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Central Administrative Tribunal - Lucknow
Vijay Shankar Pandey vs Union Of India Through on 20 December, 2013
      

  

  

 CENTRAL ADMINISTRATIVE TRIBUNAL,
LUCKNOW BENCH, LUCKNOW.

ORIGINAL APPLICATION NO.395/2012

                           Order Reserved on: 31.10.2013     
                      Order pronounced on: 20.12.2013


    HON'BLE SHRI SUDHIR KUMAR, MEMBER(A)
HON'BLE SHRI NAVNEET KUMAR, MEMBER(J)

Vijay Shankar Pandey,
Son of Sri Ram Prakash Pandey,
Resident of 33/2, Stanley Road,
Allahabad. 							... Applicant

(By Advocate Shri A.Tiwari)

VERSUS

1. Union of India through
Secretary, Department of Personnel
& Training, Ministry of Personnel,
Public Grievances & Pensions,
North Block,
New Delhi.

2. State of Uttar Pradesh
through the Principal Secretary,
Department of Appointment,
Government of U.P.,
Civil Secretariat,
Lucknow.							 .Respondents

(By Advocate S/Shri U.N.Mishra/Rajendra Singh)

O R D E R

Per Shri Sudhir Kumar, Member (A):

The applicant of this O.A. is a senior officer of the Indian Administrative Service of Uttar Pradesh Cadre. He is before us in this O.A. aggrieved by the impugned order dt. 26.9.2012, whereby report of an Inquiry Officer which had supposedly exonerated the applicant has been rejected by the Respondent No.2 State of Uttar Pradesh, and a Board of Inquiry comprising of two Members has been constituted, to conduct the further inquiry against the applicant. He has alleged that the impugned order had been passed in gross violation of All India Service (Discipline & Appeal) Rules, 1969, (1969 Rules, in short), and is without any validity under law.

2. At the beginning of the arguments of the case itself, both the counsel for the applicant, as well as for the respondent No.2  State of U.P., had, in their own manner, explained the context of the case. It was explained that this case has arisen out of the alleged actions taken by the applicant in connection with the filing of Writ Petitions (Civil) No.37/2010 and 136/2011, which had been filed before the Honble Apex Court under Article 32 of the Constitution of India, with the applicant being one of the many petitioners who had filed those Writ Petitions. These Writ Petitions ultimately came to be clubbed with Writ Petitions (Civil) No.176/2009 and SLP (Civil) No.11032/2009, and decided by the Honble Apex Court on 04.07.2011 under the name and citation of the case Ram Jethmalani and others vs. Union of India and others, (2011) 8 SCC 1. It was explained on behalf of the applicant that the applicant had filed this case as a Member of a Non-Governmental Organization, India Rejuvenation Initiative, the members of which were the Writ Petitioners in the said WP(C) No.37/2010 and 136/2011. It was also submitted before us that the applicant had done this in his individual capacity, and not as an officer, and, therefore, the adverse comments made against the actions or inactions on the part of the Union of India ought not to give rise to any disciplinary proceedings of the type presently initiated against the applicant. On the other hand, the opening argument of the learned counsel for the respondents was that a civil servant, that too at such a senior level of the Indian Administrative Service, is a Government servant for 24 hours, and he cannot take an independent legal position, and make allegations against the Union of India, by joining in filing such Writ Petition. The learned counsel for the applicant had emphasized the point that the applicant had done it only in order to force the hands of the Government of India to examine the cases involving black money against a particular person from Pune, who was supposed to be a conduit for handling black money on behalf of a large number of politicians, and that it was the duty and the right of the applicant as a citizen of India to be able to rake up the issue before the highest Court of the land. It was emphasized by the learned counsel for the applicant that the applicant had not done anything (by issuing press statements or by appearing at T.V. talk shows and elsewhere) actively criticizing the Union of India in person, but that he had only joined hands with persons of repute in the society in filing the said Writ Petition, that too before the highest Court of the land, and, therefore, it could not be construed to be a violation of the conduct rules, or a misconduct on the part of the applicant. Learned counsel for the applicant had submitted that the Honble Apex Court has in the case of Vineet Narain and others vs. Union of India and others, (1998) 1 SCC 226 held that probity in public life is of paramount importance, and, therefore, the actions of the applicant in pleading before the highest Court of the land, for forcing the hands of the Union of India for enquiring into the black money amassed by an individual, cannot amount to misconduct. In support of his contention that the Government servant can in such cases of corruption and impropriety, which comes to their notice, can have recourse to the courts of law, the learned counsel for applicant had cited the Honble Apex Court judgment in the case of Pratap Singh and another vs. Gurbaksh Singh, AIR 1962 SC 1172. In regard to the process and procedure of the conduct of disciplinary enquiries, and the Constitutional rights of the Government servants, the learned counsel for the applicant had cited the Honble Apex Courts judgment in Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. and another, (1999) 3 SCC 679, and it was submitted that in that case the Honble Apex Court had held that a Government servant joining Government service does not imply surrendering of his fundamental rights as a human being, or any of his Constitutional rights. Therefore, it was submitted by the learned counsel for the applicant that merely because he is a senior IAS officer, he cannot be prevented by the respondents  Union of India, or the State of U.P., from expressing an opinion, and agitating the matters before the Honble Apex Court, in respect of any of his fundamental or Constitutional rights, and that the right of liberty to speak fearlessly is one of the rights enshrined in the Constitution.

3. The OA was filed on 5.10.2012, and many hearings later, when the Division Bench was not available at Lucknow, the applicant moved the Hon'ble Allahabad High Court's Lucknow Bench praying for constitution of a Division Bench at Lucknow. The Service Bench of the Lucknow Bench of the Honble Allahabad High Court passed an order on 1.8.2013 on his petition No.1248/2013, whereby the applicant was directed to approach the Chairman of the Tribunal by way of an appropriate application to constitute coram of Members at Lucknow Bench of this Tribunal. The applicant then moved an M.A. No.2694/2013 before the Hon'ble Chairman of this Tribunal at Delhi, in which orders came to be passed on 23.10.2013, stating that a decision has already been taken on the administrative side for deputing one Administrative Member to the Lucknow Bench of the Tribunal, so that the Division Bench could be constituted for the disposal of this matter, and the case was ordered to be listed before the Division Bench as per the date already fixed on 28.10.2013 earlier, by the previous Bench, for final disposal. The case was thereafter argued daily for four days on 28.10.2013, 29.10.2013, 30.10.2013 and 31.10.2013, for about 20 hours of arguments in total by both sides, and then reserved for orders.

4. During the hearing of the OA, it transpired that this is not the first case of the same applicant on inter-related matters. It was pointed out by the Ld. Counsel for the Respondent No.2 State of Uttar Pradesh during the arguments on the first day itself that the applicant had earlier filed an O.A. No.623/2012 before the Allahabad Bench of this Tribunal, which had a bearing on the facts of the present case. Though the Ld. Counsel for the applicant opposed this submission and submitted that the case filed and decided at Allahabad Bench of the Tribunal had no relevance to the instant case, he did not object to the case file of the Allahabad Bench to be ordered to be fetched from Allahabad for perusal by the Bench here at Lucknow in the present O.A. As a result, the said file was sent by the Allahabad Bench of this Tribunal on 29.10.2013, and has been received and perused, to which we shall revert to shortly. It was also pointed out that on a over-lapping prayer for relief, the present applicant had filed another O.A. No.381/2012 before this Lucknow Bench itself, which was disposed of on 16.4.2013. The Ld. Counsel for the applicant further once again disputed any connection between the two OAs, and the present OA being hit by the principles of res-judicata in any manner, whatsoever, for any portion of the reliefs sought in the present OA. Though, we shall revert to the detailed arguments on this aspect also later, but, to understand the grievance of the applicant properly, and in a sequential manner according to the time line, it would be better for us to briefly deal with the applicant's first OA, as had been filed by him before the Allahabad Bench of this Tribunal on 8.5.2012.

5. The applicant was then apparently posted at Lucknow itself, at the same post as of now, but by choosing to give his permanent address at Allahabad C/o his parents, the applicant had invoked the jurisdiction of this Tribunal at Allahabad, and had filed the said OA No.623/2012 before the Allahabad Bench against the very same respondents, mentioning in the cause title the details of the address of the applicant as follows :-

"Vijay Shankar Pandey, S/o Shri Ram Prakash Pandey, Member of Board of Revenue, R/o.33/2, Stanley Road, Allahabad".

6. In that O.A., the applicant had prayed for quashing of the charge sheet issued to him by the Respondent No.2 on 22.7.2011, and had prayed to declare it void, non-est, and illegal, and consequentially to also declare all subsequent actions of the respondents, including the appointment of an Inquiry Officer, as void, non-est and illegal. It would be prudent here to borrow from the Judgment in that case, delivered on 29.8.2012 by Allahabad Bench of this Tribunal. We, therefore, would seek to reproduce the Judgment almost in its entirety as below :-

"By means of present Original Application filed under section 19 of Administrative Tribunals Act 1985, the applicant seeks quashing of charge sheet dated 22.07.2011 and subsequent action including appointment of Inquiry Officer as void, non-est and illegal.

2. The brief facts , as canvas by the applicant, is that the applicant is 1979 batch officer of Indian Administrative Services to whom U.P. cadre was allocated. The applicant was served with a charge sheet dated 22.07.2011 (Annexure A-1). Against the above action of the respondents , the applicant wrote a letter on 28.07.2011 to the various authorities (Annexure A-2). By letter dated 02.12.2011 the Joint Secretary of the Appointment Department in the State of U.P provided the documents asked by the applicant (Annexure A-3). He submitted his explanation on 05.12.2011 and denied the charges leveled against him (Annexure A-4). The respondents /State appointed Shri Jagan Mathews as Inquiry Officer vide order dated 27.02.2012. The applicant again filed his reply to the charge sheet dated 22.07.2011 on 05.03.2012 (Annexure A-5) in which the applicant raised preliminary objection firstly on the ground that the charge sheet is without jurisdiction as the same has not been issued with the approval of competent authority, secondly that the charges are not specific and definite, and thirdly that the allegation leveled against the applicant being a Member of an organization that had filed P.I.L before Hon'ble Supreme Court is no offence as the concerned Institution is not a registered organization under Society Registration Act / Companies Act, hence the O.A.

3. Pursuant to the notice respondents appeared and resisted the claim of the applicant by filing detailed Counter Affidavit. When the case came up for preliminary hearing the applicant pressed for interim relief to direct the respondents to consider his case for empanelment as Secretary to Government of India in the meeting , which was scheduled to be held in May 2012. After considering the arguments of learned counsel for the respective parties this Tribunal by its order dated 25.05.2012 did not stay the charge sheet but as an interim measure direction was given to the Government of India to consider the case of the applicant for empanelment to the post of Secretary by not taking cognizance of the charge sheet. The order was passed on the preliminary arguments of the applicant that since the competent authority i.e. Minister In-charge in the present case i.e. the then Chief Minister had not signed the note for issuance of charge sheet, therefore, the action of the respondents is in utter violation of judgment of jurisdictional High Court, Lucknow Bench in the case of Luxmi Kant Shukla Vs. State of U.P & Ors reported as 2010 (8) ADJ 356 (DB) (LB). Order passed on 25.05.2012 reads as under:-

Shri S. Chaturvedi along with Shri P. Srivastava, counsel for the applicant. Shri K.P. Singh counsel for respondent no.2. Shri S.M. Mishra counsel for respondent no.1 is on leave on the ground of ailment.

The applicant by means of this OA impugned charge sheet dated 22.7.2011 interalia on the ground that the same is without jurisdiction as the competent authority in the present case is Chief Minister who has not accorded the required approval under Uttar Pradesh Rules of Business, 1975.

Pursuant to the notice Shri K.P. Singh appeared on behalf of respondent no.2 and filed CA. He also produced the original record as directed by us. We have gone through the record wherefrom we have observed that the file of the applicant was placed before the minister incharge (i.e. the Chief Minister) who granted her approval which was recorded by the Principal Secretary to the Chief Minister. On this, Shri Chaturvedi, learned counsel for the applicant submitted that under the Rules of Business it is the competent authority who has to put his/her signature to the proposal and, thereafter the decision can be communicated by any officer, whereas in the instant case the Principal Secretary has recorded the according of approval of the Chief Minister instead of obtaining his/her signature. He placed reliance upon the judgment of Allahabad High Court (Lucknow Bench) in the case of Luxmi Kant Shukla Vs. State of U.P. and Others reported as 2010(8) ADJ 356(DB)(LB) and submitted that it is clearly held by the Honble High Court in para no.94 that the signature by the competent authority is the part and parcel of authentication of a document, order or decision taken under the Rules of Business. On the other hand, Shri K.P. Singh submitted that the orders passed by the Lucknow Bench has already been set aside by the Honble Supreme Court on the appeal filed by State of Uttar Pradesh. Shri Chaturvedi submitted that it is not that the Apex Court has set aside the entire findings recorded by the Honble High Court. The Hon'ble Supreme Court has only set aside the first finding recorded by the Hon'ble High Court with regard to misconduct. The second finding with regard to Rule of Business has not been set aside.

We have gone through the judgment passed by the Hon'ble Supreme Court in the case of Luxmi Kant Shukla Vs. State of U.P. and Others(Supra) the findings recorded in para no 94 (iii) to (Vi) of the said judgment reads as under:-

"(iii)Business Rule framed under Article 166 specify the jurisdiction conferred on various authorities of the State like Chief Minister, Secretaries on behalf of the Governor. Jurisdiction exercised under Rules of Business is not a delegated power but it is the decision of Government made by authority conferred with power to adjudicate a dispute.

(iv)Unless an order or decision is authenticated by the competent authority in accordance to Rule of Business and keeping in view the letter and spirit of Article 166(2) of the Constitution, decision so taken shall suffer from infirmity and illegality. It shall be necessary for the authority empowered under the Rules of Business while adjudicating a dispute or taking a decision or passing an order, to authenticate such order or decision by making an endorsement or putting his or her signature.

(v)Oral instruction issued by a person authorized under the Rules of Business affecting citizen (s) fundamental right or public interest or financial matters it is an incident of non-application of mind hence not amount to authentication under Article 166(2) of the Constitution. It shall be obligatory for the person authorized under Rules of Business to make endorsement by putting his or her signature over the order or decision taken with regard to subject matter involved.

(vi)Signature by the competent authority is the part and parcel of authentication of a document, order or decision taken under the Rules of Business. However, decision so taken may be communicated by an officer or authority subordinate to Chief Minister or Minister of the Department.

The plain reading of the above leaves no doubt that the Chief Minister has to put her signature while approving the charge sheet as per Rule of Business. Learned counsel for the applicant submitted that the case of the applicant is going to consider for empanelment to the post of Secretary Government of India by the Union of India, therefore, interim protection be given to him.

At this stage we are not inclined to stay the operation of impugned charge sheet. Let the proceedings go on. As an interim protection, we direct the Government of India to consider the case of the applicant for empanelment to the post of Secretary by not taking cognizance of the present charge sheet.

The respondents is at liberty to even move an application for vacation of the above order granting interim protection to the applicant if the facts so stated by the counsel for the applicant are otherwise."

4. The respondents contradicted the averment of the applicant by filing a detailed Counter Affidavit stating therein that before issuing charge sheet the respondents applied their mind and after considering the gravity of the offence on the part of the applicant, the impugned charge sheet was issued under rule 8 of Indian Administrative Services (Discipline & Appeal) Rules 1969 (hereinafter to be referred as '1969 Rules').

5. The applicant has also filed Rejoinder Affidavit in which he contradicted the averments made by the respondents in the Counter Affidavit and submitted that the charge sheet has been issued only on the recommendation made by the D.O.P.&T. In other words at the behest of Union of India.

6. We have heard Shri Satish Chaturvedi alongwith Shri Pankaj Srivastava for the applicant and Shri V.K. Singh, Senior Advocate assisted by Shri K.P. Singh and Shri S.M. Mishra for respondents.

7. Learned counsel representing the applicant attacked the impugned order on three grounds. Firstly, the impugned charge sheet is without jurisdiction, secondly, the same has been issued without application of mind and thirdly, no definite charge has been leveled against the applicant. To elaborate his argument relating to the passing of the order without jurisdiction the learned counsel for the applicant submitted that in the present case the Disciplinary Authority has not been involved in the matter as the approval/sanction has been taken from the level of the Cabinet Secretary to whom the Chief Minister had delegated all his powers and having regard to the fact that the Minister In-charge in the matter has not given the approval. The entire charge sheet is void and in flagrant violation of Rule 3 of U.P. Rules of Business 1975. The above rule relates to disposal of business wherein it has been provided that all business allotted to the department under the business of U.P. (Allocation) Rules 1975 shall be disposed of by or under the general or special direction of the Minister In-charge. It is the contention of the learned counsel that since the Minister In-charge of the Department of Appointment was the then Chief Minister herself, her approval should have been obtained. In this regard he placed reliance upon the judgment of Jurisdictional High Court in the case of Luxmi Kant Shukla Vs. State of U.P & Ors (Supra) and argued that the Honble High Court has held that that 'submission means for effective decision with due application of mind by the Chief Minister himself and not by the subordinates'. He placed reliance upon para 53, 54, 59, 61, 63, 64, 65, 69, 70, 71, 72 and 80 of the said judgment. He further argued that this finding of the Lucknow Bench of the High Court was upheld by the Hon'ble Supreme Court though the Special Leave Petition filed by the State of U.P has been dismissed on 19.08.2011. The said judgment is reported in 2011 (9) SCC 532 - State of Uttar Pradesh and others Vs. Luxmi Kant Shukla. Therefore, he submitted that in view of the finding recorded by the Hon'ble High Court the impugned charge sheet is liable to be set aside.

8. Secondly, learned counsel for the applicant argued that though the courts are somewhat reluctant in setting aside charge sheet but in cases involving bias or prejudice, non-application of mind, malafide and being based upon baseless allegation the courts have chosen to interfere in such cases and set aside the charge sheet. He placed reliance upon the judgment of jurisdictional High Court in the case of Daya Ram Tripathi Vs. State of U.P - 2011 ADJ (10-167). He further argued that a very vague allegation has been leveled against the applicant by not-specifying the same that under which clause of 1968 Rules they fall. Therefore, on this ground also the impugned order is liable to be set aside as the charge sheet was issued only at the behest of the Government of India based upon its letter dated 17.06.2011, therefore, it is clear that while issuing the charge sheet the respondents/State has not applied its mind.

9. Lastly he argued that even the charges leveled against the applicant that before becoming a Member of Society he did not seek prior permission and had filed Affidavit in a Public Interest Litigation before Hon'ble Supreme Court and thus acted against the interest of the Government, the Society of which the applicant is a Member i.e. Indian Rejuvenation Initiative is not a registered society , therefore, there is no need to get prior permission. Moreover the applicant has not filed any Affidavit, therefore, the charges leveled against the applicant are liable to be set aside.

10. Shri V.K. Singh, Senior Advocate started from where learned counsel for the applicant stopped. Firstly he argued that the arguments of learned counsel for the applicant that despite the fact that Hon'ble Supreme Court has set aside the judgment of Lucknow Bench of the High Court in the case of L. K. Shukla (Supra). The Apex Court did not make comment on contents of para 94.vi of the order passed by Lucknow Bench of Honble High Court in the case of Luxmi Kant Shukla and therefore, the position with regard to the signature of the designated competent authority continues to be requirement for authentication of decision. The learned counsel for the respondents argued that the above contention of the counsel for the applicant is contrary to the judgment of Hon'ble Supreme Court and also contrary to the Article 136 of Constitution of India. In this regard he placed reliance upon the judgment in the case of Kunhayammed and others Vs. State of Kerala and another - 2000(6) S.C.C 359 (particularly para 32, 38 and 41), Om Prakash Verma and others Vs. State of Andhra Pradesh and others - 2010 (13) S.C.C 158 (particularly para 81, 83 & 85) & Medley Pharmaceuticals Limited Vs. Commissioner of Central Excise and Customs, Daman - 2011 (2) SCC 601 (particularly para 40, 41 & 42) and argued that once a leave has been granted then it converted into Civil Appeal and once the Civil Appeal has been decided then the order of the High Court merges in the order of Hon#ble Supreme Court. Therefore, nothing can be read from the orders of Hon'ble High Court if the Civil Appeal was allowed. On the basis of above judgment he submitted that once the Hon'ble Supreme Court in S.L.P filed by the State of U.P has set aside the judgment of High Court by allowing the Civil Appeal of the State of U.P then whatever was held by the Lucknow Bench of High Court cannot be looked into as the aforesaid judgment becomes inoperative. He further argued that there is no violation of rule 3 of U.P. Rules of Business 1975 because the rule itself make it clear that the proposal is to be considered by the Minister in-Charge , therefore, the arguments advanced by the learned counsel for the applicant that it is to be signed by the Minister in-Charge is contrary to rule because the rule itself gives power to the Minister in-Charge to dispose of the business under general or special direction. The counsel stated that this would include even oral directions.

11. Learned counsel for the respondents further urged that even the arguments advanced by the learned counsel for the applicant that the charge sheet has been issued without application of mind is baseless because the charge sheet has not been issued on the basis of letter issued by the Govt. of India, Department of Personnel and Training. The letter of Government of India was essentially a letter forwarding certain documents for consideration of the State Government. He urged that after having the above letter the matter was looked into and ultimately the competent authority has taken a view to issued charge sheet against the applicant. He further submitted that since the applicant is a Member of Indian Rejuvenation Initiative and before becoming a Member the applicant neither informed the government nor sought any permission, therefore, the same is in violation of Rule 7, 13.2 and Rule 17 of All India Service (Discipline & Appeal) Rules 1969. Thus the impugned charge sheet issued to the applicant is legally valid and moreover the applicant has a right to take all his defence before the Inquiry Officer before whom the inquiry proceeding is pending.

12. We have considered the rival submissions and have gone through the record with the able assistance of respective parties.

13. Firstly we shall deal with the legal question which arises for consideration before this Tribunal that after setting aside of the judgment of the High Court in Civil Appeal whether the finding recorded by the Honble High Court can be looked into or not. The law on the subject is crystal clear. If the S.L.P against the order of Hon'ble High Court is converted in to Civil Appeal then the judgment of High Court merges and ,therefore, whatever finding recorded by the Honble High Court cannot be looked into. The apex Court in para 41 and 44 in the case of Kunhayammed and others Vs. State of Kerala and another (Supra) has held as under: -

"41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subject to judicial scrutiny of this Court.

44. To sum up, our conclusion are: -

(i). Where an appeal or revision is provided against an order passed by a court, Tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists , remains operative and is capable of enforcement in the eye of law.

(ii). The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.

(iii). The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject mater of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can, therefore, be applied to the former and not to the latter.

(iv). An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substitute in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v). If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implication of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the finding recorded by the Supreme Court which would bind the parties thereto and also the court , tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

(vi). Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger, the order may be reversal, modification or merely affirmation.

(vii). On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub rule (1) of Rule 1 of Order 47 CPC.

Subsequently also the Apex Court reiterated its earlier view in the case of Om Prakash Verma and others Vs. State of Andhra Pradesh (Supra), relevant paras 75, 76 and 78 of which are reproduced: -

75. As pointed out by the learned Attorney General, the matter can be looked at from another angle. The proceedings in the instant case are barred by the principle of constructive res judicata. The validity of the ULC Act was squarely in issue. The effect of allowing the State appeals in Audikesava Reddy case is that all contentions which parties might and ought to have litigates in the previous litigation cannot be permitted to be raised in subsequent litigations.

76. In Forward Construction Co. V. Prabha Mandal this court held that an adjudication is conclusive and binding not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided. The following portion of the judgment is relevant which reads as under : (SCC p.112, para 20) 20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as re judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigate and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided.

78. As rightly observed by the High Court, what is of utmost relevance is the final judgment of the superior court and not the reasons in support of that decision. Apart from the legal position and the effect of allowing of the appeals and dismissing the writ petitions by this Court, the contention with regard to the land being agricultural land was raised in the writ petitions which were the subject matter of the appeals filed in this Court. In these proceedings, the State categorically took the stand that the lands are not agricultural. It was brought to our notice that the present appellants as respondents in the earlier round did not urge this plea before this Court and no such arguments were advanced before this Court. In view of the same, the appellants are not entitled to raise any such contention now. The effect of allowing the said appeals is that WPs Nos. 18385 of 1993 and 238 of 1994 stood dismissed.

In a latest judgment in the case of Medley Pharmaceuticals Limited Vs. Commissioner of Central Excise and Customs, Daman (Supra), in para 40 has held as under : -

40. This Court has consistently held that the medical supplies supplied to the doctors are liable to excise duty. Elaborate consideration may not be forthcoming in these judgments, but, in our view, the issue stands concluded. We say so far the reasons that this Court, in a catena of cases has opined that in case, the appeal has been dismissed in the absence of detailed reasons or without reasons, such order will entail the application of the doctrine of merger, wherein the superior court upholds the decision of the lower court from which the appeal has arisen.

14. In view of the above authoritative pronouncement of the Apex Court there is no doubt that once the order of Honble High Court has been set aside in Civil Appeal then the finding of the Honble High Court cannot be looked into and the decision of the Apex Court is binding upon all courts. Therefore, the arguments of learned counsel for the applicant in this behalf is rejected as being devoid of merits.

15. Now we are taking the second argument that the charge sheet is in fragrant violation of rule 3 of Rules of 1975. For better appreciation rule 3 is reproduced: -

Rule 3 Disposal of Business: -

Subject to the provisions of this Rule in regard to consultation with other department and submission of cases to the Chief Minister the Cabinet and the Governor, all business allotted , to a Department under the business of U.P (Allocation) Rules, 1975, shall be disposed of by or under the general or special direction of the Minister In-charge.

Perusal of above make it clear that the proposal is to be considered by the Minister in-Charge or under the general or special direction of the Minister in-Charge. It does not mention that it is to be actually signed by the Minister in-Charge , as made out by the learned counsel for the applicant. Even the Lucknow Bench of jurisdictional High Court had an occasion to consider the judgment in the case of State of U.P Vs. Luxmi Kant Shukla (Supra), upon which the applicant placed reliance, in the case of Lok Prahari through its General Secretary (P.I.L) Civil Vs. State of U.P. through the Cabinet Secretary Sachivalaya Lucknow Misc. Bench No. 11794 of 2010, which was dismissed on 20.08.2011. In the above case Honble High Court has considered the matter and rejected the contention of the applicant therein based upon the judgment in the case of Luxmi Kant Shukla. The relevant observation reads as under: -

So far as the fastening of liability is concerned it will depend upon the facts and circumstances of each case. Merely because the Chief Minister does not sign or put her signature as alleged by the petitioner. though there is nothing before us in this regard, it would not absolve the Chief Minister of her liabilities. If otherwise she is found liable for any action or any order passed by her, may be under her own signature or under her directives oral or otherwise.

16. Now dealing with the other point that the charge sheet has been issued solely on the basis of letter dated 17.06.2011 issued by the respondent No. 1, we have gone through the original file where the case was considered by the respondents. A plain reading of the letter dated 17.06.2011 reveals that it is no where stated that the State is bound to issue the charge sheet as the Additional Secretary, Government of India in his letter has apprised the State Government about the conduct of the applicant and other officials and requested the State Government to take appropriate action as per the provision of All India Service (Discipline and Appeal) Rules 1969. From the record, it is clear that after the above letter the matter was examined by the Joint Secretary (Appointment) on 05.07.2011. A comprehensive note was put up to Principal Secretary for approval, which was subsequently placed before the Chief Secretary of respondents / State, who gave his approval and finally the matter was put up to the Principal Secretary to Chief Minister on 17.07.2011 who recorded that Chief Minister has approved. It is only thereafter the charge sheet has been issued to the applicant. From the above narration of fact we are satisfied that in terms of Rule 3 of Rules of 1975, the matter was considered by the Minister In-charge and after his approval, the impugned charge sheet was issued to the applicant. We are unable to accept the contention of the learned counsel for the applicant that there is no application of mind because the matter was examined in detail before the impugned charge sheet was issued. Therefore, the arguments raised by the applicant does not have any force and hence rejected.

17. It is settled law that charge sheet cannot be set aside except for the reason that the same is without jurisdiction or has been issued with malafide intention. The applicant completely failed to satisfy the above two criteria as neither the charge sheet is without jurisdiction nor the applicant has proved that the same has been issued with malafide intention. We are not judging the validity of charges leveled against the applicant.

18. In view of the above discussions the applicant has failed to make out a case for interference. Accordingly the Original Application is dismissed. However, it is made clear that finding recorded above will not prejudice the right of the applicant before the Inquiry Officer. The applicant can take all pleas available to him in reply to Charge sheet and the Disciplinary Authority will take a decision thereupon independently according to law.

19. No order as to costs".

(Emphasis supplied).

7. Within one month of this Judgment being pronounced on 29.08.2012 by the Allahabad Bench of this Tribunal, on 26.9.2012, the applicant presented another OA No.381/2012, this time before the Lucknow Bench of the Tribunal. While filing his earlier OA No.623/2012, as well as while filing his second O.A. No.623/2012, both time, in paragraph 2 of the OA, the applicant had declared that the subject matter of the orders were within the jurisdiction of the Allahabad Bench of the Tribunal earlier, and were within the jurisdiction of the Lucknow Bench of the Tribunal later, though he continued to be posted at Lucknow in the whole of this period.

8. Even while filing his second OA No.381/2012, the prayers were related to the grounds taken by the applicant in para 5 (c) in particular, and other grounds 5 (a), (b) and 5 (d) to (h) in general. The reliefs sought for in that second O.A. No.381/2012 were as follows :-

"7 (a) to issue an order or direction commanding the respondents to take a final decision on the enquiry report which has already been submitted by the Inquiry Officer.

(b) to issue an order or direction commanding the respondents open the sealed cover of the recommendations of the selection committee and to forthwith issue promotion orders in respect of the applicant.

(c) Such other orders as this Tribunal may deem just, fit and proper be also passed in the interest of justice".

9. Even while this second OA No.381/2012 was pending adjudication, on 5.10.2012, i.e. within 10 days of filing his second O.A. No.381/2012, the applicant filed this present third OA No.395/2012, which was argued before us at great length over a period of four days. In this third OA, a declaration was made by the applicant in para 7 that the applicant has not previously filed any application, writ petition or suit regarding the matter in respect of which this application has been made, before any Court or any other authority or any other Bench of the Tribunal, nor any such application, writ petition or suit is pending before any of them. And yet, in paragraph 4 (xvi) of the present third OA, the applicant had admitted to his having preferred his second OA No.381/2012 before this Lucknow Bench of the Tribunal on 26.9.2012, inter alia praying therein that the respondents be directed to take a final decision on the Inquiry Report, and be directed to open the sealed cover, and give effect to the recommendations of the Selection Committee. After having said so, the reliefs as sought in the present third OA initially were as follows :-

"8 (a) to issue an order or direction to set aside order dated 26.09.2012 passed by the respondent No.2;

(b) to issue an order or direction commanding the respondents to take a final decision on the report submitted by the Inquiry Officer sri Jagan Matthews, IAS strictly in accordance with the All India Services (Discipline & Appeal) Rules, 1969;

(c) Such other order as this Tribunal may deem fit and proper be also passed in the interest of justice".

10. The applicant had also sought interim prayers, pending final decision of the petition, as follows :-

"9 (a) To stay the order dated 26.09.2012 passed by the respondent no.2;

(b) To stay the further proceedings of the enquiry by the two member board appointed vide order dated 26.09.2012;"

11. In its order dt. 16.4.2013, in OA No.381/2012, after having noted that the validity of the order passed by R-2 on 26.9.2012 has already been challenged by the applicant in the present third OA before us, viz. OA No.395/2012, the concurrent Bench at Lucknow had arrived at a finding that the disciplinary proceedings are still pending against the applicant as on that date, and finding substance in the preliminary objections raised by Respondent No.2 that after filing of the present third OA No.395/2012, the earlier second OA 381/2012 was no longer maintainable, that OA was dismissed as having substantially become infructuous. The order passed in his second O.A. No.381/2012 on 16.4.2013 was as follows:-

Para 1 to 3. Not reproduced here.

4. As far as the main relief no.1 is concerned, it was submitted on behalf of the respondents that it has become infructuous because no such direction is now required to be issued as the State Govt. has already taken a decision in the matter on 26.09.2012, i.e. the same day, this O.A. was filed. It was further submitted that the said order dated 26.09.2012 has already been challenged by this very applicant by filing another O.A. No.395/2012 Vijay Shanker Pandey Vs. Union of India & Others, on 5.10.12 which is pending for consideration before this Tribunal and next date is 18.4.2013. In respect of the second prayer regarding opening of sealed-cover and issuance of promotion order it was submitted that the above main relief having become infructuous, this consequential relief has no meaning. Moreover as per the settled position of law, sealed cover procedure is adopted against the delinquent officer, when a disciplinary proceeding is pending and has not been finalized as yet. The relevant rules and circulars issued in this regard have also been placed at Annexure-1 to this objection. In para-5 onwards of the objection it has been clarified that the State Government vide aforesaid order dated 26.09.2012 has decided to refer the matter to a committee of two officers for further enquiry under Rule 9 (1) of the Discipline & Appeal Rules, 1969. Accordingly the same charge sheet dated 14.07.2011 alongwith the same reply of the applicant dated 5.12.2011 has been sent for further investigation/enquiry. As such, the disciplinary proceedings are still pending as on date and have not been concluded as yet. In such circumstances, it would be pre-mature for the applicant to claim the opening of sealed cover of the recommendation of the selection committee or to claim issuance of the promotion orders in his favour.

Para 5 & 6. Not reproduced here.

7.    The main prayer of the present O.A. has admittedly become nonest and meaningless in view of the said aforesaid developments and the consequential second prayer for opening of sealed cover and issuance of promotion order is rather pre-mature and meaningless as the enquiry is still pending. However, if the applicant is so advised and if the same is permissible under law, he can claim this consequential prayer in his aforesaid subsequent O.A. No.395/2012. In both the O.As. the pleadings are not complete as yet. There is no justification to keep the first O.A. pending and to club it with the subsequent O.A. The applicant is not likely to suffer any loss if his request for clubbing is refused.

8. Finally, therefore, finding substance in the preliminary objection raised by the Respondent No.2 regarding maintainability of this O.A. the present O.A. is dismissed as having substantially become infructuous. No order as to costs".

12. Thereafter, with the permission of the Court, on 10.05.2013 the applicant added another interim prayer in the present O.A., through paragraph 9(b)(i), praying as follows :-

"9(b)(i) to issue an order or direction commanding the respondents to open the sealed cover of the recommendations of the selection committee and to forthwith issue promotion orders in respect of the applicant".

13. This was done by the applicant through the process of filing two Misc. Petitions in the present O.A. The first M.P. No.2218/2012 was decided by a concurrent Bench on 17.10.2012, permitting the applicant to incorporate certain changes in the paragraph 4(xii), and to incorporate new paragraphs 4(xxiii) to 4(xxvii), which paragraphs were not part of this OA earlier. As stated above, his second M.P. No.897/2013 had also been allowed by the concurrent Bench, through order dt. 10.5.2013, allowing the addition of the interim prayer clause 9(b)(i) in the O.A.

14. After the applicant was allowed to amend his pleadings as per the order of the Tribunal dt. 17.12.2012, he included the following new paragraphs 4 (xxiii) to 4 (xxvii), to state as follows :-

"(xxiii) That the respondent no.2 had an option of either appointing an individual Inquiry Officer or a board but after having chosen to appoint an Inquiry Officer it was not open for them to reject the report and resort to a fresh enquiry by appointing a board.

. That rule 9 (2) prescribes the manner in which the Disciplinary Authority is to proceed in case he disagrees with the findings of the enquiry authority.

. That in the event the Disciplinary Authority proposed to disagree with the findings of the Inquiry Officer it was incumbent upon him to record reasons for his disagreement and to allow the applicant an opportunity to represent against the reasons so recorded.

. That the rule 9 (2-A) prescribes that before proceeding any further it is incumbent upon the Disciplinary Authority to decide the representation preferred by the delinquent officer.

. That in view of the detailed provisions of the All India Services (Discipline & Appeal) Rules, 1969 it is not open for the Disciplinary Authority to deviate from the same.

. That when the law prescribes a thing to be done in a particular manner it can only be done in that manner or not at all.

. That prior to passing the impugned order the copy of the report of the Inquiry Officer has not been supplied to the applicant.

. That no opportunity of hearing was afforded to the applicant prior to passing the impugned order.

. That the impugned order has been pased in malafide exercise of power only in order to keep the departmental inquiry pending so as to deprive the applicant of his rightful promotion."

(Emphasis supplied).

15. On the basis of presenting his case as above, the applicant has taken the grounds Para 5A to M, but during the arguments on all the four days, the entire case was argued mainly on grounds 5C,D and G, which we may take the liberty of reproducing here as below :-

"5. (C) Because the inquiry officer has already submitted his report exonerating the applicant but the respondents instead of taking a final decision agreeing or disagreeing with the findings of the report have order for a fresh enquiry which is de-hors the provisions of the All India Service (Discipline & Appeal) Rules, 1969.

(D) Because the respondent no.2 has failed to appreciate that the provision of rule 9(1) can only be invoked to remit the matter for further enquiry to the Inquiry Officer and the said rule does not empower the respondent no.2 to reject the enquiry report and to appoint a board to conduct a fresh enquiry.

(G) Because in the event the Disciplinary Authority proposed to disagree with the findings of the Inquiry Officer it was incumbent upon him to record reasons for his disagreement and to allow the applicant an opportunity to represent against the reasons so recorded".

(Emphasis supplied).

16. After the above presentation of the facts of the case, and of the grounds taken by him, the applicant has prayed for the following main reliefs and interim reliefs :-

8. Relief Sought "8 (a) to issue an order or direction to set-aside order dt. 26.9.2012 passed by the respondent no.2.

8 (b) to issue an order or direction commanding the respondents to take a final decision on the report submitted by the Inquiry Officer Sri Jagan Matthews, IAS strictly in accordance with the All India Service (Discipline & Appeal) Rules, 1969.

9. Interim Order, if any, prayed for:-

"9 (a) To stay the order dt. 26.9.2012 passed by the respondent no.2.

9 (b) To stay the further proceedings of the enquiry by the two member board appointed vide order dt. 26.9.2012.

9 (b) (i) To issue an order or direction commanding the respondents to open the sealed cover of the recommendations of the selection committee and to forthwith issue promotion orders in respect of the applicant".

17. He has also taken the legal grounds that the respondents are acting in an arbitrary, illegal, mala fide and vexatious manner, and that their actions have violated his rights under Articles 14 and 16 of the Constitution of India, and that once having exercised the option of appointing an individual Inquiry Officer, under the rules it was not open for the respondents to reject his report, and to resort to starting a fresh inquiry, by appointing a Board of Inquiry, since the respondent authorities cannot be allowed to deviate from the Rules, 1969, and when the Rules prescribe a thing to be done in a particular manner, it has to be done only in that manner, or not at all, and the appointment of a Board for conducting fresh inquiry, and the rejection of the report of the Inquiry Officer, without affording any opportunity to the applicant, is wholly without jurisdiction.

18. After the modifications which were allowed by the concurrent Bench to be carried out by the applicant in the instant OA, the case of the applicant now still is that he has not done anything which could have led to his being subjected to issuance of a charge sheet, and that in reply to the letter dt. 2.12.2011 addressed to him by R-2, he has since already submitted a detailed explanation dt. 5.12.2011 (Annexure-A/5 of this OA). Thereafter, the Discipliary Authority, vide order dt. 27.2.2012, proceeded to appoint an Inquiry Officer and the Presenting Officer to conduct a disciplinary enquiry into the charges levelled against him. The applicant had not produced a copy of this order dt. 27.2.2012 in the present OA. However, the applicant chose to submit a reply to the charge sheet to the Inquiry Officer directly, through Annexure-A/6 dt. 5.3.2012, denying all the charges, in a seven page representation, more or less on the lines of his earlier submissions dt. 28.7.2011 Annexure-A/3, and dt. 5.12.2011 Annexure-A/5.

19. The applicant claims that after this Tribunals Allahabad Bench order dt. 29.8.2012 was pronounced in the applicant's first OA No.623/2012, the Inquiry Officer appointed on 27.2.2012 had submitted his report of the disciplinary enquiry within a day thereafter, in the last week of August, 2012, itself, exonerating the applicant of all charges of alleged mis-conduct. However, at the same time, the applicant felt aggrieved by the Judgment and Order dt. 29.8.2012 of the Allahabad Bench of this Tribunal, which the applicant has wrongly mentioned as dated 24.8.2012 in the submissions at paras 4 (x), & 4 (xii) of the present OA. He, therefore, filed a Civil Misc. Writ Petition No.44884/2012 before the Hon'ble Allahabad High Court, at Allahabad, against that Judgment passed by the Allahabad Bench of this Tribunal, which Writ Petition was later dismissed as withdrawn by order dt. 4.10.2012 passed by the Hon'ble Allahabad High Court at Allahabad.

20. The applicant has nowhere stated that the respondents have served him with a copy of the Inquiry Report finalised by the Inquiry Officer, but has pleaded about it having been submitted in paragraphs 4 (xi) and 4 (xiii) of the present O.A. The applicant thereafter made a representation to the Chief Secretary, through Annexure-A/8 dt. 11.9.2012, requesting that the Departmental Enquiry Proceedings against him had concluded in view of the submission of the report of the Inquiry Officer, and that his orders of promotion, which have been kept in the sealed cover, may be issued. In this representation at Annexure-A/8 also, he had claimed to have knowledge that in the Inquiry Report submitted by the Inquiry Officer in the last week of August, 2012, he has been fully exonerated, and he had represented to the Chief Secretary stating as such.

21. The applicant has submitted that when the respondents had failed to conclude that the departmental inquiry proceedings against him had concluded, even after submission of this representation before the Chief Secretary on 11.9.2012, he was forced to file his earlier second OA No.381/2012 before this Lucknow Bench of the Tribunal on 26.9.2012, with the prayer that the respondents be directed to take a final decision on the Inquiry Report already submitted by the Inquiry Officer, and be directed to open the sealed cover, and give directions to implement the recommendations of the Selection Committee. But, simultaneously, on the same date of 26.09.2012, the R-2 had passed the present impugned order, which had prompted the applicant to file the present third OA No.395/2012 on 5.10.2012.

22. As already discussed and reproduced above, because of the pendency of this third OA, his earlier second OA No.381/2012 was dismissed as having become redundant, and since the main prayer of the applicant in that OA had admittedly become "non-est" and "meaningless", in view of the subsequent developments, and the consequential second prayer for opening of the sealed cover and issuance of promotion order was also meaningless, as departmental inquiry was still pending, and even his prayer for clubbing of the two OAs was refused, and the second OA No.381/2012 was dismissed on 16.4.2013 as having substantially become infructuous.

23. The applicant has further pleaded in the present OA that on a similar allegation, the Union of India had issued a show cause notice to one Shri Sushil Kumar, IAS, and, after considering his reply, exonerated him of all the charges, and he has already been promoted to the post of Principal Secretary, and whereas in the case of the present applicant, a discriminatory attitude has been adopted, and he has been unnecessarily persecuted. But neither any documentary proof was adduced in respect of this contention, nor was this argued during the nearly 20 hours of arguments before us in this case. Therefore, we cannot comment on this portion of the submission made in para 4 (xix) of the OA.

24. The applicant, has, therefore, thereafter tried to find fault with the wordings and structure of the impugned order dt. 26.9.2012. He has submitted that the proceedings against him have been conducted under the Rules of 1969, a copy of which entire rules has been reproduced by him at Annexure-A/9 of the OA. He then laid emphasis on Rules 8 (1), 8 (2), 8(3) and Rules 9 (1), 9 (2), 9 (2) (A) of the said 1969 Rules. Since almost the entire arguments before us, and the whole case of the applicant revolves around an interpretation of these two Rules, we take the liberty to reproduce Rules 8(1), 8 (2), 8(3), 8 (15), 8 (16), 8 (20), 8 (24) and Rule 9 (1), 9 (2), 9 (2) (A), and 9 (3), of the said 1969 Rules :-

8. Procedure for imposing major penalties-

"8(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.

8(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.

8(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.

8(4) to 8 (14) not reproduced here.

8(15) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by, on behalf of, the Disciplinary Authority. The witnesses shall be examined by, or on behalf of, Disciplinary Authority. The witnesses shall be examined by, or on behalf of the Presenting Officer and may be cross-examined by, or on behalf of, the member of the Service. The Presenting Officer shall be entitled to re-examine the witnesses on any point, on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.

8(16) If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the member of the Service or may itself call for new evidence or recall and re-examine any witness and, in such case , the member of the Service shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give to the member of the Service an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the member of the Service to produce new evidence, if it is of opinion that the production of such evidence is necessary in the interests of justice.

NOTE : New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.

8(17) to 8 (19) Not reproduced here.

8(20) The inquiring authority may, after the completion of the production of evidence hear the Presenting Officer, if any, appointed, and the member of the Service or permit them to file written briefs of their respective cases, if they so desire.

8(21) to 8(23) not reproduced here.

8 (24) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain

(a) the articles of charge and the statement of imputations of misconduct or misbehaviour;

(b) the defence of the member of the Service in respect of each article of charge;

(c) an assessment of the evidence in respect of each article of charge; and

(d) the findings on each article of charge and the reasons therefor.

Explanation If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of charge, it may record its findings on such article of charge:

Provided that the findings on such article of charge shall not be recorded unless the member of the Service has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

(ii) The inquiring authority shall forward to the disciplinary authority the records of inquiry which shall include

(a) the report prepared by it under clause (i)

(b) the written statement of defence, if any, submitted by the member of the Service;

(c) the oral and documentary evidence produced in the course of the inquiry;

(d) written briefs, if any, filed by the Presenting Officer or the member of the Service or both during the course of the inquiry; and

(e) the orders, if any, made by the Disciplinary Authority and the inquiring authority in regard to the inquiry.

9. Action on the inquiry report-

9(1). The Disciplinary Authority may, for reasons to be recorded by it in writing, remit the case to inquiring authority for further inquiry and report, and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 8 as far as may be.

9(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any with the findings of inquiry authority on any article of charge to the Member of the Service who shall be required to submit, if he so desires, his written representation of submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Member of the Service.

9(2-A)The Disciplinary Authority shall consider the representation, if any, submitted by the Member and record its findings before proceeding further in the matter as specified in sub-rules (3) and (4).

9(3) If the Disciplinary Authority, having regard to its findings     on all or any of the articles of charge, is of the opinion that any of the penalties specified in clause (i) to (iv) of rule 6 should be imposed on the member of the Service, it shall notwithstanding anything contained in rule 10, make an order imposing such penalty: 
Provided that, in every case the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the member of the Service". 
	     9(4) Not reproduced here.
							 (Emphasis supplied).

25. The respondents had filed the counter reply on 5.7.2013. In this they had argued that the impugned order dt. 26.9.2012 had been passed by R-2 State Government strictly in accordance with the said Rules of 1969. It was submitted that when the first OA No.623/2012 filed by the applicant before the Allahabad Bench of this Tribunal, praying for quashing of the charge sheet dated 14/22.7.2011, had been filed, and that Bench had initially passed an order on 25.5.2012 directing the Respondent No.1 Government of India to consider the candidature of the applicant for empanelment for the post of Secretary, Government of India, without taking the cognizance of the said charge sheet, and the applicant had then moved an MA No.19363/2012 therein, in which he had prayed for consideration of his candidature along with similarly situated IAS officers for promotion, and the Allahabad Bench of this Tribunal had on 1.6.2012 allowed the said Misc. Application also, and ordered that the case of the applicant be also considered along with other similarly situated officers for grant of promotion and higher pay scale, by ignoring the pending charge sheet subject to suitability, the State Government had challenged the aforesaid two interim orders before the Hon'ble Allahabad High Court at Allahabad in Writ Petition No.33784/2012. The Writ Petition was disposed of by the Hon'ble Allahabad High Court on 20.7.2012 directing inter alia as follows :-

"Apart from the earlier order passed on 25.5.2012, an order was passed on 1.6.2012 by which the application filed by the applicant was allowed and a direction has been given to consider the case of the applicant along with other similarly situated officers for grant of pay scale of 80,000/- subject to suitability. At this stage learned counsel referred to the provisions as are contained in clause 11.2 of Indian Administrative Service -Promotion to various grades - Guidelines. At this stage it will be convenient to quote the aforesaid provision :

"11.2 The Screening Committee shall assess the suitability of the officers coming within the purview of the circumstances mentioned above, alongwith other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution which is pending. The assessment of the Committee including "Unfit for Promotion" and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed "FINDINGS REGARDING THE SUITABILITY FOR PROMOTION TO THE SCALE OF ...........IN RESPECT OF SHRI ............NOT TO BE OPENED TILL THE TERMINATION OF THE DISCIPLINARY CASE/CRIMINAL PROSECUTION AGAINST SHRI ..................The proceedings of the Committee need only contain the note "THE FINDINGS ARE CONTAINED IN THE ATTACHED SEALED COVER" . The same procedure will be adopted by the subsequent Screening Committees till the disciplinary case/criminal prosecution against the officer concerned is concluded."

Submission of learned counsel for the petitioner is that although the direction given by the Tribunal is simple/innocent direction but the petitioner apprehends that in addition of consideration of the claim of the respondent no. 1 there may be further action also. It goes without saying that everybody has to adhere the rules.

Rules quoted above clearly provides the consideration in the class of cases where the charge sheet has also been issued and disciplinary proceeding is pending.

It is one out of the three classes mentioned in the rules referred to above which permits consideration of the case for promotion /promotional pay scale.

The Tribunal has given a simple direction that the case of the promotion for grant of pay scale of Rs. 80,000/- be considered by ignoring the pending charge sheet, subject to suitability. The consideration can always be subject to suitability of the candidate so that in the event of success, that may not detain the entitlement of the candidate as the D.P.C./screening and other formality may take long time in its fresh consideration.

Be as it may, at this stage one of the issue which arose before the court is that matter is pending consideration before the Tribunal for final consideration in which 1st of August, 2012 is the next date fixed and there are every chances of getting the hearing deferred for no justification.

.................................................................................................

Accordingly we find that no ground is made out to interfere in the impugned order and we propose to dismiss this writ petition and thus it is dismissed.

However, learned counsel for the petitioner informs that meeting of the screening committee is scheduled for 21.7.2012 and that may be permitted to take place.

This is anxiety of the respondent no. 2 also and, therefore, screening is to take place as scheduled in accordance with law".

(Emphasis supplied).

26. It was pointed out by the respondents that even the applicant had also filed a counter petition before the Honble Allahabad High Court in Writ Appeal No.44864/2012 (Annexure-C.A.1), but that later he sought to withdraw it, and was permitted to withdraw it, and the Writ Appeal was dismissed as withdrawn on 4.10.2012 (Annexure-C.A.2). The Respondent No.2 had further submitted that during the pendency of the applicants first O.A. before Allahabad Bench, the Disciplinary Enquiry against the applicant was not progressing at all, and that the Inquiry Officer had not fixed any date for holding the inquiry proceedings, and had not even maintained the daily order sheet, and had not proceeded ahead with the departmental enquiry, presumably because of the pendency of the OA No.623/2012 filed by the applicant before the Allahabad Bench of this Tribunal praying for the quashing of the charge sheet itself. But when once the order dt. 29.8.2012 was pronounced by the Allahabad Bench in that OA, as already reproduced above, refusing to interfere with the charge sheet, and the conduct of the disciplinary enquiry, dismissing the OA, and making it clear that none of the findings recorded in the judgment and order of the Bench will prejudice the right of the applicant before the Inquiry Officer, and that the applicant can take all the pleas available to him in reply to the charge sheet, and that the Disciplinary Authority will take a decision thereupon independently, according to law, and further making it clear that the Tribunal was not to judge the validity of the charges levelled against the applicant, the Inquiry Officer had, without conducting any inquiry whatsoever, hurriedly submitted a Report on the very next date, viz. 30.8.2012, purporting it to be the Inquiry Report, in violation of the provisions of Rule 8 (15), 8(16), 8(20) and 8(24) of the 1969 Rules, as already reproduced above. They submitted through the counter reply that in this context, it was then decided by the Respondent No.2 that the same charge sheet needs to be inquired further, and, thereafter, the directions contained in the order dt. 26.9.2012 impugned in the present OA were issued.

27. Regarding the validity of the charge sheet and start of the Disciplinary Inquiry against the applicant by the respondents, the issue has already been settled by the order of the Allahabad Bench on the Applicants first O.A. pronounced on 29.08.2012. In the present OA, the applicant has assailed the order dt. 26.9.2012 which was passed by the Respondent No.2 in less than one month's period after the Allahabad Benchs Order dated 29.08.2012, but which was also the subject matter of the pleadings as canvassed before this Lucknow Bench before that second O.A. was disposed off on 16.04.2013, noting that the disciplinary proceedings against the applicant are still pending.

28. In this hotly contested case, the Ld. Counsel for the applicant again and again hammered his point that in his Inquiry Report dt. 30.8.2012, the Inquiry Officer had fully exonerated the applicant, and that the Respondent No.2, in particular, was trying to hide the report of the Inquiry Officer exonerating the applicant fully of all charges, and the appointment of a Board of two Officers, under Rule 8 (3) of the Rules of 1969 was, therefore, in total violation of the Rules, and of principles of natural justice. The respondents admitted about having received the so-called Inquiry Report dated 30.8.2012, and said that on the perusal of the said Inquiry Report, it was revealed that the Inquiry Officer had not conducted the Inquiry at all even on one date, and had thereby violated several provisions of the concerned 1969 Rules, and, more specifically, the Inquiry Officer did not ask for the production of any oral and documentary evidence, and no witnesses were examined by the Inquiry Officer. It was submitted that though Rule 8 (16) (supra) requires that if sufficient evidence has not been provided by either of the parties, the Inquiry Officer may himself call for the evidence, or examine the witnesses, but nothing of that sort had been done by the Inquiry Officer. It was further submitted that the Inquiry Officer also did not hear the Presenting Officer, and did not make any attempt to ascertain the views of the State Government, and he did not even permit the Presenting Officer to file a written brief. It was submitted that even the Report submitted by the Inquiry Officer was violative of the provisions of Rule 8 (24) of the Rules of 1969, and that it did not mention any assessment of any evidence by the Inquiry Officer, since no evidence of either side was ever allowed to be recorded by him. It was, therefore, submitted that since the Report was blatantly violative of several provisions of Rules of 1969, further inquiry being conducted, with same charge sheet, was perfectly legal and justified.

29. The respondents also pointed out that though the applicant has repeatedly claimed that he had been exonerated from all the charges by the Inquiry Officer in his Report, but he has not disclosed the source of such information being made available to him, since the said Report has not yet been served upon him, which speaks volumes about the conduct of the applicant, and they wanted the applicant to be put to strict proof of the submissions. It was submitted that the applicant's Writ Appeal No.44864/2012, filed before the Honble Allahabad High Court at Allahabad, challenging the validity of the Judgment and Order dt. 29.8.2012 passed by the Allahabad Bench of this Tribunal in OA No.623/2012 having been dismissed as withdrawn by the Honble High Courts Judgment and Order dt. 4.10.2012, the Judgment and Order passed by the Allahabad Bench of this Tribunal dated 29.8.2012 (reproduced in para 6/above) had attained finality. It was further submitted that it is wrong for the applicant to state that no final order has been passed by the respondents on the Report as submitted by the Inquiry Officer on 30.8.2012, while the fact of the matter is that the Competent Authority has already considered that incomplete Report, and passed the order by impugned order dt. 26.9.2012, remitting the matter back for further enquiry by a two Member Board of Inquiry.

30. It was further submitted that since the proceedings of the Disciplinary Enquiry against the applicant are still pending now, as held by this Tribunal also in the order dated 16.04.2013 on the applicants second O.A., the recommendation made by the Selection Committee, after considering his candidature for promotion, which is kept in a sealed cover, cannot at all be opened now, and cannot be acted upon, till the Disciplinary Enquiry is finally concluded. It was submitted that in this context, the detailed statutory guidelines of the Government of India, Department of Personnel and Training, O.M. dt. 28.3.2000, read with sub-rules 3.3 to 3.5 of Rule 25 of the IAS (Pay) Rules, 1954, require such sealed cover to be kept sealed till the disciplinary inquiry proceedings are conclusively completed. It was further submitted that in a catena of Judgments the Hon'ble Apex Court has repeatedly held that it would not be justified for the Courts and Tribunals to pass orders for opening of sealed covers containing the recommendations of the DPC, during the pendency of the Disciplinary Proceedings and the Departmental Enquiry, and no direction to issue promotion orders can be issued till the disciplinary proceedings are concluded finally. It was, therefore, submitted that till the applicant is completely exonerated in the Disciplinary Proceedings, it is not open to him to pray for either opening of the sealed cover, or for praying for any other orders in his favour.

31. It was further submitted by the Respondent No.2 that once his first OA No.623/2012 filed by the applicant against the charge sheet dt. 14/22.7.2011 was dismissed by the Allahabad Bench of this Tribunal, and the Writ Appeal No.44864/2012 filed by the applicant against this order was also dismissed as withdrawn by the Hon'ble Allahabad High Court on 4.10.2012, the applicant cannot now escape and avoid the charge sheet, and the Disciplinary Proceedings still pending against him, till the charges levelled against him have been fully inquired into by conducting a proper disciplinary enquiry. It was submitted that the impugned order has merely formed a two Member Board for looking into the very same charges, as upheld by the Allahabad Bench of this Tribunal for being enquired into, and the same reply of the applicant to the said charge sheet, and therefore, it cannot be termed as a fresh inquiry, but rather it has to be held that the matter has been referred for further inquiry, because the proper procedure for the conduct of the inquiry as prescribed under Rule 8 (supra) has not yet been followed.

32. It was submitted that the use of the word "remit" in Rule 9 (1) means that the Disciplinary Authority can refrain from inflicting a punishment on the basis of an Inquiry Report if it is found that the enquiry itself has not been conducted in accordance with the law, and the Rules prescribed therefor, and, in such circumstances, the Disciplinary Authority may, for the reasons to be recorded in writing, have further inquiry conducted either by an Inquiry Officer appointed under Rule 8, who shall, thereafter, proceed to hold further inquiry, or appoint a Board of two Members as the Inquiry Authority, as referred to in Rule 8(3) (supra), and that there was no restriction upon the Disciplinary Authority against constituting a Board of two Members as the Inquiry Authority under Rule 8(3) of the said Rules of 1969, and that it would still then be only a further inquiry, and not a new or a fresh inquiry.

33. During the marathon arguments in this case over the period of 4 days, the learned counsels for the applicant, and for the respondents, particularly Respondent No.2 the State of U.P., had taken us through many judgments which we have to refer to and discuss in the context of this case. Learned counsel for the applicant had relied upon the following cases:

1. Taylor vs. Taylor, (1875) 1 CH 426

2. State of U.P. vs. Singhara Singh and others, AIR 1964 SC 358

3. Commissioner of Income Tax vs. Anjum M.H.Ghwala and others, (2002) 1 SCC 633

4. Ram Phas Kundu vs. Kamal Sharma, (2004) 2 SCC 759

5. Sahodara Devi vs. Govt. of India, (1972) 3 SCC 156

6. Bharat Singh vs. State of Haryana, (1988) 4 SCC 534

7. Rajasthan Pradesh Vaidya Samiti vs. Union of India, (2010) 12 SCC 609

8. Rajesh Kumar Aggarwal and Others vs. K.K. Modi & Ors., (2006) 4 SCC 385

9. K.Chandrasekhar vs. State of Kerala, (1998) 5 SCC 223

10. State of U.P. VS. Harendra Arora, (2001) 6 SCC 392

11. Dinesh Chandra Pandey vs. High Court of Madhya Pradesh, (2010) 11 SCC 500

12. Haryana Financial Corporation vs. Kailash Chandra Ahuja, (2008) 9 SCC 31

13. State Bank of Patiala vs. S.K.Sharma, (1996) 3 SCC 364

14. K.L.Tripathi vs. State Bank of India, (1984) 1 SCC 43

15. Deputy Chief Controller of Imports & Exports vs. K.T.Kosalram, (1970) 3 SCC 82

16. Utkal Contractors & Joinery vs. State of Orissa, (1987) 3 SCC 279

34. In the much cited age old case of Taylor vs. Taylor (supra), cited by the learned counsel for the applicant, on page 431 of the Chancery Division judgments, it was laid down in 1873 that when a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted. This has been the principle followed for nearly for one and a half century now by the Courts following Common Law principles, both in U.K. and in India, in particular.

35. This principle was reiterated by the Honble Apex Court in State of U.P. vs. Singhara Singh and others (supra), and adopting the rule as laid down in Taylor vs. Taylor (supra), the Honble Apex Court had in this judgment laid down the law as follows:

7. In Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) the Judicial Committee observed that the principle applied in Taylor v. Taylor, (1876) 1 Ch. D 426 to a Court, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, applied to judicial officers making a record under S. 164 and, therefore, held that the magistrate could not give oral evidence of the confession made to him which he had purported to record under S. 164 of the Code. It was said that otherwise all the precautions and safeguards laid down in Ss. 164 and 364, both of which had to be read together, would become of such trifling value as to be almost idle and that "it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves."

8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S. 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S. 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrate the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him. (Emphasis supplied)

36. Once again the same principle was reiterated by the Honble Apex Court in Commissioner of Income Tax vs. Anjum M.H.Ghwala and others (supra), when the Honble Apex Court held as follows:

27. Then it is to be seen that the Act requires the board to exercise the power under section 119 in a particular manner i.e. by way of issuance of orders, instructions and directions. These orders, instructions and directions are meant to be issued to other income-tax authorities for proper administration of the Act, the commission while exercising its quasi-judicial power of arriving at a settlement under section 245D cannot have the administrative power of issuing directions to other income-tax authorities. It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. If that be so since the commission cannot exercise the power of relaxation found in section 119(2)(a) in the manner provided therein it cannot invoke that power under section 119(2)(a) to exercise the same in its judicial proceedings by following a procedure contrary to that provided in sub-section (2) of section 119.

  .

30. It is no doubt true that the terminology 'settlement' has a very wide dictionary meaning and in the absence of a statutory definition generally the word 'settlement' in sub-section (4) of section 245D would give the commission sufficient power to arrive at a settlement which it deems fit, but when the statute qualifies such expression like 'settlement' with mandatory words like 'in accordance with the provisions of this Act' the width of the term 'settlement' becomes subject to the mandate found in that section, which would mean that while a commission has sufficient elbow-room in assessing the income of the applicant under section 245D(4) it cannot make any order with a term of the settlement which would be in conflict with the mandatory provisions of the section like in the quantum and payment of tax and/or interest. In this view of the matter, we are of the opinion that assuming that there is any room for interpretation of the provisions of part F of chapter XVII and chapter XIX- A, we would hold that it would not in any manner empower the commission to either waive or reduce interest which is statutorily payable under the provisions of part F of chapter XVII.

31. It was then argued that the commission having been statutorily constituted to arrive at a settlement has also the inherent power which includes the power to waive or reduce the interest even though it is not specifically provided for. This argument, in our opinion, cannot be sustained. Assuming that the commission has any inherent power, it is a well-established legal principle that any inherent power vested in an authority cannot be exercised contrary to the express provisions of the Act. In the instant case, there being express provisions in regard to the levy of interest under part F of chapter XVII even if there is any inherent power in the commission such power cannot be exercised contrary to the provisions of the said chapter. (Emphasis supplied)

37. The same principle was once again cited by the Honble Apex Court in the case of Ramphal Kundu vs. Kamal Sharma (supra), and in para 12 & 13 of the judgment, the Honble Apex Court had held as follows:

12. Paras 13 and 13A of the Symbols Order lay down the mechanism for ascertaining when a candidate shall be deemed to be set up by a political party and also the procedure for substitution of a candidate. The opening part of para 13 says in unequivocal terms that for the purpose of an election for any Parliamentary or Assembly Constituency a candidate shall be deemed to be set up by a political party if and only if the conditions mentioned in sub-paragraphs (a) to (e) are satisfied. Para 13A lays down the procedure for substitution of a candidate and also the requirements of a revised notice in Form B. The second proviso to this paragraph takes care of a situation where more than one notice in Form B is received by the Returning Officer and the political party fails to indicate in such notices in Form B that the earlier notice or notices have been rescinded. Thus, paras 13 and 13A are exhaustive and lay down the complete procedure for determining whether a candidate has been set up by a political party. The Rule laid down in Taylor v. Taylor, 1876(1) Ch.D. 426 that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden was adopted for the first time in India by the Judicial Committee of the Privy Council in Nazir Ahmad v. King Emperor, AIR 1936 PC 253. The question for consideration was whether the oral evidence of a Magistrate regarding the confession made by an accused, which had not been recorded in accordance with the statutory provisions viz. Section 164 Cr.P.C. would be admissible. The First Class Magistrate made rough notes of the confessional statements of the accused which he made on the spot and thereafter he prepared a memo from the rough notes which was put in evidence. The Magistrate also gave oral evidence of the confession made to him by the accused. The procedure of recording confession in accordance with Section 164 Cr.P.C. had not been followed. It was held that Section 164 Cr.P.C. having made specific provision for recording of the confession, oral evidence of the Magistrate and the memorandum made by him could not be taken into consideration and hat to be rejected. In Stte of U.P. v. Singhara Singh, AIR 1964 SC 358, a Second Class Magistrate not specially empowered, had recorded confessional statement of the accused under Section 164 Cr.P.C. The said confession being inadmissible, the prosecution sought to prove the same by the oral evidence of the Magistrate, who deposed about the statement given by the accused. Relying upon the rule laid down in Taylor v. Taylor (supra) and Nazir Ahmad v. King Emperor (supra) it was held that Section 164 Cr.P.C. which conferred on a Magistrate the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. This principle has been approved by this Court in a series of decisions and the latest being by a Constitution Bench in Commissioner of Income Tax v. Anjum M.H. Ghaswala, 2002(1) SCC 633 (para 27). Applying the said principle, we are of the opinion that the question as to who shall be deemed to have been set up by a political party has to be determined strictly in accordance with paras 13 and 13A of the Symbols Order and extrinsic evidence cannot be looked into for this purpose unless it is pleaded that the signature of the authorized person on Form B had been obtained from his under threat or by playing fraud upon him. Where signature is obtained under threat or by playing fraud, it will be nullity in the eyes of law and the document would be void.

13. The issue can be examined from another angle. In a case where more than one notice in Form B has been received by the Returning Officer in respect of two or more candidates and the political party fails to indicate in such notices that the earlier notice or notices in Form B has or have been rescinded, the decision of controversy by extrisin evidence would make the second proviso to para 13A wholly redundant. It is a well settled principle of interpretation that the legislature is deemed not to waste its words or to say anything in vain. The Courts always presume that the legislative intentions that every part of the State should have effect. (See J.K. Cotton Spinning & Weaving Mills Co. v. State of U.P., AIR 1961 SC 1170, Moh. Ali Khan v. The Commissioner of Wealth Tax, AIR 1997 SC 1165 and C.I.T. v. Kanpur Coal Syndicate. (Emphasis supplied)

38. The learned counsel for the applicant had then attacked the principle as laid down in the 1969 Rules, and submitted that the use of the word may is used to grant a discretion, and not to indicate a mandatory direction, when the word used would have been shall instead of may. In support of this contention, he cited the judgment of Sahodara Devi vs. Government of India (supra), in which, in para 5 & 6, the Honble Apex Court had held as follows:

5. In this Rule, thus, the power to grant a lease for regularisation of old grants has been given to the Military Estates officer by using the word "may", and the power is further subject to the approval of the Central Government or such other authority as the Central Government may appoint for the purpose. In view of this language used, we think that the High Court was quite right in holding that this rule does not envisage a mandatory direction to the Military Estates Officer to grant a lease in all cases where the question of regularization of old grants arises. Normally, the word "may" is used to grant a discretion and not to indicate a mandatory direction. Had the intention been that the Military Estates Officer must grant a lease in all cases, the word used would have been "shall" instead of "may". It is true that the word "may", in some context, has been interpreted as containing a mandatory direction and the authority given the power has to exercise that power unless there be special reasons. Such a case came before this Court in Sardar Govindrao v. State of Madhya Pradesh.

.

6. It may be noticed that in that case, the word "may" as used in the general sub-section (2) was not held to indicate a mandatory direction. It was only in sub-s. (3), because of the special context, that the Court held that the word "may" was equivalent to "shall" or "must". In the case before us, rule 27 only confers a power in general on the Military Estates Officer to grant leases and, by using the word "may", it clearly gives him discretion to grant it in suitable cases. There is further the circumstance that the exercise of the power by the Military Estates Officer has been made subject to the approval of the Central Government or such other authority as the Central Government may appoint for that purpose. If the power had to be exercised by the Military Estates Officer in all cases, its being made subject to the approval of another authority would be meaningless. (Emphasis supplied)

39. Learned counsel for the applicant had also raised an objection to the counter affidavit filed by the State of U.P., and had emphasized on the point that pleadings as to point of law require to be substantiated by the facts, and have to be supported by the evidence, and must be supported by an affidavit, or else the Court cannot entertain the point. In support of his contention as above, finding fault with the counter reply filed by the respondents, learned counsel for the applicant had cited the case of Bharat Singh and others vs. State of Haryana and others (supra), in para 13 of which judgment the Honble Apex Court had laid down the law as follows:

13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit. (Emphasis supplied)

40. Another judgment cited by learned counsel for applicant to bring home his contention on all these points was Honble Apex Courts judgment in Rajasthan Pradesh Vaidya Smiti, Sardarshahar and another vs. Union of India and others (supra), in which the Honble Apex Court had held as follows:

15. It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. In Bharat Singh & Ors. Vs. State of Haryana & Ors., AIR 1988 SC 2181, this Court has observed as under:-

"In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."

16. Similar view has been reiterated in M/s. Larsen & Toubro Ltd. & Ors. Vs. State of Gujarat & Ors., AIR 1998 SC 1608; National Building Construction Corporation Vs. S. Raghunathan & Ors., AIR 1998 SC 2779; Ram Narain Arora Vs. Asha Rani & Ors., (1999) 1 SCC 141; Smt Chitra Kumari etc. Vs. Union of India & Ors., AIR 2001 SC 1237; and State of U.P. & Ors. Vs. Chandra Prakash Pandey & Ors., AIR 2001 SC 1298.

17. In M/s. Atul Castings Ltd. Vs. Bawa Gurvachan Singh, AIR 2001 SC 1684, this Court observed as under:-

"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."

18. Similar view has been reiterated in Vithal N. Shetti & Anr. Vs. Prakash N. Rudrakar & Ors., (2003) 1 SCC 18; Devasahayam (Dead) by L.Rs. Vs. P. Savithramma & Ors., (2005) 7 SCC 653; and Sait Nagjee Purushottam & Co. Ltd. Vs. Vimalabai Prabhulal & Ors., (2005) 8 SCC 252. (Emphasis supplied)

41. Since the respondents have used the phrase further enquiry in the impugned order, both the learned counsels had advanced lengthy arguments on the meaning and context of the word further in the instant case. Reliance was placed by the learned counsel for the applicant on para 24 of the Apex Court judgment in the case of K.Chandrasekhar vs. State of Kerala (supra), which basically relates to a set of criminal appeals which had been entertained by the Honble Apex Court, in which the phrases further investigation, fresh investigation and re-investigation were examined by the Honble Apex Court. Not being related to the context of disciplinary enquiries, we need not reproduce the ratio as laid down by the Honble Apex Court in this case.

42. In State of U.P. vs. Harender Arora (supra), the learned counsel for the applicant had relied on para 13 to 23 of the said judgment, out of which we may take the liberty of reproducing the relevant paras herein as follows:

13. The matter may be examined from another view point. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g. who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the inquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply to theory of substantial compliance or the test of prejudice, as the case, may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing. In the case of Russel v. Duke of Norfolk (1949) 1 All ER 109, it was laid down by the Court of Appeal that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a straitjacket as its applicability depends upon the context and the facts and circumstances of each case.

14. Even under general law, i.e, the Code of Civil Procedure, there are various provisions, viz., Sections 99-A and 115 besides Order 21, Rule 90 where merely because there is defect, error or irregularity in the order the same would not be liable to be set aside unless it has prejudicially affected the decision. Likewise, in the Code of Criminal Procedure also Section 465 lays down that no finding, sentence or order passed by a competent Court shall be upset merely on account of any error, omission or irregularity unless in the opinion of the Court a failure of justice, has, in fact, been occasioned thereby. We do not find any reason why the principle underlying the aforesaid provisions would not apply in cases of the statutory provisions like Rule 55-A of the Rules in relation to disciplinary proceeding. Rule 55-A referred to above embodies in it nothing but the principles of reasonable opportunity and natural justice.

15. Some decisions in this regard may be referred to. In the case of Ridge v. Baldwin (1964) AC 40, the House of Lords was considering a case where a Chief Constable was dismissed from service without notice and inquiry by the Watch Committee. The question was raised whether the decision was void or merely voidable. The House of Lords laid down that such a decision given without regard to the principles of natural justice was void. The violation in that case, though a procedural one, was of a fundamental nature as it was a case of total violation of the principles of natural justice.

16. In the case of R. v. Secretary of State for Transport, ex parte Gwent County Council, (1987) 1 All ER 161, the Court of Appeal applied the test of prejudice in a case of enhancement of toll charges over a bridge. The Act provided for a public hearing before effecting increase. Dealing with a complaint of procedural impropriety, the Court of Appeal held that unless prejudice is established to have resulted from the procedural impropriety, no interference was called for.

17. In the case of Davis v. Carew Pole, (1956) 1 WLR 833, it was laid down that mere fact that a person appearing before a domestic. Tribunal had not been given formal notice of all the matters in which his conduct was to be called in question, did not necessarily entitle him to contend successfully that the proceedings were not conducted in accordance with the principles of natural justice as in that case, no fact was in dispute in relation to the other matters raised and in the circumstances it was held that the plaintiff was not prejuidice by the lack of notice.

In the case of Jankinath Sarangi v. State of Orissa, (1969) 3 SCC 392, Hidayatullah, C.J., speaking for the Court, while considering the question of prejudice in a departmental proceeding, approved judgment of the High Court refusing to grant relief in favour of the delinquent Government servant on the ground that no prejudice was caused to him and observed thus :-

"From this material it is argued that the principles of natural justice were violated because the right of the appellant to have his own evidence recorded was denied to him and further that the material which was gathered behind his back was used in determining his guilt ........... This is no doubt that if the principles of natural justice are violated and there is a gross case this Court would interfere by striking down the order of dismissal, but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right. ........................ Anyway the questions which were put to the witnesses were recorded and sent to the Chief Engineer and his replies were received. No doubt the replies were not put in the hands of the appellant but he saw them at the time when he was making the representations and curiously enough he used those replies in his defence. In other words, they were not collected behind his back and could be used to his advantage and he had an opportunity of so using them in his defence. We do not think that any prejudice was caused to the appellant in this case by not examining the two retired Superintending Engineers whom he had cited or any one of them."

18. In the case of K.L. Tripathi v. State Bank of India (1984) 1 SCC 43 : (1983 Lab IC 1680), while considering the question whether violation of each and every facet of principles of natural justice has the effect of vitiating the inquiry, this Court laid down that the inquiry held and the punishment imposed cannot be said to be vitiated on account of an opportunity of cross-examination of certain witnesses not having been afforded to the delinquent and observed thus :-

"The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitable form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When no the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement."

19. In the case of Sunil Kumar Banerjee v. State of West Bengal (1980) 3 SCC 304 : (AIR 1980 SC 1170 : 1980 Lab IC 654), in a departmental proceeding a question was raised that the delinquent who had not examined himself was not questioned by the Inquiry Officer on the circumstances appearing against him in the evidence for the purpose of enabling him to explain the same as required under R. 8(19) of the relevant rules. The Court held that as the delinquent was fully alive to the allegations against him and had dealt with all aspects of the allegations in his written defence, he was not prejudiced by the failure of the Inquiry Officer to question him. As such, the Court refused to interfere with the punishment awarded.

20. In the case of State Bank of Patiala v. S. K. Sharma (1996) 3 SCC 364 : (1996 AIR SCW 1740 : AIR 1996 SC 1669), there was a departmental proceeding against an officer in which the punishment awarded was challenged on the ground that there was violation of regulation 68(b)(iii) of the Bank Regulations which had statutory force under which copies of statement of witnesses recorded earlier were required to be furnished to a delinquent not later than three days before the commencement of examination of witnesses by the Inquiry Officer, but no such copy was at all supplied and a stand was taken that opportunity was afforded to the delinquent to peruse the same and take notes therefrom though only half an hour before the commencement of the enquiry proceedings. In these circumstances, it was held that there was substantial compliance of the regulation as such, the punishment awarded cannot be vitiated on account of infractions of the aforesaid regulation in view of the fact that the delinquent, expressly or by his conduct, would be deemed to have waived the procedural provision which was of a mandatory character which was conceived in his interest and not public interest and was not prejudiced thereby, following the decision of this Court in the case of ECIL (1994 AIR SCW 1050 : AIR 1994 SC 1074 : 1994 Lab IC 762).

21. In the case of Krishan Lal v. State of J & K (1994) 4 SCC 422, this Court was dealing with a case where under S. 17(5) of Jammu and Kashmir (Government Servants) Prevention of Corruption Act, 1962 before awarding punishment of dismissal a Government servant was entitled to be furnished with a copy of the enquiry report which provision having been violated, the question had arisen whether the order awarding punishment was vitiated. Following the Constitution Bench decision in the case of ECIL (1994 AIR SCW 1050 : AIR 1994 SC 1074 : 1994 Lab IC 762), this Court laid down that if the delinquent has not suffered any prejudice by non-furnishing of the report, the same would not vitiate the order of punishment and observed thus :-

"We, therefore, hold that the requirement mentioned in S. 17(5) of the Act despite being mandatory is one which can be waived. If, however, the requirement has not been waived any act or action in violation of the same would be a nullity. In the present case as the appellant had far from waiving the benefit, asked for the copy of the proceeding despite which the same was not made available, it has to be held that the order of dismissal was invalid in law.

The aforesaid, however, is not sufficient to demand setting aside of the dismissal order in this proceeding itself because what has been stated in ECILcase in this context would nonetheless apply. This is for the reason that violation of natural justice which was dealt with in that case, also renders an order invalid despite which the Constitution Bench did not concede that the order of dismissal passed without furnishing copy of the Inquiry Officer's report would be enough to set aside the order. Instead, it directed the matter to be examined as stated in paragraph 31."

22. Thus, from a conspectus of the aforesaid decisions and different provisions of law noticed, we hold that provision in Rule 55-A of the Rules for furnishing copy of enquiry report is procedural one and of a mandatory character, but even then a delinquent has to show that he has been prejudiced by its non-observance and consequently the law laid down by the Constitution Bench in the case of ECIL, to the effect that an order passed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, but he is obliged to show that by non-furnishing of such a report he has been prejudiced, would apply even to cases where there is requirement of furnishing copy of enquiry report under the statutory provisions and/or service rules.

23. Turning now to the facts of the case on hand, it has to be seen whether by non-furnishing of the enquiry report the delinquent officer has suffered any prejudice. Undisputedly, after submission of enquiry report the State Government sent a show cause notice to the delinquent pursuant to which he had shown cause and the Disciplinary Authority after considering the said show cause, passed the order of dismissal. It is not stand of the respondent that in absence of the enquiry report he could not submit an effective show cause before the order of dismissal was passed. Neither from the order passed by the Tribunal nor the High Court it would appear that the respondent had raised this point there that he could not file an effective show cause in the absence of enquiry report nor it has been stated that in the show cause reply it was complained that the delinquent had not been served with a copy of the enquiry report. From these facts, it is not possible to hold that the respondent has been prejudiced by non-furnishing of enquiry report.

43. The learned counsel for the applicant had also relied upon the case of Dinesh Chandra Pandey vs. High Court of Madhya Pradesh and another (supra), and in particular para 12 to 16 of the said judgment, which deal with rules relating to departmental enquiry, where it was held that the delinquent Government official may not engage a legal practitioner, unless the Presenting Officer is also a legal practitioner, in the context of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, and in para 21 to 23 of the said judgment, the Honble Apex Court had held as follows:

21. Thus, the expression `legal practitioner' is a well defined and explained term. It, by any stretch of imagination, can include a serving Judge who might have been appointed as a Presenting Officer in the departmental proceedings. Besides this legal aspect of the matter, even on principle of fairness we do not think that the order has caused any prejudice to the appellant. The appellant could have asked for appointment of any colleague whose assistance he wanted to take and who would have been as well qualified and experienced as the Presenting Officer. The request of the appellant has been rightly rejected by the Disciplinary Authority. Furthermore, the application was made on 7th December, 1988 itself and thereafter the appellant took no steps whatsoever to challenge the order of the Disciplinary Authority declining assistance of an advocate. On the contrary, he participated without any further protest in the entire departmental enquiry and raised no objections.

22. The Inquiry Officer conducted the proceedings in a just, fair manner and in accordance with rules. In fact, there is no challenge to that aspect of the matter. In the application, the appellant had stated "that the complainant neither has necessary experience nor the required skill to handle his defence in such circumstances." This statement ex facie is not correct. The appellant must have dealt with variety of cases during his tenure as a Judge. He was fully capable of defending himself in the departmental enquiry. In the alternative he could easily ask for assistance of any senior colleague from the service if he was under pressure of any kind that the Presenting Officer was senior to him and belonged to Higher Judicial Service. He did not exercise this choice, at any stage, for reasons best known to him. However, he made an application praying for permission to engage an advocate and nothing else.

23. The charge against the appellant was not of a very complicated nature, which a person having qualification and experience of the appellant would not be able to defend. In these circumstances, we are of the considered view that no prejudice whatsoever has been caused to the interest of the delinquent officer. These are the rules primarily of procedure, an element of prejudice would be one of the necessary features, before departmental proceedings can be held to be vitiated on that ground. (Emphasis supplied)

44. In Haryana Financial Corporation and another vs. Kailash Chandra Ahuja (supra) the Honble Apex Court had discussed the aspect of prejudice in para 31 to 38, which stated as follows:

31. At the same time, however, effect of violation of rule of audi alteram partem has to be considered. Even if hearing is not afforded to the person who is sought to be affected or penalized, can it not be argued that notice would have served no purpose" or "hearing could not have made difference" or "the person could not have offered any defence whatsoever". In this connection, it is interesting to note that under the English Law, it was held before few years that non-compliance with principles of natural justice would make the order null and void and no further inquiry was necessary.

32. In the celebrated decision of Ridge v. Baldwin, 1964 AC 40 : (1963) 2 AllER 66, it was contended that an opportunity of hearing to the delinquent would have served no purpose. Negativing the contention, however, Lord Reid stated;

"It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse".

33. Wade and Forsyth in their classic work, Administrative Law, (9th Edn.) pp. 506- 509 also stated that if such argument is upheld, the Judges may be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result.

"But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudiced unfairly".

34. This Court expressed the same opinion. In Board of High School v. Kumari Chitra, (1970) 1 SCC 121, the Board cancelled the examination of the petitioner who had actually appeared at the examination on the ground that there was shortage in attendance at lectures. Admittedly, no notice was given to her before taking the action. On behalf of the Board it was contended that the facts were not in dispute and therefore, `no useful purpose would have been served' by giving a show cause notice to the petitioner. This Court, however, set aside the decision of the Board, holding that the Board was acting in a quasi-judicial capacity and, therefore, it ought to have observed the principles of natural justice.

35. In S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379, rejecting the argument that observance of natural justice would have made no difference, this Court said;

"The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It 'II comes from a person who has denied justice that the person who has been denied justice is not prejudiced".

36. The recent trend, however, is of `prejudice'. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant.

37. In Malloch v. Aberdeen Corporation, (1971) 2 AllER 1278, Lord Reid said;

"(I)t was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer".

Lord Guest agreed with the above statement, went further and stated;

"A great many arguments might have been put forward but if none of them had any chance of success then I can see no good reason why the respondents should have given the appellant a hearing, nor can I see that he was prejudiced in any way".

38. In Jankinath v. State of Orissa, (1969) 3 SCC 392, it was contended that natural justice was violated inasmuch as the petitioner was not allowed to lead evidence and the material gathered behind his back was used in determining his guilt. Dealing with the contention, the Court stated;

"We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right".

45. Through citing State Bank of Patiala and others vs. S.K.Sharma (supra), the learned counsel for the applicant had relied upon the judgment to prove that an adequate opportunity should be provided to the delinquent officer to cross examine the witnesses effectively, and thereby defend himself properly. It was further submitted by him that the rules regarding disciplinary enquiry are only codified, and are not mandatory in character, or to be followed essentially, since they are only procedural in nature. The contention raised was that since the rules have been designed for the benefit of delinquent Government official, they can even be waived off by him. In support of his contention, the para 10 & 11 of the judgment were cited, which may be reproduced in a slightly changed format, as follows:

10. Sub-clause (iii) aforesaid is indisputably part of a regulation made in exercise of statutory authority. The sub-clause incorporates a facet of the principle of natural justice. It is designed to provide an adequate opportunity to the delinquent officer to cross-examine the witnesses effectively and thereby defend himself properly. It is relevant to note in this behalf that neither the Inquiry Officers' report nor the judgment of the trial Court, Appellate Court or High Court say that the respondent had protested at the relevant time that he was denied of an adequate opportunity to cross-examine the witnesses effectively or to defend himself properly on account of non-supply of the statements of witnesses. The Appellate Court, on the contrary, has recorded that when he was advised to peruse, examine and take notes from the documents including the statements of witnesses (Kaur Singh and Balwant Singh), the only objection raised by the respondent was that "the documents marked Exh. P-6, P-10 and P-11 were only photostat copies and not originals and should not be considered or marked exhibits". (Exhs. P-6, P-10 and P-11 are documents other than the statements of witnesses, i.e., of Kaur Singh and Balwant Singh.) Moreover, as pointed out above, the examination of witnesses began long after the expiry of three days from the day on which the respondent was advised to and he did peruse the documents and statements of witnesses. In the circumstances, it is possible to say that there has been a substantial compliance with the aforesaid subclause (iii) in the facts and circumstances of the case, though not a full compliance. This, in turn, raises the question whether each and every violation of rules or regulations governing the enquiry automatically vitiates the enquiry and the punishment awarded or whether the test of substantial compliance can be invoked in cases of such violation and whether the issue has to be examined from the point of view of prejudice. So far as the position obtaining under the Code of Civil Procedure and Code of Criminal Procedure is concerned, there are specific provisions thereunder providing for such situation. There is Section 99 of the Code of Civil Procedure and Chapter 35 of the Code of Criminal Procedure. Section 99 C.P.C. says, 'no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of Court." Section 465 (1) of the Criminal Procedure Code, which occurs in Chapter 35 similarly provides that "subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceeding under this Code or any error or irregularity in any sanction for the prosecution unless in the opinion of the Court a failure of justice has in fact been occasioned thereby."

11. It is not brought to our notice that the State Bank of Patiala (Officers') Service Regulation contains provision corresponding to Section 99 C. P. C. or Section 465 Cr. P. C. Does it mean that any and every violation of the regulations renders the enquiry and the punishment void or whether the principle underlying Section 99 C. P. C. and Section 465 Cr. P. C. is applicable in the case of disciplinary proceedings as well. In our opinion, the test in such cases should be one of prejudice, as would be later explained in this judgment. But this statement is subject to a rider. The regulations may contain substantive provisions, e.g., who is the authority competent to impose a particular punishment on a particular employee/officer. Such provisions must be strictly complied with. But there may be any number of procedural provisions which stand on a different footing. We must hasten to add that even among procedural provisions, there may be some provisions which are of a fundamental nature in the case of which the theory of substantial compliance may not be applicable. For example, take a case where a rule expressly provides that the delinquent officer/employee shall be given an opportunity to produce evidence/material in support of his case after the close of evidence of the other side. If no such opportunity is given at all in spite of a request therefor, it will be difficult to say that the enquiry is not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. The position can be stated in the following words:

(1) Regulations which are of a substantive nature have to be complied with and in case of such provisions, the theory of substantial compliance would not be available.

(2) Even among procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case, the theory of substantial compliance may not be available.

(3) In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available. In such cases, complaint/objection on this score have to be judged on the touch stone of prejudice, as explained later in this judgment.

In other words, the test is: all things taken together whether the delinquent officer/employee had or did not have a fair hearing. We may clarify that which provision falls in which of the aforesaid categories is a matter to be decided in each case having regard to the nature and character of the relevant provision. (Emphasis supplied)

46. The learned counsel had also relied upon para 29, 30 & 31 of the same judgment, which are as follows:

29. The matter can be looked at from the angle of justice or of natural justice also. The object of the principles of natural justice - which are now understood as synonymous with the obligation to provide a fair hearing - is to ensure that justice is done, that there is no failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair hearing. The said objective can be tested with reference to sub-clause (iii) concerned herein. It says that copies of statements of witnesses should be furnished to the delinquent officer "not later than three days before the commencement of the examination of the witnesses by the Inquiring Authority." Now take a case - not the one before us - where the copies of statements are supplied only two days before the commencement of examination of witnesses instead of three days. The delinquent officer does not object; he does not say that two days are not sufficient from him to prepare himself for cross-examining the witnesses. The enquiry is concluded and he is punished. Is the entire enquiry and the punishment awarded to be set aide on the only ground that instead of three days before, the statements were supplied only two days before the commencement of the examination of witnesses? It is suggested by the appellate Court that sub-clause (iii) is mandatory since it uses the expression "shall". Merely because, word "shall" is used, it is not possible to agree that it is mandatory. We shall, however, assume it to be so for the purpose of this discussion. But then even a mandatory requirement can be waived by the person concerned if such mandatory provision is conceived in his interest and not in public interest, vide Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, (1964) 6 SCR 1001 : (AIR 1964 SC 1300 at p. 1305) Subba Rao, J., speaking for the Court, held :

See the discussion of this aspect at Page 515 of Wade: Administrative Law (Seventh Edition). In particular, he refers to the speech of Lord Scarman in C. S. S. U. v. Minister for the Civil Service, (1985 AC 374 at 407), where he used both these concepts as signifying the same thing.

"Where the Court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing Court had inherent jurisdiction to sell the property. We have assumed that S. 35 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non-observance of the provision. It is true that many provisions of the Act were conceived in the interests of the public, but the same cannot be said of S. 35 of the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold. Many situations may be visualized when the judgment-debtor does not seek to take advantage of the benefit conferred on him under S. 35 of the Act."

30. The principle of the above decision was applied by this Court in Krishan Lal v. State of Jammu and Kashmir, (1994) 4 SCC 422, in the case of an express statutory provision governing a disciplinary enquiry. It was a case where the employee was dismissed without supplying him a copy of the Inquiry Officer's report as required by Section 17(5) of the Jammu and Kashmir (Government Servants) Prevention of Corruption Act, 1962. This provision was treated as mandatory. The question was how should the said complaint be dealt with. This Court held :

"Let it now be seen whether the requirement of giving copy of the proceeding of the inquiry mandated by Section 17(5) of the Act is one which is for the benefit of the individual concerned or serves a public purpose. If it be former, it is apparent, in view of the aforesaid legal position, that the same can be waived; if it be latter, it cannot be. Though Shri Mehta has urged that his requirement serves a public purpose, we do not agree. According to us, the requirement is for the benefit of the person concerned which is to enable him to know as to what had taken place during the course of the proceedings so that he is better situated to show his cause as to why the proposed penalty should not be imposed. Such a requirement cannot be said to be relatable to public policy or one concerned with public interest, or to serve a public purpose.

We, therefore, hold that the requirement mentioned in Section 17(5) of the Act despite being mandatory is one which can be waived. If, however, the requirement has not been waived any act or action in violation of the same would be a nullity. In the present case as the appellant had far from waiving the benefit, asked for the copy of the proceeding despite which the same was not made available, it has to be held that the order of dismissal was invalid in law.

The aforesaid, however, is not sufficient to demand setting aside of the dismissal order in this proceeding itself because what has been stated in ECIL case, (1993) 4 SCC 727 : (1994 AIR SCW 1050), in this context would nonetheless apply. This is for the reason that violation of natural justice which was dealt with in that case, also renders an order invalid despite which the Constitution Bench did not concede that the order of dismissal passed without furnishing copy of the inquiry officer's report would be enough to set aside the order. Instead, it directed the matter to be examined as stated in paragraph 31. . . . . .

According to us, therefore, the legal and proper order to be passed in the present case also, despite a mandatory provision having been violated, is to require the employer to furnish a copy of the proceeding and to call upon the High Court to decide thereafter as to whether non-furnishing of the copy prejudiced the appellant/petitioner and the same has made difference to the ultimate finding and punishment given. If this question would be answered in affirmative, the High Court would set aside the dismissal order by granting such consequential reliefs as deemed just and proper."

31. Sub-clause (iii) is, without a doubt, conceived in the interest of the delinquent officer and hence, he could waive it. From his conduct, the respondent must be deemed to have waived it. This is an aspect which must be borne in mind while examining a complaint of non-observance of procedural rules governing such enquiries. It is trite to remember that, as a rule, all such procedural rules are designed to afford a full and proper opportunity to the delinquent officer/employee to defend himself and are, therefore, conceived in his interest. Hence, whether mandatory or directory, they would normally be conceived in his interest only.

(Emphasis supplied)

47. Learned counsel for the applicant, therefore, submitted before us that when any stipulation of rule has been conceived in the interest of the delinquent Government official, he can very well waive it, and he then went on to submit that even in case no proper disciplinary enquiry had ever been conducted by the Inquiry Officer appointed by the Respondent No.2 - State of U.P. for this purpose, and no day-to-day hearing of the departmental enquiry had been conducted, and no prosecution witnesses or defence witnesses had ever been produced, and no written submissions of the Presenting Officer had been served upon the applicant as the delinquent Government official, to allow him to file his replication thereto, but since the applicant before us believes that the Report of the Inquiry Officer dated 30.8.2012 had already exonerated him, he is prepared to waive his right to produce the defence witnesses, and filing the reply to the Inquiry Officers report, and other rights, which are available to him under the said Rules of 1969.

48. Learned counsel for the applicant further argued that when there is no dispute about the facts, and the applicant has never gone back or refused from what he had already submitted in writing, and since there is no dispute or lis as to facts, there was no necessity for the Inquiry Officer to have offered an opportunity to the applicant as a delinquent Government official, to examine or cross-examine witnesses. In support of this contention, the learned counsel for the applicant had cited para 33 of the Honble Apex Courts judgment in K.L.Tripathi vs. State Bank of India and others (supra) which states as follows:

33. The party who does not want controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create my prejudice in such cases. (Emphasis supplied)

49. A lot of arguments were advanced before us with regard to the dictionary meaning of the word remit also, which has been used in Rule 9 (2) of the said Rules, 1969, which term remit had been sought to be defined by the counsel for respondents by producing photocopies of the Dictionary meanings of the word remit from the New International Websters Comprehensive Dictionary, Websters Universal Dictionary and Thesaurus, Compact Oxford Dictionary, Thesaurus and Wordpower Guide, and Oxford Advanced Learners Dictionary to state as follows:

to send, as money in payment for goods, transmit. 2. To refrain from exacting or inflicting, as a penalty. 3. To pardon; forgive; as a sin or crime. 4. To abate; relax, as vigilance. 5. To restore; replace. 6. To put off; postpone. 7. To refer or submit for judgment, settlement, etc., as to one in authority. 8. Law to refer (a legal proceeding) to a lower court for further consideration. 9. Rare to send back, as to prison. 10. Obs. To resign; renounce. 11. Obs. To free; release.  v.i. 12. To send money, as in payment. 13. To diminish; abate. (Emphasis supplied).

50. In response to this, the learned counsel for the applicant had countered these arguments by submitting the judgment of Honble Apex Court in Dy. Chief Controller of Imports and Exports, New Delhi vs. K.T.Kosalram and others (supra), in which in para 8 the Honble Apex Court held as follows:

8. The respondents have sought assistance for their argument principally from the dictionary meaning of the words "consumption", "raw material" and "utilized" used in this clause. "Consumption", it is argued, conveys the idea of destruction of the commodity consumed and "raw material" according to this submission, must be utilized in this sense. In our opinion Dictionary meanings, however, helpful in understanding the general sense of the words, cannot control where the scheme of the statute or the instrument considered as a whole clearly conveys a somewhat different shade of meaning. It is not always a safe way to construe a statute or a contract by dividing it by a process of etymological dissection and after separating words from their context to give each word some particular definition given by lexicographers and then to reconstruct the instrument upon the basis of those definitions. What particular meaning should be attached to words and phrases in a given instrument is usually to be gathered from the context, the nature of the subject-matter, the purpose or, the intention of the author and the effect of giving to them one or the other permissible meaning on the object to be achieved. Words are after all used merely as a vehicle to convey the idea of the speaker or the writer and the words have naturally, therefore, to be so construed as to fit in with the idea which emerges on a consideration of the entire context. Each word is but a symbol which may stand for one or a number of objects. The context, in which a word conveying different shades of meanings is used, is of importance in determining the precise sense which fits in with the context as intended to be conveyed by the author.  (Emphasis supplied)

51. He had also cited the Honble Apex Courts judgment in Utkal Contractors and Joinery Pvt. Ltd. and others vs. State of Orissa and others (supra) to emphasize on the same point, in which judgment the Honble Apex Court has held as follows:

15. .. Having scanned the object and the scheme of the Act, having examined each of the provisions of the Act textually and contextually, we do not think that it is proper for us to construe the words of S. 5(1)(a) in their literal sense; we think that the proper way to construe S. 5(1)(a) is to give a restricted meaning to the wide and general words there used so as to fit into the general scheme of the Act. S. 5(1)(a) and S. 5(1)(b) are connected by the conjunction 'and', and having regard to the circumstances leading to the enactment and the policy and design of the Act, we think that clauses (a) and (b) must be construed in such a way as to reflect each other

52. Along with his detailed reply arguments, the learned counsel for the respondent No.2 State of U.P. had filed a synopsis and list of dates and events, apart from his arguments on the issues involved in the matter as framed by him, and his written arguments thereupon. It does not appear necessary to reproduce the dates and events as recounted by the learned counsel for respondent No.2, as we have already discussed them in brief earlier. Thereafter the learned counsel for respondent No.2 had framed for our consideration five propositions as follows and submitted his arguments accordingly.

Proposition-I: The impugned order does not initiate a fresh enquiry, but only a further enquiry under Rule 9(1) of the Discipline & Appeal Rules.

Cited Case Laws:

1. State (Government of N.C.T.) vs. Prem Raj, 2003 (7) SCC 121

2. Ramphal Kundu vs. Kamal Sharma, 2004 (2) SCC 759 Proposition-II: Further enquiry by an Inquiring Authority is referable to the Discipline & Appeal Rules and therefore, it is not bad in law.

Proposition-III: Enquiry report submitted by an Inquiry Officer is not binding on the appointing authority.

Cited Case Laws:

1. S.B.I. VS. S.S.Koshal, 1994 Suppl. (2) SCC 468

2. High Court of Judicature at Bombay vs. Shashi Kant S. Patil, 2000 (1) SCC 416 Proposition-IV: When pleadings not made by the applicant for assailing the merits of the impugned order, then there was no question of its rebuttal in the Counter Affidavit/Reply of the respondent State.

Proposition-V: Opening of sealed cover during the pendency of enquiry is not permissible in law.

Cited Case Laws:

1.Union of India vs. Sudha Salhan, 1998 (3) SCC 394

2.Union of India vs. R.S.Sharma, 2000 (4) SCC 394

3.Union of India vs. K.V.Jankiraman, 1991 (4) SCC 109

4.Union of India vs. Tejender Singh, 1991 (4) SCC 129

5.State of U.P. vs. J.S.Bansal, 1998 (3) SCC 714

53. In addition, the learned counsel had given a compilation of two judgments in the case of T.K.Latika vs. Seth Karsendas Jamnadas, (1999) 6 SCC 632 and Manubhai J. Patel & another vs. Bank of Baroda & ors., (2000) 10 SCC 253, both regarding the maintainability of the present OA. By filing these judgments, he had pleaded that the maintainability of the present OA ought to be decided first before arguments are advanced. However, after hearing the learned counsel on the point of maintainability, it was decided by the Bench to deal with this point at the final stage, in this judgment. We agree with the submission of the learned counsel for respondent No.2 State of U.P. that in one sense the present OA is not maintainable at present, in so far as the subject matter of delinquency or misconduct of the applicant in regard to the charges framed against him, the stage on which judicial review could have been possible, has not been reached so far, as the Disciplinary Authority, the Appellate Authority and the Reviewing Authority or Revisional Authority have yet to consider the case of the applicant. Therefore, we are refraining ourselves from commenting upon those aspects, as already mentioned above also.

54. But the limited point with which we are very much concerned right now is the fact that the Respondent State of Government of U.P. had first appointed an Inquiry Officer, and, as is apparent from the impugned order dated 26.9.2012 itself, that Inquiry Officer had, without going through the motions of properly conducting the disciplinary enquiry, and recording any evidence for or against either the delinquent Government official, the applicant before us, or any evidence tendered on behalf of the State of U.P., which had the role of producing prosecution witnesses at the disciplinary enquiry through the Presenting Officer appointed for this purpose, submitted a report on 30.8.2012, and as to whether that report was binding upon the State Government or not, and as to whether the report was void or voidable, which could have permitted the respondent No.2 State of U.P. to pass an order of the type of the impugned order dated 26.9.2012. The related issue is as to whether the State of U.P. ought to have remitted the matter back to the same Inquiry Officer for conducting the enquiry in accordance with law, or it was justified in entrusting the task of conducting the enquiry to the Board of Inquiry this time constituted under the Public Servants (Inquiries) Act, 1850. It is apparent that in the case of the second aspect, as such, in respect of which the Disciplinary Authority, the State of U.P., has already taken a stand to reject the Report dated 30.08.2012 submitted by the earlier appointed Inquiry Officer, and has this time appointed a Board of Inquiry under the Public Servants (Enquiries) Act, 1850, the present OA is maintainable, and we have to give our findings about the merits/demerits of the impugned order.

55. The concurrent bench of this Tribunal, which had decided the applicants second OA on 14.4.2013, has already held and observed that the departmental proceedings against the applicant are still pending. We are bound by that finding. The only issue which was argued before us in great detail was as to whether the disciplinary enquiry now going to be conducted by a two Member Board of Inquiry under the Public Servants (Inquirites) Act, 1850, is a fresh enquiry or a further enquiry. The implications are clear that if it is considered that the disciplinary enquiry against the applicant had already been conducted properly, and as per law, then the powers of the Disciplinary Authority get limited to issuing a Note of Disagreement with the report of the Inquiry Officer, or remitting the matter back to the same Inquiry Officer. It was submitted before us that the particular officer who was then appointed as Inquiry Officer was available on the date of the impugned order, but has since demitted office on superannuation, and is no longer available to conduct any further enquiry even if the Disciplinary Authority now so desires.

56. As the Inquiry Officer is a delegatee of the Disciplinary Authority, the appointment of the Inquiry Officer is an Administrative or an Executive function of the Disciplinary Authority, and the powers for remitting of the case to the Inquiry Officer for further enquiry are fully within the domain of the Executive and Administrative powers of the Disciplinary Authority, and cannot be a subject matter of judicial determination, or judicial review. Still, the contentions raised before us by the learned counsel for the applicant were that the earlier Inquiry Officer having already submitted his enquiry report on 30.8.2012, the disciplinary enquiry against the applicant should be deemed to have been completed. He also submitted that even if it was to be held that the disciplinary enquiry was not held by the said Inquiry Officer fully in conformity with the principles of natural justice, the applicant was prepared to waive his rights to cross-examine the witnesses produced by the prosecution, and also prepared to waive his rights to produce any defence witnesses, and to adduce any evidence from his side during the disciplinary enquiry, and, therefore, since the applicant does not feel aggrieved by the non-conduct of the disciplinary enquiry in a proper manner, even if it is held so, this Tribunal can still consider his waiver of his rights, and direct the Respondents R-2, Disciplinary Authority of the applicant, to treat the disciplinary enquiry as having been completed, and, thereby, this Tribunal can set aside the impugned order dated 26.9.2012.

57. The arguments of the learned counsel for the respondents on the other hand were on the lines that it is not only the rights of the delinquent Government official which are involved in the conduct of a disciplinary enquiry, but the rights of the Departmental authorities to prove the case of the prosecution, in favour of the charges framed, are also of equal importance, and have a firm and sound legal basis. He submitted at great length that the procedure for conduct of disciplinary enquiries has always been formulated in such a manner that after the delinquent Government official has had his initial say on the charges as framed and served upon him, and the Disciplinary Authority does not accept his explanation, and proceeds to appoint an Inquiry Officer and a Presenting Officer, the first right which accrues is in favour of the Presenting Officer, to present the case of the prosecution and to try to prove the charges as levelled in the Memorandum and Articles of Charges served upon the delinquent Government official. Only when the Presenting Officer has completed/finished with presenting the case of the Department, in favour and support of the charges framed, and has produced the witnesses named along with the Memorandum and Articles of Charges and has marked the documents through which the Articles of Charges are proposed by him to be proved as Exhibits, only after that, or that time, a right accrues in faovur of the delinquent Government official to cross examine such witnesses, and to try to demolish the admissibility of the documents produced as Exhibits by the prosecution. He submitted at great length that just by the delinquent Government official merely waiving his side of the rights cannot lead to a conclusion of the disciplinary enquiry, as in the instant case, the prosecution has never had a chance to produce the documents and witnesses in support of the charges levelled, and any such waiver of rights by the delinquent to cross-examine the witnesses can come into play only after the witnesses have been produced, and after their Examination-in-Chief has been done by the Presenting Officer. In fact he mentioned in the Court before us that the Presenting Officer could never even actually meet the Inquiry Officer, and was never called upon by the Inquiry Officer to perform his function of being the Presenting Officer, before the purported Inquiry Report was submitted by that earlier appointed Inquiry Officer on 30.8.2012, within one day of the pronouncement of the orders by the Allahabad Bench of the Tribunal on 29.8.2012, upholding the issuance of the chargesheet, and allowing the disciplinary enquiry to proceed ahead.

58. The further case of the applicant is that if the Inquiry Officer had prima facie found absolutely no merit in the charges levelled against the delinquent Government official, and in his own wisdom he came to the conclusion that there was no point in proceeding ahead with the motions of holding the disciplinary enquiry, and had decided to submit his Inquiry Report suo motu on 30.8.2012, because the applicant had not at all denied having filed the Writ Petitions before the Honble Apex Court as a part of the Non-Governmental Organisation, India Rejuvenation Initiative, the conduct of the Inquiry Officer cannot be faulted at all, and the enquiry should be deemed to have been concluded, as the delinquent Government official had not denied the filing of the said Writ Petition before the Honble Apex Court, and his lengthy explanation in response to the Memorandum and Articles of Charges as framed was itself sufficient for the purpose of the Inquiry Officer coming to his conclusions. On the other hand, the learned counsel for the Respondent No.2 turned the very arguments of the applicants counsel against him, by submitting that when the applicant had himself pleaded that if a procedure has been prescribed for doing a thing, it must be done in the same manner, and not otherwise, by citing the case law from Taylor vs. Taylor (supra) onwards, and submitted that when Rules 8 & 10 of the 1969 Rules (supra) specifically provided that no order imposing any of the major penalties specified in Rule 6 of those Rules of 1969 can be made, except after an enquiry is held, as far as may be in the manner provided by Rules 8 and 10 of those Rules, or under the Public Servants (Inquiries) Act, 1850 (Act 37 of 1850), where such enquiry is held under that Act, not holding of any proper disciplinary enquiry whatsoever by the previously appointed Inquiry Officer and not giving the Presenting Officer, any chance to bring forth his evidence in support of the Articles of Charges as framed, through documents and prosecution witnesses, had itself proved fatal, and the report suo motu submitted by the Inquiry Officer within one day after the pronouncement of the orders of Allahabad Bench of this Tribunal on 29.8.2012 on the applicants first OA, had rendered that report itself to be absolutely void, and it could not even be counted as a voidable report, since no enquiry was ever held at all by the Inquiry Officer.

59. We had directed the concerned disciplinary enquiry files to be fetched from the office of the previous incumbent/Inquiry Officer who has since demitted office on superannuation, which files were also procured and produced before us, and have been perused by us. It is clear and obvious that even a modicum of enquiry was never conducted by the Inquiry Officer. He did not go through any of the motions required for the conduct of the enquiry, by issuing a notice of a date for holding such enquiry to the delinquent Government official, the applicant before us, and to the Presenting Officer to present the case of the prosecution. This aspect was more or less accepted by the learned counsel for applicant also during oral arguments, when he submitted his arguments that the applicant as a delinquent Government official was prepared to waive off all his rights in connection with the conduct of the disciplinary enquiry, since he believed that the report of the Inquiry as submitted by the previous Inquiry Officer on 30.8.2012 had exonerated the applicant of all charges levelled against him.

60. However, the learned counsel for respondents submitted that whether for proposing the delinquent Government official to be punished, or for recommending the Government officer concerned to be exonerated of the charges framed against him, in either cases, it was incumbent and necessary upon the Inquiry Officer to go through the motions of conducting the enquiry and to first give a right to the Presenting Officer of presenting his case, and to simultaneously afford an opportunity to the applicant as the delinquent Government official to defend his case, to cross examine the prosecution witnesses, and to produce defence witnesses, if any, and demolishing the documents marked as Exhibits and relied upon by the Presenting Officer, and presenting documents relied upon by the delinquent officer, if any. He stressed upon the point that in the absence of the mandate of Rule 8(1) of the 1969 Rules, as reproduced above, having been followed strictly as per the procedure prescribed in para 8 (15) and 8 (16), which have also been reproduced above, any report suo motu submitted by the Inquiry Officer was a nullity in law, and could not be considered a report submitted in accordance with the Rules 8 & 10 of the Rules of 1969. Learned counsel for respondents submitted that Rule 8 (24) of the Rules duly prescribed that after conclusion of the enquiry as conducted in accordance with Rules 8 (15) and 8 (16), the form in which the Report shall be prepared, and as to what it shall contain.

61. In this context, learned counsel for the respondents had framed the propositions of law, as already discussed above, and had cited the cases in support of those propositions of law. His contention in raising the first proposition of law was that the impugned order does not initiate a fresh enquiry but has ordered only a further enquiry, as already provided for under Rule 9(1) of 1969 Rules, since no enquiry beyond the stage of obtaining the comments of the delinquent Government official has ever been conducted at all. In support of this contention, he had cited the case of State (Government of NCT of Delhi) vs. Prem Raj (supra), in which judgment, the word remit has been discussed. Like the case cited by the learned counsel for applicant, this case also arises from a criminal case, but it is seen that in para 10 of its judgment, the Honble Apex Court had held as follows:

10. .. Section 432 confines the power of the Government to the suspension of the execution of the sentence of the remission of the whole or any part of the punishment. The conviction under which the sentence is imposed remains unaffected. The section gives no power to the Government to revise judgment of the Court. It only provides with the power to remitting the sentence. Remission of punishment assumes the correctness of the conviction and only reduces the punishment in part or in whole. The word "remit" as used in Section 432 is not a term of art. Some of the meanings of the word "remit" are "to pardon, to refrain from inflicting, to give up." A remission of sentence does not mean acquittal and an aggrieved party has every right to vindicate himself or herself.

62. We cannot conclude anything in the context of the present disciplinary enquiry from the above cited case. The second case cited by the learned counsel for respondents was the same case as cited by the learned counsel for applicant in Ram Phal Kundu vs. Kamal Sharma (supra). But this case was cited by the learned counsel for respondents to emphasize the principle of interpretation of statutes, and he had emphasized that in para 13 of the said judgment, the Honble Apex Court had held as follows:

13. .. It is well settled principle of interpretation that the legislature is deemed not to waste its words or to say anything in vain. The Courts always presume that the legislative intentions that every part of the Statute should have effect. (See J.K. Cotton Spinning & Weaving Mills Co. v. State of U.P., AIR 1961 SC 1170, Moh. Ali Khan v. The Commissioner of Wealth Tax and C.I.T. v. Kanpur Coal Syndicate.

63. The proposition framed by the learned counsel for respondents was that the impugned order is therefore not bad in law. However, in his written arguments the learned counsel had submitted that the word remit has a general meaning of implying cancelling the report in the matter, and the matter being sent for reconsideration to the concerned authority, and, therefore, the decision taken by the State Government for sending the matter to the Board of Inquiry is perfectly in consonance with the meaning of the word remit. He submitted that the use of the word remit by the Legislature was deliberate and intentional, so as to empower the Disciplinary Authority to order for further enquiry, if previously the disciplinary enquiry proceedings had not been conducted strictly in accordance with the procedure as prescribed for it, or if proper efforts had not been made by the Inquiry Officer to ascertain the truth of the matter. It was in this context that he had cited the well settled principle of interpretation of statutes that when a provision has been provided by the Legislature as a part of Rules or a Statute, it has a purpose, and the Courts have to presume that every part of the Statute or Rule should have the full effect. It is in this context he submitted that use of word remit in 1969 Rules cannot be treated to be perverse, but it is deliberate and intentional usage, which justifies reference for further enquiry by an Inquiry Authority or a Board of Inquiry on the same charge sheet.

64. The second proposition framed by the learned counsel for the respondents was that Rules 8 (1), 8 (2), 8 (3) of the 1969 Rules clearly provide for, and refer to an Inquiry Authority to be constituted, and he submitted that it was the sole discretion of the Disciplinary Authority to either appoint a single Member Inquiry Authority/or a multiple Member Inquiry Authority or Board. This contention was hotly contested by the learned counsel for applicant by submitting that when once the Disciplinary Authority had earlier chosen one of the two available formats for conduct of the Disciplinary enquiry against the applicant, and had appointed an Inquiry Officer, and that Inquiry Officer had submitted a report, even though it may not be palatable to the Disciplinary Authority, the Disciplinary Authority was not within its powers to then go back and change its stand, and this time appoint a multi-Member Inquiry Authority or Board, by choosing the second alternative option available in Rule 8(1) of the 1969 Rules. The learned counsel for the applicant had submitted that once having exercised the option to appoint a single Member Inquiry Officer, even a remission for further enquiry could only have been to the same Inquiry Officer, or, in the absence of availability of that Inquiry Officer, to an alternative single Inquiry Officer, but that the respondent  Disciplinary Authority R-2 could not have this time changed track, and resorted to the second alternative available method of appointing an Inquiry Authority or Board under the Public Servants (Inquiries) Act, 1850. However, the learned counsel for the respondent No.2 submitted, both orally as well as in his written submissions, that it is the sole discretion of the Disciplinary Authority to either appoint a single Member Inquiry Officer as the Inquiry Officer, or a multiple Member Inquiry Authority/Board, and that there is no bar to the discretion of the Disciplinary Authority for changing the Inquiry Authority from a single Member to a multiple Member, because the underlying object is only to enquire into the truth of imputation of misconduct, as already mentioned in the charge sheet.

65. He further submitted that the delinquent Government official, i.e., the applicant, cannot insist for the disciplinary enquiry into the matter of charges against him to be held by a particular Inquiry Officer, or to insist for implementation of a baseless Report submitted by the earlier Inquiry Officer, which is otherwise a nullity in the eyes of law. He had questioned the source of knowledge of the applicant that the then Inquiry Officer had, in his Report dated 30.8.2012, exonerated him on all the charges, even though that Report has neither been served by the respondents on the applicant, nor has he applied for the same and obtained a copy of it under the Right to Information Act. He, therefore, challenged that the applicant has also not disclosed the source of the information available to the applicant, and had thereby questioned the very manner in which the Report dated 30.08.2012 had been prepared cursorily by the then Inquiry Officer, without taking any evidence. Even though, during arguments, the learned counsel for the respondent No.2 indirectly referred to the possibility of a sympathy factor having worked with the earlier Inquiry Officer, or a collusion of sorts between the then Inquiry Officer and applicant, but since this aspect is not a subject matter of the lis before us, and was not argued at all, we abstain from commenting upon the same. The learned counsel for respondents, had thereafter, submitted that the underlying object of 1969 Rules, particularly Rules 8(2) and 8(3) (supra), will not be defeated if the further enquiry into the truth of allegations, as contained in the charge sheet, is now allowed to be conducted, as the object of such further enquiry would only be finding the truth, in a transparent and fair manner, which cannot be objected to by the applicant, as there is no illegality in the same.

66. In respect of proposition-III framed by him, the learned counsel for respondent No.2 submitted that conclusive findings can be reached by an Inquiry Authority only after a proper enquiry has been conducted into the charges, and the delinquent officer has been given a reasonable opportunity to defend the charges levelled against him, since the purpose of the enquiry is to enquire into the truth of the allegations on the basis of the evidence as adduced by both the sides in the enquiry. Still, he submitted that the observations and findings of the Inquiry Officer, if they are cursory in nature, and are based on surmises and conjectures, and not based on cogent and relevant evidence, and if the Disciplinary Authority is not satisfied about the cursory manner in which the enquiry has been made, the observations and findings of the Inquiry Officer are not binding upon the Disciplinary Authority and it is always open to the Disciplinary Authority to refer the matter for further enquiry. He also submitted that when Rule 9(1) of the 1969 Rules provides for such further enquiry being ordered by the Disciplinary Authority, the only requirement is for recording of reasons by the Disciplinary Authority for ordering such further enquiry, and at that stage, there is no requirement to give a copy of the report, as submitted, to the delinquent employee, or to give him an opportunity of being heard by the Disciplinary Authority.

67. He further submitted that if the report submitted by the Inquiry Officer is such that it does not meet the tests of the procedure for the conduct of disciplinary enquiry, as mentioned in the 1969 Rules, then the report, if any submitted, cannot be called as an Inquiry Report, because it is a nullity in the eyes of law. He, therefore, submitted that on the basis of such a cursory report, submitted without conducting the disciplinary enquiry as per the procedure prescribed in this regard, the Disciplinary Authority could have neither proceeded to inflict a punishment, nor could have exonerated the delinquent employee, the applicant before us. He, therefore, argued that it, therefore, became incumbent upon and necessary for the Disciplinary Authority to order further enquiry under Rule 9 (1) of the said rules. He further submitted that the operation of the further Rules 9(2) & 9(4) of the said 1969 Rules would come into operation only when no further enquiry is required, and the Disciplinary Authority decides to forward a copy of the Inquiry Report as received to the delinquent employee, with or without a note of disagreement, if any, seeking his written representation on the same, and that only after having received such written submissions by way of representation from the delinquent employee on a proper Inquiry Report, can the Disciplinary Authority decide to either impose minor punishment under Rule 9(3), or major punishment under Rule 9(4), which decision to inflict penalty can be taken only when no further enquiry is required in the matter. He, therefore, stressed on the point that since the Inquiry Officer has either not held the disciplinary enquiry, or only cursorily held it, without following the procedure for conduct of enquiry as prescribed under the Rules, therefore, the matter was rightly remitted by the Disciplinary Authority for further enquiry, as provided under Rule 9(1) of 1969 Rules.

68. In support of his above contention, learned counsel has cited the cases of S.B.I. vs. S.S.Koshal (supra) and High Court of Judicature at Bombay vs. Shashi Kant S.Patil (supra). In first of these two cases, the learned counsel had relied upon para 6 of the said judgment, which lays down the law as follows:

6. So far as the second ground is concerned, we are unable to see any substance in it. No such fresh opportunity is contemplated by the regulations nor can such a requirement be deduced from the principles of natural justice. It may be remembered that the Inquiry Officer's report is not binding upon the Disciplinary Authority and that it is open to the Disciplinary Authority to come to its own conclusion on the charges. It is not in the nature of an appeal from the Inquiry Officer to the Disciplinary Authority. It is one and the same proceeding. It is open to a Disciplinary Authority to hold the inquiry himself. It is equally open to him to appoint an Inquiry Officer to conduct the inquiry and place the entire record before him with or without his findings. But in either case, the final decision is to be taken by him on the basis of the material adduced. This also appears to be the view taken by one of us (B.P. Jeevan Reddy, J.) as a Judge of the A. P. High court in Mahendra Kumar v. Union of India The second contention accordingly stands rejected. (Emphasis supplied).

69. In the second cited judgment of the Honble Apex Court, he had relied upon para 7 and 16 to 21, which have laid down the law as follows:

7. Dr. D. Y. Chandrachud, learned counsel who argued for the appellant has termed the aforesaid reasoning as contrary to the well established principles in service law and that the Inquiry Officer's conclusions cannot be equated with the findings of a statutory body, nor the disciplinary committee's powers be made equivalent to the powers of a revisional or Appellate Authority. According to the learned counsel, the Division Bench has misdirected itself on the legal premise as to the disciplinary committee's power to dissent from the conclusion of the Inquiry Officer.

  

16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/Disciplinary Authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.

17. In State of Andhra Pradesh v. S. Sree Rama Rao, (1964) 3 SCR 25 : (AIR 1963 SC 1723) this Court has stated so and further observed thus :

"The High Court is not constituted in a proceeding under Art. 226 of the Constitution as a Court of appeal over the decision of the authorities holding departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. Whether there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Art. 226 to review the evidence and to arrive at an independent finding on the evidence."

18. The above position has been reiterated by this Court in subsequent decisions. One of them is B. C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : (1995 AIR SCW 4374 : AIR 1996 SC 484 : 1996 Lab IC 462).

19. The reasoning of the High Court that when the Disciplinary Committee differed from the finding of the Inquiry Officer it is imperative to discuss the materials in detail and contest the conclusion of the Inquiry Officer, is quite unsound and contrary to the established principles in administrative law. The Disciplinary Committee was neither an appellate nor a revisional body over the Inquiry Officer's report. It must be borne in mind that the inquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials collected in such inquiry as well as the views expressed by the Inquiry Officer thereon. The findings of the Inquiry Officer are only his opinion on the materials, but such findings are not binding on the Disciplinary Authority as the decision making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry Officer. But it is not necessary that the Disciplinary Authority should "discuss materials in detail and contest the conclusions of the Inquiry Officer". Otherwise the position of the Disciplinary Authority would get relegated to a subordinate level.

20. Legal position on that score has been stated by this Court in A. N. D'Silva v. Union of India, (1962 Supple (1) SCR 968 : (AIR 1962 SC 1130), that neither the findings of the Inquiry Officer nor his recommendations are binding on the punishing authority. The aforesaid position was settled by a Constitution Bench of this Court way back in 1963, (Union of India v. H. C. Goel, (1964) 4 SCR 718 : (AIR 1964 SC 364). The Bench held that "the Government may agree with the report or may differ, either wholly or partially, from the conclusion recorded in the report". Their Lordships laid down the following principle :

"If the report makes findings in favour of the public servant and the Government disagree with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf".

21. Thus the Division Bench of the High Court has not approached the question from the correct angle which is evident when the Bench said that it is imperative for the Disciplinary Committee to discuss materials in detail and contest conclusions of the Inquiry Officer. The interference so made by the Division Bench with a well considered order passed by the High Court on the administrative side was by overstepping its jurisdiction under Article 226 of the Constitution. (Emphasis supplied)

70. The fourth proposition framed by the learned counsel for Respondent No.2 related to the objections taken by the counsel for applicant in regard to the pleadings not having been specifically denied by the respondents. He submitted that in his entire OA, the applicant has failed to lay a specific challenge to the findings given in the impugned order regarding the violation of the procedure for conduct of disciplinary enquiry by the earlier appointed Inquiry Officer, and, therefore, in the absence of any such pleadings in the OA, it is not open for the applicant in the OA to now claim that since the proceedings of the disciplinary enquiry, or the Inquiry Report have not been brought on record, the allegation about the cursory procedure adopted in the preparation of the Report dated 30.08.2012 by the Inquiry Officer has no foundation. He also submitted that there is no confirmation or submission made on the part of the delinquent officer that the earlier Inquiry Officer had actually strictly followed the procedure as mentioned in 1969 Rules, and therefore, he had defended the impugned order, in which the Disciplinary Authority had drawn an adverse inference against such enquiry report.

71. The 5th proposition put forward by the counsel for respondents was that in the absence of any provision in the Service Rules, the general law as laid down by the Honble Apex Court in Union of India vs. K.V.Jankiraman (supra) covers the field. He submitted that in the instant case, there is a specific statutory restraint, contained in the statutory guidelines dated 28.3.2000 (Annexure No. CA-4/Pg.29 at 37 & 40), wherein it has been laid down that the sealed cover/covers shall be opened only on conclusion of the case of criminal prosecution or disciplinary enquiry, and cannot be opened during the pendency of the disciplinary proceedings against an IAS officer. He, therefore, submitted that even the directions of the Honble Allahabad High Court in their judgment dated 20.7.2012, as already reproduced by us (supra) cannot be overlooked and ignored by this Tribunal.

72. He further submitted that the applicant had failed to explain any exceptional circumstances or reasons which justified the challenge laid to the decision of the Disciplinary Authority to hold further enquiry. He further submitted that even the applicant had admitted about the pendency of the disciplinary proceedings, as the enquiry has not been concluded. As we have also noted above, the concurrent bench had also in its order dated 16.4.2013 in the applicants second OA-381/2012 stated and held that the disciplinary enquiry proceedings against the applicant are still pending, which have not been challenged by the applicant, and, therefore, the learned counsel for Respondent No.2 argued that the sealed cover procedure adopted by the Selection Committee on the directions of this Tribunal cannot now be opened, as prayed for by the applicant, unless the disciplinary proceedings are first finally concluded, and disposed off.

73. In support of his contentions, the learned counsel for Respondent No.2 had cited the following cases. He submitted that in Union of India vs. Sudha Salhan (supra), the Honble Apex Court had held in para 6 of the judgment as follows:

6. The question, however, stands concluded by a Three Judge decision of this Court in Union of India v. K. B. Jankiraman, (1991) 4 SCC 109 : (1991 AIR SCW 2276), which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officer, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendation of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to. (Emphasis supplied)

74. He also submitted that in Union of India and another vs. R.S.Sharma (supra) also, in para 15 of its judgment, Honble Apex Court had held as follows:

15. We are not impressed by the said arguments for two reasons. One is that, what the Department did not do is not the yardstick indicated in paragraph 7 of the Sealed Cover Procedure, what is mentioned therein is that it cannot apply to the Government servant who is not "actually promoted" by that time. Second is that, the stand taken up by the Department is that in spite of deletion of clause (iv) of the second paragraph, the recommendations of the DPC must remain in the sealed cover on account of the conditions specified in clause (iii) of the said paragraph by virtue of the operation of paragraph 7 thereof. We cannot say that the said stand was incorrect and, therefore, we are unable to blame the Department for not opening the sealed cover immediately after 31-7-1991. (Emphasis supplied)

75. The learned counsel for respondent No.2 thereafter cited the case of Union of India vs. K.V.Jankiraman (supra), which is such a well known case that we need not produce paragraphs from that judgment. However, since the learned counsel had emphasized on those portions, we may take the liberty of producing portions of para 6 and 29 of that landmark judgment herein as follows:

6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure.

.. . .

29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in presenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into. consideration and denies him the promotion, such denial is not illegal and unjustified. (Emphasis supplied)

76. In the next cited case of Union of India vs. Tejinder Singh (supra), the Honble Apex Court had in para 4 of its judgment held as follows:

4.The appeal is accordingly allowed and the impugned order passed by the Central Administrative Tribunal directing the Union of India, Ministry of Finance to consider the respondent for promotion to the post of Commissioner of Income Tax, Level II, is set aside. While setting aside the impugned order of the tribunal we would like to record that the Tribunal had no jurisdiction whatever while dealing with a petition to quash the contemplated departmental enquiry against the respondent, to make an interim order of this nature. We are also not satisfied as to the correctness of the view expressed by the tribunal that a contemplated departmental inquiry or pendency of a departmental proceeding cannot be a ground for withholding consideration for promotion or the promotion itself. We are not aware of any rule or principle to warrant such a view. As at present advised, we do not subscribe to the view expressed by the Tribunal.

(Emphasis supplied)

77. In State of M.P. vs. J.S.Bansal (supra), learned counsel for respondent No.2 had relied upon para 12, 13, 14 & 22 of the judgment. It is seen that the Honble Apex Court has held in these paragraphs as follows:

12. Both these memoranda were considered by this Court in Union of India v. K. V. Jankiraman, (1991) 4 SCC 109 : (1991 AIR SCW 2276) in which it was laid down that consideration of an employee for promotion, selection grade, crossing of efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of any preliminary enquiry or criminal investigation but the Sealed Cover Procedure can be resorted to if a charge-sheet has been issued or the departmental proceedings are pending or the employee has been placed under suspension. It was also laid down that if on a consideration of the name of the delinquent employee, the recommendations of the Departmental Promotion Committee were kept in a Sealed Cover on account of the pendency of departmental proceedings, the Sealed Cover could be opened only in the case of complete exoneration of the employee from all charges and notional promotion could be given to him from the date on which his juniors were promoted. But if any penalty is imposed on the employee in disciplinary proceedings, the Sealed Cover is not required to be acted upon and his case for promotion is to be considered in the usual manner by the next Departmental Promotion Committee.

13. Undoubtedly, an employee has a right of being considered for promotion but he cannot claim promotion as of right. Right to be considered for promotion is obviously different and distinct from right of promotion. Even if disciplinary proceedings are initiated against an employee and those proceedings are pending on the date on which names of other employees are considered for promotion to the next higher post, the delinquent employee, if he is similarly circumstanced as other employees and is also eligible, has a right to be considered for promotion to the next higher post along with other employees. His name cannot be omitted from consideration merely because of the pendency of the departmental proceedings. An employee cannot be denied this right at the interlocutory stage of the departmental proceedings as he is still to be found guilty on the basis of the evidence which might be produced against him during those proceedings. Till the charges are established, his right to be considered cannot be defeated as he is not under the cloud of having been found guilty but is only suspected to be guilty. Mere suspicion is not a substitute for proof. Consideration for promotion along with other eligible candidates is done so as to give effect to the Fundamental Right available even to a delinquent employee under Articles 14 and 16 of the Constitution. Once the name is considered for promotion, the recommendations of the Departmental Promotion Committee are required to be kept in a Sealed Cover obviously for the reason that if the employee is ultimately found to be not guilty and the charges set out against him are found as not established, he may be promoted immediately to the next higher post.

14. In view of the law laid down by this Court in Tejinder Singhs case (1991 (4) SCC 129) and Jankiramans case (1991 AIR SCW 2276) (supra) and in view of the Service Rule/Executive instruction relating to Sealed Cover Procedure, Departmental Promotion Committee, in such a situation, would be well within its right to place its recommendations in the Sealed Cover so that the Sealed Cover may be opened on the conclusion of the Departmental proceedings and recommendations contained therein may be given effect to without delay. An interim order, therefore, that the Sealed Cover be opened and the recommendations of the Departmental Promotion Committee for the promotion of the delinquent officer may be given effect to even during the pendency of the departmental proceedings, subject to its final result, is not usually or always or as a matter of course, granted. This rule can be departed from only in exceptional cases depending upon the circumstances of a particular case having regard to the fact that integrity, honesty and sincerity are the hallmark of public services under the Union or the State and that efficiency of administration depend upon the effort made by persons holding public offices to serve the country and the Nation with devotion and an attitude of sacrifice without any iota or inkling of self-service.

. .

22. Having regard to the facts and circumstances of the instant case, we are firmly of the view that the Tribunal was not justified in passing the impugned order that the Sealed Cover be opened and the recommendations of the Departmental Promotion Committee be given effect to. The Sealed Cover Procedure was rightly adopted by the Departmental Promotion Committee and there was no reason to interfere with that Procedure. (Emphasis supplied)

78. Thereafter, the learned counsel for respondent No.2 had submitted that since the challenge laid down by the applicant to the charge sheet itself in the first OA No.623/2012 at the Allahabad Bench of this Tribunal had been turned down by this Tribunal, and the writ petition filed by the applicant against that order was later dismissed as withdrawn by the Honble Allahabad High Court by order dated 3.10.2012, therefore, the findings of this Tribunal are now binding on the applicant, and he cannot escape from the consequences. The charge sheet was issued to him on 14.7.2011, and since the present further enquiry has been directed by the respondent No.2  State Government under Rule 9 (1) of 1969 Rules for further enquiry into the same charges, there cannot be any illegality or infirmity in the impugned order dated 26.9.2012, and that the sealed cover procedure adopted by the Selection Committee cannot be interfered with at this stage.

79. The Law regarding right to a fair hearing laid down in the maxim audi alteram partem "hear the other side is the fulcrum on which all the principles of Common Law revolve. This is a far reaching principle of natural justice, as it can express almost every question of fair procedure, or due process, and its implications can be worked out in great detail. The comments of learned Authors H.W.R. Wade and C.F. Forsyth on this subject in their book on Administrative Law can be reproduced by us as below:-

Chapter 15: THE RIGHT TO A FAIR HEARING AUDI ALTERAM PARTEM 'Hear the other side' It is fundamental to fair procedure that both sides should be heard: audi alteram partem, 'hear the other side'. This is the more far-reaching of the principles of natural justice, since it can embrace almost every question of fair procedure, or due process, and its implications can be worked out in great detail. It is also broad enough to include the rule against bias, since a fair hearing must be an unbiased hearing; but in deference to the traditional dichotomy, that rule has already been treated separately.

The right to a fair hearing has been used by the courts as a base on which to build a kind of code of fair administrative procedure, comparable to `due process of law' under the Constitution of the United States. As already mentioned, there has been an outburst of such activity since 1963, when the landmark decision of the House of Lords in Ridge v. Baldwin put an end to a period of judicial backsliding. Parliament has also made many provisions for tribunals and inquiries, and, particularly since 1957, for improving these statutory procedures. These, though dealt with in separate chapters, should be viewed together with the principles of natural justice as parts of a comprehensive design for ensuring that power is exercised considerately and fairly.

The courts took their stand several centuries ago on the broad principle that bodies entrusted with legal power could not validly exercise it without first hearing the person who was going to suffer. This principle was applied very widely to administrative as well as judicial acts, and to the acts of individual ministers and officials as well as to the acts of collective bodies such as justices and committees. Even where an order or determination is unchallengable as regards its substance, the court can at least control the preliminary procedure so as to require fair consideration of both sides of the case. Thus the law makes its contribution to good administration.

Since the courts have been enforcing this rule for centuries, and since it is self-evidently desirable, it might be thought that no trained professional, whether judge or administrator, would be likely to overlook it. But the stream of cases that come before British and Commonwealth courts shows that overlooking it is one of the most common legal errors to which human nature is prone. When a Lord Chief Justice, an Archbishop of Canterbury and a three-judge Court of Appeal have strayed from the path of rectitude, it is not surprising that it is one of the more frequent mistakes of ordinary mortals. The courts themselves must take some of the blame, for they have wavered in their decisions, particularly in the period of about fifteen years which preceded Ridge v. Baldwin".

80. We may also take the liberty of borrowing the views of the above cited learned Authors from their book regarding the term 'quasi-judicial', which, according to them, came into vogue as an epithet for powers, which, though administrative in nature, were required to be exercised as if they were judicial, i.e. in accordance with principles of natural justice, as was laid down in Mersey Docks Trustees v. Gibbs {(1866) LR 1 HL 93 at page 110}. The term `quasi-judicial' was thereafter the subject of a classic discussion and definition by the Committee of Ministers' Powers, in 1932, according to which a `quasi-judicial' decision is an administrative decision which is subject to some measures of judicial procedures, such as principles of natural justice. This definition has now been extended to greater majority of administrative decisions, which affect the rights or legal positions of the individuals, and have necessarily to follow the principles of natural justice. The 1932 report of the Committee of Ministers' Powers had laid down that the important difference was that a judicial decision "disposes of the whole matter by a finding upon the facts and dispute and an application of Law of the land to the facts so found", whereas in an administrative decision this is replaced by "administrative action character of which is determined by the Ministers' free choice". Although the extremities of this spectrum are easy enough to distinguish, a 'quasi-judicial' decision can be said to consist of findings of facts to which administrative policies have been applied. Both the judicial and quasi-judicial acts therefore require statutory hearings.

81. The concept of `quasi-judicial' determination of facts has been laid down by many Judges and Ld. Authors of commentaries on law, but out of the classical exposition of the general principles to be followed by a `quasi-judicial' authority, the most frequently quoted has been from a speech of Lord Loreburn in the Houses of Lords in 1911, which was cited with approval by Lord Denning MR in Re Pergamon Press {[1971] Ch. 388 at 399-400}. The House of Lords had to decide whether the Board of Education had properly determined the dispute between a body of school managers and the local education authority of Swansea in the Wales region of United Kingdom, which had refused to pay teachers in Church schools at the same rate as teachers in the Authority's own schools. The House of Lords upheld the quashing of the Board's decision because the Board had not dealt with the question which arose under the Act, which was as to whether they could legitimately discriminate between the two classes of teachers. But the Lord Chancellor, Lord Loreburn, spoke about the Board's duties in general terms as follows :-

"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and listen fairly to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view".

(Emphasis supplied)

82. Lord Loreburn's above epitome of the general principles is so apt that there are remarkably few true exceptions to this duty lying upon every one who decides anything, at any rate anything which may adversely affect legal rights or liberties.

83. As discussed by the learned Authors further in their book, the right to be heard before any decision is taken by a `quasi-judicial' authority was reiterated by the House of Lords in Ridge v. Baldwin (1964 (AC) 40) which followed the similar principles laid down by the House of Lords in (1) Ceylon University v. Fernando {[1996] 1 WLR 223}, (2) Kanda v. Government of Malaya {(1962) AC 322}, (3) Hoggard v. Worsborough Urban District Council: [1962 2QB 93] just before that land mark judgment. In the said case of Ridge v. Baldwin (supra) the House of Lords held by a majority of four to one that a dismissal of the Chief Constable of Brighton was void since he had been given no notice of any charge against him, and no opportunity of making his defence, and it was held that it was not only a breach of principles of natural justice, but it was also contrary to the express provisions of statutory regulations, which in the case of mis-conduct require notice of the charge and an opportunity for self-defence. The case before the House of Lords turned on the fact that the Chief Constable of Brighton had been convicted for negligence or unfitness, without hearing the defence, and it was on this simple and general ground that the majority of four upheld the Chief Constable's rights with Lord Morris saying :-

"My Lords, here is something which is basic to our system : the importance of upholding it far transcends the significance of any particular case".

84. The House of Lords held as irrelevant the hearing given to the Chief Constable's solicitor since even no notice of any specific charge was given, and natural justice was again violated. The leading speech in Ridge v. Baldwin (supra) was of Lord Reid, which was of greatest significance, and in which Lord Reid propounded that the mere fact that the power affects rights or interests is what makes it judicial, and so subject to the procedures required by natural justice. In other words, it was held that a power which affects rights must be exercised judicially i.e. fairly, and the fact that power is administrative does not make it any the less "judicial" for this purposes. Lord Reid emphasized the universality of a right to a fair hearing.

85. In a later case in Regent vs. GAMING BOARD FOR GREAT BRITAIN, EX P BENAIM AND KHAIDA [1970] 2Q B 417, Lord Denning MR summed up the principles of the applicability of principles of natural justice as follows :-

"At one time it was said that the principles (sc. of natural justice) only apply to judicial proceedings and not to administrative proceedings. That heresy was scotched in Ridge v. Baldwin. At another time it was said that the principles do not apply to grant or revocation of licences. That too is wrong. R. v. Metropolitan Police Commissioner ex p. Parker and Nakkuda Ali v. Jayaratne are no longer authority for any such proposition."

86. While deciding the case O' Reilly v. Mackman {(1983) 2 AC 237 at 276} Lord Diplock said in the House of Lords that :-

"the right of a man to be given `a fair opportunity of hearing what is alleged against him and of presenting his own case is so fundamental to any civilised legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement'.

(Emphasis supplied).

87. The concept of acting fairly having been sorted out through Ridge v. Baldwin later, in the case of R. v. Commission for Racial Equality ex p. Hillingdown LBC [1982] AC 779, Lord Diplock further stated the law on this point as follows :-

"Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision".

88. Thus, the law is now clearly settled, as is indeed self-evident, that there is no difference between natural justice and acting fairly, and that they are only alternative names for a single but a flexible doctrine, whose contents may vary according to the nature and the power in the circumstances of the case. In the words of Lord Denning MR, `the rules of natural justice, or of fairness, are not cut and dried. They vary infinitely, as he propounded in the case R. v. Home Secretary ex. p. Santillo [1981] QB 778.

89. The case of Ridge v. Baldwin (supra) and all the subsequent case law as cited above has been referred to by us here because it brought about discussion on the law about whether failure to give a fair hearing had rendered the dismissal of the Chief Constable of Brighton void or voidable. Ld. Authors have discussed the aspect of an order having been passed in violation of principles of natural justice as being void or voidable by further stating in their book as follows :-

"Void or voidable Ridge v. Baldwin brought with it a rash of conflicting opinions about whether failure to give a fair hearing rendered the dismissal of the chief constable void or voidable. In the long history of the case on natural justice as applied to administrative action this question had never before been agitated, for the simple reason that the logic of the situation excluded it. It had always previously been held that a breach of the rules of natural justice resulted in the determination being null and void, in the same way as any other act which was ultra vires. For the duty to act fairly, just like the duty to act reasonably, was enforced as an implied statutory requirement, so that failure to observe it meant that the administrative act or decision was outside the statutory power, unjustified by law, and therefore ultra vires and void. The assumption was so well understood that it was rarely spelled out in judgments Anisminic Ltd. v. Foreign Compensation Commission [1968] 2 QB at 890 (Diplock LJ): [1969] 2 AC at 171 (Lord Reid), 195 (Lord Pearce) and 207 (Lord Wilberforce). As explained already, there was no other basis on which the courts could intervene. The majority of the House of Lords in Ridge v. Baldwin decided entirely consistently with this hypothesis, holding expressly that the chief constable's dismissal was void. Lord Reid said [1964] AC at 80 Then there was considerable argument whether in the result the watch committee's decision was void or merely voidable. Time and time again in the cases I have cited it has been stated that a decision given without regard to the principle of natural justice is void and that was expressly decided in Wood v. Woad (1874) LR 9 Ex. 190. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.

Lord Morris and Lord Hodson likewise held that the decision of the watch committee was void, and could be voidable only in the sense that unless and until the chief constable contested it, it would stand (this point is discussed elsewhere).

But the dissentient judges who would have held that the chief constable had no right to a fair hearing were of opinion that the watch committee's decision was not void but voidable. As expound by Lord Evershed in the House of Lords, the motive was a desire to enlarge judicial discretion. He argued that if the decision were merely voidable, the court need quash it only in case of a real substantial miscarriage of justice. This policy is open to the objection that it would introduce dangerous uncertainty  one might say, palm-tree injustice. Natural justice has for centuries been enforced as a matter of law and not of discretion. The dissentient opinions, nevertheless, were adopted by the Privy Council in a case from Ceylon, where a minister had failed to give a fair hearing to a municipal council before dissolving it on grounds of incompetence. Durayappah v. Fernando [1967 2 AC 337 For no evident reason the Privy Council resorted to `void or voidable', holding that the minister's order was voidable, but only at the instance of the Council. An end was put to such arguments when the House of Lords later reaffirmed that an order made contrary to natural justice was outside jurisdiction and void Anisminic v. Foreign Compensation Commission [1969] 2 AC 147 : and see A.G. v. Ryan [1980] AC 143.

As pointed out elsewhere, no logic can be extracted from `void or voidable' which will assist the resolution of cases. Decisions depend upon whether the right remedy is sought by the right person in the right proceedings, and on all those questions there are rules to be applied. As regards the remedy, it may be added that if a decision vitiated by breach of natural justice were merely voidable, in the sense of being intra vires at the outset, it would be impossible to remedy the situation by a merely declaratory judgment, as was done in Ridge v. Baldwin. Nor is there any need for `voidable' to explain the self-evident fact that no remedy is available until the injured party obtains it from the court. As Megarry J has said.

A decision reached by a tribunal wholly outside its jurisdiction and in complete defiance of natural justice is about as void as anything can be; but if nobody who is entitled to challenge or question it chooses to do so, it remains in being. Yet to describe such a decision as being `voidable' is to use that word in a sense that is not only very special but liable to mislead.

In natural justice cases, just as much as in the others already discussed, it is essential to remember that `void' is not an absolute but a relative term : a decision or act may be void against one person and valid against another. This is explained elsewhere in the context of who is entitled to sue when a fair hearing is denied. And what is the position when the right to a fair hearing is waived".

90. In the instant case before us, the earlier Inquiry Officer concerned, Shri Jagan Matthews, IAS, had not been able to go ahead with the conduct of the Disciplinary Enquiry against the applicant earlier, because of the stay orders issued by the Allahabad Bench of the Tribunal in the first OA No.623/2010 filed by the applicant. That stay order came to be vacated and merged in the final order of the Tribunal which was passed only on 29.8.2012. Thereafter, in his discretion, without conducting any inquiry whatsoever, the said officer, Shri Jagan Matthews, IAS, who was appointed as the Inquiry Officer, submitted his report the very next day, on 30.8.2012. It is clear that no disciplinary proceedings were held, either to give an opportunity of hearing to the applicant, as the charged delinquent official, or to the Presenting Officer to present the case of the Disciplinary Authority, as per the charge memo issued, and nor the applicant had been allowed, as the delinquent government official, to defend himself against the case as presented by the Presenting Officer. Therefore, a report submitted by the Inquiry Officer, who was expected to perform his functions in a quasi-judicial manner, had submitted his Report dated 30.08.2012 without going through any of the motions whatsoever, as were required of him to be gone through, for the purpose of his quasi-judicial functions. On the authority of Ridge v. Baldwin (supra) and Hounslow London Borough Council v. Twickenham Garden Developments Ltd. [1971] Ch. 233 at 259 (supra) therefore, his Report dated 30.08.2012 can only be held to be void and, therefore, the Report submitted by him on 30.8.2012 has further to be treated as a nullity in law, since, as the Inquiry Officer, who was expected to perform his duties as a quasi-judicial authority in a quasi-judicial manner, he had not gone through any of the motions of conducting a fair enquiry, and he had neither given liberty of hearing to the applicant as the delinquent Government official, nor to the Presenting Officer, as a representative of the respondent authorities, to prove their case, as given in the charge memo already served upon the applicant.

91. The further aspect that has to be seen by us is as to whether the Inquiry Officer could have used his discretion to do away with the rigours and the process of going through the motions of conducting a fair and Proper Disciplinary Enquiry, by maintaining a day to day daily diary of the proceedings, and recording evidence as adduced by the Presenting Officer on behalf of the Department and by the applicant as the delinquent official, under exercise of his functions as a quasi-judicial authority. The law regarding abuse of discretion has also been laid down fairly clearly, both in English Law and Indian Law. It is a classic constitutional doctrine that wide discretionary powers are incompatible with the Rule of Law. What the Rule of Law demands is not that wide discretionary powers should be eliminated, but that the law should be able to control its exercise. Therefore, when the 1969 Rules had laid down the process and procedure to be followed by the Inquiry Officer for conducting the inquiry, the Rules have also very aptly and appropriately limited the discretionary powers of the Inquiry Officer to do away with the motions which have necessarily to be gone through by him for conducting the Disciplinary Enquiry.

92. All powers have legal limits, and all the powers of the Inquiry Officer have also been laid down. If the Inquiry Officer chooses to do away with the procedure as prescribed for him to conduct an inquiry as per the Rules prescribed in this regard, any report which he submits thereafter can only be held to be void ab initio, and nothing else. Arbitrary power and unfettered discretion are what the Courts have always refused to countenance, and we have to most respectfully follow that basic legal tenet. Statutory powers have to be exercised with care, fairly, reasonably, and in good faith, and for proper purposes only, and in accordance with the spirit, as well as the letter of the empowering Act, or Rules, or Regulations. An Inquiry Officer appointed under the 1969 Rules cannot, therefore, abrogate to himself powers to do away with the prescribed procedure regarding conduct of the Disciplinary Enquiry, and it does not lie within either his administrative discretion or quasi-judicial function to do away with the process and procedure as prescribed for conducting the disciplinary inquiry.

93. Discretion is an element in all powers assigned to various levels of authorities, as opposed to duties. Powers assigned to administrative or quasi-judicial authorities are given to them for proper performance, and they hold their authority to perform those functions upon trust. But, at the same time, they must confine themselves to applying recognizable principles of law, since at any cost they must not expose themselves to the charge of abuse of discretion. In order to preserve the Rule of Law, the Courts have constantly reacted to any abuse of discretion by devising some means of preserving legal principles of control. This is what is known as judicial review, which means "review of the manner in which the decision was made".

94. Here, in the instant case, we find that the Inquiry Report which was submitted by the Inquiry Officer one day after the restrictions imposed upon him by the stay order earlier issued by the Allahabad Bench of this Tribunal was lifted through the pronouncement of the final order in OA No.623/2012 on 29.8.2012, was not in the manner the Inquiry Report could have been submitted, and in exercise of the power of judicial review, we have no hesitation in holding that it amounted to an abuse of the process of law, and an abuse of the discretionary power available to the Inquiry Officer to arrive at a conclusion after hearing both the sides. Therefore, any such Report, whether it has exonerated the applicant, as the applicant before us has repeatedly pleaded, or has, instead, found him guilty, is void ab initio. In submitting his report one day after the restriction upon him to conduct the Disciplinary Enquiry was lifted, without going through the motions of conducting the Disciplinary Enquiry actually, the Inquiry Officer failed to act fairly, reasonably, and in good faith, and was not on correct grounds, and therefore, the Report was ultra vires the prescription of the procedure for conduct of the Disciplinary Enquiry, and void ab initio, being devoid of the principles of fairness and natural justice having been followed, either towards the respondent Disciplinary Authorities, who had framed the charges, or towards the applicant delinquent Government officer, who was facing the charges.

95. When we apply the principles of law that judicial review means review of the manner in which the decision was made, as per the law as laid down in Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155 at 1174 (Lord Brightman), (supra), we cannot but observe that the Inquiry Officer had contravened the law, by acting in excess of the powers which the Rules of 1969 had provided for him, which flies in the face of the principles as laid down in the case "Associated Provincial Picture House Ltd. v. Wednesbury Cpn [1948] 1 K B 223 at 234, commonly known as Wednesbury principles.

96. We have since noticed some Indian case law also on the same subject, supportive of our conclusion as above. In the case of Bimal Charan Misra vs. State of Orissa, AIR 1957 Orissa 184, it was held by the Honble Orissa High Court that Inquiry Officer should strictly observe the principles of natural justice, and follow the mandatory provisions of the concerned Rules, otherwise it must be held that the disciplinary enquiry so conducted was in flagrant violation of the mandatory provisions of the relevant Rules, and the principles of natural justice, and, therefore, void. In the instant case before us, this is what has happened, and, therefore, his Report dated 30.08.2012 has to be treated as void, or a nullity in law.

97. In the case of Ramesh Chandra Verma vs. R.D.Verma, AIR 1958 All. 532 (543), it was held by the Honble Allahabad High Court that where the Inquiry Officer expressed his opinion on a charge even before cross-examination of the witnesses was over, it must be held that he had prejudiced the issue. In the instant case, the Inquiry Officer had even submitted his final report, without recording any evidence whatsoever. Therefore, he had prejudiced the issue, and his report was void, or a nullity in law.

98. In the case of State of Punjab vs. Karam Chand, AIR 1959 Punj. 402 (412-413), it was held by the Honble Punjab & Haryana High Court that the Inquiry Officer must conduct the hearing fairly and impartially. If the Inquiry Officer conducts the proceedings in a manner which is contrary to the rules of natural justice, or fair play, the superior Court would be perfectly justified in exercising its extraordinary powers vested in it by Article 226 of the Constitution. In the instant case, this Tribunal can therefore hold that when the Inquiry Officer earlier appointed had failed to follow the principles of natural justice and fair play, any Report submitted by him was void, and a nullity in law.

99. In the case of State of U.P. vs. C.S.Sharma, AIR 1963 Alld. 94, it was held by the Honble Allahabad High Court that when the enquiry cannot be said to have complied with the elementary principles of natural justice, the enquiry could not be held to be impartial or a proper enquiry. The same has been the case in the instant case, and we must also hold that no impartial or proper disciplinary enquiry was ever held by the previous Inquiry Officer.

100. In the case of State of Mysore vs. S.S.Makapur, 1963 SC 375 (377), it was held by the Honble Apex Court that the Inquiry Officer should not act on any information which they may receive unless they put it to the party against whom it is to be used, and give him a fair opportunity to explain it. What is a fair opportunity must depend upon the facts and circumstances of each case. In the instant case, the Inquiry Officer earlier appointed neither allowed the Presenting Officer to present his case, nor asked the delinquent to produce his evidence and witnesses. In that context, it cannot be said that he followed the principles of natural justice, and his report was, therefore, null & void.

101. In the case of State of Bombay vs. Nurul Latif Khan, AIR 1966 SC 269, the Honble Apex Court held to the following effect:-

(i) The Civil Services (Classification, Control and Appeal) Rules provide in r. 55 that if the charge- sheeted Officer so desires or if the authority concerned so directs an oral enquiry shall be held. This provision is mandatory and is based on considerations of natural justice and fair play. Therefore when the respondent expressed his desire to the Inquiry Officer that he wanted to lead evidence in support of his plea, it was obligatory on the Inquiry Officer to have fixed a date for recording such oral evidence and give due intimation to the respondent in that behalf.

(ii) Though an Inquiry Officer would be justified in conducting the enquiry in such a way that its proceedings are not allowed to be unduly or deliberately prolonged, it would be impossible to accept the argument that if the charge-sheeted officer wants to lead oral evidence the Inquiry Officer can say that having regard to the charges against the officer he would not hold any oral enquiry

(iii) In the present case the witnesses whom the respondent wanted to examine would undoubtedly have given relevant evidence. He wanted to examine his doctors but the Inquiry Officer failed to give him an opportunity to do so. That introduced a fatal infirmity in the whole enquiry as the respondent had not been given a reasonable opportunity to defend himself within the meeting of Art. 311 (2).

102. Therefore, as observed by Honble Apex Court in para 9 of the above judgment, it was not for the Inquiry Officer to avoid & decline to record any oral evidence, merely because the charges were based upon only documents, as the Inquiry Officer appointed in the instant case appears to have done.

103. In the case of Suryanarayana vs. State of A.P., (1967) 2 An. WR 253 (DB) it was held by the Honble Andhra Pradesh High Court that the Inquiry Officer need not to pre-judge the issue before the actual enquiry, and it was noted that the Inquiry Officer gave his judgment even before the trial, rendering the whole trial a mere farce, and hence it was held that the enquiry was not, therefore, validly initiated. This judgment is exactly parallel to the instant case before us, where the Inquiry Officer submitted his report even before conducting the disciplinary enquiry, and, therefore, it has to be held that the Departmental Enquiry was not validly initiated.

104. In the case of Bibhuti Bhushan Paul vs. State of West Bengal, AIR 1967 Cal 29 (31), it was held by the Honble Calcutta High Court that the Inquiry Officer must hold the enquiry to submit a report, even when the written statement of the employee is so convincing that the charges automatically fall to the ground. Hence, if the Inquiry Officer is asked to hold the enquiry after receiving the written statement, it does not show that the enquiry is tainted with bad faith at its inception. This case is also fully in parallel with the instant case before us, where the earlier Inquiry Officer found the applicants reply to be very convincing, and appears to have felt that the charges as levelled against him fall to the ground. Still, the I.O. was under a duty to conduct the Disciplinary Enquiry as per the procedure as laid down in this regard, which he failed to perform, and holding that Disciplinary Enquiry now cannot be held to have been actuated by any bad faith.

105. In the cases of Rao Ralla Palli vs. State of A.P., 1968 SLR 77 (79) and Amar Nath vs. Commissioner, 1969 Cur. LJ 484 it was held that where the Inquiry Officer has already prejudged the issue, he can never be expected to maintain an open mind during the course of enquiry, and in other words, it has to be held that the Inquiry Officer gave his judgment even before the trial, thus rendering the whole trial a mere farce. The ratio in these two judgments also apply to the instant case before us.

106. In the case of Abdul Gani vs. Union of India, (1978) 2 SLR 601 (605) All., it was held that the Inquiry Officer must conduct the departmental enquiry with an open mind, which has not happened in the instant case, where the Inquiry Officer did not even fix any dates for holding the Disciplinary Enquiry, and nor did he give any opportunity to even he Presenting Officer to present his case on the charges as framed and served upon the applicant, and nor did he give any opportunity to the applicant to defend his case against those charges as framed. Therefore, since there was a suo-moto and unilateral submission of a Report by the Inquiry Officer on 30.08.2012, we cannot help but notice, and record, that the Departmental Enquiry had actually never been commenced, or held, with an open mind, in a quasi-judicial manner by the Inquiry Officer.

107. Therefore, we have no hesitation in holding that the Respondent No.2 was fully within its rights to treat the Report dated 30.8.2012 submitted by the said earlier appointed Inquiry Officer, Shri Jagan Mathews, within one day of his having acquired the freedom to submit such a report, without going through the motions of actually conducting the Disciplinary Enquiry, and giving a fair hearing to both sides, as a nullity in law and void ab initio. After holding that the Respondent No.2 Disciplinary Authority had correctly appreciated that the report dt. 30.8.2012 submitted by the said Inquiry Officer, Shri Jagan Mathews, was void ab initio, and non est in law, it was open to the Disciplinary Authority to conclude that the disciplinary enquiry into the charges, and the reply of the applicant as delinquent Government servant informed of those charges, having not been properly conducted by the earlier Inquiry Officer, could now be conducted further within the Rules.

108. It is clear from Rule 8 (1) of the 1969 Rules, reproduced by us above, that no order imposing any of the major penalties specified under Rule 6, shall be made except after an inquiry is held, as far as may be in the manner provided in that Rule, and Rule 10, or as provided by the Public Servants (Inquiries) Act, 1850 (Act 37 of 1850) where such inquiry is held under that Act. When we have concluded as above that no inquiry was ever conducted, or was ever held or concluded by the previously appointed Inquiry Officer, Shri Jagan Mathews, and that without following the principles of natural justice and fairness of action, as required of quasi judicial authorities, he had abused his discretion, and suo moto submitted a report without giving any opportunity of being heard to either of the sides, it cannot be allowed to be canvassed by the applicant that such an inquiry was properly held under the 1969 Rules by the said Inquiry Officer, and that the respondent Disciplinary Authority can now be prohibited from constituting a Board of Inquiry under the Public Servants (Inquiries) Act, 1850, by deciding this time to hold the inquiry this time under that Act.

109. During the course of the detailed arguments, Learned Counsel for the applicant had relied upon the words that "except after an inquiry is held as far as may be" appearing in Rule 8 (1) to state that this provision imposed a prohibition upon the Respondent Disciplinary Authority from once again re-opening the case of the un-concluded disciplinary enquiry in respect of the charge memo served upon the applicant. However, the Ld. Counsel for the respondents had clarified that the same Rule 8(1) of the 1969 Rules prescribes that the inquiry should be held in the manner as provided in that rule with Rule 10, or, in the alternative, as provided by the Public Servants (Inquiries) Act, 1850, where such disciplinary inquiry is decided to be held under the Act.

110. Learned Counsel for the applicant had also relied upon the word `further', and submitted that the Rules 8 (1), (2) and (3) of the 1969 Rules together could have only permitted the respondent State Government of U.P. to direct a further inquiry by the same Inquiry Officer, and that they were wholly unjustified in rejecting outright the report of the Inquiry Officer submitted on 30.8.2012, and then constituting a fresh Board of Inquiry for further inquiry on the same charge memo as served upon the applicant earlier. He had submitted that the meaning of the word further has been clearly defined by the Hon'ble Apex Court in its Judgment in the case of K.Chandrasekhar v. State of Kerala and Ors. {AIR 1998 SC 2001} , at para 24 thereof, which reads as follows :-

24. Since, in the present case, unlike that of Kazi Lhendup Dorji (supra), the consent was withdrawn after report under Section 173(2) Cr. P.C. was filed on completion of investigation as the State Government would like to further investigate into the case, the question which still remains to be answered is whether this distinguishing fact alters the principle laid down therein. To answer this question it will be necessary to refer to Section 173 of the Code which, so far as it is relevant for our present purposes, reads as under:-

" Report of Police Officer on completion of investigation. - (1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating -

(a) the names of the parties,

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and , if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under Section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government , the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx (6) xxx xxx xxx (7) xxx xxx xxx

8. Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge if the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) and (6) shall, as far as may be, apply in relation to such report or report as they apply in relation to a report forwarded under sub- section (2)".

111. The above definition having been laid down in the case of further inquiry in a criminal case under section 173 of Cr.Pc cannot be applied mutatis mutandis to the facts of the instant case in which it is a question of Disciplinary Enquiry which was never conducted by the previous Inquiry Officer and the further course of action left for the Disciplinary Authority was only to appoint either a new Inquiry Officer or to take recourse to the Public Servants (Inquiries) Act, 1850. The Ld. Counsel for the applicant emphasised that the Disciplinary Proceedings already conducted cannot be held to have been initiated as prejudice is necessary to be proved for proceedings to be vitiated. In support of his contentions, he cited the following cases:-

(1)State of U.P. v.Harendra Arora and Anr. {(2001) 6 SCC 392};

(2) Haryana Financial Corporation and Anr.

v. Kailash Chandra Ahuja.

112. He very helpfully cited copies of these Judgments also on 31.10.2013 along with his submissions. We have gone through the above cited judgments. The judgment in State of U.P. v. Harendra Arora and Anr. (supra) which was delivered in the context of the Central Civil Services (Classification, Control and Appeal) Rules, 1930 and Rule 55A as amended in the State of U.P. Para 13 of the Judgment discusses about the infractions from statutory provision, rules and regulations and goes on to say that in respect of procedural provisions other than that of a fundamental nature the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touch stone of prejudice. The Apex Court had observed that the test would be whether the delinquent officer had got a fair inquiry or not. Subsequently, the Hon'ble Apex Court had cited the case of Russel v. Duke of Norfolk [(1949) 1 All Er 109 (CA)] to state that the principles of natural justice cannot be reduced to hard and fast and the same cannot be put in a straight jacket as its applicability depends upon the text and the facts and circumstances of each case. In para 15 of that judgment the Apex Court had discussed the very same case of Ridge v. Baldwin (supra) as referred to above by us above. The Hon'ble Apex Court had also then cited the case of R. v. Secy. Of State for Transport, ex P Gwent Country Council {(1987) 1 All Er 161 (CA), in which Court of Appeal had applied test of prejudice and held that unless prejudice is established to have no interference was called for. The Hon'ble Apex Court had also cited with the approval the judgment in the case of Davis v. Carew-Pole, {(1956) 1 WLR 833}, in which it was held that unless prejudice is established to have no interference was called for. The Hon'ble Apex Court had also cited with approval the judgment in the case of Davis v. Carew-Polo (supra), in which it was held that the mere fact that the mere fact that person appearing before a domestic Tribunal had not been given formal notice of all matters in which his conduct was to be called in question did not necessarily contend successfully that the proceedings were not conducted in accordance with the principles of natural justice as in the case no fact was departmental in relation to other matters and in the circumstances it was held that the plaintiff was not prejudiced by the matter of notice.

113. The Apex Court had then gone on to discuss and cite with approval the questions of prejudice in departmental proceedings as laid down in Janakinath Sarangi v. State of Orissa {k(1969) 3 SCC 392} in para 8 and the judgment in K.L. Tripathi v. State Bank of India {(1984) 1 SCC 43] in para 19 of its judgment. In Sunil Kumar Banerjee v. State of W.B. {(1980) 3 SCC 304} in para 20 of its judgment. In State Bank of Patiala and Ors. v. S.K.Sharma {1996 AIR 1669}, para 21 of its judgment. In Krishan Lal v. State of J&K {(1994) 4 SCC 422} in para 21 of its judgment and in para 23 of its judgment the Hon'ble Apex Court had held that in the conspectus of the aforesaid decisions and different provisions of law noticed by it that the provisions in Rule 55A of the Rules for furnishing a copy of the Inquiry Report is a procedural one and of a mandatory character, but even then a delinquent has to show that he has been objective by this non-observance. Secondly, the law laid down by the Constitution Bench in the case of Managing Director, ECIL v. B. Karunakar {(1993) 4 SCC 727}, it was reiterated that an order passed in a disciplinary proceedings cannot ipso facto merely has not been furnished to the delinquent officer, but is obliged to show that due to non-furnishing of such a report he has been prejudiced, it would furnish a copy of the Enquiry Report under the statutory provisions and or service rules.

114. The applicant before us cannot be allowed to derive any benefit out of these judgments because in this particular case the inquiry was completed and the only claim of prejudice by the applicant was arising out of non-supply of the Enquiry Report to him. In the instant case before us no departmental enquiry has ever been conducted, whatsoever, no hearings have been held and neither departmental case has been presented by the Presenting Officer nor has the applicant as a delinquent government official been permitted to present his side of the case to rebut in of the charges levelled against him in the charge memo. Therefore, in the instant case there had been prejudice to both sides at the hands of the Inquiry Officer as the Respondent State of U.P. has been prevented from presenting its case against the applicant s a delinquent officer and then the applicant has been prevented from presenting his defence against the articles of charges framed against him. Therefore, the applicant cannot claim shelter from the law as pronounced by Hon'ble Apex Court in State of U.P. v. Harendra Arora (supra).

115. On the aspect of misconduct, and as to whether the actions of the applicant in filing the said Writ Petitions (Civil) No.37/2010 and 136/2011 before the Honble Apex Court criticizing inaction on the part of the Union of India amounted to misconduct or not, neither has a proper disciplinary enquiry (DE) been held so far, and nor the Inquiry Officer given a proper Report, and nor has his Disciplinary Authority made up any mind so far, nor have his Appellate Authority or Review or Revisional Authorities made up their mind. Therefore, the very aspect of whether what the applicant did would amount to a misconduct within rules cannot at this stage be a subject matter of judicial review by this Tribunal, and, therefore, we refrain from commenting upon this aspect. As and when the disciplinary enquiry is completed, if the findings are against the applicant at the level of the Disciplinary Authority, and/or the Appellate Authority, and/or the Review/Revisionary Authority also, the applicant would be at liberty to agitate the matter once again for judicial review of such findings, at the appropriate point of time.

116. After having heard the matter in great detail, we have given our anxious consideration to the facts of the case. We have also examined the relied upon case law on this aspect, and have ourselves searched for some relevant case law.

117. Firstly it must be held that principle in Taylor vs. Taylor (supra) cited by the applicant does not enure any benefit to the applicant. Accepting the age old principle laid down by that 140 year old judgment of 1873, if the disciplinary enquiry was prescribed to be completed by the Inquiry Officer in the manner prescribed in Rule 8 (2) and Rule 8(3) of the 1969 Rules, and even the format of the enquiry report had also been prescribed by the said 1969 Rules in Rule 8 (24) it was not open to the previous Inquiry Officer to adopt a different procedure of taking it upon himself to issue a one sided report, without conducting any disciplinary enquiry whatsoever. Therefore, actually the cited case of Taylor vs. Taylor (supra) would go against the applicant himself in the instant case.

118. The Honble Apex Courts ratio in Sahodara Devis judgment (supra) also does not enure much benefit to the applicant in the instant case. In the ratio emanating from the case of Ram Phal Kundu vs. Kamal Sharma (supra), while the applicant had laid emphasis on both para 12 & 13 of the said judgment, the counsel for respondents No.2 had laid emphasis specially on para 13 of the said judgment, as reproduced above. We are of the view that this judgment also does not enure any benefit to the applicant, and since the Rules 8 (15), 8 (16) and 8 (24) specifically prescribe the method of conducting the disciplinary enquiry, including the format of the enquiry report, they cannot at all be taken lightly and overlooked. Therefore, we agree with the submissions of learned counsel for respondent No.2 that the Report dated 30.8.2012, submitted by the previous Inquiry Officer, did not meet the requirements of the rules.

119. Learned counsel for the applicant had cited the case of Commissioner of Income Tax vs. Anjum M.H.Ghaswala (supra) and used it against the actions of the respondents of having passed the impugned order. But the same judgment would apply with equal force against the actions of the previous Inquiry Officer also, and the abuse by him of the inherent power vested in him, in a manner which was contrary to the provisions of Rule 8 (6) and 8 (24) of the 1969 Rules. Therefore, the applicant cannot be allowed to derive any benefit from the said cited judgment also. Learned counsel for the applicant had also cited the case of State of U.P. vs. Singhara Singh (supra) to reiterate his point that when a power is given to a certain person to perform certain functions in a particular way, things must be done in that way, or not at all, as per the principle emanating from Taylor vs. Taylor (supra). However, as mentioned above also, the same rule equally applies to the actions of the previous Inquiry Officer, and the applicant before us cannot be allowed to enure or derive any benefit out of the said judgment, and to submit that the Report submitted by the Inquiry Officer on 30.8.2012 should be accepted, even when it was prepared and sent by him in total violation of the requirements for conducting the disciplinary enquiry, as expected of him, having been followed by the earlier Inquiry Officer.

120. Learned counsel for the applicant had cited the case of Bharat Singh vs. State of Haryana (supra) to buttress his point that the respondents have not denied the averments made in the OA specifically in the pleadings, but we find that, on the contrary, the respondents have rightly submitted that the applicant had failed to lay proper challenge to the wordings and contents of the impugned order dated 26.09.2012 rejecting the report which the previous Inquiry Officer had submitted. Therefore, the applicant cannot be allowed to derive any benefit out of this judgment also. Learned counsel for the applicant had cited the case of Rajasthan Pradesh Vaidya Samiti vs. Union of India (supra) in order to buttress his submission that in the absence of necessary pleadings and supporting evidence, any findings cannot be sustained in law. But to our mind, actually this judgment operates against the applicant himself, inasmuch as in the absence of any production of witnesses, recording of evidence, and cross examination of the prosecution witnesses by the applicant, and production of his own defence witnesses by the applicant, the findings suo moto arrived at by the Inquiry Officer, without any supporting evidence, cannot be sustained in law, as was clearly held by the Honble Apex Court in Atul Castings Ltd. Vs. Gurcharan Singh, cited in para 17 of the judgment cited before us. Therefore, the applicant cannot be allowed to derive any benefit of this judgment also.

121. In this particular case, first the charge sheet has been upheld for conducting a disciplinary enquiry by the orders passed on 29.8.2012 by the Allahabad Bench of this Tribunal in applicants first OA, and then through order dated 16.4.2013, on the applicants second OA before a concurrent Bench it has already been held that disciplinary case against the applicant is still continuing. Following the ratio in the case of SI Roop Lal and others vs. Lt. Governor through Chief Secretary of Govt. of NCT of Delhi: JT 1999 (9) SC 597, we are bound by these two findings of concurrent Benches of this Tribunal, and we would not like to go into the nitty-gritty of the pleadings in regard to the charges, since the disciplinary enquiry itself has not still been concluded.

122. From the case of K.Chandrasekhar vs. State of Kerala (supra) learned counsel for the applicant had tried to derive advantage from the meaning of the word further, but, however, we find that that judgment was delivered in the context of criminal proceedings, and, therefore, the applicant cannot be allowed to enure any benefit out of the said judgment in the context of further disciplinary enquiry in a disciplinary enquiry proceedings. Learned counsel for the applicant had also cited the cases of State of U.P. vs. Harendra Arora (supra), Dinesh Chandra Pandey vs. High Court of Madhya Pradesh (supra) and Haryana Financial Corporation vs. Kailash Chandra Ahuja (supra). Through these cases, the contention of the learned counsel for the applicant was that the Inquiry Report submitted by the Inquiry Officer could not be said to have become vitiated, since prejudice is necessary for the proceedings to get vitiated. However, the applicant cannot be allowed to derive any benefit from these judgments in his favour. The very fact that the previous Inquiry Officer did not conduct any enquiry whatsoever, and had submitted his report without allowing the Presenting Officer to present the case against the applicant as delinquent Government official, is sufficient proof of his prejudice against the interest of the prosecution, and favoritism towards the applicant, the delinquent Government official, and, therefore, we have no hesitation to hold that the Report dated 30.08.2012 submitted by him was totally vitiated, and was a nullity in the eyes of law.

123. The learned counsel for the applicant had further relied upon the case of State Bank of Patiala vs. S.K.Sharma (supra) to submit that the rules regarding the conduct of disciplinary enquiry are only the codification of the principles of natural justice, and the rules have been designed for the benefit of employees, and thus they can be waived by him. However, we are not at all convinced by this submission, and we cannot allow the applicant to derive any benefit out of the ratio of this case, since, in a given measure, rights of the prosecution are also important in a disciplinary enquiry, and the Presenting Officer also cannot be prevented from presenting the case of the prosecution, on the basis of the charge sheet served upon the delinquent Government official, and the Memorandum and Articles of Charges as framed against him, and served upon him.

124. The learned counsel for the applicant had relied upon the judgment of K.L.Tripathi vs. State Bank of India (supra) to submit that when the applicant has never denied having filed the Writ Petition before the Honble Apex Court, by joining along with many others, in the absence of any lis as to facts, there is no necessity to offer him any opportunity to examine or cross examine witnesses. However, from para 33 of the said judgment, as already reproduced by us above, we find that the Honble Apex Court had laid emphasis upon the veracity of the evidence being brought on record, and the testimonies not to be gathered behind the back of any one party, and in this instant case, neither has any evidence been brought on record, nor any testimony been gathered by the previous Inquiry Officer, and, therefore, the applicant cannot be allowed to derive any benefit out of the ratio of this judgment.

125. Learned counsel for the applicant had cited the cases of Deputy Chief Controller of Imports & Exports vs. K.T.Kosalram (supra) and Utkal Contractors & Joinery vs. State of Orissa (supra) to state that the dictionary meanings of the words should be relied upon in order to construct the meanings of the words used, in the appropriate context which fits in with the precise sense of the sentence. Since the Disciplinary Authority had, in order to put the charges to the test of ascertainment of the truth entrusted the task to an Inquiry Officer, who did not go through the motions of conducting the enquiry, and took it upon himself to suo motu submit a one sided report, supposedly exonerating the applicant of all the charges against him, without hearing the version of the Presenting Officer regarding those charges, it has to be said that the enquiry had got vitiated, and that it has to be continued from the stage beyond which such vitiation had occurred. To that extent, the Respondent No.2 Disciplinary Authority is right in treating the Memorandum and Articles of Charges as served upon the delinquent Government official, the applicant before us, as alive, and treating his reply thereto as having been considered, and then ordering for further enquiry beyond that stage onwards only.

126. Coming to the next question as to whether respondents were right in treating the Report dated 30.8.2012 of the previous Inquiry Officer as a nullity in law, we may examine the case law on this subject. It is seen from the ratio of the above cases that the Inquiry Officer must follow the procedure as prescribed in the disciplinary enquiry rules, and cannot by-pass those Rules, and take it upon himself to suo motu write a report exonerating the delinquent Government official of all the charges, without going through the motions and the rigmarole of conducting the disciplinary enquiry as per the procedure prescribed in this regard. But, in the instant case, the previous Inquiry Officer did exactly that.

127. That brings us to the question of whether the violation of principles of natural justice by the Inquiry Officer, and his not having followed the procedure as per the rules framed in this regard through Rule 8 (15) and 8 (16), and then presenting his enquiry report as per the format given in Rule 8(24) (supra), would render the report void, or only voidable. It is well laid down proposition of law that the function of the Inquiry Officer is a quasi judicial function. We have to, therefore, examine as to whether non-adherence to the principles of natural justice by the Inquiry Officer in the performance of his quasi judicial functions renders his report as void or voidable.

128. In view of the above discussion, we have no hesitation to hold that the Report dated 30.8.2012 submitted by the previous Inquiry Officer within one day of his becoming enabled to conduct the said enquiry into the Articles of Charges upheld by the Allahabad Bench of this Tribunal in its order on the applicants first OA on 29.8.2012, was void ab initio and a nullity in the eyes of law, and the respondents were fully within their powers to discard it and ignore it altogether.

129. The next question to be answered is as to whether the respondents could have then adopted a different approach, and instead of asking the same Inquiry Officer to conduct further enquiry, they were right in having appointed an Inquiry Authority or Board under the Public Servants (Inquiries) Act, 1850. We find that after having held rightly that the Report of the Inquiry Officer, as submitted on 30.8.2012, was a nullity in the eyes of law, the legal position was back to square one, as the Inquiry Officer had failed to perform any of his quasi-judicial functions. Therefore, it is held that the respondent No.2, Disciplinary Authority was fully within its rights to take recourse to the other alternative method to conduct the disciplinary enquiry, as prescribed under Rule 8 (1), 8 (2), 8 (3), 8 (15) and 8 (16) of the 1969 Rules.

130. During the course of arguments, it transpired that when once the previous Inquiry Officer was found unsuitable and the respondent  State of U.P. realized that officers of sufficient seniority at the appropriate levels were not available to conduct the disciplinary enquiry against the applicant as the delinquent Government official, they had to take recourse to a two Member Inquiry Authority or Board under the Public Servants (Inquiries) Act, 1850. This could be a plausible explanation, since the applicant himself is in one of the top most positions of Indian Administrative Service of UP Cadre.

131. However, when the composition of the enquiry authority has now constituted in the impugned order dated 26.9.2012 was gone into, it was discovered by us that one of the two officers constituting the enquiry authority was a batchmate of the applicant, though both the learned counsels could not confirm as to whether within the batch, he was senior or junior to the applicant before us. Be that as it may, since in Rule 8 (2) of the 1969 Rules, as reproduced above, it is clear that the rules do provide for officers from other All India Services also to be included for the purpose of constituting the enquiry authority, and Rule 8 (3) specially prescribes that when a Board is appointed as enquiry authority, it shall consist of not less than two senior officers, provided that at least one Member of such a Board shall be a Member of the Service to which the Member of the Service belongs. In the Board as now constituted through the impugned order dated 26.9.2012, both Members of the Board belong to the same service as the applicant, i.e. IAS, but only one of them is senior to him and one is a batchmate. Therefore, since justice has not only be done, but should also be seen to be done, the impugned order dated 26.9.2012 is directed to be amended and modified by the Respondent No.2, State Government of UP, in such a manner that both the officers constituting the Board of Inquiry against the applicant, in the disciplinary enquiry which is still continuing against the applicant, to be senior to the applicant, with at least one being from the IAS of UP cadre, and the other may then be, in case it is so necessary, from either the Indian Police Service, or the Indian Forest Service Cadres of State of UP, which are two other All India Services available to the respondent No.2 for constituting the enquiry authority.

132. At the absolute end of the arguments, while concluding his response, the learned Counsel for the applicant had, after opposing the impugned order truth and nail, made an alternative submission. His alternative submission was that if this Bench comes to a conclusion that the disciplinary enquiry against the applicant can be held further by an Inquiry Authority or Board, of the type as presently constituted under Rule 8 (1), through the impugned order dated 26.9.2012, at least directions should be issued to the Respondent No. 2-State of U.P. to complete the said disciplinary enquiry in a time bound manner, say in three months approximately, in order that the applicant is able to come out of the cloud early, and the sealed cover regarding the consideration of his case for promotion can thereafter be opened. We find full merit in this alternative submission, and therefore, it is allowed.

133. The respondent No.2-State of U.P. can, therefore, reconstitute the Inquiry Board, by amending or modifying the constitution of the Inquiry Authority or the Enquiry Board, as discussed above, so that both the officers constituting the Board are senior in Batch to the applicant, and they are further directed to ensure, that, to the extent possible, the disciplinary enquiry against the applicant by that Inquiry Board would be held on an urgent basis, and would be completed in, as far as possible, say, within three months from the date of receipt of a copy of this order.

134. With these observations and limited concessions in favour of the applicant, the alternative prayer made by the learned counsel for the applicant orally during his arguments is allowed, but the rest of the OA is rejected. But there shall be no order as to costs.

(Navneet Kumar)						(Sudhir Kumar)
 Member (J)							  Member (A)

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