Nikhil Shukla vs State of U.P. Thru. Its Addl. Chief Secy./ Prin. Secy. Deptt. of Revenue and 2 Others

HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

WRIT – A No. - 4343 of 2024 Nikhil Shukla …..Petitioners(s) Versus State of U.P. Thru. Its …..Respondents(s) Addl. Chief Secy./Prin. Secy. Deptt. of Revenue and 2 others Counsel for Petitioners(s) : Alok Kumar Pandey, Vinod Kumar Shukla Counsel for Respondent(s) : C.S.C.

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RESERVED ON 23.5.2025 DELIVERED ON 11.9.2025

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Court No. - 12

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HON’BLE KARUNESH SINGH PAWAR, J.

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1. Heard Shri Sudeep Seth, learned Senior Advocate assisted by learned Counsels Shri Vinod Shukla and Shri Alok Kumar Pandey on behalf of the petitioner, Shri Sandeep Sharma, learned Standing Counsel assisted by Shri Ashwani Kumar Singh learned counsel for the respondent State.

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2. By means of the present petition, the petitioner has approached this Court seeking quashing of the impugned punishment order dated 8/9.11.2023 passed by Opposite Party No. 3, as well as the Office Memorandum dated 19.04.2024 issued by Opposite Party No. 1, annexed as Annexure Nos. 1 and 2 to the writ petition. The petitioner

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further prays for issuance of a writ of mandamus directing the opposite parties to grant all consequential benefits to the petitioner including promotion to the post of Sub-Divisional Magistrate (SDM) from the date the persons junior to him were promoted on the said post and to provide the arrears of salary for the period of suspension.

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CHRONOLOGICAL FACTS OF THE CASE

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3. The petitioner was initially appointed to the post of Naib Tehsildar vide order dated 07.07.2014 and was promoted to the post of Tehsildar in the year 2018. While posted as Tehsildar at Mohanlalganj, Lucknow, on 10.03.2021, a fabricated video clip containing casteist remarks and unparliamentary language, allegedly uttered by the petitioner, went viral on social media. On the same day, the ADM (Finance & Revenue) directed the petitioner to submit a report within 24 hours.

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4. The petitioner submitted his reply on 12.03.2021 through registered post, requesting that the original device be provided. Meanwhile, on 11.03.2021, the District Magistrate, Lucknow, recommended to the Commissioner that the petitioner be suspended and penal action taken against him. Accordingly, the petitioner was placed under suspension vide order dated 11.03.2021, and departmental proceedings were also initiated. The Additional District Magistrate (Administration), Lucknow, was appointed as the Inquiry Officer.

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5. The ADM (Finance & Revenue) submitted an ex parte report without associating the petitioner, relying solely on the viral video clip as the solitary piece of evidence. A charge sheet dated 22.09.2021 was issued,

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levelling four charges, and served upon the petitioner under covering letter dated 27.09.2021, enclosing a CD. On 05.10.2021, upon finding the CD blank, the petitioner returned it to the Investigating Officer with a request to make available the original device so that he could submit a proper reply. Thereafter, the Investigating Officer provided a copy of the concerned device with an Amkette CD.

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6. Vide letter dated 26.11.2021, the Inquiry Officer directed the petitioner to submit a reply to the charge sheet. The petitioner, vide letter dated 08.12.2021, reiterated his request for the original device in order to give a proper reply. The Inquiry Officer, through letters dated 15.12.2021, 26.02.2022, and 11.03.2022, again asked the petitioner to file his reply. Vide letter dated 14.03.2022, the petitioner requested the Inquiry Officer to provide the names of witnesses and to fix a date for submission of reply. Ultimately, vide reply dated 24.03.2022, the petitioner denied the charges levelled against him.

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7. On 02.04.2022, the Inquiry Officer called the petitioner to appear for personal hearing. The petitioner appeared and again demanded a copy of the original device. On his request, the Board of Revenue directed the District Magistrate to produce the original device. However, vide letter dated 29.04.2022, the District Magistrate informed the Inquiry Officer that the CD had been provided by a person who requested that his identity not be disclosed.

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8. The order of suspension was challenged by the petitioner in WritA No. 2314 of 2022, which was disposed of vide order dated 25.04.2022

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with directions to the Inquiry Officer to conclude the inquiry within twelve weeks, to release subsistence allowance forthwith, and to consider and decide the petitioner’s representation under Rule 4(8) of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 by a reasoned and speaking order.

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9. The petitioner thereafter preferred a representation dated 17.05.2022 to the Inquiry Officer, contending that the inquiry proceedings were being conducted on the basis of an unverified and doubtful viral video clip on social media, which had no connection with his voice. On this objection, the Inquiry Officer fixed 23.05.2022 for testing the petitioner’s voice with the voice recorded in the video clip. As the petitioner did not appear on that date, the matter was adjourned to 27.05.2022. The petitioner again did not appear, informing the Inquiry Officer that he was Covid-19 positive and unable to be present for voice testing on 27.05.2022. The Inquiry Officer then fixed 28.06.2022 for voice testing, but once again the petitioner did not ensure his presence at the Forensic Science Laboratory.

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10. In the meantime, on 23.05.2022, an FIR under Sections 504, 505(1)(b) IPC read with Section 67 of the IT Act and Section 3(1)(r) of the SC/ST Act was lodged against the petitioner. Vide letters dated 24.05.2022 and 27.05.2022, the Inquiry Officer directed the petitioner to give his voice sample at the Forensic Science Laboratory. The petitioner, however, vide letter dated 28.05.2022, replied that in summary departmental inquiry proceedings, the onus of proving allegations lies upon the department and not on the petitioner. He further expressed

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apprehension that after taking his voice sample, the department might tamper with the CD by mixing his voice.

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11. Thereafter, the Inquiry Officer submitted his inquiry report without holding any oral inquiry or fixing any date, time, and place for such inquiry. The report was submitted in an ex parte manner, holding that the charges stood proved. On the basis of the said report, a showcause notice dated 23.09.2022 was issued by the disciplinary authority calling reply from the petitioner. On 27.09.2022, the disciplinary authority, however, reinstated the petitioner in service by revoking the suspension order.

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12. The petitioner submitted a reply/representation dated 21.10.2022, raising objection that the original viral video clip had not been provided in evidence and that the maker of the said clip had not been produced as a witness. Thereafter, a second charge sheet dated 18.10.2022, based on the same viral video clip, was issued. The petitioner challenged the said charge sheet through Writ-A No. 8935 of 2022, which was disposed of with a direction to treat the second charge sheet as a supplementary charge sheet in the pending inquiry.

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13. The petitioner submitted his reply dated 21.04.2023, denying all the charges. Again, on 22.06.2023, the Inquiry Report with respect to the second charge sheet was submitted, without holding any oral inquiry by fixing date, time, and place. No witness was examined to prove the charge, and the person on whose complaint the second charge sheet was issued was not summoned to verify the truth of the complaint.

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14. On the basis of the second inquiry report, a show-cause notice dated 12.07.2023 was issued by the disciplinary authority, which was replied to by the petitioner vide reply dated 20.07.2023, stating that the inquiry proceedings were in violation of principles of natural justice.

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15. The disciplinary authority passed the punishment order dated 8/9.11.2023, withholding two increments temporarily for a period of three years along with recording a censure entry. The petitioner preferred a departmental appeal dated 15.12.2023 before the State Government, which was dismissed vide order dated 19.04.2024.

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SUBMISSION OF LEARNED COUNSEL FOR THE PARTIES

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16. Learned counsel for the petitioner submits that the disciplinary proceedings have been conducted without any oral inquiry. No date, time, or place was fixed by the inquiry Officer for conducting the disciplinary inquiry. No oral evidence was led during the inquiry by the inquiry Officer.

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17. Contentions raised by the petitioner have not been specifically rebutted by the opposite parties with supporting documents. The opposite parties have failed to prove the CD containing the viral video clip with the petitioner’s voice by producing any witness.

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Vide letter dated 29.04.2022, the District Magistrate informed the inquiry Officer that the person providing the CD had requested not to disclose his identity. Departmental proceedings have been initiated on the basis of a complaint made by an unknown person, without taking his affidavit, which is contrary to the Government Orders dated 01.08.1997,

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10.04.2012, and 06.08.2018. The original device from which the viral video clip was generated was neither brought into evidence, nor was the person who recorded it produced as a witness to prove its genuineness. The viral video clip appears to be doctored/manipulated and is not issued by the certified maker of the clip as required under Section 65B of the Indian Evidence Act.

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18. In support of his contentions, learned counsel for the petitioner relied on the judgments of Satyendra Singh v. State of U.P. 2024 SCC OnLine SC 3325; Chaman Lal Jain v. State of U.P. 2005 (6) AWC 6178 (LB); Roop Singh Negi v. Punjab National Bank 2009 (2) SCC 570; Ramakrishna v. Indian Oil Corporation Ltd. 2023 SCC OnLine All 614; Naresh Kumar Gandhi v. Cambridge Foundation School 2023 SCC OnLine Del 4354; Subodh Kumar Trivedi v. State of U.P. 2000 SCC OnLine All 1167 ; Amalgamated Coal Fields v. Janapada Sabha Chhindwara 1962 SCC OnLine SC 72; Bharat Petroleum Corporation Ltd. V. ATM Constructions Pvt. Ltd. 2023 SCC OnLine 1614 ; Gram Panchayat Village Nowlakha v. Ujagar Singh (2000) 7 SCC 543; Vipin Chand Vadhilal Bavishi v. State of Gujarat (2016) 4 SCC 531; and others.

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19. On the other hand, Shri Sandeep Sharma, learned Standing Counsel for the State, opposed the writ petition and submitted that the petitioner acted against official conduct and duties by using casteist, indecent, and unparliamentary language against a particular section of society.

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20. It is further submitted that although the CD was provided as evidence, during investigation it was returned as blank, and an attempt was made to delay the investigation by replacing the CD and requesting voice testing of the petitioner in the viral video. However, the petitioner did not appear before the Forensic Science Laboratory on the date fixed for voice testing.

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21. It is further submitted that an FIR has also been registered against the petitioner, Sri Nikhil Shukla, Tahsildar, in P.S. Mohanlalganj, District Lucknow, under relevant sections of IPC as well as the SC/ST Act.

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22. According to the State, all charges levelled against the petitioner in the charge sheet and the supplementary charge sheet were duly proved and established after due consideration in accordance with the U.P. Government Servants (Discipline and Appeal) Rules, 1999, and relevant government orders.

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23. The appeal filed by the petitioner against the punishment order dated 8/9.11.2023 was also dismissed vide order dated 19.04.2024.

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24. Learned Standing Counsel submits that against both the punishment order and the appellate order, a statutory alternative remedy is available before the U.P. State Public Service Tribunal. Without availing such remedy, the petitioner has directly approached this Court; hence the present writ petition is liable to be dismissed for non-exhaustion of alternative remedy. It is further submitted that the petitioner has manipulated the CD provided to him during the inquiry.

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25. It is argued that after examining the findings of the inquiry Officer in the report, and on the basis of the material evidence available on record, the charges against the petitioner were proved and established. Thereafter, a show-cause notice under Rule 9(4) of the 1999 Rules was issued, providing him opportunity of hearing. Only after considering his reply the punishment order was passed.

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26. After the judgment was reserved, the State filed an application for rehearing alleging that earlier two writ petitions were filed by the petitioner, namely Writ-A No. 2314 of 2022 and Writ-A No. 8935 of 2022, and therefore the present petition is barred by constructive res judicata.

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27. Replying to the objection of the State, learned counsel for the petitioner has submitted that in Writ-A No. 2314 of 2022, challenge was made to the order of suspension of the petitioner dated 11th March, 2021, seeking the following reliefs in the writ petition: -

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“Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to:-.

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i. Issue a writ, order or direction in the nature of Certiorari thereby quashing the order dated 11.03.2021 passed by respondent no.3 as contained Annexure No.1 to the writ petition.

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Issue a writ, order or direction in the nature of Mandamus thereby commanding/directing the opposite parties to allow the petitioner to continue to work and discharge his duties on the post of Tehsildar at Tehsil Mohanlalganj Lucknow and pay him salary and other allowances each and every month regularly.

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Issue, any appropriate, writ, order or direction which this Hon'ble Court may deem, just and proper in the nature and circumstance of the case.

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iv. To award the cost of the writ"

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28. It is further submitted that in the said writ petition, no plea was raised with regard to Section 65-B of the Evidence Act, as such a stage had not arisen, nor was there any challenge to the first charge sheet. The present writ petition, therefore, is based on a distinct and separate cause of action which was neither raised nor adjudicated in the earlier proceedings, as is evident from the judgment and order dated 25th April, 2022, passed in Writ-A No. 2314 of 2022. passed in Writ-A No. 2314 of 2022.

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29. He submits that it is a settled principle of law that examining the correctness of the charges contained in a charge sheet is beyond the scope of judicial review. Since the charges are yet to be proved by adducing evidence, the examination of the merits of the charges lies exclusively within the domain of the Inquiry Officer. It has been consistently held by the Hon’ble Supreme Court that the High Court cannot usurp or pre-empt the powers of the disciplinary authority in such matters.

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30. It is submitted that in Writ-A No. 8935 of 2022, challenge was made to the second charge sheet issued during the pendency of the first charge sheet, wherein the following main reliefs were sought:-

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“WHEREFORE, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to: -

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I. Issue a writ, order or direction in the nature of certiorari to quash the charge-sheet dated 28.10.2022 issued by opposite party no. 2 by which the second charge-sheet has been issued during pendency of the first charge-sheet and departmental proceedings on the same allegation. (Annexure No.1).

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II. Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to not harass the petitioner in any manner in the name of successive proceedings.

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III. Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to not compel the petitioner to submit reply to the impugned charge-sheet.

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IV. Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the nature and circumstances of the case.

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V. Allow the writ petition with cost.”

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31. Learned counsel for the petitioner submits that although in Writ-A No. 8935 of 2022 there was an averment with respect to Section 65-B of the Indian Evidence Act, the said aspect was neither considered nor subjected to judicial review by examining the correctness of the charge sheet at that stage. The said writ petition was disposed of on the submission of the learned Standing Counsel that the second charge sheet be treated as a supplementary charge sheet. Hence, the cause of action therein was different.

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32. It is further submitted that compliance with Section 65-B(4) of the Indian Evidence Act and the question of authenticity of the viral video clip were required to be determined in the departmental proceedings by the inquiry Officer and, thereafter, by the Disciplinary Authority. Both these aspects constitute a distinct and subsequent cause of action, which could have been challenged only after culmination of the departmental proceedings.

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ANALYSIS OF RIVAL SUBMISSIONS OF THE PARTIES' COUNSEL

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33. Perused the record. So far as the objection of the State regarding the bar of constructive res judicata in filing the present petition is concerned, a perusal of the reliefs sought in Writ-A No. 2314 of 2022 shows that the challenge therein was confined only to the impugned order of suspension. The charge sheet was not under challenge, being a distinct cause of action.

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34. That the issue of non-compliance with Section 65-B of the Evidence Act could not have been raised by the petitioner in the earlier round of litigation, as the departmental inquiry had not been concluded at that time. Such an issue could only arise after the conclusion of the inquiry and after the passing of the impugned punishment order, as well as after disposal of the departmental appeal. Likewise, the correctness of the charges framed against the petitioner could not have been examined by the Court at that stage, as the same could only be challenged after culmination of the departmental proceedings. Otherwise, the earlier writ petition would have been premature.

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35. The authenticity of the viral video clip and the compliance of Section 65-B of the Evidence Act were matters to be determined first in the departmental proceedings by the inquiry Officer before issuance of the punishment order. Both these aspects, therefore, constitute a separate and subsequent cause of action which could only be challenged after the culmination of the departmental proceedings.

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36. That the second charge sheet was challenged in Writ-A No. 8935 of 2022 only on the ground that it had been issued during the pendency of the departmental proceedings. At that stage, there was hardly any scope for adjudicating the legality or correctness of the charges contained in the second charge sheet, nor was it legally permissible for the petitioner to raise such a plea. The said writ petition was disposed of on the submission of the learned Standing Counsel, with a direction to treat the second charge sheet as a supplementary charge sheet in the first inquiry.

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37. After service of the second charge sheet, the petitioner submitted his reply dated 21st April, 2023, wherein he specifically raised the plea regarding the authenticity of the viral video clip. Thereafter, upon submission of the inquiry report dated 22nd June, 2023, the order of punishment dated 8/9th November, 2023 was passed by the disciplinary authority.

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38. Thus, the causes of action in the earlier writ petitions were different, being confined to the challenge of the suspension order and the issuance of the second charge sheet. The occasion to raise the plea of Section 65-B of the Evidence Act and the admissibility of the CD as evidence could only arise after culmination of the departmental proceedings, upon passing of the punishment order and dismissal of the departmental appeal. Therefore, the present writ petition, wherein the petitioner has challenged the punishment order on the ground of noncompliance with Section 65-B and inadmissibility of the video CD, is fully maintainable.

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39. The Hon’ble Supreme Court in Oasis Dealcom Private Limited v. Khazana Dealcom Private Limited 2016 (10) SCC 214 , in paragraphs 4, 6, 14 and 23, has held that a distinct cause of action gives rise to a separate proceeding. The relevant paragraphs are extracted below:-

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“… 4. Accordingly, a notice dated 17-1-2009 under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “the Act”) read with Rule 9 of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as “the Rules”) was served upon Respondents 1 to 3 calling upon them to pay the aforementioned sum along with future interest within 60 days from the date of the said notice and they were also instructed not to create any third party interest in the secured assets by way of sale, lease or otherwise. The aforesaid notice was duly replied to by Respondent 1 Company vide letter dated 14-3-2009 by disputing the amount and requesting Respondent 4 Bank to give certain credits. Respondent 4 gave a reply vide its letter dated 203-2009 to letter dated 14-3-2009 by asserting that notice dated 17-1-2009 had been correctly issued as per the provisions of Section 13(2) of the Act….

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… 6. Being aggrieved by the said notice dated 10-8-2009, Respondents 1 and 3 preferred Application No. 92 of 2009 under Section 17 of the 2002 Act on 15-9-2009 against Respondent 4 Bank by stating that the act of taking symbolic possession of the flat in question was illegal, without jurisdiction and was in violation of the Act and the Regulations made thereunder, primarily for the reason that no advertisement was published in the newspaper in terms of Rule 8(2) of the Rules and no possession notice under Rule 8(1) was affixed on the said property and hence, prayed for quashing of notice dated 17-1-2009 and also for quashing all steps taken under the Act….

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…14. In the aforestated circumstances, the respondent borrowers filed another application under Section 17(1) of the Act challenging the validity of the demand notice dated 17-1-2009 and sale of property which had taken place in January 2010 in pursuance of the aforestated notice. The Tribunal ordered to maintain status quo as on 28-1-2010….

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… 23. A submission had been made on behalf of the appellant that the second application filed under Section 17 of the Act was not maintainable and therefore, it ought not to have been entertained by the Tribunal. We are not in agreement with the said submission for the reason that when another application was filed under Section 17(1) of the Act, the cause of action was different. At an earlier point of time, the issuance of notice as well as notice for

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sale of the flat had been challenged, whereas the subsequent application had been filed after the auction had been held. The cause of action in respect of both the applications was not same and therefore, in our opinion, the second application for a different cause of action was maintainable….”

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40 . In Union of India v. Upender Singh (1994) 3 SCC 357 , the Supreme Court has categorically held that examining the correctness of the charges at the stage of issuance or framing of a charge sheet is beyond the jurisdiction of the Tribunal and the High Court. The relevant paragraphs 1, 2, 7 and 15 are extracted below:

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“ 1. This appeal is preferred against the judgment of the Central Administrative Tribunal, Principal Bench, New Delhi quashing the charges (charge-sheet) framed on February 7, 1991 against the respondent. The respondent is a member of the Indian Revenue Service (IRS) and is presently working as Deputy Commissioner of Income Tax. On February 7, 1991, a memorandum of charges was issued to him accompanied by a “Statement of imputations of misconduct or misbehaviour in support of article of charges” framed against him. The articles of charges are the following:

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Article-I

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The said Shri Upendra Singh while posted as Inspecting Assistant Commissioner of Income Tax, B.S.D. (North) Range Bombay during the financial year 1986-87, got a survey under Section 133-A of Income Tax Act, 1961 conducted in the cases of Raghuvanshi group of builders on January 9, 1987. During the course of this survey incriminating documents and a confessional statement of the assessees showing unaccounted receipts of Rs 1.56 crores and admitted unaccounted incomes of Rs 46.60 lakhs earned by four firms of this group, viz. M/s Raghuvanshi Builders, M/s Raghuvanshi Developers, M/s Raghuvanshi Associates and M/s Raghani Builders, were obtained:

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(a) The said Shri Upendra Singh initiated proceedings under Section 144-A in the case of M/s Raghuvanshi Builders, M/s Raghuvanshi Developers and M/s Raghuvanshi Associates in an illegal and improper manner.

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(b) During the aforementioned proceedings under Section 144-A, the said Shri Upendra Singh neither examined the incriminating documents and evidence collected during the survey, nor passed any orders under Section 144-A, in spite of being aware of the evidence gathered during the survey.

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(c) The said Shri Upendra Singh during the aforementioned proceedings under Section 144-A improperly and illegally acquiesced in the assessees' offer to disclose only an amount of Rs 11,27,794 in the names of the aforesaid firms and did not direct the assessing officer to bring to tax the full amount of undisclosed incomes of these firms as admitted during the survey on January 9, 1987.

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(d) The said Shri Upendra Singh gave illegal and improper directions to the assessing officer to complete the assessments in the cases of M/s Raghuvanshi Builders, M/s Raghuvanshi Developers and M/s Raghuvanshi Associates under Section 143(1) even though at the relevant time proceedings under Section 144-A of I.T. Act, 1961 were pending before him and these cases did not come within the purview of the Summary Assessment Scheme of the Amnesty Scheme of the CBDT.

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2. Shri Upendra Singh has, therefore, violated Rules 3(1)(i), 3(1) (ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.”

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2. For the purposes of this case, it is not necessary to set out the statement of imputations which is a very lengthy one referring elaborately to the material and evidence which was sought to be relied upon against the respondent at the proposed inquiry. As soon as the memo of charges was served upon the respondent, he approached the Tribunal for quashing the charges. The Tribunal admitted the original application and passed the following interim order:

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“The learned counsel submitted that the applicant has been served with a charge-sheet on account of the charges which relate to the discharge of quasi-judicial functions by the applicant. He, therefore, prayed for that as per Supreme Court's decision in the case of V.D. Trivedi v. Union of India [(1993) 2 SCC 55 : 1993 SCC (L&S) 324 : (1993) 24 ATC 79] interim directions may be issued restraining the respondents from proceeding against the applicant under the Disciplinary & Appeal Rules.

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We have considered the matter and in the interest of justice, we restrain the respondents from proceeding with disciplinary action in pursuance of the charge-sheet dated February 7, 1991 for a period of 14 days. List the case on April 18, 1991 for further consideration of interim relief.

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Order Dasti.”…

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7. Now, if a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is ununderstandable how can that be done by the tribunal at the stage of framing of charges? In this case, the Tribunal has held that the charges are not sustainable (the finding that no

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culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of imputations but mainly on the basis of the material produced by the respondent before it, as we shall presently indicate.

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… 15. For the above reasons, the appeal is allowed, the order of the Tribunal is set aside, the disciplinary inquiry against the respondent shall proceed unhindered and expeditiously. It is in the interest of everyone concerned that the truth or otherwise of the charges is determined at the earliest. The respondent shall pay the costs of the appellant in this appeal assessed at Rs 5000.”

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41. In Deputy Inspector General of Police v. K. Swaminathan (1996) 11 SCC 498 , it has been held that examining the correctness of the charges contained in a charge sheet is beyond the scope of judicial review. The Court has observed that the charge sheet cannot be quashed at this stage, as it would require appreciation of evidence which is exclusively within the domain of the inquiry Officer. The relevant paragraphs 3 and 4 are extracted below:-

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“…3. While the respondent was working as an Inspector of Police, District Special Branch in Coimbatore Rural District a special raid was conducted in the farmhouse of one Eswaramoorthy Gounder located within the limits of Avinashi Police Station on 19-8-1991. The incriminating material recovered from the farmhouse would indicate that he was making payments to certain persons and one of the names disclosed from the incriminating material was of the respondent. Consequently, a charge memo imputing misconduct on his part was issued to him. The respondent filed OA in the Administrative Tribunal challenging the validity of the charge memo dated 28-9-1991. The Tribunal in the impugned order dated 15-4-1994 set aside the charge memo on the ground that the charges were vague. Thus, this appeal by special leave.

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4. It is settled law by a catena of decisions of this Court that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the tribunal or the court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would be a matter on production of the evidence for consideration at the

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inquiry by the inquiry officer. At the stage of framing of the charge, the statement of facts and the charge-sheet supplied are required to be looked into by the court or the tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged misconduct. The Tribunal, therefore, was totally unjustified in going into the charges at that stage. It is not the case that the charge memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer. Therefore, the Tribunal was totally wrong in quashing the charge memo. In similar circumstances, in respect of other persons involved in the same transactions, this Court in appeals arising out of SLPs (C) Nos. 19453-63 of 1995 had on 9-2-1996 allowed the appeals, set aside the order passed by the Tribunal and remitted the matter holding that:

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“This is not the stage at which the truth or otherwise of the charges ought to be looked into. This is the uniform view taken by this Court in such matters….”

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42 . In State of Punjab v. Ajit Singh 1997 (11) SCC 368 , it was held that where a charge sheet contains charges based on documents duly served upon the delinquent employee, but the charges are yet to be proved by adducing evidence, the High Court cannot interfere by examining the merits of the charges and setting aside the charge sheet at a premature stage. Such interference has been held to be improper. The relevant paragraphs 3 and 4 are extracted below:-

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“… 3. We do not find any ground to interfere with the judgment of the High Court insofar as the quashing of the order of suspension is concerned. We are, however, of the view that the High Court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High Court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High Court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High Court. The allegations are based on documents which would have been produced as evidence to prove the charges in the disciplinary proceedings. Till

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such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever.

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4. The appeal is accordingly allowed and the impugned order of the Division Bench of the High Court as well as the judgment of the learned Single Judge insofar as they relate to quashing of the charge-sheet are set aside. It will be open to the appellants to proceed with the disciplinary proceedings initiated against the respondent on the basis of the said charge-sheet. No orders as to costs.”

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43 . In Air India ltd. v. M. Yogeshwar Raj 2000 (5) SCC 467 , the Hon’ble Supreme Court, in paragraph 8, held that the High Court ought not to have pre-empted the factual findings of the disciplinary authority on the two issues, namely, the respondent’s caste status and whether he had adequately explained the production of a bogus certificate, as both matters were yet to be decided by the disciplinary authority.

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“…8. It appears from a copy of the writ petition that the respondent has not questioned the jurisdiction of the disciplinary authority to issue the impugned show-cause notice. The two issues of the respondent's caste and whether he had adequately explained the production of the bogus certificate of 4-2-1998 are yet to be decided by the disciplinary authority. Both the issues are primarily issues of fact. The High Court should not have preempted a factual decision of the disciplinary authority on the issues. Nor should the High Court have stayed the proceedings on a prima facie finding on the subject-matter of inquiry particularly when the competence of the disciplinary authority was not in doubt."

¶133

44. Hon’ble Supreme Court in Amalgamated Coalfields Limited v. Janapada Sabha Chhindwara 1962 SCC OnLine SC 72 as well as in Life Insurance Corporation of India v. Gangadhar Vishwanath Ranade 1989 (4) SCC 297 has held that the principle of constructive res judicata should not ordinarily be applied to writ petitions filed under Articles 32 or 226 of the Constitution. The principle of res judicata is inapplicable

¶134

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when the questions raised in the earlier writ petition are different from those raised in the subsequent petition.

¶137

45. Accordingly, in the present case, the rule of constructive res judicata will not apply, as the questions raised in the earlier writ petitions were premature and incapable of adjudication at that stage of the proceedings. Hence, neither could those issues have been raised by the petitioner earlier, nor could they have been adjudicated upon by the Court.

¶138

46. So far as the judgment of S.C. Gupta v. Union of India and Another 2025 SCC OnLine Del 2905 , relied upon by the learned Standing Counsel, is concerned, in that case Clause 3.3 of the Guidelines, which was already in existence and had not been challenged by the petitioner in the earlier round of litigation, was not permitted to be challenged in the subsequent round for the simple reason that if such a challenge were allowed, there would be no end to the litigation between the parties.

¶139

47. On the contrary, in the present case, at that stage neither the departmental inquiry had been concluded, nor was any punishment order or appellate order available to the petitioner. The plea under Section 65B of the Indian Evidence Act also could not have been taken nor adjudicated by the Court, as already discussed hereinabove. It is a settled principle that the High Court or the Tribunal cannot adjudicate the legality or correctness of the charges at the stage of issuance of the charge sheet, unless and until the inquiry is completed and a punishment

¶140

21

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order is passed. Therefore, for these reasons, the present writ petition is maintainable and is not barred by the principle of constructive res judicata.

¶143

48. So far as the objection of the State regarding the availability of an alternative remedy before the Public Service Tribunal is concerned, in Subodh Kumar Trivedi v. State of U.P. 2000 SCC OnLine All 1167 , it has been held that the existence of an alternative remedy is not an absolute bar. Once a writ petition is entertained on the ground of violation of the principles of natural justice in the conduct of departmental proceedings, such a petition is maintainable and cannot be rejected merely on the ground of statutory alternative remedy. Emphasis is placed on paragraphs 4, 5, 6, 9–13, 35 and 50, which are extracted below:-

¶144

“… 4. A preliminary objection has been raised by the learned counsel for the State that the petitioner has an alternative remedy under the provisions of the U.P. Public Service Tribunal Act and therefore, the writ petition is not maintainable.

¶145

5. In response to the aforesaid preliminary objection the learned counsel for the petitioner Sri Ritu Awasthi and Sri Amit Bose who volunteered himself to argue the question, submitted that once the petition has been entertained, the petitioner cannot be relegated to the remedy of the Tribunal after a lapse of three years. It was further submitted that since the order impugned has been challenged on the ground of the competence of the authority who passed the order and also for violation of principles of natural justice in holding the disciplinary proceedings, the High Court has full jurisdiction to entertain the writ petition and altermate remedy would not be a bar.

¶146

6. In the instant case it cannot be disputed that at the time of filing of the writ petition this Court did not deem it proper to relegate the petitioner to avail the alternative remedy before the Tribunal and that is why time was granted to the learned Standing Counsel to obtain instructions with respect to the competence of the authority to pass the impugned order. Not only this on 17th April 1999 the Court again took into consideration the pleas raised by

¶147

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the learned counsel for the petitioner and after being satisfied that a counter affidavit would be necesary for adjudicating such pleas granted further time to State Counsel to file counter affidavit.

¶150

9. Once the notices have been directed to be issued to private parties or the State who has already accepted the notice before, entertaining the writ petition under the Rules of the Court are directed to file a counter affidavit it cannot be said by any means that the petition has not been entertained merely because of the absence of formal order of admission being passed in the writ petition. Any order passed by the Court which is passed after applying its mind and which further the proceedings in the writ petition more explicity by requiring the opposite parties to file a counter affidavit, would fall within the meaning of entertaining the writ petition. The facts as they exist in the present writ petition and which has been narrated above leaves no room of doubt that the petition has already been enter tained by this Court in the year 1997 itself i.e. much before when this matter has come up for hearing before this Court.

¶151

10. Apart from the fact that once the writ petition has been entertained and is pending for such a long time there would be little justification for relegating the petitioner to the remedy of the Public Service Tribunal. The grounds on which the petitioner is challenging the order, in exparte motion is also to be seen while entertaining the writ petition or while requiring the petitioner seek his remedy in alternative forum. In case the challenge is made on the ground of want of jurisdiction or authority of the authority who has passed the order of if the violation of the Fundamental Rights, or violation of principle of natural justice is asserted, the Court may entertain the writ petition irrespective of any forum of alternate remedy being available to the petitioner. Whether the petition is to be entertained or not, is to be considered on the date of presentation of the writ petition and particularly on the date when the Court decide to entertain it. In case the High Court comes to the conclusion that the appropriate remedy is to relegate the petitioner to the alternative forum, the petition should not be entertained but in case Court takes a different view and entertains the writ petition then in such cases ‘ordinarily’ the petitioner should not be relegated to the remedy of aternative forum after a considerable period has elapsed, and or, the parties have exchange their pleading under the orders of the Court.

¶152

11. There Is one more aspect of the matter namely if a litigant under a bonaflde belief has approached the High Court un der Article 226 of the Constitution impugning a particular order which otherwise could have been impugned before the Public Service Tribunal also and the writ petition is entertained by the Court which comes up for the hearing after exchange of affidavits after considerable period of time, compelling the petitioner at such a late stage to seek his remedy in the alternative forum would

¶153

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not only put him into another course of long drawn litigation but would also bring the entire exercise which has been done in the High Court to naught and the petitioner would find himself again standing at the same place from where he has started his fight for justice. Relegating the petitioner to the alternative remedy before the Public Service Tribunal would once again require him to wander into the maiae of litigation and to face the vagaries of procedural law once again. On the one hand in the present era, cry of speedy justice from all over the country is a matter of concern which has been expressed by the Apex Court in many cases, the refusal on the part of the High Court to decide the writ petition on merit when it is ripe for hearing and to force the petitioner to seek remedy which he has not chosen to elect while approaching the High Court would delay the justice further more and would not be in consonance with the legal mandate of providing speedy Justice. It is the discretion of the Court where the petition has been filed, to entertain the same on the grounds urged by the petitioner or to dismiss the writ petition on the ground of alternative remedy but once the petition has been entertained in exercise of Judicial discretion such a discretion ‘ordlnarly’ is not to be interfered with in the subsequent stages of litigation unless the Court is satisfied, that the matter could not or for some cogent reasons, should not have been entertained by the High Court at all.

¶156

12. Refusal on the part of the High Court to entertain writ petition where statutory alternative remedy, is available to the petitioner is a self imposed restriction which cannot be taken as an absolute bar for the High Court in entertaining the writ petition.

¶157

13. In the case of Whirlpool Corporation v. Registrar of Trade marks reported in (1998) 8 SCC 1 : (AIR 1999 SC 22), the Apex Court while considering the question of availability of alternate remedy observed that the power to issue perogatlve writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in part III of the Constitution but also for “any other purpose” and that the High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. The Supreme Court further finds that the alternative remedy has been consistently held by this Court not to operate as a bar at least in the following contingencies, namely where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of principle of natural justice or where the

¶158

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¶159

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order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

¶161

35. From the Catena of decisions of the Supreme Court following propositions broadly flow:

¶162

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

¶163

(ii) Refusal to entertain a writ petition on existence of statutory alternative remedy is a self imposed restriction for which following considerations weigh namely;

¶164

(a) Alternative remedy is adequate, efficacious and speedy;

¶165

(iii) The High Court can try issues of fact but may not entertain petition where disputed question of facts have to be determined and in such cases the petitioner may be relegated to the statutory alternate forum;

¶166

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

¶167

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

¶168

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

¶169

(b) where there has been a violation of principle of natural justice, (c) where the order or proceedings are wholly without jurisdiction, or

¶170

(d) the vires of the Act is challenged.

¶171

50. In view of the facts and circumstances of the present case where the challenge to the impugned order has been made on the ground of incompetence or want of jurisdiction of the authority who has passed the impugned order and also on the ground that the petitioner has not been afforded reasonable opportunity and there has been violation of principles of natural justice in holding disciplinary proceedings, the petition was entertained by the High Court, and the discretion exercised by the High Court can not be said to be arbitrary or unreasonable, and therefore, I do not find at this stage of final hearing any probable and justified reason to relegate the petitioner to the forum of alternative remedy of State Public Service Tribunal….”

¶172

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49. Thus, in view of the law laid down by the Hon’ble Supreme Court, and considering the fact that the present writ petition has been entertained on the ground of violation of the principles of natural justice in not conducting a proper inquiry, the plea of alternative remedy cannot operate as a bar.

¶175

50. In the present case, the departmental inquiry, the punishment order as well as the appellate order have been challenged specifically on the ground that no oral inquiry was conducted by the inquiry Officer by fixing a definite date, time and place for inquiry, nor was any oral evidence of witnesses recorded. A perusal of the record shows that categorical pleadings in this regard have been made in the writ petition in paragraphs 37, 38, 43, 45 and 57, which have not been specifically denied by the opposite parties with any supporting documents.

¶176

51. It is further submitted that the disciplinary proceedings have not been conducted in accordance with the procedure prescribed under the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999.

¶177

52. Rule 7 of the Uttar Pradesh Government Servant (Discipline

¶178

and Appeal) Rules, 1999 provides the procedure for imposing major penalties.

¶179

53. Rule 7(iii) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 stipulates that the charge sheet must mention the proposed documentary evidence and the names of witnesses proposed to prove the same, along with oral evidence, if any. In the present case, a perusal of the charge sheet shows that although certain

¶180

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¶182

documentary evidence has been mentioned, the names of witnesses proposed to prove the charges, along with their oral evidence, have not been specified. Hence, the charge sheet is in clear violation of Rule 7(iii) of the 1999 Rules.

¶183

54. Rule 7(v) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 further provides that the charge sheet should contain not only the documentary evidence but also the list of witnesses and their statements. This mandatory requirement has not been complied with in the present case.

¶184

55. Rule 7(vii) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 mandates that in case the charged government servant denies the charges, the inquiry Officer shall call the witnesses proposed in the charge sheet and record their oral evidence in the presence of the charged government servant, who must be afforded an opportunity to cross-examine such witnesses. In the instant case, no oral evidence whatsoever has been recorded by the inquiry Officer. Thus, the proceedings are vitiated and amount to a case of no inquiry in the eyes of law.

¶185

56. Rule 7(x) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 provides that where the charged government servant does not appear on the date fixed in the inquiry, or at any stage of the proceedings despite service of notice or having knowledge thereof, the inquiry Officer shall proceed with the inquiry ex parte and shall record the statements of witnesses mentioned in the charge sheet in the

¶186

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absence of the charged government servant. In the present case, however, the documents are alleged to have been proved without conducting any oral inquiry. No witness has been called upon to prove the said documents, including the CD.

¶189

57. The Hon’ble Supreme Court in State of U.P. vs. Saroj Kumar Sinha 2010 (2) SCC 772 while interpreting the Rules of 1999, has categorically held that the function of the inquiry Officer is to examine the evidence presented by the department by leading oral evidence. In the absence of oral evidence, the documents relied upon cannot be said to have been proved. The relevant paragraphs 26 to 32 of the judgment are extracted below:-

¶190

“… 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:

¶191

“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.”

¶192

27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the chargesheet 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.

¶193

28

¶194

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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.

¶196

29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with 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.

¶197

30. When a departmental inquiry is conducted against the government servant it cannot be treated as a casual exercise. The inquiry 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.

¶198

31. In Shaughnessy v. United States [97 L Ed 956 : 345 US 206 (1952)] (Jackson, J.), a Judge of the United States Supreme Court has said: (L Ed p. 969)

¶199

“… Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.”

¶200

32. The affect of non-disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, 5th Edn., p. 442 as follows:

¶201

“If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the

¶202

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decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked.”

¶205

In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case."

¶206

58. This law has been reiterated in Satyendra Singh v. State of U.P. and Another 2024 SCC OnLine SC 3325 , where it has been held that recording the evidence of witnesses for proving the charges is a sine qua non of a valid inquiry. The relevant paragraphs 6, 14, 15 and 17 are extracted below:-

¶207

“… 6. Learned counsel representing the appellant urged that the inquiry proceedings conducted against the appellant were in gross dereliction of Rule 7(3) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999⁶ . The disciplinary proceedings were initiated and allegations constituting major penalty were proposed by Inquiry Officer. Since the appellant had emphatically denied the charges, it was incumbent upon the Inquiry Officer to have recorded evidence to establish the charges attributed to the appellant. However, admittedly, not a single witness was examined by the Inquiry Officer to bring home the charges, and thus, the inquiry report is non est in the eyes of law. He, therefore, urged that the Tribunal was perfectly justified in quashing the inquiry proceedings and the order imposing penalty vide order dated 5^th June, 2015 and that the High Court fell in grave error of law whilst allowing the writ petition and reversing the order passed by the Tribunal. He, therefore, implored the Court to accept the appeal, set aside the judgment passed by the High Court and restore the order passed by the Tribunal….

¶208

14. In the case of Roop Singh Negi¹¹ , this Court held that mere production of documents is not enough, contents of documentary evidence have to be proved by examining witnesses. Relevant extract thereof reads as under:—

¶209

“14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The inquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The inquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents . The management

¶210

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witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the inquiry officer on the FIR which could not have been treated as evidence.

¶213

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

¶214

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

¶215

15. Same view was reiterated in State of Uttar Pradesh v. Saroj Kumar Sinha,¹² wherein, this Court held that even in an ex-parte inquiry, it is the duty of the Inquiry Officer to examine the evidence presented by the Department to find out whether the unrebutted evidence is sufficient to hold that the charges are proved. The relevant observations made in Saroj Kumar Sinha¹³ are as follows:—

¶216

“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

¶217

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¶218

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conclude that the charges have been proved against the respondents.

¶220

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 inquiry. 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.”

¶221

… 17. Thus, even in an ex-parte inquiry, it is sine qua non to record the evidence of the witnesses for proving the charges. Having tested the facts of the case at hand on the touchstone of the Rules of 1999, and the law as expounded by this Court in the cases of Roop Singh Negi¹⁵ and Nirmala J. Jhala¹⁶ , we are of the firm view that the inquiry proceedings conducted against the appellant pertaining to charges punishable with major penalty, were totally vitiated and non-est in the eyes of law since no oral evidence whatsoever was recorded by the department in support of the charges….”

¶222

59. Similarly, in C haman Lal Jain v. State of U.P. and Another 2005 (6) AWC 6178 (LB) , it has been held that failure to fix a definite date, time and place for conducting the inquiry vitiates the entire disciplinary proceedings. Emphasis is placed on paragraphs 11, 14 and 15 of the said judgment.

¶223

“… 11. Rule 7 of the Uttar Pradesh Government Servants (Disciplines and Appeals) Rules, 1999 provides that "Where the charged Government servant denies the charges. the inquiry officer shall proceed to call the witnesses proposed in the chargesheet and record their oral evidence in the presence of the charged Government servant who will be given opportunity to cross-examine such the witnesses. After recording aforesaid evidence, the inquiry officer shall call and record the oral evidence which the charged Government servant desires in his written statement to be produced in its defence. Provided that

¶224

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¶225

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Inquiry Officer. for reasons to be recorded in writing. refuses to call a witness."

¶227

14. In view of the aforesaid earlier decisions of this Court and the Supreme Court, it is now settled that if date, time and place have not been fixed for conducting the inquiry, the entire inquiry vitiates and the dismissal order is held to be illegal being violative of the principles of natural justice and the Rules framed for conducting the disciplinary inquiry.

¶228

15. In view of the above, the impugned dismissal order is to be set aside but the petitioner shall not be entitled to the full salary during the period, he remained out of employment. The petitioner will get only half of the salary for the said period and other consequential benefits. The opposite parties shall be at liberty to conclude the inquiry in accordance with the prescribed procedure under the Disciplines and Appeals Rules, 1999….”

¶229

60. A perusal of the charge sheet as well as pleading made in paragraph 26 of the writ petition, demonstrates that the names of the witnesses proposed to prove the charges, along with oral evidence, have not been disclosed by the opposite parties in this case.

¶230

61. It is the duty of the inquiry Officer to prove the charges by adducing evidence, including the production of witnesses, and to hold an oral inquiry after affording the delinquent employee an opportunity of hearing and cross-examination. In the present case, however, the inquiry Officer has failed to discharge this duty. Consequently, the entire process of departmental inquiry stands vitiated.

¶231

62. During the course of inquiry, no date, time or place was fixed by the inquiry Officer for holding the oral inquiry, nor were the names of the witnesses, who were being relied upon to prove the charges against the petitioner, ever disclosed. This is despite the fact that the petitioner

¶232

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¶233

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¶234

had specifically demanded the same through his letter dated 14th March, 2022.

¶235

63. It was incumbent upon the inquiry Officer to produce the witnesses in support of the charges, along with the relevant documents, after affording the petitioner an effective opportunity of hearing, including the right to cross-examine the witnesses so produced. However, in the present case, no list of witnesses was supplied to the petitioner either along with the charge sheet or even subsequently, despite his specific demand. This clearly indicates that no witness was produced during the process of inquiry.

¶236

64. The entire inquiry proceedings have thus been conducted by the inquiry Officer according to his own whims and fancies, in complete violation of the principles of natural justice.

¶237

65. Furthermore, after receipt of the inquiry report, it was the bounden duty of the Disciplinary Authority to apply its mind to ascertain whether the procedure prescribed under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 had been duly followed by the inquiry Officer while conducting the inquiry. However, without any such application of mind, the Disciplinary Authority proceeded mechanically to issue a show cause notice to the petitioner. The petitioner, in his reply, had specifically pointed out the defects in the inquiry, yet the Disciplinary Authority proceeded to pass the impugned punishment order, completely ignoring the petitioner’s reply. The impugned punishment order, therefore, reflects total non-application of mind.

¶238

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¶239

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66. The departmental proceedings against the petitioner have been initiated on the basis of a complaint made by an unknown person, without obtaining his affidavit. This is in clear violation of the Government Orders dated 1st August, 1997, 10th April, 2012, and 6th August, 2018, which specifically mandate that the disciplinary authority must obtain the affidavit of the complainant before proceeding against a delinquent employee, so as to protect the employee from unnecessary harassment.

¶241

67. These Government Orders further require that before initiating proceedings on the basis of complaints received from any person or anonymous sources, the concerned complainant should be asked to submit an affidavit in support of such complaint, along with appropriate evidence.

¶242

68. In the present case, the Disciplinary Authority has passed the impugned order not only in violation of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, but also in contravention of the aforesaid Government Orders, and in breach of the principles of natural justice.

¶243

69. The Appellate Authority, while dismissing the appeal, has also failed to advert to the defects in the inquiry. Not even a whisper has been made in the appellate order regarding the non-compliance of the mandatory procedure prescribed under Rule 7 of the 1999 Rules, or the violation of the principles of natural justice.

35

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ORDER

70. In view of the discussions made hereinabove, this Court is of the considered opinion that the departmental inquiry conducted against the petitioner stands vitiated due to non-compliance with the U.P. Government Servants (Discipline and Appeal) Rules, 1999, as well as violation of the principles of natural justice.

¶248

71 . Accordingly, the impugned punishment order dated 8/9.11.2023 and the appellate order dated 19.4.2024, annexed as Annexures 1 and 2 to the writ petition, are hereby set aside.

¶249

72. The opposite parties are directed to consider the petitioner’s case for promotion to the higher post, if his claim was not considered during the pendency of the departmental proceedings and his juniors have since been promoted.

¶250

73. The petitioner shall be entitled to 50% of the salary (half of the salary) during the period of suspension.

¶251

74. The matter is remanded to the disciplinary authority to proceed afresh against the petitioner, if so advised, strictly in accordance with the 1999 Rules, the relevant Government Orders, and the judgments referred to hereinabove.

¶252

75. The writ petition is allowed. No order as to costs.

¶253

September 11, 2025 Madhu D.R./P.S.

¶254

(Karunesh Singh Pawar, J.)

¶255

Digitally signed by :- MADHU KUMARI High Court of Judicature at Allahabad, Lucknow Bench

Nikhil Shukla v. State of U.P. Thru. Its Addl. Chief Secy./ Prin. Secy. Deptt. of Revenue and 2 Others

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Nikhil Shukla v. State of U.P. Thru. Its Addl. Chief Secy./ Prin. Secy. Deptt. of Revenue and 2 Others

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