JUDGMENT Hon’ble Sudhir Agarwal, J.—This writ petition having been restored to its original number vide order of date passed on restoration application, as requested by learned counsel for the parties, it is taken up for hearing and is being decided finally. 2. Heard Sri K.K. Tripathi, learned counsel for the petitioner and learned Standing Counsel for the respondents. 3. The executive authorities are supposed to execute policies of Government employing Rule of Law as laid down by Legislature and interpreted by this Court. The incidental work which is also of equal importance is that those responsible for such execution must perform their job diligently, devotedly, honestly with ultimate goal of best public interest. Those who lack, should be made to suffer consequences. The later part, i.e., the consequences, ordinarily comes as a result of disciplinary proceedings conducted in accordance with Rules laying down procedure consistent with Article 311 of the Constitution and on the broad principle of administrative law. The competent executive authorities are presumed to be well conversant with the procedure for disciplinary action etc. since it is a routine matter. The problem arises where the competent executive authority, in a most reckless and unmindful way though take disciplinary action, but, defying the procedure prescribed in law consistent with principle of natural justice, which, if comes before a Court of Law, normally fails to withstand judicial review for non-observance of principle of natural justice rendering disciplinary action a nullity. It detriments the public interest in various ways, like, if a person is dismissed or removed from service illegally, and, subsequently punishment order is set aside, it means that not only that person has not performed any job depriving his service to the common people but simultaneously public exchequer also suffers in terms of payment of arrears of salary etc. to such incumbent. Most of time the Courts have not put authorities to bear the brunt of such lapses, who have functioned with such blatant gross abuse of process by ignoring prescribed procedure in taking disciplinary action and have given only due relief to employee concerned but has ultimately fallen on the pocket of common man. The loss has been suffered by public at large at the end. Now the time has come to make them accountable. The brief facts leading to demonstrate and fortify above observations are as under. 4. The loss has been suffered by public at large at the end. Now the time has come to make them accountable. The brief facts leading to demonstrate and fortify above observations are as under. 4. The petitioner, Virendra Kumar Dwivedi was a Clerk in the office of District Magistrate/Collector, Jalaun at Orai having been appointed on 1.12.1987. On the charge of being absented unauthorisedly on 29.1.1991, 6.2.1991, 7.2.1991, 8.2.1991, 26.2.1991, 4.3.1991, 5.3.1991 and from 18.4.1991 to 29.4.1991 i.e., without seeking leave from Competent Authority he was placed under suspension. A charge-sheet dated 28.5.1991 was issued to him. The charge-sheet also included another charge that he attended office on certain dates, namely, 15.5.1990, 3.9.1990, 18.9.1990, 11.12.1990, 27.12.1990, 29.12.1990, 7.1.1991, 18.1.1991, 29.1.1991 and 30.1.1991, late, for which he was administered oral and written warnings and this show lack of devotion in duty on his part. The petitioner submitted reply. Thereafter a show-cause notice dated 23.8.1991 was issued whereagainst also petitioner submitted his reply on 23.9.1991. These proceedings culminated in an order of punishment dated 29.10.1991 passed by District Magistrate, Jalaun at Orai awarding “censure” and stern “warning” and also denial of arrears of salary for the period of suspension. The petitioner, subject to above, was reinstated. 5. Again another charge-sheet dated 29.9.1992 was issued containing four charges. All the charges relate to his unauthorised absence from 20.1.1992 to 3.2.1992, 25.3.1992 to 1.4.1992, 14.9.1992, 29.1.1991, 6.2.1991, 7.2.1991, 8.2.1991, 26.2.1991, 4.3.1991, 5.3.1991 and from 18.4.1991 to 29.4.1991. In fact, charge No. 4, relates to petitioner’s alleged absence on certain dates from January to April, 1991 and was nothing but a reproduction of charges No. 1 and 1(a) of charge-sheet dated 28.5.1991, which had already culminated in a final order. The interesting fact is that in support of charge No. 4, the sole relied on evidence was the punishment order dated 29.10.1991. This charge-sheet was replied by petitioner on 18.3.1993. 6. A third charge-sheet dated 28.6.1993 was issued wherein again charge 1 nothing but repetition of charge-sheet dated 28.5.1991. Charge 2 was reproduction of charges No. 1, 2 and 3 of charge-sheet dated 29.9.1992. However, charge 2 further says that petitioner is continuously absent unauthorisedly since 15.9.1992. This charge-sheet was replied by petitioner on 18.3.1993. 6. A third charge-sheet dated 28.6.1993 was issued wherein again charge 1 nothing but repetition of charge-sheet dated 28.5.1991. Charge 2 was reproduction of charges No. 1, 2 and 3 of charge-sheet dated 29.9.1992. However, charge 2 further says that petitioner is continuously absent unauthorisedly since 15.9.1992. Then in charges 3 and 4, it was alleged that he (petitioner) was unauthorisedly absent since 4.5.1993, as per Additional District Magistrate (Finance and Revenue), Jalaun’s report dated 20.5.1993 and from 10.5.1993 till date as per Tehsildar Jalaun’s letter dated 15.5.1993. 7. The petitioner replied this charge-sheet also. Besides other, he stated that allegation of his unauthorised absence from 4.5.1993 was incorrect since he has actually performed duties on those dates and his absence from 10.5.1993 is not unauthorised since he has submitted leave application supported by medical certificate and also submitted joining report alongwith medical certificate on 1.6.1993. 8. The then District Magistrate, Jalaun at Orai passed order of punishment dated 15.9.1993 referring to the later two charge-sheets i.e. dated 29.9.1992 and 28.6.1993, holding that charges levelled therein, all stand proved, showing that petitioner is a careless and irresponsible employee and never serious to his duties, hence guilty of misconduct. The petitioner, therefore, was removed from service by aforesaid order of punishment, the impugned order. It has been assailed on various grounds including no oral inquiry, no adequate opportunity to petitioner and double jeopardy. 9. This petition was entertained on 8.3.1994 and an interim order was passed staying punishment order dated 15.9.1993 meaning thereby that petitioner is already in service. 10. The respondents have contested by filing a counter-affidavit, sworn by one Sri S.K. Tripathi, Sub-Divisional Magistrate, Jalaun. The theme of pleadings is that petitioner, a habitual absentee, that too unauthorisedly, is guilty of serious dereliction of duty etc. It is also said that against punishment order dated 29.10.1991, petitioner availed remedy of appeal and Appellate Authority, i.e., Commissioner, Jhansi Division, Jhansi rejected appeal vide order dated 14.10.1992. It is also pointed out that oral hearing was given by Sub-Divisional Magistrate who was appointed Inquiry Officer vide letter dated 20.4.1993 but petitioner declined to avail same through his letter dated 29.4.1993 requesting Inquiry Officer to consider his reply as sufficient oral hearing and submit inquiry report. 11. It is also pointed out that oral hearing was given by Sub-Divisional Magistrate who was appointed Inquiry Officer vide letter dated 20.4.1993 but petitioner declined to avail same through his letter dated 29.4.1993 requesting Inquiry Officer to consider his reply as sufficient oral hearing and submit inquiry report. 11. During course of argument, a question arose, how and in what manner, oral inquiry was conducted, which could not be explained by learned Standing Counsel. Hence respondents were directed to produce record of oral inquiry for perusal of Court. The said record has been produced today for Court’s perusal. 12. It appears that pursuant to both charge-sheets dated 29.9.1992 and 28.6.1993; an oral inquiry was conducted by Sri S.K. Tripathi, Sub-Divisional Magistrate, Jalaun. After receiving petitioner’s reply dated 18.3.1993 and 16.8.1993 he submitted two reports on 21.7.1993 and 5.9.1993 holding all the charges proved and recommending his removal from service. The letter dated 29.4.1993 relied by respondents to counter allegation of non holding oral inquiry admittedly did not cover the charge-sheet dated 28.6.1993 being later in point of time. Moreover, in the aforesaid letter dated 29.4.1993 he stated that Tehsildar’s report dated 2.4.1992 has not been made available to him and for certain periods he has sought leave on medical grounds duly submitting his medical certificates but no order has been passed by competent authority on such applications till date and those applications are still pending and they may be looked into before submitting inquiry report. 13. It is interesting to notice that in respect to charges No. 1, 2 and 3 of charge-sheet dated 29.9.1992, Inquiry Officer in his report dated 21.7.1993, recorded his conclusion that petitioner’s leave application on medical grounds supported with medical certificate was actually received in the department but those applications, however, were not traceable. Without going into circumstances and facts as to how and in what manner these applications have disappeared or untraceable, he proceeded to hold that since those applications were received after period of absence, therefore, charges against petitioner relating to “unauthorised absence” stand proved. 14. In respect to charge No. 4, which was a reiteration of charges No. 1 and 1(a) of charge-sheet dated 28.5.1991, the Inquiry Officer said that he has already been punished on 29.10.1991 and this shows that petitioner is habitual of such act of unauthorised absence and, therefore, this charge is also proved. 15. 14. In respect to charge No. 4, which was a reiteration of charges No. 1 and 1(a) of charge-sheet dated 28.5.1991, the Inquiry Officer said that he has already been punished on 29.10.1991 and this shows that petitioner is habitual of such act of unauthorised absence and, therefore, this charge is also proved. 15. Similarly, in respect to charge-sheet dated 28.6.1993 the Inquiry Officer said that so far as charge No. 1 is concerned, he has already been punished; charge No. 2 was repetition of charges No. 1 and 2 of charge-sheet dated 29.9.1992 in respect whereto he has already been held guilty in his report dated 21.7.1993. 16. Now coming to charges No. 3 and 4 of charge-sheet dated 28.6.1993, he said that unauthorised absence from 4.5.1993 to 20.5.1993, and, from 10.5.1993 to 15.5.1993 is proved, therefore, both charges are proved. 17. This Court finds that charge No. 3 in fact covers the period of alleged unauthorised absence, subject-matter of charge No. 4 and, therefore, in fact it is a single charge, bifurcated, though with overlapping period. 18. The inquiry records produced for perusal of Court show that after service of charge-sheet dated 29.9.1992, the relied on documents were not made available to petitioner for which he requested Inquiry Officer vide letter dated 16.11.1992 to supply copies of documents and permit inspection thereof. It was allowed by Inquiry Officer vide order dated 17.11.1992. Those documents however were not made available even to Inquiry Officer till 30.12.1992. The In-charge District Magistrate, Jalaun at Orai vide letter dated 30.12.1992 sent all these documents to Inquiry Officer, received by him on 30.12.1992. 19. The District Magistrate in the meantime enquired from Inquiry Officer, why he has not submitted report within two months from the date of charge-sheet dated 29.9.1992. It was replied by Inquiry Officer vide letter dated 13.1.1993 that inquiry record was made available to him only on 30.12.1992 and thus delinquent employee has been given two weeks time to file reply, and, report would be submitted after receiving reply from him. The Inquiry Officer then wrote a letter dated 16/18.1.1993 to In-charge District Magistrate, Jalaun at Orai, stating that Tehsildar’s report dated 2.4.1992 which is a relied on document in respect to charge No. 2, is not included in record made available to him (Inquiry Officer) and, therefore, the same should be supplied. The Inquiry Officer then wrote a letter dated 16/18.1.1993 to In-charge District Magistrate, Jalaun at Orai, stating that Tehsildar’s report dated 2.4.1992 which is a relied on document in respect to charge No. 2, is not included in record made available to him (Inquiry Officer) and, therefore, the same should be supplied. Pursuant thereto, the District Magistrate, Jalaun at Orai, sent a letter dated 18.1.1993 to Tehsildar Jalaun directing him to furnish report dated 2.4.1992 to the Inquiry Officer. Having not received any response from Tehsildar, Jalaun, the Inquiry Officer sent reminders dated 1.2.1993 and 4.2.1993. Simultaneously he also reminded the petitioner to submit reply to the charge-sheet vide letters dated 1.3.1993 and 6.3.1993. 20. It is in these circumstances, petitioner submitted reply dated 18.3.1993 to charge-sheet dated 29.9.1992. He complained that his leave applications are pending and no decision has been taken thereon. 21. The District Magistrate, Jalaun at Orai, vide letter dated 26.3.1993 required Inquiry Officer to submit inquiry report, since six months have already elapsed. In reply thereto Inquiry Officer vide letter dated 26.3.1993 said that applications for leave on medical grounds relating to period the delinquent employee was shown unauthorisedly absent, are not available on record, and, they are being demanded from Tehsildar, Jalaun, and after receiving those documents from his office, oral opportunity shall be afforded to delinquent employee and inquiry report would be submitted thereafter. 22. Tehsildar Jalaun still shown total inaction. 22. Tehsildar Jalaun still shown total inaction. A reminder letter dated 20.4.1993 was issued by Inquiry Officer, which reads as under: ^^Jh ohjsUnz dqekj f}osnh ,0MCyw0ch0,u0 rglhy tkykSu ds fo:) py jgh foHkkxh; dk;Zokgh ds laca/k esa Ñi;k bl dk;kZy; ds i= la[;k eheks @,l0Vh0 fnukad 26 ekpZ 1993 dk lanHkZ xzg.k djsaA lanfHkZr i= ds }kjk Jh f}osnh }kjk nkf[ky fd;s x;s fpfdRlk izek.k i= foHkkxh; i=koyh esa miyC/k u gksus ds dkj.k vkils pkgs x;s Fks tks vHkh rd izkIr ugha gq;s gSa vkSj u gh dksbZ mRrj Hkstk x;k gSA Ñi;k 3 fnu ds vUnj mDr i= esa pkgs x;s vfHkys[k Hkstus dk d"V djsa rkfd foHkkxh; dk;Zokgh esa 'kh?kz gh tkap vk[;k Hksth tk ldsA blds vykok Jh ohjsUnz dqekj f}osnh ,0MCyw0ch0,u0 dks funsZf’kr djsa fd og viuh O;fDrxr lquokbZ gsrq vkt gh bl dk;kZy; esa mifLFkr gksdj viuk i+{k izLrqr dj ldrs gSaA** “Kindly refer to Letter No. Memo/ST dated 26 th March, 1993 of this office in relation to the ongoing departmental proceeding against Sri Virendra Kumar Dwivedi, A.W.B.N., Tahsil Jalaun. On account of the medical certificate submitted by Sri Dwivedi being not available on the file, you were required to supply the same but it has not been received so far nor has any response been given. Kindly send the documents as desired in the said letter within three days, so that inquiry report in relation to the departmental proceeding may be sent expeditiously. Apart from this, Sri Virendra Kumar Dwivedi, A.W.B.N, be directed to appear in this office today itself for being heard personally and to present his version.” (English translation by the Court) 23. It is this letter pursuant whereto the petitioner sent letter dated 29.4.1993 requesting Inquiry Officer to conclude inquiry treating his reply already submitted. 24. Apart from this, Sri Virendra Kumar Dwivedi, A.W.B.N, be directed to appear in this office today itself for being heard personally and to present his version.” (English translation by the Court) 23. It is this letter pursuant whereto the petitioner sent letter dated 29.4.1993 requesting Inquiry Officer to conclude inquiry treating his reply already submitted. 24. Again, having no response from Tehsildar another letter was issued by Inquiry Officer on 5.6.1993 making following queries: ^^1- D;k fnukad 21-1-92 dks Jh ohjsUnz dqekj }kjk iksLVy Mkd ls Hkstk x;k dksbZ fyQkQk rglhy dk;kZy; esa izkIr gqvk gS ;fn gka rks mlesa dkSu dkSu ls dkxtkr FksA vkSj og dgka gSA 2- D;k fnukad 26-3-92 ds i’pkr Jh ohjsUnz dqekj f}osnh dk dksbZ vodk’k izkFkZuk&i= Mkd }kjk izkIr gqvk Fkk vkSj ;fn gka rks ;g izkFkZuk i= dgka ij gSA 3- Jh ohjsUnz dqekj f}osnh }kjk jftLV~h la[;k 1035 fnukad 23-9-92 ds }kjk izsf"kr dh x;h FkhA bl jftLV~h ds }kjk dkSu dkSu ls dkxtkr izkIr gq;s Fks vkSj fdlds ikl miyCèk gSaA** “1. Has any envelope sent by post by Sri Virendra Kumar on 21.1.1992 been received with the Tahsil office? If so, what papers were contained therein and where are they? 2. Has any leave application of Sri Virendra Kumar Dwivedi sent through post been received after 26.3.1992? If so, where is this application? 3. A dispatch was sent by Sri Virendra Kumar Dwivedi through Registered Dispatch No. 1035, dated 23.9.1992. What papers were received through this registered dispatch and in whose possession are they?” (English translation by the Court) 25. On the one hand the department was not cooperating with Inquiry Officer by making available relevant documents, and, on the other hand, the District Magistrate continued to insist upon Inquiry Officer to submit report expeditiously. This is evident from District Magistrate’s letters dated 7.5.1993 and 5.6.1993. On the one hand the department was not cooperating with Inquiry Officer by making available relevant documents, and, on the other hand, the District Magistrate continued to insist upon Inquiry Officer to submit report expeditiously. This is evident from District Magistrate’s letters dated 7.5.1993 and 5.6.1993. I find it appropriate to reproduce letter dated 5.6.1993 sent by District Magistrate to Inquiry Officer, as under: ^^Jh ohjsUnz dqekj f}osnh l0ck0ok0u0 rglhy tkykSu ds foHkkxh; dk;Zokgh esa vkidks esjs vkns’k fnukad 29-9-92 ds }kjk tkap vfèkdkjh fu;qDr fd;k x;k Fkk ftlesa fu/kkZfjr le; lkj.kh ds vUrxZr tkap vk[;k izLrqr djus ds fy;s vis{kk dh x;h Fkh ysfdu yxHkx 8 ekg dk le; O;rhr gks x;k gS blds i’pkr Hkh vkids Lrj ls tkap vk[;k ugh Hksth x;h gS tcfd bl lEcU/k esa vkidks bl dk;kZy; }kjk ik’okZfdar i= Hksts x;s gSaA 1- i= la0 % eseks@9&th0lh0 fnu0 30-12-92 2- i= la0 % eseks@9 &th0lh0 fn0 18-1-93 3- i= la0 % eseks@9 th0lh0 3-2-93 4- i= la0 % eseks@9 th0lh0 fn0 26-3-93 5- i= la0 % eseks@9 th0lh0 fn0 7-5-93 vr,o vkils ;g vuqjks/k gS fd vki bl izdj.k dh tkap vk[;k ,d lIrkg ds vUnj fHktokuk lqfuf’pr djsaA** “You were appointed inquiry officer in a departmental proceeding against Sri Virendra Kumar Dwivedi, A.W.B.N., Tahsil-Jalaun through my order dated 29.9.1992 requiring you to present inquiry report within the stipulated time schedule. However, nearly eight months has passed yet you have not submitted inquiry report from your end, despite the fact that the letters as mentioned on the margin have been sent to you from this office 1. Letter No. : Memo/9-G.C., dated 30.12.1992 2. Letter No. : Memo/9-G.C., dated 18.1.1993 3. Letter No. : Memo/9-G.C., dated 3.2.1993 4. Letter No. : Memo/9-G.C., dated 26.3.1993 5. Letter No. : Memo/9-G.C., dated 7.5.1993 Hence, you are requested to kindly ensure submission of inquiry report of this matter within a week.” (English translation by the Court) 26. Then only, vide letter dated 7.6.1993, Tehsildar admitted to have received leave applications alongwith medical certificates in respect to period of absence from 20.1.1992 to 3.2.1992, 25.3.1992 to 4.4.1993 and 14.9.1992 and onwards. It is thereafter the Inquiry Officer submitted inquiry report dated 21.7.1993 in respect to charge-sheet dated 29.9.1992. 27. Then only, vide letter dated 7.6.1993, Tehsildar admitted to have received leave applications alongwith medical certificates in respect to period of absence from 20.1.1992 to 3.2.1992, 25.3.1992 to 4.4.1993 and 14.9.1992 and onwards. It is thereafter the Inquiry Officer submitted inquiry report dated 21.7.1993 in respect to charge-sheet dated 29.9.1992. 27. Strangely enough, this Court also find that leave applications alongwith medical certificate are available in the record of departmental inquiry produced before this Court but the Inquiry Officer has said that same were not available though received by department. 28. Similarly, in respect to charge-sheet dated 28.6.1993, the record show that relevant documents, i.e., relied on evidence in the charge-sheet, were not made available to Inquiry Officer and demanding the same he sent letter dated 27.7.1993. This letter reads as under: ^^dk;kZy; ijxukf/kdkjh] tkykSu i=kad%&eheks@,l0 Vh0 fnukad tqykbZ 27] 1993 fo"k;%&Jh ohjsUnz dqekj f}osnh lgk0 ok0ok0u0 rglhy tkykSu ds fo:) py jgh foHkkxh; dk;Zokgh esa i=koyh Hkstus ds laca/k esaA izHkkjh vf/kdkjh] la;qDr dk;kZy; tkykSu LFkku&mjbZ Ñi;k mi;qZDr fo"k;d vius i=kad la[;k eheks@ukS&th0lh0 fnukad 26 tqykbZ 1993 dk lanHkZ xzg.k djsaa A ftlds }kjk mDr deZpkjh dh f}rh; foHkkxh; dk;Zokgh dh tkap vk[;k vfoyEc pkgh xbZ gSA bl laca/k esa Ñi;k esjs i=kad la[;k eheks@,l0Vh0 fnukad 7 tqykbZ 1993 dk voyksdu djsaA ftlds }kjk vkils mDr deZpkjh ds fo:) yxk;s x;s vkjksiksa ds lEcfU/kr leLr dkxtkr miyC/k djkus gsrq fy[kk x;k FkkA fcuk vfHkys[kksa ds tkap dk;Zokgh esa foyEc gks jgk gSA Ñi;k Jh f}osnh dh f}rh; foHkkxh; dk;Zokgh ls lacafU/kr dkxtkr vfoyEc Hkstus dk d"V djsaA g0 v0 ¼,l0ds0 f=ikBh½ ijxukf/kdkjh] tkykSuA** “Office of Sub-Divisional Magistrate, Jalaun Letter No : Memo S.T. Dated : July 27th, 1993 Subject : Sending of file in relation to the ongoing departmental proceeding against Sri Virendra Kumar Dwivedi, A.W.B.N., Tahsil Jalaun. Incharge Officer, Joint Office, Jalaun at Urai. Kindly refer to your Letter No. Memo-9-G.C., dated 26th July, 1993 on the subject above mentioned, whereby inquiry report in relation to the second departmental proceeding against the said official has been sought. In this respect kindly go through my Letter No. Memo/S.T., dated July 7th, 1993 requiring you to supply all the papers related to the charges levelled against the said official. For want of documents the inquiry proceeding is getting delayed. Kindly send the papers related to the second departmental proceeding against Sri Virendra Kumar Dwivedi without any delay. In this respect kindly go through my Letter No. Memo/S.T., dated July 7th, 1993 requiring you to supply all the papers related to the charges levelled against the said official. For want of documents the inquiry proceeding is getting delayed. Kindly send the papers related to the second departmental proceeding against Sri Virendra Kumar Dwivedi without any delay. Sd/- Illegible (S.K. Tripathi) Sub-Divisional Magistrate, Jalaun” (English translation by the Court) 29. Further, the same officer, i.e., Sub-Divisional Magistrate, Jalaun, vide letters dated 31.7.1993 and 9.8.1993, recommended suspension of petitioner. The Incharge District Magistrate sent letter dated 13.8.1993 to Inquiry Officer informing that, though, alongwith charge-sheet, all relevant documents were furnished, still in reference to Inquiry Officer’s letter dated 27.7.1993, relevant documents for departmental inquiry are being sent again. The record however does not show, when aforesaid letter was received by Inquiry Officer. The petitioner, however, submitted reply to charge-sheet on 1.8.1993. 30. The District Magistrate, however, sent telegram to Inquiry Officer to submit inquiry report within a week. It is in reference thereto, alongwith a covering letter dated 5.9.1993, the Inquiry Officer submitted inquiry report dated 5.9.1993. The covering letter dated 5.9.1993 reads as under: ^^Ñi;k vius dk;kZy; i= la[;k eheks @ eks&th0lh0 fnukad 26 tqykbZ 1993 dk voyksdu djus dh Ñik djsaA ftlds }kjk Jh ohjsUnz dqekj f}osnh lgk0 ok0ok0 u0 rglhy tkykSu dh nwljh foHkkxh; dk;Zokgh dh tkap vk[;k vfoyEc pkgh xbZ gSA bl laca/k esa vuqjks/k djuk gS fd vkjksih deZpkjh ds }kjk viuk tcko nkf[ky djus esa foyEc fd;k x;k gSA vkSj foHkkxh; dk;Zokgh ls lacfU/kr i=tkr Hkh foyEc ls izkIr gq;s gSaA vr% vc Jh f}osnh lgk0ok0ok0u0 rglhy tkykSu dh foHkkxh; dk;Zokgh dh tkap vk[;k layXu dj izsf"kr dh tk jgh gSA** “Kindly refer to Memo/Mo-G.C. dated 26th July, 1993 of your office seeking early submission of inquiry report in relation to second departmental proceeding against Sri Virendra Kumar Dwivedi, A.W.B.N. In this context it is to submit that there has been delay on the part of the delinquent official in filing his response. Papers related to departmental proceeding have also been received belatedly. Hence, now the inquiry report in relation to the departmental proceeding against Sri Dwivedi, A.W.B.N., Tahsil Jalaun is being sent herewith.” (English translation by the Court) 31. In the entire record produced before this Court there is no document which may show that Inquiry Officer ever held any oral inquiry. Papers related to departmental proceeding have also been received belatedly. Hence, now the inquiry report in relation to the departmental proceeding against Sri Dwivedi, A.W.B.N., Tahsil Jalaun is being sent herewith.” (English translation by the Court) 31. In the entire record produced before this Court there is no document which may show that Inquiry Officer ever held any oral inquiry. The letter dated 29.4.1993, moreover, relied by respondents to demonstrate that petitioner himself declined to avail any oral opportunity, cannot be a relevant document in the context of charge-sheet dated 28.6.1993. 32. Moreover, it is also evident from aforesaid letter dated 29.4.1993 as also various letters given by Inquiry Officer to Tehsildar and District Magistrate, Jalaun at Orai seeking Tehsildar’s report dated 2.4.1992, that the said report was not made available to him for sufficiently long time and at no point of time any oral inquiry was held by Inquiry Officer fixing a date enabling department to prove charges. 33. The procedure for holding inquiry is provided in Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as “CCA Rules”) which were applicable at that time i.e. in 1992 and 1993, and Rule 55(1), relevant in this case, reads as under: “55. (1) Without prejudice to the provisions of the public Servant Inquiries Act, 1850 an order (other than an order based on facts which had led to his conviction in a criminal Court or by a Court material) of dismissal, removal or reduction in rank (which includes reduction to a lower post or time scale, or to a lower stage in a time scale but excludes the reversion to a lower post of a person who is officiating in a higher post) shall be passed on a person who is a member of a Civil Service, or holds a civil post under the State unless he has been informed in writing of the ground on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The Grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The Grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegation as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considered necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the ground thereof. The officer conducting the inquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Government servant.” 34. The above rule shows that an oral inquiry is must where charges are not admitted. Holding of oral enquiry is mandatory before imposing a major penalty as held by the Apex Court in State of U.P. and another v. T.P.Lal Srivastava, 1997 (1) LLJ 831 , as well as by a Division Bench of this Court in Subhash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 . 35. The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari v. State of U.P. and others, 2008(3) ESC 1667 and the Court clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment. This Court has said in paras 10 and 11 of the judgement as under: “10. This Court has said in paras 10 and 11 of the judgement as under: “10. ————— Non holding of oral inquiry in such a case is a serious matter and goes to the root of the case. 11. A Division Bench of this Court in Subhash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subhash Chandra Sharma v. U.P. Cooperative Spinning Mills and others, 2001 (2) UPLBEC 1475 and Laturi Singh v. U.P. Public Service Tribunal and others, Writ Petition No. 12939 of 2001, decided on 6.5.2005.” 36. In view of above exposition of law, I have no hesitation in observing that the entire proceedings against the petitioner are in utter violation of principle of natural justice. 37. Be that as it may, there is one more aspect to be seen. For the period the petitioner is alleged to be absenting himself unauthorisedly, it is not disputed that he submitted leave applications alongwith medical certificate. However, it is not the case of respondents that those applications were considered by Competent Authority and any order was passed thereon. It is also not the case of respondents that petitioner’s application seeking regularization of period of absence as leave on medical ground was found bogus, fictitious or incorrect and rejected at any point of time. The record shows that those applications remain unattended and undisposed of. Here it would be important to look into the relevant provisions dealing with the matter of leave of Government servants. 38. The Government servants in the matter of leave are governed by Chapter X, Vol. II, Part II to IV of the Financial Handbook, i.e. U.P. Fundamental Rules. Before proceeding further it would be necessary to understand the concept of leave. It is not that an employee who is appointed on a particular date, on the next very date may proceed on leave but the leave has to be earned by the employee concerned in accordance with Rules. 39. F.R. 59 provides that a leave is earned by a Government servant. The conditions whereunder the same can be earned, are as under: “59. 39. F.R. 59 provides that a leave is earned by a Government servant. The conditions whereunder the same can be earned, are as under: “59. Except as provided in Fundamental Rules 83 and 83-A, leave is earned by a Government servant under Sections I to V of this Chapter if he holds a lien on a permanent post or would hold a lien on such a post had his lien not been suspended. Exception.—Government servants who hold quasi-permanent posts in the settlement Department in a substantive capacity shall earn leave under Sections I to V of this Chapter.” 40. F.R. 60 further provides that the leave is earned by duty only. Meaning thereby it is not a mere incident of appointment but the actual duty by the employee concerned which would cause him earning of leave and not otherwise. F.R. 60 reads as under: “60. Leave is earned by duty only. For the purpose of this rule a period spent in foreign service counts as duty if contribution towards leave salary is paid on account of such period.” 41. Thereafter the kind of leave which may be granted to a Government servant are provided in F.R. 66 and reads as under: “66. Except as expressly mentioned otherwise, leave, other than special disability leave and leave extending beyond the date of compulsory retirement, may be granted by such authorities subordinate to the Government as the Governor may by rules or orders, specify.” 42. F.R. 67 provides that leave cannot be claimed as of right and in the exigencies of service, the discretion to refuse or revoke leave is reserved to the authority competent to grant the same. F.R. 67 reads as under: “67. Leave cannot be claimed as of right, when the exigencies of the Public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it.” 43. A Government servant when can be permitted to join duty after availing medical leave, the procedure is provided vide F.R. 71 which reads as under: “71. No Government servant who has been granted leave on Medical Certificate may return to duty without first producing a medical certificate of fitness in such form as the Governor may be rule or order prescribe. No Government servant who has been granted leave on Medical Certificate may return to duty without first producing a medical certificate of fitness in such form as the Governor may be rule or order prescribe. The Government may require a similar certificate in the case of any Government servant who has been granted leave for reasons of health, even though such leave was not actually granted on a medical certificate.” 44. F.R. 73 deals with exigencies where the Government servant has not joined service after end of leave and reads as under: “73. A Government servant who remains absent after the end of his leave is entitled to no leave salary for the period of such absence, and that period will be debited against his leave account as though it were leave on half average pay, unless his leave is extended by the Government. Wilful absence from duty after the expiry of leave may be treated as misbehaviour for the purpose of Rule 15. Note.—In the case of a Government servant governed by leave rules laid down in Fundamental Rule 81-B and Subsidiary Rule 157-A, who remains absent after the end of his leave, the period of such over stayal of leave should, unless there leave is extended by the competent authority, be treated as follows: (a) if the Government servant is in superior service and holds a lien on a permanent post.— (i) as leave on private affairs to the extent such leave is due, unless the overstayal is supported by a medical certificate; (ii) as leave on medical certificate to the extent such leave is due, if the overstayal is supported by the medical certificate; (iii) as extraordinary leave to the extent the period of leave on private affairs and/or on medical certificate falls short of the period of overstayal; (b) if the Government servant is in superior service without a lien on a permanent post or in inferior service, as in (a) (ii) and (iii) above mutatis mutandis. The period of overstayal of leave will be debited as leave taken out no leave salary will be paid for such period unless it is covered by an extension of leave granted by the competent authority.” 45. F.R. 81 provides that the leave may be granted at the discretion of the authority competent to grant the same and reads as under: “81. F.R. 81 provides that the leave may be granted at the discretion of the authority competent to grant the same and reads as under: “81. Leave may be granted at the discretion of the authority competent to grant the leave, subject to the following restrictions in respect of Government servants for whom a leave account is maintained: (a) The maximum amount of leave which may be granted expressed in terms of leave on average pay is— (i) one-eleventh of the period spent on duty; on in the case of a Government servant recruited before January 1, 1922, who his formerly been subject to the leave rules in the Civil Service Regulations, the period of privilege leave which was permissible to grant to him under those rules on the date on which he ceases to be subject to them, plus one-eleventh of the period spent on duty subsequent to the date; plus (ii) two and half years: Provided that special disability leave on half average pay or on average pay under Rule 83(7) (a) shall not be take into account in calculating the maximum prescribed by this clause, and in the case of such leave taken on average pay, under Rule 83(7)(b), account shall be taken of only half the period thereof. (b) The maximum amount of leave on average pay including any furlough on average salary taken under rules in force prior to January 1, 1922, but excluding special disability leave on average pay under Rule 87(7)(a) which may granted is— (i) four months at any one time; and (ii) in all, one-eleventh of the period spent on duty; or in the case of a Government servant recruited before January 1, 1922 who has formerly been subject to the leave rules in the Civil Service Regulations, the period of privilege which was permissible to grant to him under those rules on the date on which he ceased to be subject to them, plus one-eleventh of the period spent on duty subsequent to that date: Provided that in the case of a Government servant, who either takes leave on medical certificate other than leave preparatory to retirement or spends his leave elsewhere than in India, Pakistan, Ceylon, Nepal, Burma or Adan, the maximum leave on average pay which may be granted to him is eight months at any one time if he was recruited before January 1, 1931 and six months at any one time if he was recruited on or after January 1, 1931, and before January 1, 1936, and, in all, the total period mentioned in Clause (b) (ii) above, plus one years of six months according as he was recruited before January 1, 1931, or on or after that date but before January 1, 1936. (c) Save in the case of leave preparatory to retirement, leave not due may be granted subject to the following conditions: (i) on medical certificate, without limit of amount; and (ii) otherwise that on medical certificate, for not more than three months at any one time and six months in all, reckoned in terms of leave on average pay. Note.—In case where a Government servant who has been granted leave not due under this clause applies for permission to retire voluntarily the leave not due shall, if the permission be granted, he cancelled and his retirement shall have effect from the date on which such leave commenced. (d) The maximum period of continuous absence from duty on leave granted otherwise than on medical certificate is twenty-eight months. This period shall in no circumstances be exceeded by a Government servant who is no leave preparatory to retirement. (d) The maximum period of continuous absence from duty on leave granted otherwise than on medical certificate is twenty-eight months. This period shall in no circumstances be exceeded by a Government servant who is no leave preparatory to retirement. (e) When a Government servant returns from leave which was not due and which was debited against his leave account, no leave will become due to him until the expiration of a fresh period spent on duty sufficient to earn a credit of leave equal to the period of leave which he took before it was due.” 46. F.R. 81-B(2) and (3) deals with leave on medical certificate and leave on private affairs and reads as under: “(2) Leave on medical certificate.—(i) A Government servant to whom these rules apply may be granted leave on medical certificate not exceeding twelve months in all during his entire service. Such leave shall be given only on production of a certificate from such medical authority as the Governor may by general or special order specify in his behalf and for a period not exceeding that recommended by such medical authority: Provided that when the maximum period of twelve months is exhausted further leave on medical certificate not exceeding six months in all during entire service may be granted in exceptional cases on the recommendation of a medical board; Provided further that in all cases in which Government servants may have before the date of application of these rules to them availed of leave on medical certificate under Fundamental Rule 81-B and Subsidiary Rules 157 or 157-A, a, the case may be, the period of such leave availed of, under Fundamental Rule 81-B and Subsidiary Rule 157-A, as the case may be, and half the period of such leave availed of under Subsidiary Rule 157, shall be taken into account in calculating the leave due to them under this rule. (ii) Under this rule leave up to sixty days may be granted by the competent authority on recommendation of the authorised medical authority. Leave exceeding this period may not be granted unless the competent authority is satisfied that there is a reasonable probability that the Government servant will be fit to return to duty on the expiry of the leave applied for. Leave exceeding this period may not be granted unless the competent authority is satisfied that there is a reasonable probability that the Government servant will be fit to return to duty on the expiry of the leave applied for. (3) Leave on private affairs.—A Government servant to whom these rules apply may also be granted leave on private affairs not exceeding three hundred and sixty-five days in all during his entire service. (i) He shall be entitled to thirty-one days’ leave on private affairs in every calendar year. The following procedure shall be deemed to have come into force with effect for 1st July, 1979; in regard to calculation of leave on private affairs in respect of Government servants serving in the State. (ii) Leave on private affairs shall be credited in advance, in the leave account of every Government servant in two half-yearly instalments in each calendar year. Sixteen days’ leave on private affairs shall be credited on the first day of January and fifteen days’ leave on private affairs on the first day of July of every calendar year. (iii) When the total of leave on private affairs amounts to three hundred and sixty-five days, a Government servant shall cease to earn such leave. (iv) The leave on private affairs at the credit of a Government servant at the close of the previous half year shall be carried forward to the next half year, subject to the condition that the leave so carried forward plus the credit for the half year do not exceed a maximum limit of three hundred and sixty-five days. (v) In the case of a Government servant appointed on or after July 1, 1979, the leave on private affairs shall be credited at the rate of 2 1/2 (two and half) days for each completed calendar month of service which he is likely to render in a half year of the calendar year in which he is appointed. (vi) The credit of leave on private affairs under Clauses (i) and (ii) above shall be reduced by one-tenth of the period of extraordinary leave availed of during the previous half year subject to a maximum of fifteen days. (vi) The credit of leave on private affairs under Clauses (i) and (ii) above shall be reduced by one-tenth of the period of extraordinary leave availed of during the previous half year subject to a maximum of fifteen days. (vii) In the case of a Government servant who ceased to be a Government servant due to retirement, resignation, death or any other reason in a particular half year, the leave on private affairs shall be credited to his leave account at the rate of 2 1/2 (two and a half) days for each completed calendar month up to the date he ceases to be a Government servant. In such cases the deduction on account of extraordinary leave availed of from the beginning of that particular half year up to the date he ceases to be a Government servant, shall be made from leave on private affairs credited to his leave account for that particular half year. If the leave on private affairs already availed of is more than the credit so due to him necessary adjustment shall be made in respect of leave salary, if any, overdrawn. Therefore, before any payment of leave salary and/or pay is made to the Government servant concerned in respect of that month in which he ceases to be a Government servant, it shall be duly ensured by the competent authority that the leave on private affairs in excess of the credit so due to him has not been sanctioned and overpayment of leave salary has not been made. (viii) While affording credit of leave on private affairs fraction of a day shall be rounded off to the nearest day. (ix) A Government servant on leave on the last day of a half year shall be entitled to avail of the leave on private affairs to be credited to his leave account on the first day of the following half year of the calendar year, subject to the condition that the competent authority has reason to believe that the Government servant shall return to duty on its expiry. (x) The leave accounts of Government servants in respect of leave on private affairs as they existed before the commencement of these rules shall be closed and leave on private affairs at their credit on June 30, 1979 shall be carried forward to their new leave account to be maintained in Form 11-E enclosed to these rules. (x) The leave accounts of Government servants in respect of leave on private affairs as they existed before the commencement of these rules shall be closed and leave on private affairs at their credit on June 30, 1979 shall be carried forward to their new leave account to be maintained in Form 11-E enclosed to these rules. (xi) Every order sanctioning leave on private affairs, issued by the competent authority in respect of Government servants subordinate to him shall indicate the balance of leave on private affairs at the credit of the Government servant concerned at that time. (xii) The maximum period of leave on private affairs that may be granted to a Government servant at a time shall be ninety days if spent in India. Leave on private affairs may be granted to him exceeding a period of ninety days but not exceeding one hundred and eighty days if the entire leave so granted or any portion thereof is spent outside India but the period of such leave spent in India shall not in the aggregate exceed the limit of ninety days; (xiii) No leave may be granted under this sub-rule unless the authority competent to sanction leave has reason to believe that the Government servant will return to duty on its expiry or unless it is included in leave preparatory to retirement. (xiv) In all cases in which Government servants may have, before the commencement of these rules, availed of leave on private affairs under Fundamental Rule 81-B and Subsidiary Rule 157-A, the period of leave so availed of shall be taken into account in arriving at the amount of leave on private affairs admissible under this sub-rule. For this purpose, the Government servant shall be deemed to have earned the leave on private affairs, not three hundred and sixty-five days, under the provision of these rules, from the date of their continuous service, whether in a temporary or a permanent capacity. If leave in excess of three hundred and sixty-five days has been taken by a Government servant before the application of this sub-rule in his case, the minus balance shall be waived and no further leave shall be earned by him. If leave in excess of three hundred and sixty-five days has been taken by a Government servant before the application of this sub-rule in his case, the minus balance shall be waived and no further leave shall be earned by him. In other cases where a Government servant has availed of leave in excess of the leave admissible on the date but not exceeding the list of three hundred and sixty five days, it shall be adjusted against the leave on private affairs that will be earned by him subsequently.” 47. The above provision pertaining to leave on medical certificate was substituted vide notification dated 19.8.1996 published in U.P. Gazette dated 26.10.1996 and in respect to leave on private affairs, vide notification dated 21.12.1992 published in U.P. Gazette dated 5.3.1994. 48. F.R. 81-B(5) provides for extraordinary leave and reads as under: “(5) Extraordinary leave.— A Government servant to whom these rules apply may be granted extraordinary leave on accordance with the provisions of Fundamental Rule 85, read with Fundamental Rule 18.” 49. F.R. 85 thereafter deals with the extraordinary leave and reads as under: “85. (a) Extraordinary leave may be granted in special circumstances (1) when no other leave is by rule admissible, or (2) when, other leave being admissible, the Government servant concerned applies in writing for the grant of extraordinary leave. Such leave is not debited against the leave account. No leave salary is admissible during such leave. (b) The authority which has the power to sanction leave may grant extraordinary leave as in Clause (a) in combination with, or in continuation of, any leave that is admissible and may commute retrospectively period of absence without leave into extraordinary leave.” 50. The petitioner, in the case in hand, applied for leave on medical grounds but since no decision has been taken thereon and his ground of absence, i.e., medical reasons, has not been found to be bogus or fictitious, it cannot be said that his absence was wholly unjust, unauthorised and travel within the realm of “misconduct”. 51. FR 67 though said that leave cannot be claimed as matter of right but it confers a discretion upon competent authority to refuse leave of any description in the exigencies of public service, if so required. Further the power to grant leave of any kind is also reserved and within the discretion of authorities empowered to grant it. 51. FR 67 though said that leave cannot be claimed as matter of right but it confers a discretion upon competent authority to refuse leave of any description in the exigencies of public service, if so required. Further the power to grant leave of any kind is also reserved and within the discretion of authorities empowered to grant it. That being so, unless and until a request of leave, even if made subsequently by a Government servant, is considered and leave application of concerned employes is disposed of, it cannot be said that his absence was uncalled for or illegal. 52. FR 81-B clearly provides the manner in which an employee can submit his application before joining after remaining absent on account of medical reasons and that the competent authority has to pass appropriate order thereon. 53. FR 81-B(2)(i) clearly talks of an order to be passed by competent authority on an application seeking leave on medical grounds. Therefore, unless such an order is passed, it cannot be said that absence of employee concerned is unauthorised and unjust constituting misconduct. 54. Looking to the aforesaid facts and circumstances, this Court finds it strange that respondents-Competent Authority on the one hand kept petitioner’s leave applications pending and undisposed of and on the other hand shown more interest and eagerness to proceed against petitioner treating the period of absence, unauthorised, constituting misconduct, and that too, so grave, to justify removal of service. The attitude and conduct shown by respondents-authorities is apparently unjust, illegal and shows lack of impartiality, fairness and bona fide on their part. 55. This Court also find it strange that in such matters the authorities can act in such a reckless manner so as to cause not only a serious prejudice to Government employee concerned but also cause apparent visible loss to State Exchequer since their action can not be sustainable apparently in judicial review. For this reason I am of the view that it is not the Public Exchequer which must suffer but those responsible for such reckless and mindless action, must suffer the consequences. 56. The writ petition is allowed. The impugned punishment order dated 15.9.1993 is hereby quashed. Petitioner shall be entitled for all consequential benefits. For this reason I am of the view that it is not the Public Exchequer which must suffer but those responsible for such reckless and mindless action, must suffer the consequences. 56. The writ petition is allowed. The impugned punishment order dated 15.9.1993 is hereby quashed. Petitioner shall be entitled for all consequential benefits. However, the arrears of salary, if any found payable to petitioner for the period, he remained out of employment, on account of palpably illegal inquiry and punishment order, the same be recovered by respondent-State from the officer(s) concerned, who conducted such faulty inquiry and passed such illegal order. However, this recovery shall precede a departmental inquiry as prescribed in law. 57. The petitioner shall also be entitled to cost, which I quantify to Rs. 10,000/-. —————