Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2760 (ALL)

Hemant Kumar Rai v. State of U. P.

2023-12-07

AJIT KUMAR

body2023
JUDGMENT : Ajit Kumar, J. In view of the fact that original records relating to disciplinary proceedings in question have been produced before the Court, both the learned counsel for the petitioner and learned Additional Chief Standing Counsel agree that this petition can be heard and decided at this stage itself. 2. Heard Sri V.K. Singh, learned Senior Advocate assisted by Sri Samarath Singh, learned counsel for the petitioner and Sri P.K. Srivastava, learned Additional Chief Standing Counsel for the State. 3. Sri Hemant Kumar Rai, the present petitioner, is aggrieved by the punishment order dated 9.10.2023 passed by the State Government inflicting upon him major penalty in the nature of withholding two annual increments with cumulative effect and further directing recovery of a sum of Rs. 44,84,006.00 for the loss caused to the Government. 4. The disciplinary authority hold petitioner guilty for not discharging duties of his office during the relevant period and thus by his act and conduct he violated the conduct rules under U.P. Government Servants Conduct Rules, 1956. Petitioner has been held guilty on the basis of findings returned against him by the enquiry officer in his report dated 24.9.2021. 5. The ground raised for assailing the order is that in the matter of disciplinary proceedings initiated against him under the U.P. Government Servants (Discipline and Appeal) Rules, 1999, inquiry as required to be held under Rule 7 of the said Rules, was not held as per the procedure prescribed and therefore, the disciplinary authority was not justified in accepting the report holding the petitioner guilty for the findings so returned and imposing major penalty. 6. It is argued that the oral enquiry as contemplated under rule 7 of 1999 Rules by recording statement of petitioner as a delinquent employee as well as that of the departmental witnesses had not taken place and therefore, the enquiry stood vitiated in law in the light of settled legal proposition relating to departmental enquiry in the matters of major penalty. 7. Learned counsel for the petitioner in support of his argument has relied the judgment of Supreme Court in the case of Salahuddin Ansari v. State of U.P. and others, 2008(4) ADJ 58 and submits that when the enquiry itself is not sustainable the punishment order based upon such enquiry is equally not sustainable and is liable to go. 8. 7. Learned counsel for the petitioner in support of his argument has relied the judgment of Supreme Court in the case of Salahuddin Ansari v. State of U.P. and others, 2008(4) ADJ 58 and submits that when the enquiry itself is not sustainable the punishment order based upon such enquiry is equally not sustainable and is liable to go. 8. Per contra it is argued by learned Additional Chief Standing Counsel that the petitioner had been accorded proper opportunity to appear before the enquiry officer to submit reply and face enquiry but the petitioner himself chose to only submit reply and he having not made any request for oral enquiry, it would be taken that the accused acquiesced to the procedure adopted by the enquiry officer. It is further argued that the petitioner has been given proper show-cause notice to which he had given reply and disciplinary authority imposed penalty after having considered his reply and so now petitioner cannot complain of not being afforded proper opportunity to defend his case. 9. In compliance of the earlier order passed by this Court dated 22.11.2023 original records have been produced before the Court and have been examined by the Court. 10. Before coming to the argument advanced by learned counsel for the petitioner, it is necessary to refer to certain crucial fact aspects involved in the matter of departmental enquiry qua the case in hand. 11. Initially petitioner while working as Assistant Commissioner, Commercial Tax, Gorakhpur was served with a charge-sheet of embezzlement of certain money by exercising power beyond the authority vested in him which resulted in the loss of public money and thus, petitioner was charged with misconduct under the U.P. Conduct Rules, 1956. This charge-sheet was issued to the petitioner on 25.6.2018 to which he did submit reply but the entire departmental enquiry was held ex parte in the sense that petitioner was not served with any notice to appear before the enquiry officer. After the enquiry report was duly submitted by the enquiry officer on 15.12.2015, petitioner was issued with a show-cause notice on 7.3.2019 alongwith the enquiry report to which petitioner submitted his reply on 28.3.2019. 12. After the enquiry report was duly submitted by the enquiry officer on 15.12.2015, petitioner was issued with a show-cause notice on 7.3.2019 alongwith the enquiry report to which petitioner submitted his reply on 28.3.2019. 12. It is pleaded in the writ petition that in reply to the show-cause notice, petitioner reiterated that he was not afforded any opportunity to participate in the enquiry proceedings to get his statement recorded or to get the other witnesses examined even though he had denied charges. It is further pleaded in the writ petition that while his reply was pending consideration that on 22.2.2021 upon permission being accorded by the higher authority petitioner was issued with the supplementary charge-sheet. It transpires from the permission granted by the State Government dated 16.2.2021 that a punishment was earlier sought to be imposed upon the petitioner pursuant to the first round of departmental proceedings for withholding two annual increments with cumulative effect to make good the financial loss caused to the State, however, the U.P. Public Service Commission disagreed with the proposed punishment of recovery of Rs. 44,84,046.00 because there was no such charge leveled in the charge-sheet and so petitioner had no opportunity to meet the charges. 13. Thus, the respondents proceeded to hold enquiry pursuant to a supplementary charge-sheet served upon the petitioner on 12.3.2021 to which petitioner duly submitted his reply, comprehensive enough, on 15.9.2021 denying the charges and also pleaded that he had no liability in the matter as the tax liability was upon the Firm, in the matter of which tax appeal filed by the Firm came to be allowed and the matter was remitted to be heard afresh. 14. Hence the pleading was that once the tax liability of Firm was set aside in appeal, there cannot be said to any loss caused to public exchequer as such. After the departmental enquiry was held report was sent on 24.9.2021 and petitioner was issued with show-cause notice on 3.10.2021. Petitioner again submitted his reply questioning the enquiry report being de hors the procedure prescribed, as no oral enquiry was held. However, the disciplinary authority proceeded to impose the major penalty by the order impugned which is also questioned in this petition. 15. In order to appreciate the argument of learned counsel for the petitioner, first I proceed to examine the relevant enquiry rules as provided for under the Rules, 1999. However, the disciplinary authority proceeded to impose the major penalty by the order impugned which is also questioned in this petition. 15. In order to appreciate the argument of learned counsel for the petitioner, first I proceed to examine the relevant enquiry rules as provided for under the Rules, 1999. Rule 7 of the enquiry rules provided for enquiry to be held for major penalty and the entire rule 7 is reproduced hereunder: ''7- Procedure for imposing major penalties-Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner: (i) The Disciplinary Authority may himself inquiry into the charges or appoint an Authority Subordinate to him as Inquiry Officer to inquire into the charges. (ii) The Facts constituting the misconduct on which it is proposed to take action shall be reduced in the from of definite charge or charges to be called charge -sheet. The charge-sheet shall be approved by the Disciplinary Authority. Provided that where the Appointing Authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department. (iii) The charge farmed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet. (iv) The charge Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex parte (v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government Servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charge Government servant shall be permitted to inspect the same before the Inquiry Officer. (vi) Where the charged Government Servant appears and admits (vii) charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission. (vii) Where the charged Govenment Servant denies the charge the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charge Government Servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in h is defence: Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii) The inquiry officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental inquiries (Enforcement of Attendance of witnesses and production of documents) Act 1976. (ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date the Inquiry Officer shall proceed with the inquiry ex parte. (x) Where the charged Government Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite 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. (xi) The disciplinary Authority, if it considers if necessary to do so, may by an order appoint a Government Servant or a legal practitioner to be known as ''Presenting Officer'' to present on its behalf the case in support of the charge. The Government servant may take the assistance of any other (xii) Government Servant to present the case on this behalf but not engage a legal practitioner for the purpose unless the presenting office appointed by the Disciplinary Authority is a legal practitioner of the disciplinary Authority having regard to the circumstance of the case so permits. Provided that the rule shall not apply in following cases: (i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge. or (ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to held an inquiry in the manner provided in these rules; or (iii) Where the Governor satisfied that, in the interest of the security of the state, it is not expedient to hold an inquiry in the manner provided in these rules.'' (emphasis added) 16. From the perusal of aforesaid rule, it is explicit that in the event delinquent employee denies the charges, the disciplinary authority shall proceed to hold oral enquiry by fixing dates, inviting the petitioner to get his statement recorded and then on his request the enquiry officer also call for departmental witnesses to be examined. The enquiry officer on his own may also call for departmental witnesses to be examined. For not requiring the departmental witness to remain present for examination, the enquiry officer is required to record specific reasons. 17. Thus, from the above, it is obvious that the rules do provide holding of oral enquiry. The enquiry officer on his own may also call for departmental witnesses to be examined. For not requiring the departmental witness to remain present for examination, the enquiry officer is required to record specific reasons. 17. Thus, from the above, it is obvious that the rules do provide holding of oral enquiry. A division bench of this Court in the case of Salahuddin Ansari v. State of U.P. and others, 2008(4) ADJ 58 , has followed an earlier judgment of the Court in the case of Subhash Chandra Sharma v. Managing Director, 2000 (1) UPLBEC 541 , wherein, it was held that in the event no oral enquiry was held it would amount to violation of principles of natural justice. The division bench then referred to the judgment in the case of State of U.P. and another v. T.P. Lal Srivastava, 1997 (1) LLJ 831 , wherein, the Supreme Court has held that even if there is reply to the charge-sheet, the enquiry officer would still be under obligation to hold oral enquiry and submit report as to whether charge was proved or not. Thus, vide para 13 and 14 the Court held thus: ''13. The aforesaid exposition of law makes it clear that the delinquent employee has a right to defend himself at different stages. When the charge-sheet is served upon him, he has a right to submit his reply and in case he does not submit reply, that itself would not amount to admission of guilt or that the charge stand proved. If the allegations are serious and may result in major penalty, the disciplinary authority may appoint Inquiry Officer. Such Inquiry Officer, thereafter would have to fix a date for oral evidence. At this stage the delinquent employee has a right to participate in the oral inquiry, examine witnesses, if produced by the department, and after the evidence of the department is completed, the delinquent employee may produce evidence in his defence. During the course of oral inquiry, the delinquent employee has right to participate at every stage and date and if there is any failure in participation on one or more occasions, the Inquiry Officer cannot deny him participation from the subsequent stage. The delinquent employee can participate at subsequent other stage also. During the course of oral inquiry, the delinquent employee has right to participate at every stage and date and if there is any failure in participation on one or more occasions, the Inquiry Officer cannot deny him participation from the subsequent stage. The delinquent employee can participate at subsequent other stage also. The Inquiry Officer, after completion of oral inquiry, will submit its report after discussing the entire material and if any charge is proved, the disciplinary authority shall supply a copy of the inquiry report to the delinquent employee and he would again have a right to submit reply to the inquiry report. 14. Non holding of oral inquiry, therefore, is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment.'' (emphasis added) 18. This above view came to be reiterated in Janardan Prasad Yadav v. State of U.P. and others. In the said judgment the division bench also followed the Supreme Court judgment in the case of Chamoli District Cooperative Bank, AIR 2016 SC 2510 and vide para 21 held thus: ''21. The Apex Court in State of Uttranchal and others v. Kharak Singh, (2008) 8 SCC 236 , had occasion to examine various contours of natural justice which need to be specified in a departmental inquiry. The Apex Court noticed earlier judgments where principles were laid down as to how inquiry is to be conducted. It is useful to refer paragraphs 9, 10, 11, 12, 13 and 15, which are to the following effect: .....9. Before analyzing the correctness of the above submissions, it is useful to refer various principles laid down by this Court as to how enquiry is to be conducted and which procedures are to be followed. 10. The following observations and principles laid down by this Court in Associated Cement Co. Ltd. v. The Workmen and another [1964] 3 SCR 652, are relevant: ...... In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact that the three enquiry officers claimed that they themselves had witnessed the alleged misconduct of Malak Ram. Mr. Kolah contends that if the Manager and the other officers saw Malak Ram committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. Mr. Kolah contends that if the Manager and the other officers saw Malak Ram committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye-witness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an officer claims that he had himself seen the misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer. How the knowledge claimed by the enquiry officer can vitiate the entire proceedings of the enquiry is illustrated by the present enquiry itself......... ..... It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry. 11) In ECIL v. B. Karunakar, (1993) 4 SCC 727 , it was held: (1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. 11) In ECIL v. B. Karunakar, (1993) 4 SCC 727 , it was held: (1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show-cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. The second stage consists of the issuance of the notice to show-cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges. * * * Article 311(2) says that the employee shall be given a ''reasonable opportunity of being heard in respect of the charges against him''. The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311(2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. (12) In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and another, (1999) 2 SCC 2, it was held: 34. (12) In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and another, (1999) 2 SCC 2, it was held: 34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee -- even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases. (13) In Syndicate Bank and others v. Venkatesh Gururao Kurati, (2006) 3 SCC 150 , the following conclusion is relevant: 18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice. 15. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice. 15. From the above decisions, the following principles would emerge: (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any. (emphasis added) 19. Thus, it is very much clear that oral enquiry is sine quo non which is prescribed for under rule 7 of the Rules, 1999 in respect of major penalties. 20. In view of the above settled legal proposition, now I proceed to examine the original records produced before the Court. 21. (emphasis added) 19. Thus, it is very much clear that oral enquiry is sine quo non which is prescribed for under rule 7 of the Rules, 1999 in respect of major penalties. 20. In view of the above settled legal proposition, now I proceed to examine the original records produced before the Court. 21. In so far as the enquiry report is concerned pursuant to the first charge-sheet, I would not have gone into that but since the second charge-sheet is an additional charge-sheet only for the reason that Public Service Commission had refused to accord its approval to the proposed punishment pursuant to the earlier charge-sheet and the additional charge means in additional to the charges already leveled against the petitioner and since this time additional charge was only in respect of the financial loss, even the procedure followed in the first enquiry report is also required to be considered. 22. Now looking to the first enquiry report as is available in the original records, I find that enquiry officer did not provide any opportunity to the petitioner to participate in the enquiry as neither any date was fixed, nor any place was disclosed for the petitioner to appear before the enquiry officer. The enquiry report only records the charge and then refers to the explanation offered by the petitioner and then finally concludes that the petitioner was guilty of the charges. The covering letter of the enquiry officer discloses that delinquent employee sought time to furnish reply and ultimately submitted reply on 7.10.2018. Between 7.10.2018 and 15.12.2018 the enquiry officer could have fixed dates for the petitioner to appear and further would have given an opportunity to him to ask for any departmental witness to be examined but no such exercise had been undertaken, at least the records are silent. Even if the petitioner did not ask for any oral enquiry in view of settled legal position as discussed above, enquiry officer was hide bound in law to hold an oral enquiry. From the reply submitted by the petitioner to the earlier charge-sheet which is available on record and as is also reflected from the enquiry report that he had denied the charges. 23. From the reply submitted by the petitioner to the earlier charge-sheet which is available on record and as is also reflected from the enquiry report that he had denied the charges. 23. In such circumstances therefore, it was imperative on the part of enquiry officer to have held oral enquiry but he failed to do so and submitted report upon which punishment order was proposed to be passed but was disapproved by the U.P. Public Service Commission. It is after the U.P. Public Service Commission had refused to accord approval that the State Government proceeded to approve an additional charge and to hold a separate enquiry in respect of such additional charge while maintaining the earlier held departmental enquiry. Resultantly petitioner was served with an additional charge-sheet on 12.3.2021. It appears that a new officer took over as Additional Commissioner Grade-2 namely Mr. Anil Kumar Srivastava in June 2021 and so he wrote a letter on 15.7.2021 to the petitioner to peruse the records if he wanted on 22.7.2021 by putting in his appearance so that enquiry report could be submitted. Petitioner did appear before the enquiry officer and submitted reply on 15.7.2021 denying the charges. Now after the petitioner submitted his reply on 15.7.2021, the original records shows that the petitioner had appeared before the enquiry officer. The record also shows that on 13.7.2021 the Joint Commissioner, Head Quarter, Lucknow wrote to the enquiry officer to conclude the enquiry and submit report within 15 days. 24. The reminder was made on 26.8.2021 and a similar letter was got issued from the Headquarter of the department on 27.8.2021. Thus, it appears disciplinary authority compelled the enquiry officer to somehow submit a report in respect of additional charge-sheet and so the enquiry officer did submit report dated 24.9.2021. From the order/note sheet that has been placed on the top of the record does not show that any date or time had been fixed for the delinquent employee to appear for his oral statement, even though he had denied the charges. The covering letter of the enquiry officer records that petitioner had appeared pursuant to the subsequent notice dated 14.9.2021 and wanted a week's time to submit reply but he had also submitted a written reply in his defence on 15.9.2021. The covering letter of the enquiry officer records that petitioner had appeared pursuant to the subsequent notice dated 14.9.2021 and wanted a week's time to submit reply but he had also submitted a written reply in his defence on 15.9.2021. Beyond that, there is nothing in the covering letter to demonstrate that any date was fixed or time schedule was given and place was notified by the enquiry officer to hold any oral enquiry. Neither the petitioner's statement as delinquent employee was recorded, nor the departmental witnesses, if any, was examined. This second enquiry report thus also stands vitiated for the same reason for which the first enquiry report stood vitiated. 25. Now based upon this enquiry report the respondents proceeded to give a show-cause notice to the petitioner to which petitioner replied but the disciplinary authority ultimately held petitioner guilty of the charges on the basis of enquiry report and awarded punishment which is now impugned herein in this petition. The order dated 30.5.2018 which is an order of punishment clearly records the findings returned by the enquiry officer in his report dated 18.9.2019 and also the subsequent report dated 24.9.2021 on the additional charge-sheet and then proceeded to pass order of punishment. The only document available for the respondent State to hold the petitioner guilty of the charges are the two enquiry reports and nothing more. In every para of the order impugned, the findings returned by the enquiry officer has been referred to and relied to hold the petitioner guilty of the charges so as to inflict upon him with the punishment under the order impugned. 26. Now since the order impugned is based upon the enquiry reports that are in fact de hors the procedure prescribed and cannot be sustained in law, I am equally not able to sustain the order impugned which is a resultant action based upon such enquiry reports. 27. In the circumstances, therefore, it would be more appropriate that the enquiry into the charges is held after and the petitioner is given opportunity to get his statement recorded and also get the departmental witnesses examined, if he so desires. 28. In view of the above, writ petition succeeds and is allowed. Both the enquiry reports dated 18.9.2019 and 24.9.2021 as well as the order impugned dated 9.10.2023 are hereby quashed. The matter is remitted to the stage of enquiry. 28. In view of the above, writ petition succeeds and is allowed. Both the enquiry reports dated 18.9.2019 and 24.9.2021 as well as the order impugned dated 9.10.2023 are hereby quashed. The matter is remitted to the stage of enquiry. Petitioner shall be appearing before the disciplinary authority alongwith the copy of this order and the disciplinary authority thereafter, will be holding oral enquiry in accordance with law and in the light of Government Order dated 19th July 2022. Petitioner's reply is already there with the enquiry officer and this time the enquiry officer shall fix a date, time and notify the place where he would be holding enquiry and requiring the petitioner to get his statement recorded. The petitioner will have an opportunity to present list of witnesses to whom he may like to cross-examine. This time the enquiry officer shall record oral statements, examination and cross-examination of witnesses as per the procedure prescribed under the Rules, 1999. After the enquiry report is submitted, it will be open for the respondents to proceed afresh in the light of findings returned by the enquiry officer and the reply, if any, submitted by the petitioner after show-cause notice if issued to him. 29. Original records are returned to learned Additional Chief Standing Counsel.