Brahma Nand v. State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Revenue, Lko. And 3 Others

and by this Court in the following cases: “Roop Singh Negi versus Punjab National Bank & Others. reported in (2009) 2 SCC 570, State of Uttar Pradesh & Ors. versus Saroj Kumar Sinha, reported in (2010)2 SCC 772, Kuldeep Singh versus Commissioner Of 3 WRIA No. 907 of 2024 Police & Ors. reported in (1999)2 SCC 10, Subhash Chandra Sharma versus Managing Director and Another. reported in 1999 SCC Online All 1331, Rajesh Prasad Mishra versus Commissioner, Jhansi Division, Jhansi & Ors. reported in 2010 SCC Online All 2722, Dr. Subhash Chandra Gupta versus State of U.P. through Principal Secretary, Medical Health, U.P., Lucknow, reported in 2011 SCC Online All 1234, and Chamoli District Cooperative Bank Limited through its Scretary/Maha Prabandhak and Anr. Versus Raghunath Singh Rana and Ors. reported in (2016) 12 SCC 204.

#5. Learned State counsel on the basis of counter affidavit has refuted submissions advanced by learned counsel petitioner submission that it would be evident from a perusal of the inquiry report and appellate order that ample opportunity of hearing was provided to petitioner during the inquiry proceedings but he himself failed to seek production of any witness for purposes of denouncing the charges levelled against him. It is submitted that with regard to charges one and two, it is evident that petitioner has admitted the fact that such entries were, in fact, incorporated in the revenue records by him. The same admission is clearly available with regard to charges three and additional charge. It is therefore submitted that since complicity of petitioner with regard to the aforesaid charges was clearly admitted in 4 WRIA No. 907 of 2024 reply submitted to charge-sheet, there was no further occasion to corroborate the same by oral evidence.

#6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that initially the charge-sheet dated 16.05.2018 was issued to petitioner containing four charges. Charges one and two pertained to various persons in whose favour Gaon Sabha property was allegedly mutated by the petitioner. Charge no.3 pertained to entries made by petitioner in the revenue records favouring one Sri Netra Pal indicating him to be the heir of deceased Jungjit Singh, whereas entry was required to be made in favour of the son of deceased, which was not done. Charge no.4 pertained to violation of U. P. Government Servants Conduct Rules of 1956, particularly Rule 3(1)(2) thereof.

#7. In additional charge-sheet

12.03.2019, allegation levelled upon petitioner is that he was instrumental in recording the name of private persons over Goan Sabha property which was indicated in Section 132 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act.

#8. Evidently petitioner submitted his reply on

14.06.2018 in which with regard to charges one and two, he has specifically stated that mutation was recorded by petitioner in terms of orders which were passed earlier by the Tahsildar concerned. It has been stated that since orders had already been passed by the competent authority, petitioner was bound to incorporate the same in revenue records. With regard to 5 WRIA No. 907 of 2024 charge no.3, it has been replied that the name of person, Netra Pal was indicated in the revenue records after spot inspection being made and statement of villagers being taken. He has therefore also denied the charge no.4.

#9. With regard to the additional charge, petitioner submitted his reply on 17.04.2019 indicating that entries with regard to the properties indicated in the said charge were in fact directed to be made by the order dated

29.08.1990 issued Sub-Divisional Magistrate concerned and therefore petitioner being a sub-subordinate officer, was required to make the aforesaid entries.

#10. A perusal of the inquiry report dated

26.06.2019 makes it evident that no witnesses whatsoever have been called for in the inquiry proceedings for purposes of examination or cross- examination. It is quite evident that despite the clarification given by petitioner in his reply, neither the Tahsildar nor the S.D.M. concerned has been directed to appear in the inquiry proceedings either to corroborate or refute the allegations of petitioner.

#11. In the considered opinion of this Court, once a clear stand was taken by petitioner that mutation was effected by him in pursuance of orders passed by the Tahsildar and S.D.M., it was incumbent upon the inquiry officer exercising quasi judicial powers to have directed said officials to appear in the inquiry proceedings for purposes of corroborating or refuting the statement of petitioner. Such an action not being followed through by the inquiry officer renders 6 WRIA No. 907 of 2024 the inquiry proceedings vitiated.

#12. Furthermore with regard to charge no.2, it is also evident that a report was submitted by the clerk in the office of Tehsildar denying the reply of petitioner and the letter clearly indicates that no such orders as are being relied upon by petitioner were available in the register Appendix X.

#13. The inquiry report also indicates that the inquiry officer has specifically relied upon the aforesaid report to the effect that no such order was available on the said register. However neither the aforesaid register was ever summoned in the inquiry proceedings, nor even the author of the letter was produced to corroborate the same.

#14. Considering aforesaid facts, this Court is of the conclusion that in case the inquiry officer was placing reliance on documentary evidence such as the registered Appendix X or letter submitted by the clerk in the office of Tehsildar, it was incumbent for the register and the said clerk to have been produced as evidence and witness in order to permit petitioner to corroborate or refute the same or to cross-examine the person concerned.

#15. In view of aforesaid discussion, it is thus evident that the inquiry report has been submitted only considering reply submitted by petitioner and material which was never brought on record nor was petitioner given any opportunity to examine the same. It is also evident that the aforesaid evidence does not find mention either in the charge-sheet dated 7 WRIA No. 907 of 2024

16.05.2018 nor even in the additional charge- sheet dated 12.03.2019. Therefore, it is clear that extraneous material has been relied upon in the inquiry report without giving opportunity to petitioner to refute the same.

#16. Rule 7 of the Rules of 1999 clearly relates to the aspect of procedure to be followed in case of imposition of a major penalty. The said Rules and those pari materia with them have been considered by Supreme Court in the case of Roop Singh Negi (supra) and Saroj Kumar Sinha (supra) in the following manner:- The relevant portion of Roop Singh Negi (supra) is as follows: “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding taking 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 disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not 8 WRIA No. 907 of 2024 contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.

#23. Furthermore, the order of the disciplinary authority as also the appellate authority supported by any reason. As the orders passed by them have severe consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse surmises conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well 9 WRIA No. 907 of 2024 known, however high may be, can under no circumstances be held to be a substitute for legal proof. The relevant portion of Saroj Kumar Sinha (surpa) is as follows :

#30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings cannot 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 treated fairly in proceedings which may culminate imposition punishment including dismissal/removal from service.”

#17. In the case of Kuldeep Singh (supra), Hon’ble the Supreme Court has held that in case of a domestic inquiry, in case findings are not supported by any evidence on record or are not based on evidence adduced by parties, such findings can be characterized as perverse. It is also held that where a quasi-judicial tribunal records findings based on no legal evidence and are mere ipse dixit or based on conjectures and surmises, the inquiry suffers from infirmity of non-application of mind and therefore stands 10 WRIA No. 907 of 2024 vitiated. The relevant portion of Kuldeep Singh (surpa) is as follows : “8.The findings recorded in a domestic enquiry characterised as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of A.P.v.Rama Rao [(1964) 2 LLJ 150 : AIR 1963 SC 1723 : (1964) 3 SCR 25] in which the question was whether the High Court under Article 226 could interfere with the findings recorded departmental enquiry. This decision was followed in Central Bank of India Ltd. v.Prakash Chand Jain[(1969) 2 LLJ 377 : AIR 1969 SC 983] and Bharat Iron Works v. Bhagubhai Balubhai Patel [(1976) 1 SCC 518 : 1976 SCC (L&S) 92 : 1976 Lab IC 4 : AIR 1976 SC 98 : (1976) 2 SCR 280] . In Rajinder Kumar Kindra v.Delhi Admn.[(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805 : (1985) 1 SCR 866] it was laid down findings misconduct are based on no legal evidence and the conclusion is one 11 WRIA No. 907 of 2024 to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down a quasi-judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures surmises, enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. ”

#18. In the considered opinion of this Court, the aforesaid judgments are clearly applicable in the present facts and circumstances as discussed here-in-above.

#19. It is also a relevant factor that in the memorandum of appeal, petitioner has specifically taken this ground pertaining to violation of Rule 7 of the Rules of 1999 that no reasonable opportunity has been provided to him pertaining to evidence relied upon in the inquiry proceedings. However a perusal of the appellant order will make it evident that such ground raised in appeal has been brushed aside only on the ground that ample opportunity of hearing has been provided to petitioner. The appellate order also holds that once all the relevant documents indicated in the charge-sheet have been supplied to petitioner, there was no occasion for holding any oral inquiry. The appellate order also rejects petitioner's contentions on the ground that burden was upon petitioner to have required production of witnesses and upon his failure to do so, the inquiry officer was not upon any bounden duty to examine any such witness. 12 WRIA No. 907 of 2024

#20. As indicated here-in-above, the aforesaid finding is clearly contrary to settled law with regard to domestic inquiries. An inquiry officer exercising quasi judicial powers is required to arrive at the correct conclusion by examining all the relevant material evidence and for calling for oral evidence even if not demanded by the delinquent officer. The primary purpose of such an inquiry is to arrive at the truth of charges levelled against an officer and not to find him guilty on the basis of some technical lacuna.

#21. In view of discussion made here-in-above, it is evident that the impugned dismissal order dated 18.11.2019, the appellate order dated

20.12.2021 and the revisional order dated

03.10.2023 being against law settled, are vitiated and are therefore quashed by issuance of a writ in the nature of certiorari.

#22. Since the said proceedings and orders in pursuance thereof have been quashed only on the ground of non-adherence to the procedure required to be followed and therefore in violation of principles of natural justice, liberty is granted to opposite parties to inquire afresh in case any appropriate orders are passed and sanction accorded in terms of Article 351A of the Civil Service Regulations since petitioner has already superannuated on 31.08.2020.

#23. Decision pertaining to sanction under Article 351A of Civil Service Regulations or not to continue enquiry shall be taken within a period of three months from the date certified copy of this judgment is served upon the disciplinary authority failing which, petitioner shall be 13 WRIA No. 907 of 2024 entitled to consequential service benefits.

#24. Resultantly, petition succeeds and is allowed . Parties to bear their own costs. January 13, 2026 Subodh/- (Manish Mathur,J.)