High Court · 2025

the order was filed before them. There is no dispute that oral inquiry was conducted and it took more time than was prescribed by the U.P. State Public Services Tribunal. During said inquiry, the statement of the petitioner was duly recorded and the disciplinary authority again passed the same order of punishment which was passed on 31.03.2015 by means of fresh order dated 12.7.2022. The petitioner being aggrieved by the said order has filed the present writ petition which after hearing was allowed by a coordinate bench of this Court by means of judgment and order dated 24.11.2023, the said judgment was subjected to Special Appeal being Special Appeal Defective No.457 of 2024 which was allowed by Division Bench on

27.08.2024 setting aside the said judgment only on the ground that even in case the disciplinary proceedings continued beyond the period prescribed by the U.P. State Public Services Tribunal, the same could not be set aside on said ground. It is in the aforesaid circumstances, the matter has been placed again before this Bench and the counsel for the parties have been heard.

4. Counsel for the petitioner has raised two grounds while assailing the impugned order of punishment dated 18.05.2022. He had submitted that though the oral inquiry was initiated and the statement of the petitioner was recorded but no evidence or documents were produced by the prosecution in support of the charges leveled against the petitioner. He submits that in absence of any material which could have been filed by the prosecution the charges leveled against the petitioner against could not have been sustained and the manner in which the inquiry proceedings clearly demonstrates about the predecision taken by the respondents to hold the petitioner guilty. The second ground raised by the petitioner is that the legal position is settled that in a disciplinary proceedings the major penalty and minor penalty cannot be imposed simultaneously. In this regard, he relies upon the judgment of the Supreme Court in the case of Union of India and another versus S.C. Parashar reported in (2006) 3 SCC 167.

5. The writ petition has been opposed by learned Standing Counsel, who submits that in the remand proceedings due opportunity of hearing was given to the petitioner. He was given all the documents which he has sought and he was granted time to file his reply contradicting and denying the allegations leveled against him in the charge sheet. The petitioner chose not to file any response but during the oral inquiry he had denied the charges and also held that the preliminary inquiry which was held on the basis of which the allegations are leveled against him was full of infirmities and could not be relied upon the petitioner during the disciplinary proceedings. It is only after recording the statement of the petitioner that the inquiry proceedings concluded followed by order of punishment.

6. Learned counsel for the petitioner submits that the respondents did not follow the procedure prescribed under Rule 9 of the Rules of 1999 and neither was the inquiry report submitted to the disciplinary authority nor was the show cause notice given to the petitioner prior to passing of the order of punishment and on conclusion of the inquiry strait away the order of punishment has been passed. He submits that the procedure adopted by the respondents in the disciplinary proceedings is alien and contradictory to the provisions contained in the Rules of 1999 and consequently, the entire disciplinary proceedings are required to be set aside.

7. Learned Standing Counsel has opposed the writ petition but could not dispute the aforesaid facts.

8. Having heard the rival contentions. It is noticed that the manner in which the inquiry officer has proceeded in the inquiry is full of the infirmities and the procedure which is proscribed under Rules of 1999 was not followed by him. During the oral inquiry, no evidence was adduced by the prosecution and not even the basic material, including the inquiry report on the basis of which the allegations were leveled against the petitioner was furnished to the inquiry officer. The Inquiry Officer in fact acts as a Tribunal where during the oral inquiry the case of the prosecution has to be placed before him by the Prosecuting Officer in sake of oral or documentary evidence. It is only after the relevant materials placed before the Inquiry Officer in support of the charges, the delinquent government servant is called upon to defend himself on the basis of the material adduced by the prosecution.

9. In the present case, though the petitioner did not submit his reply to the charge sheet yet he participated in the oral inquiry and denied the charges leveled against him but in fact the charges were never sought to be proved by the prosecution themselves, is in fact is a serious infirmity going to the root of the matter and vitiating the entire disciplinary proceedings. We also notice that the the inquiry officer on conclusion of the inquiry proceedings must have submitted its report to the disciplinary authority, who never served the copy of the show cause notice to the petitioner in accordance with Rule 9 of the Rules of 1999. Non-submission of the show cause notice containing the inquiry report is a serious infirmity going to the root of the matter and a gross violation of the procedure prescribed for conducting the disciplinary inquiry. This aspect of the matter was duly considered by the Supreme Court in the case of Union of India v. Mohmed Ramzan Khan, reported in AIR 1991 SC 471 and hence, undoubtedly, by not following the statutory prescription the entire disciplinary proceedings are grossly flawed and are liable to be set aside.

10. Considering a last submission made on behalf of the petitioner with regard to the major and minor penalties both being leveled in the same disciplinary proceedings was subject matter of consideration before the Supreme Court in the case of Union of India and another versus S.C. Parashar reported in (2006) 3 SCC 167. The Supreme Court was considering as to whether both the groups of penalty prescribed Head of Major Penalty and Minor Penalty could be simultaneously leveled and the said question was answered in the negative. It was held that the amalgamation of minor penalty and major penalty cannot be inflicted simultaneously. The observations of the Supreme Court are contained in paragraphs 10, 11 and 12 which are as follows: "10. It is not in dispute that clauses (iii) and (iii)(a) of Rule 11 provide for minor penalties whereas clause (v) thereof provides for major penalty. Indisputably the procedure adopted in the departmental proceeding was for imposition of a major penalty. It is trite that even in a case where the procedure is followed in the departmental proceedings for imposition of a major penalty, having regard to the facts and circumstances of a case, minor penalty can also be imposed. The question is as to whether the penalty imposed by the President upon taking into consideration the report filed by the enquiry officer, was under clauses (iii) and (iii)(a) or clause (v) of Rule 11 of the CCS Rules.

11. Before adverting to the said question, we may record that wrong concession of a counsel on a pure question of law is not binding upon a party. It is furthermore trite that non- mentioning or wrong mentioning of a provision in an order may be held to be irrelevant if it is found that the requisite ingredients thereof were available on records for passing the same. We may further notice that the High Court proceeded on the basis that the penalty imposed upon him was a major penalty.

12. The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty. The respondent has been inflicted with three penalties : (1) reduction to the minimum of the time-scale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs.74,341.89p., i.e., Rs.18,585.47p. on account of damage to the Gypsy in 18 (eighteen) equal monthly instalments. Whereas reduction of time-scale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clause (iii) and (iii)(a) thereof. The disciplinary authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law."

11. It is for the aforesaid circumstances, this Court is of the considered view that the inquiry against the petitioner was conducted in gross violation of principle of nature justice inasmuch as no version of the prosecution was recorded by the disciplinary authority neither did the disciplinary authority submits the show cause notice containing the inquiry report to the petitioner and lastly, the order of the punishment itself was flawed inasmuch as the same was an amalgamation of minor and major penalty.

12. Accordingly, for the aforesaid reasons, the writ petition is allowed and the order of punishment dated 12.07.2022 is set aside. Order Date :- 16.1.2025 KR [Alok Mathur,J.] RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

the order was filed before them. There is no dispute that oral inquiry was conducted and it took more time than was prescribed by the U.P. State Public Services Tribunal. During said inquiry, the statement of the petitioner was duly recorded and the disciplinary authority again passed the same order of punishment which was passed on 31.03.2015 by means of fresh order dated 12.7.2022. The petitioner being aggrieved by the said order has filed the present writ petition which after hearing was allowed by a coordinate bench of this Court by means of judgment and order dated 24.11.2023, the said judgment was subjected to Special Appeal being Special Appeal Defective No.457 of 2024 which was allowed by Division Bench on

27.08.2024 setting aside the said judgment only on the ground that even in case the disciplinary proceedings continued beyond the period prescribed by the U.P. State Public Services Tribunal, the same could not be set aside on said ground. It is in the aforesaid circumstances, the matter has been placed again before this Bench and the counsel for the parties have been heard.

4. Counsel for the petitioner has raised two grounds while assailing the impugned order of punishment dated 18.05.2022. He had submitted that though the oral inquiry was initiated and the statement of the petitioner was recorded but no evidence or documents were produced by the prosecution in support of the charges leveled against the petitioner. He submits that in absence of any material which could have been filed by the prosecution the charges leveled against the petitioner against could not have been sustained and the manner in which the inquiry proceedings clearly demonstrates about the predecision taken by the respondents to hold the petitioner guilty. The second ground raised by the petitioner is that the legal position is settled that in a disciplinary proceedings the major penalty and minor penalty cannot be imposed simultaneously. In this regard, he relies upon the judgment of the Supreme Court in the case of Union of India and another versus S.C. Parashar reported in (2006) 3 SCC 167.

5. The writ petition has been opposed by learned Standing Counsel, who submits that in the remand proceedings due opportunity of hearing was given to the petitioner. He was given all the documents which he has sought and he was granted time to file his reply contradicting and denying the allegations leveled against him in the charge sheet. The petitioner chose not to file any response but during the oral inquiry he had denied the charges and also held that the preliminary inquiry which was held on the basis of which the allegations are leveled against him was full of infirmities and could not be relied upon the petitioner during the disciplinary proceedings. It is only after recording the statement of the petitioner that the inquiry proceedings concluded followed by order of punishment.

6. Learned counsel for the petitioner submits that the respondents did not follow the procedure prescribed under Rule 9 of the Rules of 1999 and neither was the inquiry report submitted to the disciplinary authority nor was the show cause notice given to the petitioner prior to passing of the order of punishment and on conclusion of the inquiry strait away the order of punishment has been passed. He submits that the procedure adopted by the respondents in the disciplinary proceedings is alien and contradictory to the provisions contained in the Rules of 1999 and consequently, the entire disciplinary proceedings are required to be set aside.

7. Learned Standing Counsel has opposed the writ petition but could not dispute the aforesaid facts.

8. Having heard the rival contentions. It is noticed that the manner in which the inquiry officer has proceeded in the inquiry is full of the infirmities and the procedure which is proscribed under Rules of 1999 was not followed by him. During the oral inquiry, no evidence was adduced by the prosecution and not even the basic material, including the inquiry report on the basis of which the allegations were leveled against the petitioner was furnished to the inquiry officer. The Inquiry Officer in fact acts as a Tribunal where during the oral inquiry the case of the prosecution has to be placed before him by the Prosecuting Officer in sake of oral or documentary evidence. It is only after the relevant materials placed before the Inquiry Officer in support of the charges, the delinquent government servant is called upon to defend himself on the basis of the material adduced by the prosecution.

9. In the present case, though the petitioner did not submit his reply to the charge sheet yet he participated in the oral inquiry and denied the charges leveled against him but in fact the charges were never sought to be proved by the prosecution themselves, is in fact is a serious infirmity going to the root of the matter and vitiating the entire disciplinary proceedings. We also notice that the the inquiry officer on conclusion of the inquiry proceedings must have submitted its report to the disciplinary authority, who never served the copy of the show cause notice to the petitioner in accordance with Rule 9 of the Rules of 1999. Non-submission of the show cause notice containing the inquiry report is a serious infirmity going to the root of the matter and a gross violation of the procedure prescribed for conducting the disciplinary inquiry. This aspect of the matter was duly considered by the Supreme Court in the case of Union of India v. Mohmed Ramzan Khan, reported in AIR 1991 SC 471 and hence, undoubtedly, by not following the statutory prescription the entire disciplinary proceedings are grossly flawed and are liable to be set aside.

10. Considering a last submission made on behalf of the petitioner with regard to the major and minor penalties both being leveled in the same disciplinary proceedings was subject matter of consideration before the Supreme Court in the case of Union of India and another versus S.C. Parashar reported in (2006) 3 SCC 167. The Supreme Court was considering as to whether both the groups of penalty prescribed Head of Major Penalty and Minor Penalty could be simultaneously leveled and the said question was answered in the negative. It was held that the amalgamation of minor penalty and major penalty cannot be inflicted simultaneously. The observations of the Supreme Court are contained in paragraphs 10, 11 and 12 which are as follows: "10. It is not in dispute that clauses (iii) and (iii)(a) of Rule 11 provide for minor penalties whereas clause (v) thereof provides for major penalty. Indisputably the procedure adopted in the departmental proceeding was for imposition of a major penalty. It is trite that even in a case where the procedure is followed in the departmental proceedings for imposition of a major penalty, having regard to the facts and circumstances of a case, minor penalty can also be imposed. The question is as to whether the penalty imposed by the President upon taking into consideration the report filed by the enquiry officer, was under clauses (iii) and (iii)(a) or clause (v) of Rule 11 of the CCS Rules.

11. Before adverting to the said question, we may record that wrong concession of a counsel on a pure question of law is not binding upon a party. It is furthermore trite that non- mentioning or wrong mentioning of a provision in an order may be held to be irrelevant if it is found that the requisite ingredients thereof were available on records for passing the same. We may further notice that the High Court proceeded on the basis that the penalty imposed upon him was a major penalty.

12. The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty. The respondent has been inflicted with three penalties : (1) reduction to the minimum of the time-scale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs.74,341.89p., i.e., Rs.18,585.47p. on account of damage to the Gypsy in 18 (eighteen) equal monthly instalments. Whereas reduction of time-scale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clause (iii) and (iii)(a) thereof. The disciplinary authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law."

11. It is for the aforesaid circumstances, this Court is of the considered view that the inquiry against the petitioner was conducted in gross violation of principle of nature justice inasmuch as no version of the prosecution was recorded by the disciplinary authority neither did the disciplinary authority submits the show cause notice containing the inquiry report to the petitioner and lastly, the order of the punishment itself was flawed inasmuch as the same was an amalgamation of minor and major penalty.

12. Accordingly, for the aforesaid reasons, the writ petition is allowed and the order of punishment dated 12.07.2022 is set aside. Order Date :- 16.1.2025 KR [Alok Mathur,J.] RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench