Dr. Yogendra Bhadauriya vs State of U.P. Thru. Prin. Secy. Deptt. of Geology and Mini. Lko and 3 Others

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Neutral Citation No. - 2025:AHCLKO:21448 AFR

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Court No. - 18

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Case :- WRIT - A No. - 10500 of 2024

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Petitioner :- Dr. Yogendra Bhadauriya

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Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Geology And Mini. Lko And 3 Others Counsel for Petitioner :- I.M. Pandey Ist,Ajeet Verma Counsel for Respondent :- C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya)

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Hon'ble Karunesh Singh Pawar,J.

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Heard learned counsel for the petitioner Mr.I.M.Pandey, learned Standing Counsel for the State as also Mr. R.K. Upadhyaya, learned counsel appearing on behalf of U.P. Public Service Commission.

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The petitioner, in the petition, has prayed for issuance of a writ in the nature of certiorari quashing impugned order dated 9.9.2024 whereby the respondent No.1 has imposed punishment of stoppage of two increments for two years along with censure entry against the petitioner.

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A further prayer for issuance of a writ of mandamus directing respondents not to take any action against the petitioner on the basis of impugned order dated 9.9.2024 with another direction to the respondents to open sealed cover of petitioner's promotion to the post of Geologist and to implement the recommendation of the promotion committee ignoring the impugned order, Annexure-1 has also been sought.

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3.The petitioner's counsel has assailed the impugned

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order dated 9.9.2024 on two grounds. Firstly, the enquiry conducted by the enquiry officer is dehors the provisions of Rule 7 of U.P. Government Servant (Discipline & Appeal) Rules, 1999 (in short, 1999 Rules), and secondly, while passing the punishment order, office report was summoned and on the basis of office report, the impugned order has been passed. It is submitted that there is no provision in the 1999 Rules for summoning office report. The punishment order has to be passed on the basis of the enquiry conducted in pursuant to the charge sheet as well as the reply submitted to the show cause notice by the delinquent government servant and no other extraneous material is permitted. It is further submitted that the oral evidence proposed to be examined during the course of enquiry as mentioned in the charge sheet has not been recorded in this case and as such, the enquiry is vitiated.

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4.Learned standing counsel has opposed the contention and submitted that since the minor penalty has been inflicted and therefore, there is no reason for examining the witnesses.

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5.The petitioner appears to have been placed under suspension vide order dated 6.1.2022. Charge sheet was issued to the petitioner by the enquiry officer on 8.12.2022, which contains only one charge. The documentary evidence as well as oral evidence which were proposed to be examined during the enquiry were mentioned. The petitioner submitted his reply to the

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charge sheet where after, the enquiry officer heard the petitioner personally and on that basis, without examining any other witness as proposed in the chargesheet, the enquiry officer sent enquiry report to the State Government. The State Government, vide order dated 1.12.2023, remanded the matter to the enquiry officer with a direction to conduct oral enquiry and also examine the evidence and then to submit fresh enquiry report.

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After remand by the State Government, the enquiry officer again conducted enquiry and submitted his enquiry report dated 24.7.2024, contained in Annexure No.RA-1 to the rejoinder affidavit.

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6.A perusal of the enquiry report shows that during enquiry, the proposed oral evidence was not led before the enquiry officer as provided in Rule 7(vii) of 1999 Rules. None of the witnesses as mentioned in the charge sheet has been summoned and examined during the course of enquiry. Before proceeding further, it would be appropriate to have a reference to Rule 7(vii) of 1999 Rules which is extracted below :

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

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

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7.A perusal of Rule 7(vii) shows that the procedure provided in the 1999 Rules is very clear that where the government servant who has been charged denies the charges, the enquiry officer shall call the proposed witnesses mentioned in the charge sheet and record their oral evidence in presence of the charged government servant and then he shall be given an opportunity to cross examine the said witnesses. This procedure for recording oral evidence of the witnesses proposed in the charge sheet has not been followed by the enquiry officer, at all.

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The disciplinary authority has provided a copy of the enquiry report dated 24.7.2024 along with the show cause notice, to which the petitioner has given his reply.

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The enquiry officer has not summoned any of the witnesses as mentioned in the charge sheet during the course of enquiry. Thus, the enquiry on this ground is vitiated.

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8.As regards second ground taken by the petitioner's counsel that the impugned order has been passed for extraneous consideration, this court finds from a perusal of the punishment order that this contention of the learned counsel carries weight. Relevant part of the impugned order where the opinion of the disciplinary authority has been considered is extracted below :

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ककारकार्यालर कका पररीक्षण / अभभिमत :

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जकाजांच अधधिककाररी दकारका प्रश्नगत अननुशकासभनक ककारर्यावकाहरी मम पुररीभक्षत जकाजाँच आख्रका न उपलब्धि करकाररी गररी हह , धजसमम जकाजांच अधधिककाररी दकारका भवभिकागरीर ककारर्यावकाहरी कके प्रकरण मम

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Do's व Don'ts भवषरक ककाभमर्याक भवभिकाग कके शकासनकादकेश भदनकाजांक 19.07.2022 कका अननुपकालन करतके हहए आर्याशरीट र , पररीक्षण सम्बन्धिरी आख्रका प्रपत , व्रभक्तिगत सुवकाई कके न उपससस्थिभत भववरण , अननुशकासभनक ककारर्यावकाहरी सके सम्बसन्धित प्रभशक्षण प्रमकाण - पत उपलब्धि करकातके हहए ककारर्यावकाहरी कका भववरण उपलब्धि करकारका गरका हह तस्थिका गवकाहहों व सकाक्ष्रहों कका पररीक्षण भकरका गरका हह। जकाजांच अधधिककाररी दकारका अपनके भनष्कषर्या मम कहका गरका हह भक अपचकाररी अधधिककाररी कके ऊपर पटकाधिकारकहों सके भमलरीभिगत / दनुरभभिसजांधधि भकरका जकानका धसद्ध नहहीं हहोतका हह , भकन्तनु पररवहन कके भवरूद्ध प्रवतर्यान ककारर्यो मम भशधस्थिलतका बरतके जकानके एवजां खनन क्षकेतहों कका समनुभचत भनररीक्षण / परर्यावेण ककारर्या नहहीं भकरका जकानका धसद्ध हहोतका हह। क

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9.From the above, it is evident that the disciplinary authority while passing punishment order has taken examination/opinion of the office and for that no opportunity was given to the petitioner. Thus, the impugned order suffers from considering such extraneous material, for which there is no provision in 1999 Rules.

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10.A Division Bench of this Court in Subhash Chandra Gupta versus State of U.P. 2011 CJ(All) 2938 has held that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. It is further held that when the punishment is awarded on the basis of an enquiry not conducted in accordance with the enquiry rules, it is unsustainable in the eye of law.

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11.The objection raised by the learned standing counsel that since minor punishment has been awarded to the petitioner, therefore, the enquiry officer was not required to record oral evidence, coupled with the opportunity to the delinquent employee to cross examine the witnesses has no force.

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From perusal of the record, it is evident that the petitioner was placed under suspension, which can be done only when the charges are so serious which will entail major penalty. After that, charge sheet was issued. However, while passing the punishment order, lesser punishment can always be given keeping in view the facts and circumstances of the case as also the material available on record. Thus, submission of learned standing counsel that no oral enquiry was needed in this case is baseless. The enquiry officer should have adhered the mandatory procedure provided under 1999 Rules and ought to have called upon the witnesses proposed in the charge sheet in conducting oral enquiry, that too in the presence of the petitioner and he should have been given an opportunity to cross-examine them, which has not been done in this case. No oral enquiry from the witnesses proposed in the charge sheet has been done. Thus, the punishment order which is based on the said enquiry cannot sustain. Likewise, the punishment order also cannot sustain as it is based on extraneous consideration, as discussed above.

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12.This court has taken note of the fact that during pendency of the disciplinary proceedings, selection for the post of Geologist has been conducted and several Assistant Geologists including one Ashish Chaudhary who is junior to the petitioner have been promoted on higher post whereas the petitioner's promotion has been withheld due to pendency of the disciplinary

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proceedings. Specific pleading in this regard has been made in para 44 of the writ petition, to which no reply has been given by the State while filing counter affidavit.

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13.It is further worthy to note that although the State Government has remanded the matter to the enquiry officer to conduct a fresh enquiry, still the enquiry officer has proceeded with the enquiry as per his whims ignoring the 1999 Rules, for the reasons best known to him and therefore, this court does not deem it appropriate to again give liberty to the State Government to conduct a fresh enquiry. Further, since admittedly, the persons junior to the petitioner have already been promoted, the case of the petitioner was considered in the Departmental Promotion Committee and kept in the sealed cover. The promotion orders of the incumbent who are similarly situate and junior to the petitioner have been passed on 6.3.2024 which is on record. Therefore, it will be apt if the respondents are directed to open the sealed cover of the petitioner and proceed in accordance with law, as also in the light of judgment of Supreme Court in Union of India and others versus K.V. Jankiraman and others 1991 AIR 2010.

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14.Mr. R.K. Upadhayay, learned counsel for the Commission submits that the case of the petitioner shall be considered for promotion after opening the sealed cover if he is otherwise found fit and also in accordance

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with the Government Order dated 28.5.1997.

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15.In view of the above, the writ petition is allowed and the impugned order dated 9.9.2024 (supra) is set aside. The respondents are directed to open the sealed cover of the petitioner and proceed in accordance with law, and if the petitioner is otherwise found fit to be promoted on the higher post, he shall be so considered for promotion on the higher post. In case any person junior to the petitioner has been promoted, he shall also be considered for being promoted from the date his juniors were so promoted as also the notional benefit of seniority etc. Such an exercise shall be done within a period of three months from the date of service of a certified copy of this order.

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Order Date :- 16.4.2025 kkb/

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Digitally signed by :- KRISHNA KUMAR BARANWAL High Court of Judicature at Allahabad, Lucknow Bench

Dr. Yogendra Bhadauriya v. State of U.P. Thru. Prin. Secy. Deptt. of Geology and Mini. Lko and 3 Others

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Dr. Yogendra Bhadauriya v. State of U.P. Thru. Prin. Secy. Deptt. of Geology and Mini. Lko and 3 Others

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