M.C. Tripathi, J.@mdash1. Dr. Atul Darbari is before this Court for issuance of a writ, order or direction in the nature of certiorari quashing the
order dated 4.2.2016 passed by respondent No. 1.
2. This Court, on the presentation of the writ petition in question on 8th March, 2016, had proceeded to pass the following order:-
Supplementary affidavit filed today be accepted and taken on record.
Put up this matter on next Tuesday i.e. 15.3.2016 in computer list and on the next date fixed apart from obtaining requisite instructions relevant
record be also produced.
3. On the matter being taken up on 15.3.2016, in compliance of the order of this Court dated 8.3.2016, Shri Pankaj Rai, Additional Chief
Standing Counsel has produced the original record.
4. The background facts of this case are that the petitioner was initially appointed as Medical Officer in Employees State Insurance Labour
Medical Services in the year 1989 and was posted as Medical Officer in ESI Dispensary, Naini, Allahabad. At present, he is discharging his duties
as Medical Officer, ESI Dispensary-I, Naini, Allahabad. On 21.9.2012 the petitioner received a charge sheet dated 24.8.2012, which was
approved by the Principal Secretary, Labour, Government of UP, Lucknow, from the Enquiry Officer, alleging that while working as Nodal
Officer, Court Cases, K.R.B. Scheme, Labour Medical Services, the petitioner did not provide the certified copy of the judgement and order of
this Court dated 12.3.2004 passed in Writ Petition No. 8350/1991, as a result of which directives issued by this Court in the order dated
12.3.2004 were complied with after long delay and the services of ineligible candidates, namely Shri Vijay Narayan Yadav, E.C.G. Technician and
Shri Ram Lakhan Saini, O.T. Technician, were dispensed with on 11.5.2010. The Government unnecessarily had to pay Rs. 17,41,755/- towards
salary to the ineligible candidates with effect from 12.3.2004 to 11.5.2010. The petitioner was charged for performing his duties with negligently
and carelessly, as a result of which loss of Rs. 17,41,755/- had occurred to the Government and patients were at risk in taking help of ineligible
candidates during the treatment. The petitioner submitted his reply to the charge sheet dated 24.8.2012. On 1.3.2013 the petitioner received a
supplementary charge sheet dated 15.1.2013 containing seven charges to which he submitted a detailed reply. Thereafter the respondent No. 2
submitted his enquiry report dated 29.9.2014 to the charge sheet dated 24.8.2012 and another enquiry report dated 14.10.2014 to the
supplementary charge sheet dated 15.1.2013.
5. It has been alleged that by complete misreading of the enquiry reports and on distorted facts, a show cause notice dated 13.1.2015 was served
on the petitioner stating that out of 8 charges, six charges were found proved against the petitioner and he was asked to submit his reply in this
regard. Pursuant to the show-cause notice, the petitioner had replied in detail containing 200 pages on 20.2.2015. Thereafter, the petitioner was
also afforded an opportunity of personal hearing before the Principal Secretary, Labour on 27.8.2015. It has been averred in the writ petition that
as per information received by the petitioner, the respondent No. 1 i.e. Principal Secretary, Labour had proceeded to absolve the petitioner from
all the charges but the said decision was not communicated to him. Suddenly on 13.2.2016 the petitioner received a charge sheet dated 4.2.2016
signed by the enquiry officer (without mentioning his designation), which was approved by the Principal Secretary, Labour containing the same 8
charges for which the enquiry had already been concluded on 27.8.2015. Thereafter the petitioner had proceeded to obtain certain information,
and then it transpired that an order dated 4.2.2016 has been passed by the respondent No. 1 by which she did not agree with the earlier enquiry
reports dated 29.9.2014 and 24.10.2014 wherein the earlier enquiry initiated vide order dated 24.8.2012 has been dropped and a denovo
enquiry (re-enquiry) has been directed to be conducted into the matter. The same are extracted hereinbelow:-
6. Shri Shashi Nandan, Senior Advocate assisted by Shri Ram Krishna, appearing for the petitioner submitted before us that the impugned order
dated 4.2.2016 is in teeth of Circular/Government Order dated 22.4.2015, which provides that if disciplinary/appointing authority disagrees with
the report of enquiry officer, then he shall record his proposed opinion and reason and would communicate the same to the delinquent employee. It
also proceeded to make a mention that in such case the enquiry should be completed in a time bound period and as such, the impugned order
dated 4.2.2016 passed by respondent No. 1 cannot sustain in the eye of law and in the present facts and circumstances no re-enquiry could be
made. He further made submission that while passing the order impugned the respondent No. 1 had not not given any reason for disagreement with
the enquiry reports and as such, the same is contrary to Rule 9 of U.P. Government Servants (Discipline & Appeal) Rules, 1999 (in short, Rules
1999). In pith and substance, it has been argued that the impugned order dated 4.2.2016 is simple harassment to the petitioner as the earlier
enquiry continued for more than three years and once the enquiry officer had come to the logical conclusion, the respondent No. 1 passed the
impugned order without assigning any reason or giving any reason for disagreement with the earlier enquiry reports in question. He further made
submission that on 8.3.2016 this Court had proceeded to direct learned Standing Counsel for producing the original record and as per record in
question, this much is reflected that while exercising such power for re-enquiry no point of disagreement had been averred in the record in question
and the same had been passed on their own whims and fancies and as such, the impugned order cannot sustained and is in teeth of the provisions
contained in Rule 9 of Rules 1999. The order impugned is malafide and the same has been passed keeping in mind that all the retiral benefits of the
petitioner can be forfeited.
7. On the other hand, Shri Pankaj Rai, Additional Chief Standing Counsel alongwith Shri Sanjay Kumar Singh, Standing Counsel has vehemently
opposed the writ petition precisely on the ground that the present discretion, which has been exercised by the answering respondent, is strictly in
accordance with law. Record itself speaks that at no point of time the petitioner had been exonerated from all the charges levelled against him and
as per Rules 1999, the respondent No. 1 has ample powers to issue direction for re-enquiry into the matter. The materials were available before
the respondent No. 1 for disagreeing the enquiry reports, which were submitted on 29.9.2014 and 14.10.2014 and as such, the allegations
levelled against the answering respondent do not have any legs and without substantiating such materials, no otherwise inference can be drawn and
as such, allegation of arbitrariness is unwarranted and unsustainable and no indulgence is required in the matter. Shri Pankaj Rai has further
submitted that once the disciplinary authority comes to the conclusion that the enquiry officer has failed to properly investigate the facts, then in
such situation the competent authority has ample powers to issue direction for re-enquiry.
8. Be that as it may, the question is whether the disciplinary authority could have resorted to such a practice of abandoning the enquiry already
undertaken and resort to appointment of a fresh enquiring officer.
9. In the present matter, initially the charge sheet dated 24.8.2012 was served on the petitioner on 21.9.2012 after approval from the Principal
Secretary, Labour, U.P. Lucknow to which he submitted his reply. Thereafter the enquiry officer had proceeded to serve the supplementary
charge sheet dated 15.1.2013 on the petitioner containing seven charges. The same was also replied by the petitioner. The respondent No. 2 had
proceeded to submit the enquiry report on 29.9.2014 to the initial charge sheet dated 24.8.2012 with a conclusion that after perusal of the
explanation submitted by the petitioner and the evidences filed in support of the explanation, it is clear that a letter dated 22.3.2005 was sent from
the Directorate during the tenure of the petitioner serving Nodal Officer with a direction to obtain the certified copy of the order of this Court dated
12.3.2004 and provide the same to the Directorate. The said letter was received by Shri A.N. Pandey, Suit Clerk on 30.3.2005 but the said letter
in question was not produced before the petitioner by Shri Pandey. Therefore, the allegation was not found proved against the petitioner. The
enquiry officer had again proceeded to submit the enquiry report on 14.10.2014 to the supplementary charge sheet dated 15.1.2013 in which the
petitioner was not found guilty. Thereafter, the petitioner was served with the show cause notice dated 13.1.2015 alleging that out of 8 charges, 6
charges were found proved against the petitioner and he was asked to submit his reply. The petitioner had proceeded to submit exhaustive reply
on 20.2.2015 containing more than 200 pages to the said show cause notice. No doubt in the present matter, even the personal hearing was also
afforded by the Principal Secretary of the department on 27.8.2015. It has been averred in para-14 of the writ petition that after giving an
opportunity of personal hearing the Competent Authority had proceeded to exonerate the petitioner from all the charges but the said order was not
communicated to him. All of sudden on 13.2.2016 the petitioner was served with a charge sheet dated 4.2.2016 signed by the enquiry officer and
approved by the Principal Secretary, Labour containing the same 8 charges, which were already subject matter in the earlier enquiry, and the same
had already been concluded on 27.8.2015 in which the petitioner was exonerated from all the charges.
10. We have occasion to peruse the order impugned and find that nothing has been enumerated in the order impugned to indicate the points of
disagreement with the enquiry reports in question. While passing the order impugned the competent authority at no point of time had considered
any concrete material available on record for disagreeing with the earlier enquiry reports dated 29.9.2014 and 14.10.2014.
11. As per original record, this much is reflected that much reliance has been placed that in similar circumstances, certain punishment had been
imposed on the other officers, who were involved in the case. Therefore, on this additional fact, the competent authority has taken a decision that
once the punishment has been imposed on the other persons, who were involved in the case, then in the present matter, the denovo enquiry is
required to be conducted.
12. We have also occasion to peruse the original record in question and find that no doubt certain observation was made that the disciplinary
enquiry was held against the then Medical Superintendent Dr. (Smt.) Vipula Vajpayee and Shri Shailendra Rai, who was posted as Pharmacist and
the charges were found proved against them and consequently recommendations were made to the U.P. Public Service Commission to take
suitable action against them. Only on the basis of the said observation, the initiation of denovo enquiry against the petitioner, solely relying on the
report submitted against the then Medical Superintendent and Pharmacist, is not sustainable in law.
13. The controversy in hand has been subjected to detailed scrutiny by a Constitution Bench of the Supreme Court in K.R. Deb V/s. the Collector
of Central Excise, Shillong , AIR 1971 SC 1447 in which Hon''ble Apex Court has proceeded to examine the question in the context of Rule
15(1) Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was a case where an enquiry was ordered
against a sub-Inspector, Central Excise. The inquiry officer held that the charge was not proved. Thereafter the disciplinary authority appointed
another inquiry officer ""to conduct a supplementary open inquiry"". Such supplementary inquiry was conducted and a report that there was ""no
conclusive proof"" to ""establish the charge"" was made. Not satisfied, the disciplinary authority thought it fit that ""another inquiry officer should be
appointed to inquire afresh into the charge"". In K.K. Deb''s case (supra) Hon''ble Supreme Court observed that an Enquiry Officer may be asked
by the Disciplinary Authority to record further evidence if there had been no proper enquiry because of some serious defect or because some
important witnesses were not examined. The Court categorically held therein that the previous enquiry could not be set aside on the ground that the
report of the Enquiry Officer did not appeal to the disciplinary Authority. Relevant paragraphs 12 and 13 of the judgement are reproduced
hereinafter:-
12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no
proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or
for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for
completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary
Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector,
instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not
warranted by the rules but was harassing to the appellant.
14. In Union of India and others V/s. P. Thayagarajan , 1999 (2) An. W.R. 106 (SC) : (1999) 1 SCC 733, the Supreme Court reiterated the
principle that the disciplinary authority could order a denovo enquiry when it found that the enquiry officer had not followed the correct procedure
in taking the evidence of witnesses and not merely because the Enquiry Officer''s report did not appeal to the said authority.
15. In Kanailal Bera V/s. Union of India and others , (2007) 11 SCC 517, the Supreme Court observed:
6 ....... Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be
arrived at as to whether the delinquent officer is guilty of charges leveled against him or not. In a given situation further evidences may be directed
to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him
another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry.
16. It appears that the respondent No. 1 dissatisfied with such earlier enquiry reports, ordered a de novo enquiry under the impugned order dated
4.2.2016 and appointed Shri Rudra Kumar Gupta, Special Secretary, Labour Department, Government of UP as Enquiry Officer. This practice of
the respondent No. 1 in carelessly and callously discarding enquiry reports, which are not to its liking and ordering for denovo enquiry without
even disclosing the reasons, which weighed with it for rejecting the findings of the previous enquiry Officer, is a clear transgression of the law and
requires to be deprecated in the strongest terms.
17. In Union of India V/s. M.L. Capoor and others , AIR 1974 SC 87, the Supreme Court observed:
28. ... Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind
is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the
facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and
reasonable....
18. Again in S.N. Mukherjee V/s. Union of India , AIR 1990 SC 1984, a Constitution bench of the Supreme Court had occasion to observe:
35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt
facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also
weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These
considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of
arbitrariness and ensures a degree of fairness in the process of decisions-making. ''the said purpose would apply equally to all decisions and its
application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that
reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether
the decision is subject to appeal, revision or judicial review....
19. ''Reasons'' are the milestones which chart the journey of the ''decision-maker'' in reaching his destination. Absence of reasons thus leaves the
decision-making process without a rudder and open to arbitrariness. Viewed in this light, the approach of respondent No. 1 in instituting denovo
enquiry by appointing Enquiry Officer afresh without even setting aside the findings recorded by the earlier Enquiry Officer, giving due reasons
therefor, is clearly unsustainable in law.
20. In the present matter, it has been urged that the impugned order is in teeth of Rules 8 and 9 of Rules 1999. For ready reference, Rules 8 and 9
of Rules 1999 are extracted:-
8. Procedure for imposing major penalties - (1) No order imposing any of the major penalties specified in Rule 6 shall be made except after an
inquiry is held as far as may be, in the manner provided in this rule and Rule 10, or, provided by the Public Servants (Inquiries) Act, 1850 (37 of
1850) where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or
misbehaviour against a member of the Service, it may appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850,
as the case may be, an authority to inquire into the truth thereof.
(3) Where a Board is appointed as the inquiring authority it shall consist of not less than two senior officers provided that at least one member of
such a Board shall be an officer of the service to which the member of the service belongs.
9. Action on Inquiry Report.-- (1) The Disciplinary Authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same
or any other Inquiry Officer under intimation tot he 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.
(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.
(3) In case the charges are not proved, the charged Government servant shall be exonerated the Disciplinary Authority of the charges and informed
him accordingly.
(4) If the Disciplinary Authority, having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be
imposed on the charged 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 speaking order imposing one or more penalties mentioned in Rule 3 of these rules and
communicate the same to the charged Government servant.
21. It is apparent that Rule 8(1) prohibits imposition of any major penalty without holding an enquiry either in accordance with the procedure
prescribed under the Rules or under the provisions of the Public Servants (Inquiries) Act, 1850. Rule 8(2) specifically authorises the disciplinary
authority to appoint an authority to enquire into the truth of any imputation of misconduct or misbehaviour against a member of the service if the
disciplinary authority is of the opinion that there are grounds to inquire into. Such an authority could be appointed either in exercise of the power
conferred under Rules or under provisions of the Public Servants (Inquiries) Act, 1850. Rule 8(3) contemplates appointment of a Board as an
Inquiring Authority and stipulates that such Board shall consist of not less than two senior officers of whom at least one should be an officer of the
service to which the delinquent officer belongs. The expression ""Board"" is not defined under the Rules. The only conclusion that can be drawn from
the scheme of Rules 8(2) & (3) is that the expression ''Enquiring Authority'' implies either a single member authority or Board consisting of two or
more members.
22. Rule 9 prescribes action on the enquiry report. Rule 9(1) provides that the Disciplinary Authority may, for reasons to be recorded in writing,
remit the case for re-inquiry 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)
provides that 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) provides that in case the charges are not proved, the charged Government servant shall be exonerated the
Disciplinary Authority of the charges and informed him accordingly. Rule 9(4) provides that if the Disciplinary Authority, having regard to its finding
on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government Servant, he shall give a
copy of the inquiry report and his finding recorded under sub-rule (2) of Rule 9 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, passes a
reasoned order imposing one or more penalties mentioned in Rule 3 of these and communicate the same to the charged Government Servant.
23. It can be seen from the above that the normal rule is that there can be only one enquiry. Hon''ble Apex Court has also recognized the
possibility of a further enquiry in certain circumstances enumerated therein. The decision, however, makes it clear that the fact, that the report
submitted by the enquiring authority is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report
and ordering a fresh denovo enquiry. Therefore, we are of the considered opinion that the principle laid down in K.R. Deb''s case, would squarely
apply to the case in hand.
24. Therefore, it becomes necessary for us to examine the legality of the impugned order in the light of the law laid down in K.R. Deb''s case i.e.
whether a further enquiry is really warranted on the facts of the case. The respondent No. 1 did not give any reasons in the impugned order while
disagreeing with the earlier enquiry reports dated 29.9.2014 and 14.10.2014. It is also not reflected from the record in question that at any point
of time the competent authority had proceeded to go through the complete material available on record or assign any reason for disagreeing with
the enquiry reports in question. Nothing has been indicated either in the order impugned or it can be extracted from the record that in the present
matter Rules 1999 had been violated while the enquiry officer had proceeded to conduct the enquiry.
25. In our opinion, on general principles, there can be only one enquiry in respect of charges for a particular misconduct and that is also what the
Rules usually provide. If, for some technical or other good ground, procedural or otherwise the first enquiry or punishment or exoneration is found
bad in law, there is no principle that a second enquiry cannot be initiated. Therefore, when a completed enquiry proceedings is set aside by a
competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible.
26. In the present case, the charge sheet and the supplementary charge sheet were issued and served on the petitioner and after submission of the
enquiry reports dated 29.9.2014 and 14.10.2014, a show cause notice dated 13.1.2015 was again served on the petitioner stating that 6, out of 8
charges against him stood proved. The petitioner was also afforded personal hearing by the Principal Secretary, Labour on 27.8.2015 and
thereafter, in case the competent authority had found some technical flaws or procedural infirmity in the said enquiry in question, the Disciplinary
Authority could direct for fresh proceeding on the same charges, but no such features are available in the present case.
27. A bare perusal of the order impugned and the record in question this much is accepted position that at no point of time the disciplinary
authority had proceeded to give any reason for disagreeing with the earlier enquiry reports in question. Therefore, in these circumstances there is
no justification for conducting a second enquiry on the very same charges. Law is clear on the subject, and permits only disciplinary proceedings
and same cannot be approved as harassment and allowing such practice is not in the interest of public service. Same view has also been approved
by Hon''ble Apex Court in Nand Kumar Verma vs. State of Jharkhand and others , (2012) 3 SCC 580 and Vijay Shankar Pandey vs. Union of
India and another , (2014) 10 SCC 589.
28. We, therefore, have no hesitation in holding that the impugned order dated 4.2.2016 for denovo/a fresh enquiry against the petitioner on the
same charges, which were subject matter of the enquiry reports dated 29.9.2014 and 14.10.2014, is illegal and arbitrary; and hence, is liable to be
set aside. The impugned order dated 4.2.2016 is consequently set aside.
29. The writ petition is accordingly allowed and the respondent No. 1 is directed to take appropriate decision in the light of the enquiry reports
dated 29.9.2014 and 14.10.2014 within a period of two months from the date of production of a certified copy of this order before him. There
shall be no order as to costs.