government servant. Such purpose would be also in conformity with the principles of natural justice inasmuch as the Government servant is entitled to rebut and disapprove the material and evidence, on the basis of which charges are sought to be proved. Once the material is adduced during the disciplinary proceedings initiated against a Government servant, he gets adequate opportunity to repudiate the allegations and the question of veracity of the material produced therein, thereby giving him full opportunity to defend himself in the inquiry which is the purpose and object of such inquiry.
16. In case preliminary inquiry report is sought to be relied against a Government servant, then the same can be utilized where such Government servant has been associated in the preliminary inquiry and in case he was not associated with the preliminary inquiry then all the facts which have been proved in the preliminary inquiry have to be proved in the regular inquiry also. Merely giving copy of the preliminary inquiry report to the delinquent Government servant, would in itself would not suffice compliance of the principles of natural justice. Persons whose statements have been recorded during the preliminary inquiry, have to be produced in the inquiry also to enable the petitioner to cross examine them. It is for this very reason that the basic rule should be followed that all the charges should be proved on the basis of material placed during the disciplinary proceedings itself.
17. This aspect of the matter was also considered by the Hon'ble Supreme Court in the case of Nirmala J. Jhala Vs. State of Gujarat and Another, (2013) 4 SCC 301.
18. It has been further submitted that the observations of the Apex Court in the case of Nirmala J. Jhala (supra) have been relied upon by the Court in the case of Satyendra Singh Vs. State of U.P., 2024 SCC OnLine SC 3325. In the case of Satyendra Singh (supra), the Apex Court has observed as under :
"14. In the case of Roop Singh Negi, 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. ..."
(emphasis supplied)
15. Same view was reiterated in State of Uttar Pradesh v. Saroj Kumar Sinha, 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 Sinha 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."
(emphasis supplied)
16. In the case of Nirmala J. Jhala, 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 :
"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."
19. It is for the aforesaid reasons that only material relied in holding that charges against petitioner are proved in the preliminary inquiry and as such this Court finds that the inquiry proceedings itself has been vitiated.
20. Apart from the above, it is noticed that after the inquiry was over, the Inquiry Officer had sought for additional material in the form of Measure Book and such material was handed over on 09.05.2023. No date, time and place was fixed for the additional material to be placed before the Inquiry Officer nor were copies of the Measure Book were ever supplied to the petitioner, nor was he ever confronted with the additional material and only the inquiry report was prepared and handed over to the Disciplinary Authority.
21. Accordingly, not confronting the delinquent Government servant with the material sought to be adduced against him during the inquiry, vitiates the entire proceedings inasmuch as, delinquent Government servant is not given any opportunity to defend himself and rely upon the material, without first giving it to the delinquent Government servant, itself is violative of the golden rule of affording fair opportunity of hearing and on this ground also the inquiry stands vitiated.
22. Considering the submissions made on behalf of petitioner that despite taking all the grounds assailing the inquiry report and also charges leveled against the petitioner, in the reply to the show cause notice, the Disciplinary Authority while passing the impugned order has not considered the grounds raised and in the most mechanical manner, relying upon the inquiry report has passed the order of punishment against petitioner.
23. Specifically, it was stated in para V of the reply given by the petitioner that preliminary inquiry conducted by a three member Committee was not complete in itself and was conducted without associating the petitioner and accordingly, same could not have been relied upon by the Inquiry Officer. Despite raising aforesaid objections, the Disciplinary Authority did not consider the said objections and passed the impugned order.
24. It is noticed that very purpose of giving show cause notice is to elicit objections to the inquiry report and when ever such objections are raised, the Disciplinary Authority is bound to consider each one of them and can either accept or reject them after giving due consideration and reasons for the same. In case any objection is raised and same is not considered by the Disciplinary Authority, it would be a ground in itself to render such an order passed by the Disciplinary Authority arbitrary inasmuch as, it defies the basic principle of fairness in the proceedings being conducted by him.
25. One of the main reasons for providing such elaborate procedure is to provide full opportunity to the delinquent Government servant to defend himself in such proceedings. He can defend himself by either adducing evidence in his favour indicating that the charges are false or he can challenge the veracity of the material adduced in the disciplinary inquiry which may impeach concurrence of the charges. In either of the two situations, one of the basic requirement for the inquiry officer as well as Disciplinary Authority is to carefully consider all such objections raised by the delinquent Government servant and it is only after due consideration, he can either accept or reject the objections raised by the delinquent Government servant after giving reasons for the same.
26. In the present case, it is noticed that despite specific objections being raised by the delinquent Government servant with regard to the preliminary inquiry conducted by a three member Committee, no consideration was made by him at the time of passing the impugned order and this in itself, renders the impugned order illegal and arbitrary and liable for interference by this Court under Article 226 of the Constitution of India.
27. It is for the aforesaid reasons, this Court finds that there are serious infirmities in the inquiry report dated 23.06.2023 as well as impugned order of punishment dated 06.11.2024.
28. In the aforesaid circumstances and considering the allegations levelled against petitioner and also the time which has lapsed during the said period, it would not be equitable to remit the matter back to the inquiry officer. This Court further finds that apart from the preliminary inquiry report there was no other cogent material adduced by the respondents in support of the charges, is available, hence it would not be in the fitness of things to remit the matter back to the inquiry officer for inquiring the matter afresh.
29. In the light of above, writ petition is allowed. The impugned orders dated 06.11.2024 as well as 19.10.2024 are hereby set aside.
Order Date :- 4.3.2025
A. Verma
(Alok Mathur, J.)
