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2022 DIGILAW 1550 (ALL)

Ajai Kumar v. State Of U. P.

2022-09-26

ALOK MATHUR

body2022
JUDGMENT : Alok Mathur, J. 1. Heard Sri Jaideep Narain Mathur, Senior Advocate assisted by Sri Shobhit Mohan Shukla for the petitioner, Sri Vivek Shukla, learned Additional Chief Standing counsel along with Sri Prafulla Yadav, Standing counsel for State-opposite parties, Sri R. K. Upadhyay for opposite party No.3 and Sri Ashok Shukla for opposite party No.6. 2. By means of the present writ petition the petitioner has assailed the order dated 16.5.2021 passed by the State Government thereby awarding punishment to the petitioner of reversion along with censure entry. Further the advice of U.P Public Service Commission dated 19.2.2021 has also been challenged. The petitioner has further challenged the order dated 22.7.2019 passed by Additional Chief Secretary (Appointment Department), Government of U.P, whereby order of re-enquiry has been passed in exercise of powers under Rule 7 and 9(1) of U.P. Government Servants (Discipline and Appeal) Rules, 1999. The petitioner has also sought for a direction to the opposite parties not to give effect to the impugned order dated 16.5.2021 and also to allow the petitioner to work on the post of Sub Divisional Officer, regularly with all consequential benefits. 3. It has been submitted by learned counsel for the petitioner that having been selected on the post of Naib Tehsildar the petitioner started working on 19.12.1993 under the control of Board of Revenue, U.P. He was subsequently transferred/appointed on the post of Officer on Special Duty (Land Management) under New Okhla Industrial Development Agency (NOIDA), U.P., Gautam Buddha Nagar on 3.2.2009 till 16.4.2012 and thereafter he was posted at Board of Revenue U.P., Lucknow. 4. The controversy in the present case arose during his posting as an Officer of Special Duty (Land Management), NOIDA. The petitioner was placed under suspension by the Commissioner, Meerut Division, for causing loss to the Government property and subsequently decision was taken for initiating disciplinary proceedings against the petitioner and he was placed under suspension. The order of suspension was revoked by the Board of Revenue on 13.8.2012. It has been submitted that during the aforesaid period the petitioner was considered for promotion in the cadre of U.P. Civil Service (Executive Branch) and the Departmental Promotion Committee recommended his promotion on 3.9.2012 but he was not promoted looking to the disciplinary proceedings pending against him. The order of suspension was revoked by the Board of Revenue on 13.8.2012. It has been submitted that during the aforesaid period the petitioner was considered for promotion in the cadre of U.P. Civil Service (Executive Branch) and the Departmental Promotion Committee recommended his promotion on 3.9.2012 but he was not promoted looking to the disciplinary proceedings pending against him. It is on the intervention of this Court in a writ petition preferred by the petitioner that by means of the judgment and order dated 19.12.2012 passed in Service Bench Petition No.1316 of 2012 considering that the suspension of the petitioner had been revoked and no charge sheet has been issued to him and accordingly while disposing the writ petition directed the opposite parties to consider issuance of promotion order in favour of the petitioner if he has been found to be eligible by the D.P.C. The petitioner was served with charge sheet on 19.9.2012 containing 11 charges. All the charges pertain to issuance of a letter by the petitioner on 1.9.2010 written by the petitioner to the Director General (Tourism). It has been submitted that the said letter dated 1.9.2010 was sent in response to the letter of Director General (Tourism), dated 12.8.2010 who had required certain information with regard to the Hotel Golf View Ambedkar Vihar, Village Chhalaira Bangar, Tehsil Dadari, District Gautam Buddha Nagar, NOIDA. The said letter was written after seeking information from the Chief Planner and Architect as well as the Officer on Special Duty (Y) with Chief Executive Officer of NOIDA , and the petitioner was directed to communicate on behalf of NOIDA that actually Hotel Golf View Ambedkar Vihar, Village Chhalaira Bangar, Tehsiil Dadari, District Gautam Buddha Nagar, Noida is situated on abadi land and the NOIDA authority does not have any power to sanction map on a land which is in rural area. It is on the basis of the letter dated 01.09.2010 the opposite parties have come to a conclusion that the petitioner while exercising his power holding the post of Officer on Special Duty (Land Management), NOIDA did not take any action against the said hotel which has been illegally constructed and did not inform the higher authorities about the same and consequently he is guilty of committing causing loss to the Government. It is stated that all the charges pertained to the same issue and most of them are more or less similar in nature. The inquiry officer i.e. Additional Commissioner, Meerut Division, Meerut conducted the inquiry and submitted inquiry report vide letter dated 2.7.2016 where all the 11 charges were found proved against the petitioner. Thereafter the State Government provided copy of the inquiry report to the petitioner vide letter dated 23.5.2017 for submitting his representation/explanation to the inquiry report. 5. The petitioner submitted a detailed reply to the show cause notice on 08.01.2018 which was forwarded by the District Magistrate, Hapur to the State Government and the State Government on 14.08.2018 after considering the reply submitted by the petitioner directed the inquiry officer / Additional Commissioner (Administration ) to re inquire into all the facts and submit his report. Along with the said order Government order dated 22.12.2005 was enclosed and specific query was put to the inquiry officer to indicate as to how the petitioner could have been found guilty in light of order dated 22.12.2005. 6. In pursuance of the order dated 14.8.2018 the inquiry officer re-examined the entire factual matrix and again submitted his report to the State Government recording a finding that the charges against the petitioner were not found proved and he further raised the issue as to how can the Panchayat pass the map of the said Hotel when on the said date the land was vested with Noida authority and also as to under what circumstances the office of District Magistrate registered it as a hotel when the ownership of the land was not clear and as to who are the Engineers responsible for not taking proper steps despite the fact that the said hotel had been constructed without proper sanction of the authorities. 7. The State Government faced with two contradictory inquiry reports dated 4.7.2016 and 31.12.2018 cancelled both the inquiry reports and again in exercise of the powers under Rule 9 (1) of the Rules of 1999 appointed Commissioner, Meerut Division, Meerut as an inquiry officer to re-enquire the matter. 8. Pursuant to the order of re-enquiry against the petitioner the petitioner received a letter from Additional Commissioner, Meerut Division instead of Commissioner who was directed to re-inquire, on 18.10.2019 stating that he has been entrusted with the inquiry and the petitioner was required to submit his reply. 8. Pursuant to the order of re-enquiry against the petitioner the petitioner received a letter from Additional Commissioner, Meerut Division instead of Commissioner who was directed to re-inquire, on 18.10.2019 stating that he has been entrusted with the inquiry and the petitioner was required to submit his reply. The petitioner appeared before Additional Commissioner, Meerut on 02.11.2019 and submitted his reply. Subsequently, realizing the mistake, the Commissioner Meerut Division herself required the petitioner to appear before her on 25.11.2019. The petitioner appeared before the said authority and submitted his reply which he had submitted earlier before the Additional Commissioner, Meerut. It is stated that the inquiry officer did not afford any opportunity of personal hearing or of cross examining any of the witnesses and concluded the said inquiry on 16.7.2020 holding the petitioner guilty of all the charges. The petitioner was given a show cause notice along with copy of the inquiry report by means of order dated 24.7.2020 to which the petitioner replied on 14.9.2020 pursuant to which the impugned order dated 16.5.2021 has been passed reverting the petitioner to the post of Tehsildar and also awarding him censure entry. The impugned order further records that the State Government after considering the reply of the petitioner, was of the view that the petitioner should have been awarded the punishment of withholding two increments along with censure entry and the said recommendation was forwarded to U.P. Public Services Commission for its approval in accordance with the rules and the U.P. Public Services Commission by means of order dated 19.2.2021 was of the opinion that considering the gravity of the charges against the petitioner harsher sentences deserves to be awarded to the petitioner and was, therefore, of the opinion that in the present facts and circumstances of the case he should be awarded the punishment of reversion along with censure entry. The State Government concurred with the view of the Uttar Pradesh Public Service Commission and by means of the impugned order dated 16.5.2021 has awarded the punishment of reversion along with censure entry. 9. Learned counsel for the petitioner has challenged the disciplinary proceedings on the ground that the order dated 27.7.2019 cancelling the inquiry reports dated 04.07.2016 and 31.12.2018 is illegal and arbitrary and passed on incorrect appreciation facts and law. 9. Learned counsel for the petitioner has challenged the disciplinary proceedings on the ground that the order dated 27.7.2019 cancelling the inquiry reports dated 04.07.2016 and 31.12.2018 is illegal and arbitrary and passed on incorrect appreciation facts and law. It is submitted that in case the disciplinary authority disagrees with the inquiry report he has two options open to him, he can either remit the matter to the enquiry officer for re enquiry if conditions contained in Rule 9(1) are fulfilled, or he has an option of recording his disagreement with the enquiry report and proceed with the matter as provided in Rule 9(2) of the rules of 1999, adhering to the conditions prescribed in Rule 9(4) after giving a copy of the enquiry report to the Government servant. It has further been submitted, that once decision has been taken by the disciplinary authority, the matter is fit for re-enquiry then the previous inquiry report is rendered non est, and it cannot be acted upon in the subsequent stage of the enquiry, where only the fresh inquiry report can be relied upon by the disciplinary authority to proceed against the delinquent employee. 10. The learned counsel for the petitioner has submitted that the order dated 22.07.2019 passed by the State Government cancelling both enquiry reports and again resorting to re-inquiry under provision of Rule 9(1) of the rules of 1999 is illegal and arbitrary as such an order cannot be passed without disclosing the infirmity in the enquiry report and as such in the circumstances of the present case, there was no cogent reason for invoking provisions of rule 9(1) of the rules of 1999. 11. It has been submitted that when decision is taken in exercise of powers under rule 9(1) then the matter is remitted to the enquiry officer for conducting the enquiry from the stage of infirmity as determined by the disciplinary authority, and the previous inquiry report which is found to be infirm is rejected. 12. The challenge to the impugned punishment order has also been made on the ground that when the enquiry was conducted by the Commissioner Meerut division, the petitioner was not informed of any date, time and place for the said enquiry and no opportunity was afforded to the petitioner to examine or cross examine any of the witnesses. 12. The challenge to the impugned punishment order has also been made on the ground that when the enquiry was conducted by the Commissioner Meerut division, the petitioner was not informed of any date, time and place for the said enquiry and no opportunity was afforded to the petitioner to examine or cross examine any of the witnesses. It is further stated that the documents relied upon in the charge sheet were not proved, and hence the entire proceedings were conducted in violation of principles of natural justice without giving due opportunity of hearing to the petitioner. 13. Learn counsel for the petitioner has also contended that when the enquiry was ordered for the 2nd time he preferred a representation to the Chief Secretary stating that the order read 22.07.2019 was illegal in arbitrary as re-enquiry for the 2rd time cannot be ordered. It was further stated that once an enquiry report has been submitted exonerating the petitioner it was incumbent upon the Disciplinary Authority to proceed in terms of rule 9(3) or to record his disagreement in accordance with rule 9(2) and pass appropriate orders. It is stated that the Chief Secretary did not consider or decide the representation made by the petitioner. 14. It has been submitted on behalf of the petitioner that the enquiry officer while submitting the enquiry report has not considered the reply submitted by the petitioner, nor has he considered the previous inquiry report dated 31.12.2018 wherein the petitioner was exonerated of all the charges, despite the fact that the inquiry officer was mandated to look into both enquiry reports, and hence it has been submitted that the inquiry report dated 16.07.2020 is illegal in arbitrary and deserves to be set aside. 15. It was lastly contended the disciplinary authority after perusing the inquiry report dated 16.07.2020 as well as the reply of the petitioner had proposed the punishment of stoppage of two annual increments with cumulative effect. The proposal was forwarded to the U.P Public Service Commission under rule 16 of the U.P Government Servant (Discipline and Appeal) Rules 1999. U.P Public Service Commission recommended enhancement of the punishment of reduction in rank, and the State Government has accepted the said recommendation, in the most illegal and arbitrary manner without applying its mind. The proposal was forwarded to the U.P Public Service Commission under rule 16 of the U.P Government Servant (Discipline and Appeal) Rules 1999. U.P Public Service Commission recommended enhancement of the punishment of reduction in rank, and the State Government has accepted the said recommendation, in the most illegal and arbitrary manner without applying its mind. It has been stated that recommendations of the Public Service Commission are also arbitrary being bereft of any cogent reason from which can reflects that it has applied its mind while proposing to enhance the punishment and consequently prayer has been made to set aside the impugned order. 16. The learned standing counsel has opposed the writ petition and submitted that there were serious allegations against petitioner which required to be inquired into, and therefore disciplinary proceedings were instituted against the petitioner where he was afforded full opportunity of hearing, and it cannot be said that there was any infirmity in the disciplinary proceedings leading to award of punishment of reversion to the petitioner. 17. The learned standing counsel also supported the exercise of power under rule 9(1) of the rules of 1999 and submitted that once a disciplinary authority comes to a decision that the inquiry report has certain infirmities then he can direct the inquiry officer to re-inquire into the allegations levelled in the charge sheet. He further submitted that there is no limitation that such exercise of power that it can be resorted to only once during an enquiry, nor is such a restriction discernible from the reading of rule 9(1) of the rules of 1999. Whenever such infirmities in the inquiry report are discovered by the disciplinary authority he would be at liberty to invoke provisions of rule 9(1) of the rules of 1999. 18. Supporting the impugned order, it was submitted that unless it is shown that some prejudice has been caused to the petitioner the inquiry proceedings cannot be set aside merely because of violation of any statutory provision or rule. In support of the contentions learned Standing counsel relied upon the judgement in the case of State Bank of Patiala and others vs S.K.Sharma (1996)3 SCC 364 . 19. I have heard the counsel for the parties and perused the record 20. In support of the contentions learned Standing counsel relied upon the judgement in the case of State Bank of Patiala and others vs S.K.Sharma (1996)3 SCC 364 . 19. I have heard the counsel for the parties and perused the record 20. The disciplinary proceedings were initiated against the petitioner when he was holding the post of Officer on special duty (Land Management) under New Okhla Industrial Development Agency. He was placed under suspension and subsequently the said order was revoked on 13.08.2012. A chargesheet was issued to him on 19.09.2012 containing 11 charges which pertain to issuance of a letter dated 01.09. 2010 sent in response to the letter of the Director General (Tourism) who had required certain information with regard to Hotel Golf View Ambedkar Vihar, NOIDA. The allegations levelled against the petitioner pertained to the fact that the petitioner did not take any action against the said Hotel which was illegally constructed, without approval of map, and also that did not inform the higher authorities about the same. The inquiry officer conducted the inquiry and submitted the inquiry report on 04.07.2016 where all the charges were proved against the petitioner. The Disciplinary Authority provided the copy of the inquiry report to the petitioner vide show cause notice dated 23.05.2017, to which the petitioner replied on 8.01.2018. 21. Considering the reply submitted by the petitioner to the inquiry report, the Disciplinary Authority vide order dated 14.08.2018 directed the inquiry officer/Additional Commissioner (Administration) Meerut to re-inquire into all the facts and to submit his enquiry report. The enquiry officer inquired into the charges against the petitioner again and submitted his inquiry report on 31.08.2018 exonerating the petitioner of all the charges. 22. On receiving the second inquiry report dated 31.12.2018, the State Government by means of impugned order dated 22.07.2019, after recording that there are two conflicting inquiry reports in existence, decided to cancel both the inquiry reports dated 04.07.2016 and 31.12.2018 in exercise of rule 9(1) and further directed the matter be re-inquired by the Commissioner Meerut division. 23. The petitioner has assailed the order dated 22.07.2018 and questioned the exercise of power by the disciplinary authority under rule 9(1) of the Rules of 1999 for sending the matter for re-inquiry only because there were two conflicting inquiry reports. 23. The petitioner has assailed the order dated 22.07.2018 and questioned the exercise of power by the disciplinary authority under rule 9(1) of the Rules of 1999 for sending the matter for re-inquiry only because there were two conflicting inquiry reports. He submits that the said order is illegal and arbitrary and beyond the scope of power vested in disciplinary authority as per rule 9(1) as that the enquiry officer can proceed only in accordance with Rules of 1999, and cannot travel beyond the prescription provided therein, and in the present case he has exercised power under rule 9(1) which could not have been validly exercised by him in the facts of the case. 24. For adjudication of the other matter it will be relevant to refer to Rule 9 of the Rules of 1999 which reads as under:- "Rule 9(1): The Disciplinary Authority may, for reasons to be recorded in writing, remit the case for re-enquiry to the same or any other inquiry officer under intimation to the charged Government Servant. The inquiry officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7. Rule 9(2): The Disciplinary Authority shall, if it disagrees with the findings of the inquiry officer on any charge, record its own findings thereon for reasons to be recorded. Rule 9(3): In case the charges are not proved, the charged Government Servant shall be exonerated by the Disciplinary Authority of the charges and inform him accordingly. Rule 9(4): If the Disciplinary Authority, having regard to its findings on all or any or charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charge Government Servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government Servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government Servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government Servant." 25. It appears from rules of 1999 that same is a self-contained code and the procedure has been prescribed for holding disciplinary inquiry and awarding punishment. After the submission of the Inquiry report where charges are proved, the disciplinary authority proceeds to examine the inquiry report and in case he does not find any infirmity with the enquiry report he shall proceed in terms of rule 9(4) and give a show cause notice to the Government servant requiring him to submit his response to the said report, and on receiving the same, and after consultation with the U.P Public Service Commission, where necessary, may impose any penalty as provided in Rule 3. 26. In case he finds that the inquiry has been held in violation of rule 7, where either the Government servant has not been given adequate opportunity of hearing or for any other cogent reason, the disciplinary authority after recording reasons for not accepting the enquiry report, may order a re-inquiry under Rule 9(1). 27. As is discernible from rule 9(1) the infirmity in the inquiry report, which is the basis for ordering re-enquiry, must be one in relating to violation of the specific procedure provided under Rule 7 of the rules of 1999, in conduct of the enquiry. This aspect is clear from the perusal of rule 9(1) where it is provided that the “inquiry officer shall thereupon proceed to hold inquiry from such stage as directed by disciplinary authority, according to the provisions of rule 7”. Therefore, the disciplinary authority can direct for re-enquiry from the stage of infirmity in the enquiry proceedings as pointed out by him in his order passed under rule 9(1) of the rules of 1999. In exceptional circumstances where there exists serious allegation against the enquiry officer, of bias or misconduct in conducting the enquiry, the disciplinary authority after recording his satisfaction can also invoke rule 9(1). 28. In where the inquiry is conducted:- i. By an authority not authorised by the disciplinary authority to conduct the inquiry, or ii. If the charges in the charge sheet do not fall in the category of “definite charge” or that the charge sheet is not approved by the Disciplinary authority, or iii. 28. In where the inquiry is conducted:- i. By an authority not authorised by the disciplinary authority to conduct the inquiry, or ii. If the charges in the charge sheet do not fall in the category of “definite charge” or that the charge sheet is not approved by the Disciplinary authority, or iii. In case the charge sheet does not give adequate time for reply or is less than 15 days from the charge sheet, or there is no recital that the Government servant may cross examine any witness mentioned in the charge sheet or to produce evidence in his defence, or iv. In case the charge sheet is not duly served upon the Government servant, or v. The Government servant is not permitted to produce witnesses in his defence, or his oral evidence is not recorded despite his request, or vi. He may be of the opinion that proper opportunity has not been given to the Government servant to defend himself are some of the instances in which the disciplinary authority can invoke the powers under rule 9(1) of rules of 1999. 29. The natural corollary to invocation of power and the rule 9(1) of the Rules of 1999 is that the previous inquiry report is set aside, when the re-inquiry is ordered. On passing of an order under rule 9(1), the previous inquiry report becomes non est and cannot be used against the Government servant in the subsequent stage of inquiry. The reasons which must be recorded by the disciplinary authority are about the defect in the enquiry proceedings. Such a defective inquiry which has been so declared by the disciplinary authority, while passing the order under rule 9(1), ceases to exist and hence becomes unactionable, and cannot be relied upon. 30. The Supreme Court has considered this aspect of the matter in the case of State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC where it was held:- “25. A bare perusal of the aforesaid charges shows that the three charges were based on official documents/official communications. We have earlier noticed the relentless efforts made by the respondent to secure copies of the documents, which was sought to be relied upon, to prove the charges. These were denied by the Department in flagrant disregard of the mandate of Rule 7 sub-rule (v). We have earlier noticed the relentless efforts made by the respondent to secure copies of the documents, which was sought to be relied upon, to prove the charges. These were denied by the Department in flagrant disregard of the mandate of Rule 7 sub-rule (v). Therefore the inquiry proceedings are clearly vitiated having been held in breach of the mandatory sub-rule (v) of Rule 7 of the 1999 Rules. 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: “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.” 27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet 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. 31. In the present case the Disciplinary Authority has ordered re-inquiry by means of dated 22.07.2019. The only reason stated in the said order is that there are two conflicting inquiry reports dated 04.07.2016 and 31.12.2018 and for this reason alone the matter has been referred for re-enquiry for the second time. 32. 31. In the present case the Disciplinary Authority has ordered re-inquiry by means of dated 22.07.2019. The only reason stated in the said order is that there are two conflicting inquiry reports dated 04.07.2016 and 31.12.2018 and for this reason alone the matter has been referred for re-enquiry for the second time. 32. The question which arises for consideration is regarding the validity of the order dated 22.07.2019 ordering re-inquiry on the grounds that there were two conflicting enquiry reports in existence, and clearly, no infirmity or defect was pointed out or considered in the second enquiry report dated 31.12.2018. 33. In the instant case the first inquiry report was submitted by the inquiry officer on 04.07.2016 holding the petitioner guilty of all the 11 charges. On 14.08.2018 the decision was taken by the State Government for re-enquiry after considering the reply submitted by the petitioner. In his reply he had submitted that according to the order dated 22.12.2005 passed by NOIDA giving the responsibility of removing the illegal encroachments was of the Project Engineer and not the petitioner, and consequently the petitioner was not responsible for removal of illegal encroachments. The said reply seemed logical and reasonable to the disciplinary authority, and he was of the considered opinion that the inquiry officer had not considered the reply of the petitioner in the correct perspective, and it was thought fit to have the matter re-enquired. 34. It is noticed that the State Government was of the considered view that the earlier inquiry dated 04.07.2016 stood vitiated, as the reply of the petitioner was not considered and more specifically when there was a specific order holding the Project Engineer responsible for removal of any encroachment coming up in the area under by NOIDA, then how could the petitioner be found to be guilty of the said charges, was a question which was posed in the said order itself. 35. The State Government itself had found infirmity in the enquiry report dated 04.07.2016, and according to the judgement of the Supreme Court in the case of State of U.P. v. Saroj Kumar Sinha the first/previous inquiry report was vitiated and ceased to exist. 36. On 22.07.2019 when the State Government was considering the second enquiry report then previous enquiry report dated 04.07.2016 had ceased to exist. 36. On 22.07.2019 when the State Government was considering the second enquiry report then previous enquiry report dated 04.07.2016 had ceased to exist. The only enquiry report which should have been considered by the disciplinary authority was the subsequent enquiry report dated 31.12.2018. The reason stated in the impugned order dated 22.07.2019 that there are “two contradictory inquiry reports” is based on a fallacious belief that the previous inquiry report dated 04.07.2016 was in existence and could be acted upon, which is clearly erroneous, arbitrary and illegal. 37. As discussed earlier, the moment decision is taken by the disciplinary authority invoking the provisions of rule 9(1) of the rules of 1999, the previous inquiry report ceases to exist because of the infirmities as pointed out by the disciplinary authority and consequently the previous enquiry report dated 04.07.2016 was non est and of no consequence, and therefore, could not be taken into consideration by the Disciplinary authority. It is only the subsequent inquiry report dated 31.1.2018 which only could have be considered by the disciplinary authority for further proceedings. 38. The order dated 22.07.2019 is also illegal and arbitrary for the reason that the disciplinary authority did not find any infirmity with the inquiry report dated 31.12.2018, nor any such infirmity has been disclosed in his order. It is the defects/infirmities found in the enquiry report by the disciplinary authority which clothes him which with the authority to exercise the power vested in rule 9(1) of the rules of 1999, in other words pointing out of such infirmity in the enquiry report is a precondition for exercise of power on the disciplinary authority under rule 9(1) of the rules of 1999. It is only when there is an infirmity in conduct of the inquiry in violation of any of the provisions of rule 7 of the Rules of 1999, or there is any other allegation of grave misconduct against the inquiry officer in conducting the said enquiry can the disciplinary authority exercises jurisdiction under rule 9(1) of the rules of 1999, after recording such reasons. No such infirmity has been pointed out considered or stated in the order dated 22.07.2019 for rejecting the inquiry report dated 31.12.2018 which renders the exercise of power by the Disciplinary Authority without jurisdiction, illegal and arbitrary. 39. No such infirmity has been pointed out considered or stated in the order dated 22.07.2019 for rejecting the inquiry report dated 31.12.2018 which renders the exercise of power by the Disciplinary Authority without jurisdiction, illegal and arbitrary. 39. This Court is of the considered view that disciplinary authority while exercising power under Rule 9 would exercise the power in the following manner:- (I) In case there is any procedural defect in conduct of the enquiry as provided for in Rule 7 of the Rules of 1999 or some grave misconduct has been conducted by the Inquiry Officer then the Disciplinary Authority can exercise power under Rule 9(1) of the Rules, 1999. (II) Where in case the Disciplinary Authority disagrees with the Inquiry Officer on the merits of the case or findings recorded by the Inquiry Officer, he must record his disagreement and proceed according to under Rule 9 (2) of the Rules, 1999, following the procedure prescribed under Rule 9(4) of the Rules, 1999. (III) When Inquiry Officer has exonerated the Government employee and Disciplinary Authority agrees with the inquiry report he shall proceed in accordance with Rule 9(3) of the Rules, 1999. 40. It is also noticed that by not following the mandatory provisions for conduct of the inquiry can itself cause prejudice to the Government servant. Procedural fairness is the hallmark of the conduct of disciplinary proceedings. The Rules of 1999 are mere incorporation of the principles of natural justice which deserve to be rigorously followed by the enquiry officer. It is trite law that so far as the statutory provisions are concerned, the law is clear to the effect that if the same requires a thing to be done in a particular manner, then it cannot be done in a different manner and has to be done in that manner alone. The law, therefore, right from 1876 disciplinary authority having failed to exercise his power under rule 9(1) of rules of 1999 in the prescribed manner, vitiates the order dated 22.07.2019 and all the subsequent proceedings. Prejudice has also been caused to the delinquent employee, the disciplinary authority could have accepted the enquiry report exonerating him, and he could have proceeded under rule 9(3) of the Rules of 1999 and dropped the proceedings in his favour. 41. Prejudice has also been caused to the delinquent employee, the disciplinary authority could have accepted the enquiry report exonerating him, and he could have proceeded under rule 9(3) of the Rules of 1999 and dropped the proceedings in his favour. 41. Considering the above, this Court is of the considered view that the order dated 22.07.2019 it is clearly arbitrary and illegal and such an order could not have been passed in exercise of jurisdiction under rule 9(1) of the rules of 1999 and consequently the order dated 22.07.2019 is hereby quashed, and consequently the subsequent enquiry proceedings resulting in enquiry report dated 16.07.2020 as well as punishment order dated 16.05.2021 are quashed. The matter is remitted to the disciplinary authority to proceed with the enquiry from the stage of submission of enquiry report dated 31.12.2018 and pass appropriate orders and proceed in accordance with law. 42. The counsel for the petitioner has also raised other grounds for challenging the impugned order of punishment dated 16.05.2021, where the petitioner was not giving proper opportunity of hearing and no date, time and place was fixed, nor his reply considered by the inquiry officer, rendering the entire enquiry arbitrary and illegal, and also that the U.P Public Service Commission had not given reasons for enhancing the punishment. Considering that this Court has already set aside the order dated 22.07.2019 ordering re-inquiry, it would be futile at this stage to consider the said ground raised by the petitioner, as in any case the enquiry would be proceeded with from the stage of submission of the second enquiry report dated 31.12.2018 to the disciplinary authority, and the petitioner would have adequate opportunity as provided in the Rules. 43. Considering that the enquiry proceedings are pending since last 10 years, it is provided that the enquiry proceedings be concluded within a maximum period of two months from the date a certified copy of this order is produced before the Disciplinary authority, subject to co-operation by the petitioner. 44. In light of the above, the writ petition is allowed. Consequences to follow.