Pragyesh Mishra vs State Of U.P. Thru. Addl. Chief Secy. ...
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Allahabad High Court

Pragyesh Mishra vs State Of U.P. Thru. Addl. Chief Secy. ... on 16 September, 2025

Author: Karunesh Singh Pawar

Bench: Karunesh Singh Pawar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 

 

 

 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW
 
WRIT  A No. - 12025 of 2024
 

 
Pragyesh Mishra
 

 
..Petitioners(s)
 

 

 

 

 
Versus
 

 

 

 

 
State of U.P. Thru. Addl. Chief Secy. Deptt. of Civil Aviation Lko and 2 otheres
 

 
..Respondents(s)
 

 

 
Counsel for Petitioners(s)
 
:
 
Shireesh Kumar, Utkarsh Kumar
 
Counsel for Respondent(s)
 
:
 
C.S.C.
 

 

 
with
 
Case :-WRIT - A No. - 3685 of 2024
 
Petitioner :-Pragyesh Mishra
 
Respondent :-State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Aviation, Lko. And Another
 
Counsel for Petitioner :-Shireesh Kumar,Utkarsh Kumar
 
Counsel for Respondent :-C.S.C.
 

 
Judgment Reserved On : 22.05.2025
 
Judgment Pronounced On:  16.09.2025
 
Court No. - 12
 

 
HONBLE KARUNESH SINGH PAWAR, J.

1. These two writ petitions are being decided by this common judgment.

2. Heard Sri Shireesh Kumar assisted by Sri Mustafa Khan and Ms. Shruti Dixit, learned counsel for the petitioner and Sri Kuldeep Pati Tripathi, Additional Advocate General assisted by Sri Shailendra Singh, Chief Standing Counsel and Sri Vivek Shukla, learned counsel for State-respondents.

3. The petitioner by way of Writ Petition No.12025 of 2024 has prayed for the following reliefs:-

(i)issue a writ, order or direction in the nature of certiorari quashing the charge sheet dated 14.06.2024 as contained in Annexure No.-7 to this writ petition.

(ii)issue a writ, order or direction in the nature of certiorari quashing the enquiry report dated 15.10.2024 as contained in Annexure No.-16 to this writ petition.

(iii)issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow all the consequential service benefits to the petitioner.

4. By way of filing Writ-A No.3685 of 2024 , the petitioner has prayed for the following reliefs:-

(i)issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow the petitioner to attend his office and also allot him to perform flying assignments as per his job profile, CARs, and terms of Licences.

(ii)issue a writ, order or direction in the nature of mandamus commanding the opposite parties to permit the petitioner to attend and complete mandatory training programmes as per the CARs issued by the Director General Civil Aviation time to time to maintain his recency/continuity/renewal of rating and license as per the existing Rules and provisions.

5. Brief facts of the case are that the petitioner is a Government Pilot in the Department of Civil Aviation, Government of U.P. who is duly qualified and possesses license to fly commercial Aeroplanes as well as Helicopters. Since 17thJune, 2023, the petitioner has been restrained from discharging official work. The petitioner submitted various representations for taking work from him but no decision was communicated to him. The petitioner has also invoked Right to Information Act, 2005 however, vide letter dated 19.02.2024, the information was denied on the premise that questions are highly sensitive. The flights in the department of civil aviation are conducted for VIPs and keeping in view the operational issues and security, no information can be shared and provided to the petitioner thus, he filed a petition, Writ-A No.3685 of 2024 as action of opposite parties in not taking work from him was resulting into non-renewal of license of the petitioner. In the meantime, on 21.05.2021 the opposite party No.1 passed an order for institution of disciplinary proceedings against the petitioner. These proceedings were concluded vide punishment order dated 07.02.2024 with a punishment of reduction of pay at two stages in the time scale and recovery of government expenses.

6. The punishment order dated 07.02.2024 was challenged vide Writ-A No.1692 of 2024 and by a detailed judgment dated 02.04.2024, the punishment order dated 07.02.2024, was set aside however, it was left open for the opposite parties to proceed against the petitioner in accordance with law thus, in view of the liberty granted by the Court, on 10.05.2024 the opposite party No.1 issued an order and set aside the order dated 07.02.2024 and revived the disciplinary proceedings from the stage of preparation of the charge-sheet. On 14.06.2024 charge-sheet containing three charges was issued against the petitioner. The writ petition challenges the charge-sheet on the ground that second charge-sheet is yet not approved as per Proviso 2 Rule 7(ii) of the U.P. Government Servant (Discipline and Appeal) Rules of 1999 (hereinafter referred to as, the Rules of 1999) and the principles laid down by the Honble Supreme Court in the cases ofB.V. Gopinath vs. Union of India and othersreported in[(2004)3 SCC 440]andSunnyAbraham vs. Union of Indiareported in[2021 (20) SCC 12].

7. The inquiry report dated 15.10.2024 is challenged on the ground that the petitioner was denied the documents which were necessary to exhibit the innocence of the petitioner. The witnesses whom the petitioner wanted to examine were not summoned. The petitioner was summoned for personal hearing on 20.09.2024 and he appeared before the Investigating Officer however, no personal hearing took place and Inquiry Officer in violation of principles of natural justice without conducting inquiry as per Rule 7 of the Rules of 1999 submitted the inquiry report thus, the writ petition primarily is filed on three grounds; (i) charge-sheet dated 14.06.2024 is not approved and thus, cannot be sustained (ii) inquiry report dated 15.10.2024 is not legally sustainable as is violative of Rule 7 of the Rules of 1999 (iii) the opposite parties have pre-determined the guilt of the petitioner.

8. Sri Sireesh Kumar, learned counsel for the petitioner has submitted that in the earlier round of litigation Writ-A No.1692 of 2024 filed by the petitioner challenging the charge-sheet was allowed vide judgment and order dated 02.04.2024 and the punishment order dated 07.02.2024 was set aside. The court in paragraph 20 and 21 of the judgment dated 02.04.2024 observed that the charge-sheet was not approved and accordingly, declared the charge-sheet as well as the consequential punishment order to bevoid ab initio.

9. He has placed reliance on the judgment passed inSunnyAbrahams case(supra), emphasis is on paragraph 15, submitting that process of approval of the charge-sheet should not be mechanical process but mandatorily requires an independent application of mind which is lacking in the present case. Annexure-CA3 to the counter affidavit shows that note-sheet was produced before the opposite party No.1 on 14.06.2024 and on the same date he has put his signatures on the proposed charge-sheet without any approval and therefore, charge-sheet cannot be treated as approved and therefore, the entire inquiry which is based on said charge-sheet is void and deserves to be quashed.

10. Second submission of learned counsel for the petitioner is that the inquiry report has been prepared in violation of principles of natural justice, non-consideration of relevant facts and recording perverse findings. No personal hearing was accorded to the petitioner. The list of the documents desired by the petitioner to support his case was not made available to him. The list of the witnesses submitted by the petitioner whom he proposed to examine as per Rule 7(vii) of Rules of 1999 were not called upon for examination.

11. It is lastly submitted that opposite parties have pre-determined the guilt of the petitioner. He submits that petitioner was neither competent to grant permission for the flight dated 15.10.2019 nor had granted permission for flight dated 15.10.2019, this fact was ignored by the Inquiry Officer. The charge-sheet itself states that approval for the test flight/route check on 15.10.2019 was granted by Director. It is submitted that it is a unilateral inquiry report.

12. In support of his contention, he has relied on Division Bench judgment of this Court passed inService Bench No.28859 of 2019 (State of U.P.vs. Ram Prakash Singh & Anr.)in which the Division Bench while upholding the judgment of the State Tribunal dismissed the special appeal. Against that the State filed SLPCivil Appeal No.14724 of 2024 (State of U.P. vs. Ram Prakash Singh),this civil appeal was also dismissed vide detailed judgment and order dated 23.04.2025.

13. Learned counsel for the petitioner has further relied on the following judgments arguing that an inquiry report may be subjected to judicial review for violation of principles of natural justice, non-consideration of relevant facts and recording perverse findings which could not be arrived at by a man of ordinary prudence:-

Kumaon Mandal Vikas Nigam vs. Girja Shanker Pant ; [2001 (1) SCC 65],

State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya : 2011 (4) SCC 584,

Y.P. Sarabhai vs. Union Bank of India ; 2006 (5) SCC 377,

Kuldeep Singh vs. Commissioner of Police ; 1999 (2) SCC 10,

State of Karnataka vs. N. Gangraj : 2020 (3) SCC 423.

14. He has relied on the following judgments on the point of approving the charge-sheet without the application of mind:-

Union of India vs. P. Gunasekaran : 2015 (2) SCC 610,

Union of India vs. B.V. Gopinath : 2014 (1) SCC 351

Sunny Abraham vs. Union of India; 2021 (20) SCC 12.

15. He has relied on the judgement of State of Odisha vs. Satish Kumar Ishwardas Gajbhiye and another : 2021 (17) SCC 90 regarding pre-determination of guilt by opposite parties.

16. Learned counsel appearing for the State has submitted that the petitioner on 15.10.2019 while looking after the work of pilot (Rotor Wing) and the post of Manager (Operations) unauthorizedly used the state aircraft hawker for route check of the pilot of an external organization, Captain Michael Wilson and thus has committed serious irregularity, therefore, a departmental inquiry was instituted vide office memorandum dated 21.05.2021 under Rule 7 of the Rules of 1999. The inquiry concluded vide order dated 07.02.2024 inflicting major penalty of reversion/demotion to three lower stages in the present time pay scale w.e.f. 15.10.2019. The decision was taken to make recovery of the government expenses which had incurred on the flight of the state aircraft Hawker 900XP in October, 2019 from the petitioner. Against the punishment order dated 07.02.2024, the petitioner filed a writ petition bearing No.1692 of 2024 (Pragyesh Mishra vs. State of U.P. and others) which was allowed by the High Court vide order dated 02.04.2024 and the punishment order was quashed with liberty to pass afresh against the petitioner as per law.

17. In compliance of the aforesaid judgment and order of the High Court dated 02.04.2024, the disciplinary authority vide OM dated 10.05.2024 revised the inquiry from the stage of preparation of charge-sheet and nominated Shri M Devraj, the then Principal Secretary, Technical and Vocational Education, Uttar Pradesh as Inquiry Officer. The charge-sheet was made available to the disciplinary authority/Additional Chief Secretary U.P. Government who on the note-sheet approved the charge-sheet on the same date i.e. 14.06.2024. The Inquiry Officer served the duly approved charge-sheet along with the evidences cited against the petitioner and petitioner was afforded an opportunity of hearing to submit his reply in writing within fifteen days from the date of receipt of the charge-sheet. He was also afforded opportunity of producing the evidences to prove his defence in the stipulated time failing which, it was presumed that he has nothing to say regarding the charges levelled against him and charges are accepted and accordingly inquiry shall be conducted.

18. It is submitted that all legible evidences which were sought and relied on in the charge-sheet were made available to the petitioner along with the charge-sheet which was duly served upon the petitioner by the Inquiry Officer. On 11.07.2024, the petitioner moved an application and has sought to file photocopy of the note-sheet on which the opinion was formed for institution of a fresh disciplinary proceeding on the same charges against the petitioner which was denied by the State.

19. He submits that the petitioner has not cooperated in the inquiry and has made every endeavour to delay the proceedings by demanding unnecessary documents. Thus, considering the delaying tactics on the part of the petitioner, the inquiry officer on the basis of available materials has submitted the inquiry report dated 15.10.2024 before the disciplinary authority vide letter dated 02.12.2024 along with the copy of the inquiry report under Rule 9(iv) of the rules of 1999. Thereafter, the petitioner was given opportunity of hearing to submit his explanation within seven days from the date of receipt of the copy of the show cause notice regarding the charges which were found proved against him in the departmental inquiry, failing which, it was to be presumed that he has nothing to say and accordingly appropriate decision shall be taken as per rules on the basis of the evidences available on record.

20. The petitioner instead of submitting the explanation has filed Writ-A No.12025 of 2024 challenging the charge-sheet dated 14.06.2024 and inquiry report dated 15.10.2024. It is submitted by the State that the writ petition is not maintainable against the charge-sheet as well as inquiry report impugned in it. It is premature and is liable to be dismissed.

21. Learned State counsel in support of his contention has relied on following judgments:-

1) Secretary, Ministry of Defence & ors. vs. Prabhash Chandra Mirdha : (2012) 11 SCC 565

2) State of Orissa & Anr. vs. Sangram Keshari Misra & Anr. : (2010) 13 SCC 311

3) Union of India and others vs. Upendra Singh : (1994) 3 SCC 357

4) State of Uttar Pradesh vs. Shri Brahm Datt Sharma : AIR 1987 SC 943

5) State Bank of India & ors. vs. Narendra Kumar Pandey : AIR 2013 SC 904

22. I have heard the arguments advanced by the parties and perused the record.

23. Initially, the petitioner in the first round of litigation assailed the punishment order dated 07.02.2024 by filing Writ-A No.1692 of 2024 wherein the punishment order dated 07.02.2024 was set aside. The undated charge-sheet issued to the petitioner, which resulted into the punishment order dated 07.02.2024, was not found approved by the Principal Secretary of the Department which was mandatory under Proviso 2 Rule 7(ii) of the Rules of 1999. The judgment dated 02.04.2024 declared the charge-sheetvoid ab initio,leaving it open for the opposite parties to proceed against the petitioner in accordance with law. The relevant paragraphs of the judgment dated 02.04.2024 are extracted below:-

14. Heard learned counsels for the parties and perused the record.

15. From the arguments as raised by learned counsels for the parties and a perusal of the record, it emerges that a charge sheet dated August, 2021 was issued to the petitioner, which was received by him on 05.10.2021. While submitting the reply to the charge sheet, an objection was raised by the petitioner that the charge sheet did not conform to the provisions of Rule 7 (ii) proviso of the Rules, 1999 inasmuch as, the charge sheet had not been approved by the Principal Secretary or the Secretary of the concerned department. No heed was paid to the said objection as raised by the petitioner. The inquiry proceeded and the inquiry report was also drawn up and a show cause notice was also issued to the petitioner. Again, the petitioner, while submitting his reply to the inquiry report, highlighted the fact of the charge sheet not conforming to the Rules, 1999 which again has not been addressed by the Disciplinary Authority while passing the impugned order of punishment.

16. The argument of learned counsel for the petitioner is that Rule 7 (ii) proviso to the Rules, 1999 specifically provides for a charge sheet to be approved by the Principal Secretary or the Secretary of the concerned department which, so far as the department of the petitioner is concerned, should be Additional Chief Secretary as agreed by both the learned counsels for the parties.

17. For the sake of convenience, Rule 7 of the Rules, 1999 is reproduced below:

"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 inquiry 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 from 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 charge farmed 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 evidences and the name of the witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet.

(iv) The charge 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 informed that in case he does not appear or file 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, along with 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 charge Government servant shall be permitted to inspect the same before the Inquiry Officer.

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

(vii) Where the charge Government Servant denies the charge the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charge Government Servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, 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 witnesses 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 discover 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 inspite 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 if 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 this behalf but not engage a legal practitioner for the purpose unless the presenting office appointed by the Disciplinary Authority is a legal practitioner of the disciplinary Authority having regard to the circumstance of the case so permits.

Provided that the 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 held an inquiry in the manner provided in these rules; or

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

18. From a perusal of the Rule 7 of the Rules, 1999, it emerges that the same pertains to the procedure for imposing major penalties which provides that before imposing any major penalty on a government servant, an inquiry shall be held in the manner prescribed. So far as it is relevant to the facts of the instant case, the proviso to Rule (ii) of Rule 7 of the Rules, 1999 provides that where the appointing authority is the Governor, the charge sheet has to be approved by the Principal Secretary (in this case the Additional Chief Secretary) or the Secretary, as the case may be, of the concerned department.

19. A perusal of the charge sheet, as issued to the petitioner, would indicate that Dr. Satya Prakash Tiwari, Deputy Secretary has indicated that the charge sheet is approved by the appropriate authority. In the counter affidavit, which has been filed by the respondents, the office noting has also been annexed as annexure CA1 which indicates that an office note was put up for approval of the charge sheet by the Additional Chief Secretary through the Special Secretary. The Additional Chief Secretary has made an endorsement on 30.07 (2021) as "1.यथाप्रस्तावित।2.आरोप पत्र पर उप सचिव द्वारा हस्ताक्षर कर दिए जाये ।".

20. From a perusal of the endorsement of the Additional Chief Secretary, it emerges that upon the proposal which had been put up to him, he has signed it "as proposed" and that "the charge sheet should be signed by the Deputy Secretary."

21. As already indicated above, the proposal in the office noting was for approval of the charge sheet through the Special Secretary by the Additional Chief Secretary and the Additional Chief Secretary in his wisdom has signed it "as proposed" instead of "approved", meaning thereby, that the office noting has not been approved by him as per the requirement of the proviso of Rule 7 (ii) of the Rules, 1999.

22. This aspect of the matter has been considered by the Hon'ble Supreme Court in the case ofB.V. Gopinath (supra)wherein the Court has held as under:

"5. During the pendency of the inquiry proceedings, the respondents filed OA No. 800 of 2008. In these proceedings, the respondents claimed that the charge-sheet dated 7-9-2005/8-9-2005 is without jurisdiction, therefore, liable to be quashed, as the charge memo had not been approved by the Finance Minister. We may also notice here that prior to the filing of the aforesaid OA, the respondent had already approached CAT twice: firstly, seeking direction(s) to the Union of India to supply all the documents relied upon in connection with the charge-sheet issued against him. Secondly, seeking a direction to the appellant for timely completion of the departmental proceedings against him. The directions given by the CAT in the aforesaid proceedings, however, have no bearing on the controversy involved herein.

6. In the present appeal, we are concerned with the legality or otherwise of the order passed by CAT on 5-2-2009 in B.V. Gopinath v. Union of India. By the aforesaid order, CAT quashed the charge-sheet dated 7-9-2005/ 8.9.2005 issued against the respondent on the ground that there was nothing on record to show that the Finance Minister approved the charge-sheet. The aforesaid order of CAT was challenged, by way of Writ Petition (Civil) No. 10452 of 2009, before the Delhi High Court. By order dated 28-7-20092, which has been impugned before this Court, the Delhi High Court dismissed the said writ petition.

41. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge-sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct & or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge-sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge-sheet. Such a charge-sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.

42. In fact, issuance of Office Order No. 205 dated 19-7-2005 makes it evident that the respondents were aware of the legal position. The office order clearly sets out the levels of the decision-making authorities depending on the gravity of the consequences that would have to be faced by a delinquent public servant in case the decision is taken to proceed against the public servant. Clause (1) deals with closure of complaints which are anonymous/pseudonymous, if the decision is taken to close the complaint it can be taken by the CVO. But in case of verifiable facts, the complaints have to be referred to the next level of hierarchy CVB (Central Vigilance Bureau). For placing an officer under suspension, the decision has to be taken by the Finance Minister himself. Even review of suspension at quarterly/half-yearly interval rests with the Finance Minister. This is so, as suspension during contemplation/pendency of enquiry, though may not be penal in nature per se, still has very serious adverse consequences on the professional as well as the personal life of the officer suspended. The office order recognising the gravity of the consequences ensures that the decision in relation to suspension/review of suspension shall be taken by the highest authority in the department i.e. the Finance Minister. In matters related to reference to CVC for first stage advice, the competent authority is the Secretary (Revenue). Similarly, for reconsideration of CVC's first stage advice, again the competent authority is the Secretary (Revenue), but in case of disagreement with CVC's first stage advice on approval for referring the case to Department of Personnel and Training, the competent authority is the Finance Minister.

43. Clause (8) of the circular makes it abundantly clear that it relates to approval for issuing charge memo/sanction of prosecution. A plain reading of the aforesaid clause shows that it relates to a decision to be taken by the disciplinary authority as to whether the departmental proceedings are to be initiated or prosecution is to be sanctioned or both are to commence simultaneously. The competent authority for approval of the charge memo is clearly the Finance Minister. There is no second authority specified in the order. We do not agree with Ms Indira Jaising, learned Additional Solicitor General that the use of the words "approval of" is not an expression distinct from "approval for" initiating major penalty proceedings.

44. Under Clause (9), the department firstly puts up the file before the Finance Minister seeking "approval for issuing charge memo/sanction of prosecution". The department is seeking an order as to whether the officer is to be proceeded against departmentally or criminal proceedings are to be initiated or both proceedings are to be commenced simultaneously. When the decision is taken by the Finance Minister that the departmental proceedings are to be held (initiation), only then the question of approval of charge memo arises. The department would thereafter complete the necessary formalities and then place the file before the Finance Minster, for "approval of" charge memo. This provision is in harmony with the mandate contained under Articles 311(1) and (2) that no civil servant shall be dismissed or removed by an authority subordinate to that by which he was appointed. The second limb of the same direction is that punishment on a public servant of dismissal, removal or reduction in rank can only be imposed when the charges have been proved against him in a departmental enquiry held in accordance with the rules of natural justice.

45. Rule 14 of the CCS (CCA) Rules provides for holding a departmental enquiry in accordance with the provisions contained in Article 311(2) of the Constitution of India. Clause (8) also makes it clear that when the Finance Minister is approached for approval of charge memo, approval for taking ancillary action such as appointing an inquiry officer/presiding officer should also be taken. Clause (9) in fact reinforces the provisions in Clause (8) to the effect that it is the Finance Minster, who is required to approve the charge memo. Clause (9) relates to a stage after the issuance of charge-sheet and when the charge-sheeted officer has submitted the statement of defence. It provides that in case the charge-sheeted officer simply denies the charges, CVO will appoint an inquiry officer/presiding officer. In case of denial accompanied by representation, the Chairman is to consider the written statement of defence. In case the Chairman comes to a tentative conclusion that written statement of defence has pointed out certain issues which may require modification/amendment of charges then the file has to be put up to the Finance Minister. So the intention is clearly manifest that all decisions with regard to the approval of charge memo, dropping of the charge memo, modification/amendment of charges have to be taken by the Finance Minister.

55. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge-sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of the law."

23. Likewise, the Hon'ble Supreme Court in the case ofPramod Kumar (supra)has held as under:

"22. Rule 8(4) of the All India Services (Discipline and Appeal) Rules, 1969 also mandates that the disciplinary authority shall "draw up or cause to be drawn up" the charge memo. We see no reason to take a view different from the one taken by this Court in B. V. Gopinath. We also see no substance in the submission made by the Senior Counsel for the State that the said judgment needs reconsideration. Assuming that Mr Giri is right in his submission that the initiation of disciplinary proceedings and issuance of charge memo are at the same stage, the mandatory requirement of Rule & which provides for the charge memo to be drawn by the disciplinary authority cannot be ignored. We reject the submission on behalf of the appellant that Gopinath case can be distinguished on facts. We are not in agreement with the contention of the appellant that the business rules and standing orders of the State of Tamil Nadu are quite different from the office orders and circulars issued by the Union of India which formed the basis of the judgment in Gopinath case. A close reading of the said judgment would disclose that reliance on the office note was only in addition to the interpretation of the Rule.

23. It is also settled law that if the rule requires something to be done in a particular manner it should be done either in the same manner or not at all (Taylor v. Taylor). In view of the mandatory requirement of Rule 8(4) and the charge memo being drawn up or cause to be drawn up by the disciplinary authority is not complied with, we are of the considered opinion that there is no reason to interfere with the judgment of the High Court on this issue. The only addition we would like to make is to give liberty to the disciplinary authority to issue a charge memo afresh after taking approval from the disciplinary authority."

24. From a perusal of the judgments of the Apex Court in the cases ofB.V. Gopinath (supra)as well asPramod Kumar (supra), it is apparent that the Hon'ble Supreme Court has categorically held that a charge sheet can only be issued upon approval by the appointing authority, consequently, in case the charge sheet has not been approved by the disciplinary authority, it would be non est in the eyes of law.

25. Accordingly, when the instant case is seen in context of the law laid down by the Hon'ble Supreme Court in the cases ofB.V. Gopinath (supra)andPramod Kumar (supra), the only conclusion to which the Court reaches is that when proviso to Rule 7 (ii) of the Rules, 1999 clearly prescribes that a charge sheet has to be approved by the Principal Secretary (in this case Additional Chief Secretary) or the Secretary, as the case may be, of the concerned department, then the method of approval as adopted by the Additional Chief Secretary, as emerges from a perusal of the office notice, a copy of which has been filed as annexure CA1 to the counter affidavit, would clearly not subscribe to the said Rule 7 (ii) proviso of the Rules, 1999 as there is no approval to the said proposal.

26. The matter can be seen from another perspective also. Blacks Law Dictionary 9th Edition defines "approve" as "to give formal sanction: to confirm authoritatively".

27. Rule 7(ii) proviso of the Rules, 1999 also provides the charge sheet to be approved by the Principal Secretary, in this case the Additional Chief Secretary. The office noting dated 03.07.2021 indicates that the charge sheet had been sent for approval by the Additional Chief Secretary through the Special Secretary to which the competent authority, in this case the Additional Chief Secretary, has indicated as "as proposed". As per the definition of the Black's Law Dictionary 9th Edition, the office noting should have been given a formal sanction or formal approval but the Competent Authority instead of approving the said noting by indicating "as approved" has indicated "as proposed" and thus, it cannot be said that there is any formal sanction to the office noting dated 30.07.2021 which required the charge sheet to be approved by the Additional Chief Secretary.

28. Keeping in view of the aforesaid discussion, it cannot be said that there is any approval by the Competent Authority to the charge sheet. Thus, once the charge sheet is itself unapproved, consequently, any punishment order passed on the basis of the said charge sheet would be void ab initio. Accordingly, the writ petition isallowedand the impugned order dated 07.02.2024, a copy of which is annexure 13 to the petition, isquashed.

29. Consequences to follow.

30. However, it is provided that it would be open for the respondents to proceed against the petitioner in accordance with law.

24. In compliance of aforesaid judgment, on 10.05.2024 opposite party No.1 issued order dated 07.02.2024 reviving the disciplinary proceedings from the stage of preparation of the charge-sheet and on 14.06.2024 second charge-sheet containing three charges was issued against the petitioner.

25. The present Writ-A No.12025 of 2024 has been filed challenging the second charge-sheet dated 14.06.2024 on the ground that the second charge-sheet is again not approved as per the Proviso 2 Rule 7(ii) of the Rules of 1999.

26. The perusal of the counter affidavit and the copy of the note-sheet dated 14.06.2024 (Annexure-CA3) reveals that the opposite party No.1 has again not approved the charge-sheet but merely put his signatures. Although noting available at page No.30 of the counter affidavit itself provides that "कृपया श्री प्रज्ञेश मिश्र पायलट (रोटर विंग) तत्कालीन प्रबन्धक (परिचालन) के विरूद्ध उ०प्र० सरकारी सेवक (अनुशासन एवं अपील) 'नियमावली, 1999 के नियम-7 के अन्तर्गत संस्थित विभागीय/अनुशासनिक कार्यवाही में पत्रावली के पृष्ठ संख्या-49 से 51 पर अंकित विवरण के अनुसार आरोप-पत्र पर अपर मुख्य सचिव महोदय का अनुमोदन प्राप्त करना चाहें। तदोपरान्त (प/क) पर रक्षित आरोप-पत्र पर अपर मुख्य सचिव महोदय के हस्ताक्षर निवेदित हैं।" still the opposite party No.1 without approving the chargsheet has simply signed on it.

27. The settled position of law in this regard is that, for a charge sheet to be considered valid, it must be duly "approved" by the competent authority in the manner prescribed. A mere signature of the officer concerned, without an independent application of mind, cannot be construed as approval, and if a charge sheet has been issued in such manner, it would be rendered non est, that is to say, non-existent in the eye of law from its very inception on account of a fundamental legal defect, and consequently incapable of being cured by any subsequent corrective measure. Therefore, where the method of approval itself is contrary to the procedure, the charge sheet would not merely be invalid but would also be incapable of receiving retrospective approval, i.e. non est."

28. Further, upon being confronted with the query learned standing counsel could not show from the record that documents which were requested by the petitioner to show his innocence were provided to him; the witnesses were summoned to whom the petitioner wanted to examine; any date on which personal hearing/oral hearing took place and examination and cross-examination of the witnesses has been done.

29. The Honble Supreme Court in the case ofSunnyAbraham (supra)has held as under:-

12. The following passage from the case ofAshok Kumar Das(supra) has also been quoted in the judgment under appeal:-

11. In Blacks Law Dictionary (Fifth Edition), the word approval has been explained thus:

Approval. The act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another.

Hence, approval to an act or decision can also be subsequent to the act or decision.

12. In U.P. Avas Evam Vikas Parishad 1955 Supp. (3) SCC 456, this Court made the distinction between permission, prior approval and approval. Para 6 of the judgment is quoted hereinbelow:

6. This Court inLife Insurance Corpn. of India v. Escorts Ltd.[(1986) 1 SCC 264], considering the distinction between special Permission and general permission, previous approval or prior approval in para 63 held that:

63.we are conscious that the word prior or previous may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication intoSection 29 (1)of the Act.

Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act, it was stated inLord Krishna Textiles Mills Ltd. v. Workmen[AIR 1961 SC 860], that the Management need not obtain the previous consent before taking any action.The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33 (1).

15. The words used inSection 21 (xiii)are not with the permission of the State Government nor with the prior approval of the State Government, but with the approval of the State Government. If the words used were with the permission of the State Government, then without the permission of the State Government the Executive council of the University could not determine the terms and conditions of service of non-teaching staff. Similarly, if the words used were with the prior approval of the State Government, the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff without first obtaining the approval of the State Government. But since the words used are with the approval of the State Government, the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive council of the University would be invalid and not otherwise.

14.We do not think that the absence of the expression prior approval in the aforesaid Rule would have any impact so far as the present case is concerned as the same Rule has been construed by this Court in the case ofB.V. Gopinath(supra) and it has been held that chargesheet/charge memorandum not having approval of the Disciplinary Authority would be non est in the eye of the law.Same interpretation has been given to a similar Rule, All India Services (Discipline and Appeal) Rules, 1969 by another Coordinate Bench of this Court in the case ofState of Tamil Nadu vs. Promod Kumar, IPS and Another[(2018) 17 SCC 677] (authored by one of us, L. Nageswara Rao, J). Now the question arises as to whether concluded proceeding (as in the case of B.V. Gopinath) and pending proceeding against the appellant is capable of giving different interpretations to the said Rule. The High Courts reasoning, referring to the notes on which approval for initiation of proceeding was granted, is that the Disciplinary Authority had taken into consideration the specific charges.The ratio of the judgments in the cases ofAshok Kumar Das(supra) and Bajaj Hindustan Limited (supra), in our opinion, do not apply in the facts of the present case. We hold so because these authorities primarily deal with the question as to whether the legal requirement of granting approval could extend to ex-post facto approval, particularly in a case where the statutory instrument does not specify taking of prior or previous approval. It is a fact that in the Rules with which we are concerned, there is no stipulation of taking prior approval.But since this very Rule has been construed by a Coordinate Bench to the effect that the approval of the Disciplinary Authority should be there before issuing the charge memorandum, the principles of law enunciated in the aforesaid two cases, that isAshok Kumar Das(supra) and Bajaj Hindustan Limited (supra) would not aid the respondents. The distinction between the prior approval and approval simplicitor does not have much impact so far as the status of the subject charge memorandum is concerned.

15. The next question we shall address is as to whether there would be any difference in the position of law in this case vis--vis the case ofB.V. Gopinath(supra). In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with the requirement of sub-clause (3) of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub-clauses earlier in this judgment. Sub-clauses (2) and (3) of Rule 14 contemplates independent approval of the Disciplinary Authority at both stages for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. In the event the requirement of sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under sub- clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage.This was the argument on behalf of the authorities in the case ofB.V. Gopinath(supra), as would be evident from paragraph 8 of the report which we reproduce below:-

8. Ms Jaising has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy.

30. This Court is of the opinion that the approval of the charge-sheet cannot be a mechanical process but requires independent application of mind on the part of disciplinary authority which apparently seems to be lacking in this case. Annexure-CA3 of the counter affidavit depicts that note-sheet was produced before the opposite party No.1 on 14.06.2024 and on the same date he put his signatures on the charge-sheet, there is no approval whatsoever on it.

31. The charge-sheet dated 14.06.2024 issued in this case suffers from application of mind independently at the time of issuing the charge-sheet by the disciplinary authority, the same is thus, non-est and cannot be sustained. Such charge-sheet cannot be approved or revived retrospectively in view of the law laid down by Honble the Supreme Court in the case ofSunnyAbraham (supra).

32. So far as the inquiry report dated 15.10.2024 is concerned, a perusal of the record shows that submission made by the petitioner has not been taken into consideration. The petitioner was denied opportunity of personal hearing. The detailed list of documents sought by him to support his contentions however, none of those documents have been provided to him. The list of witnesses sought by the petitioner to be examined as per Rule 7(vii) of the Rules of 1999 had not been called upon for examination and cross-examination and thus, the inquiry report dated 15.10.2024 appears to have been prepared unilaterally in violation of principles of natural justice so also in violation of Rule 7 of the Rules of 1999.

33. The Honble Supreme Court in the case ofKumaon Mandal Vikas Nigam(supra)has held as under:-

19.While it is true that in a departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of administrative action is feasible and same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-neigh impossibility to decry availability of judicial review at the instance of an affected person. The observations as above however do find some support from the decision of this Court in the case ofApparel Export Promotion Council v. A.K. Chopra(1999 (1) SCC 759).

20.It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country. The judicial process itself embraces a fair and reasonable opportunity to defend though, however, we may hasten to add that the same is dependant upon the facts and circumstances of each individual case. The facts in the matter under consideration is singularly singular. The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste: this is however, apart from the issue of bias which would be presently dealt with hereinafter.It is on this context, the observations of this Court in the case ofSayeedur Rehman v. The State of Bihar & Ors.(1973 (3) SCC 333) seem to be rather apposite. This Court observed:

The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order, dated April 22, 1960, is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties.

21.Incidentally, Hidyatullah, C.J. inChannabasappa Basappa Happali v. The State of Mysore(AIR 1972 SC 32) recorded the need of compliance of certain requirements in a departmental enquiry at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence on this state of law a simple question arises in the contextual facts: Has this being complied with? The answer however on the factual score is an emphatic no.

34. In the case ofState Bank of Bikaner and Jaipur(supra), the Honble Supreme Courthas held as under:-

7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC416).

9.Several witnesses were examined to prove the charge. One of them was H.S. Sharma who conducted the preliminary inquiry and to whom the respondent had made a statement broadly admitting the facts which constituted the subject matter of the second charge. I.M. Rawal, who was the cashier and I.C. Ojha, the officiating Branch Manager were also examined. Based upon their evidence, the Inquiry Officer found the respondent to be guilty of the second charge and that has been accepted by the disciplinary authority. The High Court has interfered with the said finding without expressly holding that the said finding of guilt was erroneous. The High Court has proceeded as if it was sitting in appeal over the departmental inquiry and interfered with the finding on a vague assumption that the respondent must have acted bonafide in an "increasing customer friendly atmosphere". There was no justification for the division bench to interfere with the finding of guilt.

35. In the case ofY.P. Sarabhai(supra), the Honble Supreme Courthas held as under:-

This Court has repeatedly held that the factual finding of the Disciplinary Authority after holding a detailed enquiry and after going through elaborate evidence are not assailable in the courts unless the brech of pricniples of natural justice or the violation of any rules or any material irregularity on the face of record is alleged and shown. However, in this case the High Court in the jurisdiction under Artilce 226 of the Constitution of India has again gone into all aspects of the enquiry in detail and has come to the same factual finding as the Disciplinary Authority and the Appellate Authority. Such concurrent findings by three different Authorities including the High Court should not be disturbed by this Court underArticle 136of the Constitution of India. We, therefore, have no other option except to dismiss this appeal. Accordingly, the appeal stands dismissed.

36. In the case ofKuldeep Singh(supra), the Honble Supreme Courthas held as under:-

6.It is no doubt true that the High Court underArticle 226or this Court underArticle 32would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.

7.InNand Kishore vs. State of Bihar, AIR 1978 SC 1277, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse.

8.The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of the that evidence. This principle waslaid down bythis Court inState of Andhra Pradesh vs. Sree Rama Rao;AIR 1963 SC 1723, in which the question was whether the High Court, underArticle 226, could interfere with the findings recorded at the departmental enquiry.This decision was followed inCentral Bank of India vs. Prakash Chand Jain,AIR 1969 SC 983 and Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. AIR 1976 SC 98. InRajinder Kumar Kindra vs. Delhi Administrationthrough Secretary (Labour) and Others. AIR 1984 SC 1805, it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.

9.Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

37. InState of Karnataka(supra), the Honble Supreme Courthas held as under:-

10.In High Court of Judicature at Bombay through itsRegistrar v. Shashikant S. Patil & Anr.4, this Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction underArticle 226of the Constitution. It was held as under:

16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction underArticle 226of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed underArticle 226of the Constitution.

38. InState of Uttar Pradesh vs. Saroj Kumar Sinhareported in[2010 (2) SCC 772]while elaborately discussing the Rules of 1999 itself which are subject matter of this case has held in para 26 to 30 and 33 which are relevant are quoted below:-

26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7(x) clearly provides as under: 7. (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.

27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.

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.

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 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.

39. The Inquiry Officer is a quasi judicial authority and is an independent adjudicator. He is not a representative of the government or the disciplinary authority. The duty of an Inquiry Officer is to examine the evidence presented by the department even if the delinquent officer is absent, however, no oral evidence in this case has been led thus, none of the documents can be taken into consideration to conclude that charges have been proved against the petitioner. Rule 7(x) of the Rules of 1999 provides that even if the charged government servant does not appear on the date fixed in the inquiry or at any stage of proceeding, the Inquiry Officer has to proceed with the inquiryex parteand will have to record the statement of the witnesses mentioned in the charge-sheet in absence of the charged government servant. The rule of natural justice have to be strictly adhered to by the Inquiry Officer. The petitioner in this case was denied the documents sought by him to defend his case. He has not been heard. No oral hearing has taken place. No witness has been examined in support of the charges levelled against the petitioner thus, the entire inquiry proceedings are vitiated having been completed in violation of Rules of 1999 read with Article 311 (ii) of the Constitution of India.

40. Another argument of the petitioner that opposite parties have pre-determined the guilt of the petitioner appears to have force as admittedly, the petitioner has not granted permission for flight dated 15.10.2019. The charge-sheet itself states that approval for the test flight/route check dated 15.10.2019 was granted by Director and not by petitioner, thus, not affording defence, not furnishing the required documents and evidences, not summoning witnesses vitiates the entire proceedings and inference can be drawn that opposite parties had already pre-determined the guilt of the petitioner.

41. In view of discussions made hereinabove, this Court finds that the charge-sheet dated 14.06.2024 is not approved hence the same is non-est. Consequently, the inquiry report dated 15.10.2024 cannot be sustained as the same is in violation of the law laid down by the Honble Supreme Court in the case of Saroj Kumar Sinha (supra) and contrary to Rule 7(ii) of the Rules of 1999 as well as Article 311 (2) of the Constitution of India, therefore, the entire disciplinary proceedings including the charge-sheet dated 14.06.2024 as well as the inquiry report dated 15.10.2024 are set aside.

42. The Writ-A No.12025 of 2025 standsallowed. The matter is remanded to the respondent to initiate disciplinary proceedings afresh, if so advised.

43. So far as theWrit-A No.3685 of 2024is concerned, the Mandamus is sought by the petitioner commanding the opposite parties to allow the petitioner to attend the office and also to allot him to perform flying assignments as per his job profile etc.

44. Paragraph 10 of the counter affidavit filed by the State shows that to run the Aircraft in the fixed unit against 9 sanctioned posts, only one regular pilot and 7 pilots on contract basis are working. Likewise, to run the Helicopter against 9 pilots (rotor unit), only one pilot on regular basis and 7 pilots are on contractual basis are working. It is also averred that pilots are allowed for flying in terms of rules and regulations applicable in the present case so that all could complete their flying hours.

45. Reply to paragraph 10 has been given in paragraph 11 of the rejoinder affidavit wherein it has been stated that Civil Aviation Department of the Government of U.P. is a permanent government department headed by opposite party No.1 however, the paradox is that to fly the Aircraft and Helicopter of the State Government, the pilots are being engaged on contract basis despite availability of a regular pilot on roll in the Department of Civil Aviation. Pilots are being outsourced on contract basis. The statement in paragraph 10 of the counter affidavit is self contradictory as the petitioner who is admittedly single regular pilot in civil aviation department has not been allowed to complete flying hours. The engagement of pilots on contract basis is not provided under Rule 4 of the Service Rules. The engagement of pilots on contract is violative of the provisions of U.P. Civil Aviation Department (Operation Unit) Recruitment Rules, 2011. The averments made in paragraph 10 of the counter affidavit are misleading.

46. In paragraph 12 of the counter affidavit there is a pleading to the effect that employee has no right to seek a particular and specific work but has only right to do the assigned works and to get salary as it is always open to the employer to take work from an employee or not. The opposite parties have relied on Division Bench judgment of this Court passed inRajendra Prasad Chaturvedi vs. Commissioner, Kanpur Region, Kanpur and othersreported in[(2002) 20 LCD 1129].

47. In paragraph 14 of the counter affidavit, it has further been stated that only flight training has been stopped till completion of the aforesaid disciplinary proceedings.

48. Further, in paragraph 16 it has been stated that there is a risk of giving flying work to a pilot who is facing departmental inquiry. The petitioner's flying licence was suspended for six months by regulatory body i.e. DGCA vide order dated 10.06.2020. In another case, petitioners Aerodrome Entry Permit (AEP) issued by the Bureau of Civil Aviation Security (BCAS), Government of India for entering into the directorate premises was suspended vide order dated 27.05.2020 which was later restored on the appeal of the petitioner.

49. Replying this, the petitioner has stated in paragraph 17 of the rejoinder affidavit that the orders dated 10.06.2020 and 27.05.2020 have been revoked and they have no relevance with the subject of the present matter.

50. A perusal of the record shows that opposite parties have admitted that no specific orders have been issued regarding not to take work or stopping the flying of the petitioner. The two orders stated in the counter affidavit dated 10.06.2020 and 27.05.2020 have already been revoked, still the 80 PL (License) (H)-10 is the only license that is valid up to 09.11.2025. It appears that licenses issued to the petitioner to fly different type of aircrafts, aeroplane and helicopter are getting expired. The rating, recency and currency of flights to the petitioner are also adversely affected. It is not disputed by the opposite parties that the guidelines issued by DGCA are mandatory. The pilot must have flight training, ground training and simulator training but the petitioner is being deprived of renewal of his licenses. Record also reveals that disciplinary proceedings though were initiated against the petitioner in July, 2020, however, the petitioner continued flying operations up to 15.06.2023. Thus, the stand of the opposite parties that due to pendency of the departmental proceedings the flying duties/training can be denied to a pilot, cannot be sustained. The non-allotment of the flight duties to the petitioner may result and may have resulted into expiry of his licenses without renewal thus, has caused a serious prejudice to the service and other aspects of the petitioner. Under the rules there appears to be no restriction for assigning flight duties or training during pendency of the departmental inquiry.

51. This Court is faced with peculiar situation. Under normal service jurisprudence an employee cannot compel the employer to allot work to him. He is entitled for his due salary and allowances. It is up to the employer to take or not to take work from a government servant. However, facts of this case are distinct as the petitioner is a government pilot in the department of Civil Aviation Government of U.P. It is not disputed that he is qualified and possesses requisite licenses to fly commercial aeroplane as well as helicopters. The representations of the petitioner after 17.06.2023 since when he has been restrained from discharging official work are pending. The RTI sought by him vide letter dated 19.02.2024 has been denied.

52. The Aircraft Act, 1934 (hereinafter referred to as, the Act of 1934) was enacted to make better provision for the control of manufacture, possession, use, operation etc. of aircraft.

53. Section 5 of the Act of 1934 gives power to the Central Government to make rules. Section 5(a)(2) of the Act of 1934 provides that every direction issued under sub-section (1) shall be complied with by the person or persons to whom such direction is issued. Section 5A of the Act of 1934 is extracted below:-

5A. Power to issue directions.(1) The Director General of Civil Aviation or any other officer specially empowered in this behalf by the Central Government may, from time to time, by order, issue directions, consistent with the provisions of this act and the rules made thereunder, with respect to any of the matters specified, in 9 [clauses (aa), (b), (c), (e), (f), (g), (ga), (gb), 10[(gc), (gd), (h), (i), (m), (qa) and (qb)] of sub-section (2) of section 5, to any person or persons using any aerodrome or engaged in the aircraft operations, air traffic control, maintenance and operation of aerodrome, communication, navigation, surveillance and air traffic management facilities and safeguarding civil aviation against acts of unlawful interference], in any case where the Director General of Civil Aviation or such other officer is satisfied that in the interests of the security of India or for securing the safety of aircraft operations it is necessary so to do.

(2) Every direction issued under or sub-section (l) 1 [or sub-section (1A) or sub-section (1B)] shall be complied with by the person or persons to whom such direction is issued.

54. Section 5 of the Aircraft Act of 1934 empowers the Government of India to make rules by notifying in the official gazette. Section 5A of the Act of 1934 provides the Director General of Civil Aviation or other officer empowered specially in this behalf by the Central Government the power to issue directions for all the works relating to aviation and aircraft. Such directions issued under Section 5A(1) of the Act of 1934 are made mandatory to be complied by the person or the persons to whom such directions are issued by virtue of Section 5A(2) of the Act of 1934.

55. Rule 133A of the Aircraft Rules, 1937 (hereinafter referred to as, "the Rules of 1937") provides regulatory provisions. Sub-rule 1 and sub-rule 3 of Rule 133A of the Rules of 1937 are extracted below:-

[133A. Directions by Director-General- [(1)] The Director-General may, through Notices to Airmen (NOTAMS). Aeronautical Information Publication, Aeronautical Information Circulars (AICs), Notices to Aircraft Owners and Maintenance Engineers and publication entitled [Civil Aviation Requirements] issue special directions not inconsistent with the Aircraft Act, 1934 (22 of 1934) or these rules, relating to the operation, use, possession, maintenance or navigation of aircraft flying in or over India or of aircraft registered in India.

(3) Every direction issued under sub-rule (1) shall be complied with by the person or persons to whom such direction is issued.

56. A perusal of aforesaid Rule 133-A of the Rules of 1937 provides that Director General Civil Aviation is empowered to issue special directions not inconsistent with the Act of 1934 or the Rules. Rule 133-A (3) of the Rules of 1937 mandates every direction issued under sub-rule (1) shall be complied with by the person or the persons to whom such direction is issued.

57. Rule 3(38) of the Rules of 1937 defines the term "Operator" which means a person organization or enterprise engaged in or offering to engage in aircraft operation. Operator in this case is State Government. Rule 3(52) of the Rules of 1937 defines "State Aircraft" which includes aircraft exclusively employed in the service of the government such as posts, customs, police.

58. The Director General Civil Aviation (in short, "DGCA") in exercise of powers under Rule 133-A of the Rules of 1937 issued a Civil Aviation Requirement (CAR) dated 02.06.2010 (Annexure-3) which provides the eligibility and operational requirements etc. for a pilot.

59. Para 6.5 and 6.16 of the civil aviation requirements dated 02.06.2010 makes it mandatory for a pilot to possess the necessary training qualification and experience.

60. On 23.02.2024 the DGCA issued Civil Aviation Requirement (CAR) (Annexure 4 to the writ petition) paragraph 9 of this CAR provides that for recurrent checks and training, this provision also makes it mandatory for an operator to ensure that every pilot regularly undergoes recurrent training and checks.

61. On 08.06.2004 the Director General Civil Aviation issued an operational circular providing recency requirement for the Pilot(s)-in-Command & Co-pilots operating aircraft having all-up-weight not exceeding 5700 Kgs (Annexure 5 to the writ petition).

62. On 31.07.2015 another Civil Aviation Requirement (Annexure 6 to the writ petition) was issued by the DGCA which provides the requirements for exercising the privileges of ratings on general aviation aeroplane.

63. Under the Civil Aviation Requirement dated 27.07.2015, a minimum training shall be undertaken prior to exercising the privileges of an aeroplane rating, in case the prerequisites for continued exercise of aeroplane rating are not fulfilled.

64. To arrive at a conclusion, this court must construe whether the provisions of the 1934 Act, and the directions issued thereunder are to be regarded as mandatory or merely directory.

65. The law regarding compliance with mandatory provisions is well settled. When a provision is held to be mandatory, strict adherence is required, and any act done in breach thereof would stand vitiated. This principle has been consistently reiterated in several authoritative pronouncements of the Honble Supreme Court which are as follows:-

State of Mysore v. V.K. Kangan, (1976) 2 SCC 895

10.In determining the question whether a provision is mandatory or directory, one must look into the subject-matter and consider the importance of the provision disregardedand the relation of that provision to the general object intended to be secured.No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview. But it does not follow that every departure from it shall taint the proceedings with a fatal blemish.The determination of the question whether a provision is mandatory or directory would, in the ultimate analysis, depend upon the intent of the law-maker. And that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design andthe consequences which would follow from construing it in one way or the other.

Banwarilal Agarwalla v. State of Bihar, 1961 SCC OnLine SC 120

6. As has been recognised again and again by the courts, no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non-observance thereof involves the consequence of invalidity or only directory, i.e., a direction the non-observance of which does not entail the consequence of invalidity, whatever other consequences may occur. But in each case the court has to decide the legislative intent. Did the legislature intend in making the statutory provisions that non-observance of this would entail invalidity or did it not? To decide this we have to consider not only the actual words used but the scheme of the statute,the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same.

Ram Deen Maurya (Dr.) v. State of U.P., (2009) 6 SCC 735

43.To answer this issue,it is necessary to find out, whether the Rule is directory or mandatory.If it is mandatory, then it is settled rule of interpretation, it must be strictly construed and followed and an act done in breach thereof will be invalid.But if it is directory, the act will be valid although the non-compliance may give rise to some other penalty if provided by the statute. It is often said that a mandatory enactment must be obeyed or fulfilled exactly, but, a directory provision non-compliance with it, has been held in many cases as not affecting the validity of the act done in breach thereof (seePrinciples of Statutory Interpretation, 11th Edn. 2008 by Justice G.P. Singh).

State of Haryana v. Raghubir Dayal, (1995) 1 SCC 133

5.The use of the word shall is ordinarily mandatorybut it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand.Normally, the word shall prima facie ought to be considered mandatory but it is the function of the court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon.The word shall, therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word shall as mandatory or as directory, accordingly.Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory.However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory.

66. In the present case, the issue that arises for consideration is whether the provisions of the Act of 1934 and the directions issued thereunder are to be construed as mandatory or merely directory. As laid down by the Honble Supreme Court in the decisions referred to hereinabove, the determinative factors for such construction are threefold: (i) the general object of the enactment, (ii) the intent of the law-maker, and (iii) the consequences that would follow from non-compliance. A plain reading of the Act of 1934 demonstrates repeated emphasis on the expressions safety oversight, safety of aircraft operation, and safety of life, which clearly indicates the legislative mandate.

Section 4A(2): The Directorate General of Civil Aviation shall be responsible for carrying out thesafety oversightand regulatory functions in respect of matters specified in this Act or the rules made thereunder.

Section 5:Power of Central Government to make rules. (1) 1[Subject to the provisions of section 14, the Central Government] may, by notification in the Official Gazette, make rules regulating the manufacture, possession, use, operation, sale, import or export of any aircraft or class of aircraft [and for securing the safety of aircraft operations.]

(2) Without prejudice to the generality of the foregoing power, such rules may provide for

(m) the measures to be taken and the equipment to be carried for the purpose of ensuring thesafety of life;

(qb)safety oversightand regulatory functions;

Section 5A.Power to issue direction- (1) The Director General of Civil Aviation or any other officer specially empowered in this behalf by the Central Government may in any case where the Director General of Civil Aviation or such other officer is satisfied that in the interests of the security of India or for securing thesafety of aircraft operationsit is necessary so to do.

67. The provisions extracted hereinabove make it evident that the predominant object of the 1934 Act is to ensure safety, and the underlying intent of the law-maker is to safeguard aircraft operations as well as human life. Furthermore, the consequences that would flow from construing the provisions in one manner or the other are decisive in determining their character as either mandatory or directory. If the aforesaid provisions were to be regarded as merely directory, the very object and intent of the legislation would stand frustrated, leading to consequences fatal to its purpose. Accordingly, the directions issued in pursuance of the 1934 Act are held to be mandatory in nature, and any breach thereof would render the action invalid.

68. The CARs dt. 02.06.2010; 23.02.2024; 08.06.2004; 31.07.2015; 27.07.2015 provide for minimum requirements for undertaking operations, flight crew training and qualification requirements including recurrent checks and training, recent experience, requirements for exercising privileges and recency requirements.

69. The mandatory character of the Civil Aviation Requirements (CARs) is discernible not merely from the phraseology employed therein, particularly the use of the expression shall, but also from the clear intent of the law-makers to give full effect to the object of the Act of 1934, under whose authority the CARs are issued. The duties discharged by a pilot necessitate a high degree of skill, proficiency and experience. It is for this reason that directions mandating recurrent training and recency requirements have been prescribed, the non-compliance of which has the potential to endanger human life and may culminate in catastrophic consequences. In such a context, the expression shall must necessarily be construed in its strict and literal sense, and any interpretation treating it as directory would defeat the very object and purpose of the CARs.

70. Therefore, the Civil Aviation Requirements issued under Rule 133-A(1) of the Rules of 1937 are mandatory in nature, by virtue of Rule 133-A(3) read with Sections 5 and 5A(2) of the Act of 1934, and are required to be strictly complied with by the person or persons to whom such directions are issued.

71. This Court is of the considered view that, having regard to the mandatory nature of the directions issued by the DGCA, the petitioner, being a trained pilot, is required to undergo the prescribed training, qualification and recurrent expertise as mandated thereunder.

72. In view of the above, the opposite parties are directed to ensure that the mandatory directions issued by the DGCA are complied with strictly, both in letter and spirit, as the same carry statutory force.

73. With the aforesaid observations, Writ-A No.3685 of 2024 stands disposed of.

(Karunesh Singh Pawar, J)

September 16, 2025

Saurabh Yadav/-