# Anchal Kumar Tiwari v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 376
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-11
- **Case number:** Writ A No. 13368 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anchal-kumar-tiwari-v-state-of-u-p-ors-51815
- **Pages:** 9

## Headnote

Civil Law - U.P. Cooperative Societies Act,
1965
-
U.P.
Cooperative
Societies'
Employees' Service Regulations, 1975 -
Regulation 84 - Disciplinary Proceedings;
Imposition of Multiple Penalties - Burden of
Proof in Inquiry

Facts: The petitioner, a Branch Manager at the
Bhogaon Branch of Mainpuri District Cooperative
Bank Ltd., was punished with reversion from
Manager Grade-II to Manager Grade-III and
ordered to pay Rs.8,53,480/- with 6% interest
for alleged negligence leading to financial loss.
The petitioner, who unearthed embezzlement by
a cashier, was charged with negligence and
vicarious liability, suspended, and subjected to
disciplinary proceedings. He challenged the
order dated July 26, 2023, and the Committee
of Management's resolution dated April 27,
2023, under Article 226, alleging procedural
irregularities and violation of Regulation 84,
which permits only one penalty.

Held: Single Penalty under Regulation 84: The
court held that Regulation 84 of the U.P.
Cooperative
Societies'
Employees'
Service
4 All. Anchal Kumar Tiwari Vs. State of U.P. & Ors.
377
Regulations, 1975, limits the imposition to one
penalty
from
the
enumerated
list.
The
imposition
of
both
reversion
(Regulation
84(1)(e)) and recovery of loss (Regulation
84(1)(d))
was
impermissible,
relying
on
Pancham Ram Yadav Vs U.P. Co-Operative
Federation Ltd., 2019 (9) ADJ 1 (FB) and Vijay
Bahadur Yadav Vs Chairman, U.P. Cooperative
Federation Ltd., 1992 AWC 1479 All (Paras 1419).
Burden of Proof in Disciplinary Inquiry: The
establishment must prove charges through
documentary and oral evidence presented by a
Presenting Officer, even if the delinquent does
not reply or appear. The Inquiry Officer cannot
assume charges to be true by default or rely
solely on charge-sheet documents. The court
found the inquiry defective as no formal
evidence was produced, and the Inquiry Officer
relied on an appraisal note, violating principles
of natural justice (Paras 20-22).
Precedents: Relied on St. of U.P. Vs T.P. Lal
Srivastava, (1996) 10 SCC 702, St. of Uttar
Pradesh Vs Saroj Kumar Sinha, (2010) 2 SCC
772, Roop Singh Negi Vs Punj. National Bank,
(2009) 2 SCC 570, & ors., emphasizing the
establishment's burden to prove charges and
the need for formal inquiry proceedings (Para
22).
Outcome: The impugned order dated July 26,
2023, and the resolution dated April 27, 2023,
were quashed due to procedural irregularities
and imposition of multiple penalties. The
respondents were permitted to initiate fresh
proceedings from the charge-sheet stage,
adhering to proper inquiry procedures and
imposing only one penalty under Regulation 84,
not exceeding the severity of the quashed order
(Para 23).

No Costs: No order as to costs was passed
(Para 24).

List of Cases cited:

## Text

376 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner in his resignation letter dated
01.1.2010 also clearly admits this fact that
he is in full time employment of the
company and for this reason he was
prevented from appearing in interview of
the UP HJS Examination, 2009 and
therefore he wishes to tender resignation.
Further, his affidavit dated 12.6.2016 also
admits this fact he was in private
employment from 15.1.2009 to 01.2.2010.

23. During the course of arguments,
learned counsel for the petitioner sought to
place reliance on a letter dated 19.1.2009
allegedly given by the company, crux
whereof appears to be that the petitioner
can continue with his other clients as well.
We may put it on record that on a pointed
query, learned counsel for the petitioner
could not dispute the fact that this
document has never been mentioned or
relied on earlier and has surfaced for first
time in the present petition. We, therefore,
are not inclined to place reliance thereon.
In so far as filing of Vakalatnama on behalf
of others in the year 2009-10 is concerned,
we restrain ourselves from going into the
issue that when the petitioner was in full
time employment of a private company,
whether, his act of filing Vakalatnama was
in violation of Rule 43 and 49 of the Bar
Council Rules or was in violation of terms
of his appointment as Law Officer of the
company, as this issue is not before us.

24. In view of the discussion made
hereinabove, we do not find any fault in the
resolution
of
the
Selection
and
Appointment Committee that length of
continuous practice of the petitioner on
18.6.2016 from 1.2.2010 was found to be 6
years 4 months and 17 days and thus, he
did not fulfill the necessary eligibility
criteria of having 7 years continuous
practice as on 18.6.2016.

25. The petition is devoid of merits
and is accordingly dismissed. No costs.
----------
(2024) 4 ILRA 376
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 13368 of 2023

Anchal Kumar Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shivam Yadav, Sri Aditya Yadav

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Lal, Sri Satyam
Singh

Civil Law - U.P. Cooperative Societies Act,
1965
-
U.P.
Cooperative
Societies'
Employees' Service Regulations, 1975 -
Regulation 84 - Disciplinary Proceedings;
Imposition of Multiple Penalties - Burden of
Proof in Inquiry

Facts: The petitioner, a Branch Manager at the
Bhogaon Branch of Mainpuri District Cooperative
Bank Ltd., was punished with reversion from
Manager Grade-II to Manager Grade-III and
ordered to pay Rs.8,53,480/- with 6% interest
for alleged negligence leading to financial loss.
The petitioner, who unearthed embezzlement by
a cashier, was charged with negligence and
vicarious liability, suspended, and subjected to
disciplinary proceedings. He challenged the
order dated July 26, 2023, and the Committee
of Management's resolution dated April 27,
2023, under Article 226, alleging procedural
irregularities and violation of Regulation 84,
which permits only one penalty.

Held: Single Penalty under Regulation 84: The
court held that Regulation 84 of the U.P.
Cooperative
Societies'
Employees'
Service
4 All. Anchal Kumar Tiwari Vs. State of U.P. & Ors.
377
Regulations, 1975, limits the imposition to one
penalty
from
the
enumerated
list.
The
imposition
of
both
reversion
(Regulation
84(1)(e)) and recovery of loss (Regulation
84(1)(d))
was
impermissible,
relying
on
Pancham Ram Yadav Vs U.P. Co-Operative
Federation Ltd., 2019 (9) ADJ 1 (FB) and Vijay
Bahadur Yadav Vs Chairman, U.P. Cooperative
Federation Ltd., 1992 AWC 1479 All (Paras 1419).
Burden of Proof in Disciplinary Inquiry: The
establishment must prove charges through
documentary and oral evidence presented by a
Presenting Officer, even if the delinquent does
not reply or appear. The Inquiry Officer cannot
assume charges to be true by default or rely
solely on charge-sheet documents. The court
found the inquiry defective as no formal
evidence was produced, and the Inquiry Officer
relied on an appraisal note, violating principles
of natural justice (Paras 20-22).
Precedents: Relied on St. of U.P. Vs T.P. Lal
Srivastava, (1996) 10 SCC 702, St. of Uttar
Pradesh Vs Saroj Kumar Sinha, (2010) 2 SCC
772, Roop Singh Negi Vs Punj. National Bank,
(2009) 2 SCC 570, & ors., emphasizing the
establishment's burden to prove charges and
the need for formal inquiry proceedings (Para
22).
Outcome: The impugned order dated July 26,
2023, and the resolution dated April 27, 2023,
were quashed due to procedural irregularities
and imposition of multiple penalties. The
respondents were permitted to initiate fresh
proceedings from the charge-sheet stage,
adhering to proper inquiry procedures and
imposing only one penalty under Regulation 84,
not exceeding the severity of the quashed order
(Para 23).

No Costs: No order as to costs was passed
(Para 24).

List of Cases cited:

1. Pancham Ram Yadav Vs U.P. Co-Operative
Federation Ltd., 2019 (9) ADJ 1 (FB)

2. Vijay Bahadur Yadav Vs Chairman, U.P.
Cooperative Federation Ltd., 1992 AWC 1479 All

3. St. of U.P. Vs T.P. Lal Srivastava, (1996) 10
SCC 702
4. St. of Uttar Pradesh Vs Saroj Kumar Sinha,
(2010) 2 SCC 772

5. Roop Singh Negi Vs Punj. National Bank,
(2009) 2 SCC 570

6. St. of Uttaranchal Vs Kharak Singh, (2008) 8
SCC 236

7. St. of U.P. Vs Kishori Lal, 2018 (9) ADJ 397
(DB)

8. Smt. Karuna Jaiswal Vs St. of U.P., 2018 (9)
ADJ 107 (DB)

9. St. of U.P. Vs Aditya Prasad Srivastava, 2017
(2) ADJ 554 (DB)

(Delivered by Hon'ble J.J. Munir, J.)

1. This matter has been heard on
rather unconventional pleadings. On the
25th of August, 2023, the learned Counsel
for the petitioner sought time to file a
supplementary affidavit, when the matter
came up for admission. The writ petition
was, accordingly, adjourned to 12th of
September, 2023. A further adjournment
was sought on that day. A supplementary
affidavit was filed in Court by the learned
Counsel for the petitioner on 27.09.2023,
when
time
was
granted
to
file
a
supplementary
counter
affidavit.
The
learned Counsel for the respondents filed a
supplementary
counter
affidavit
on
11.10.2023. On that day, the parties did not
press for further affidavits; not even a
counter affidavit to the writ petition. The
matter was, accordingly, admitted to
hearing,
which
proceeded
forthwith,
leading to judgment being reserved.

2. This writ petition is directed
against an order dated 26th July, 2023
passed by the Secretary/ Chief Executive
Officer, Mainpuri District Cooperative
Bank Ltd., punishing the petitioner after
disciplinary proceedings with reversion
378 INDIAN LAW REPORTS ALLAHABAD SERIES
from the post of Branch Manager Grade-II
to
Manager
Grade-III,
and,
further,
directing
recovery
of
a
sum
of
Rs.8,53,480/- together with 6% interest on
account of loss caused to the Bank.

3. The District Cooperative Bank
Ltd., Mainpuri is a Cooperative Bank
governed by the provisions of the UP
Cooperative Societies Act, 1965 (for short,
'the Act of 1965') and service conditions of
their employees are governed by the UP
Cooperative Societies' Employees' Service
Regulations,
1975
(for
short,
'the
Regulations'). The petitioner is employed
with the Mainpuri District Cooperative
Bank Ltd. (for short, 'the Bank') as a
Branch Manager. He was posted as the
Branch Manager at the Bhogaon Branch of
the Bank. The Committee of Management
of the Bank is the petitioner's appointing
authority, which comprises the Board of
Directors thereof. The Chief Executive
Officer of the Bank, who is the Secretary of
the Committee of Management, exercises
all administrative powers conferred upon
him for the purpose of managing the affairs
of the Bank.

4. The petitioner was appointed a
Clerk/ Cashier in the year 2009. He was
promoted to the post of the Junior Branch
Manager in the year 2014. It is his case that
he has been working to the satisfaction of
higher officials of the Bank. The petitioner
was posted as the Branch Manager at the
Bhogaon Branch, District Mainpuri with
effect from 01.09.2021. The petitioner has
pleaded for a fact that as the Branch
Manager, he was not assigned any role in
dealing with direct cash deposits made by
customers. The duties assigned to the
petitioner at the Bhogaon Branch were to
supervise
the
activities
of
various
functionaries at the Branch, and, at the end
of the day, make a tally of the balancesheet with the cashier. In case, the cashier
did not enter any cash deposit in the book,
there are no means, according to the
petitioner, to know about it, unless there
was a complaint. The petitioner says that
the genesis of the orders impugned, giving
rise to the present writ petition, are that on
20.07.2022, a customer approached the
Bank to make some payment through
RTGS. That payment, however, could not
be made because of insufficient funds. He
complained in the matter to the petitioner
and when the petitioner personally inquired
into it, he found that it was the cashier of
the Bank, who would deposit receipts but
not credit the customer's account. To
safeguard the interest of the Bank and the
customer, the petitioner called upon the
cashier, one Harish Chandra Gautam, and
confronted
him
with
the
customer's
complaint. The cashier admitted his guilt in
writing as also the fact that he had not
posted the customer's account with credits
of deposit made by the latter. The petitioner
made the cashier write a letter on
20.07.2022 and it was retained on record.
The petitioner was confronted with the
situation that called for disciplinary action
against the cashier. He informed top
officials of the bank, to wit, the Chief
Executive Officer, since the petitioner was
not empowered to initiate proceedings. The
Deputy General Manager of the Bank was
also informed over telephone and requested
to come over to the Bank at the earliest.
When the higher officers of the Bank
reached there, the petitioner tendered them
the written report against the cashier and
also apprised them of the fact that the
cashier had been made to pay the sum of
Rs.6,32,000/-, that he had apparently
embezzled. The petitioner also took into
custody deposit receipts from the cashier,
Harish Chandra Gautam, which bore the
4 All. Anchal Kumar Tiwari Vs. State of U.P. & Ors.
379
various dates of deposit by the customer, to
wit,
02.07.2022,
07.07.2022
and
15.07.2022. The recovered amount from
the cashier was deposited in the relative
account
on
20.07.2022.
The
written
admission by Harish Chandra Gautam, the
cashier about the fact that he had not
deposited the customer's money in his bank
account, was placed before the Chief
Executive Officer when he reached the
Bank on 20.07.2022.

5. Notwithstanding the fact that it was
the petitioner who acted promptly upon
intimation of this fraud, the petitioner says
that he became a victim of office politics
and framed in the matter, charging him of
negligence and vicarious liability. The
petitioner was suspended from service
pending inquiry, just two days after the
incident i.e. on 22.07.2022. An interim
inquiry report was submitted by the Deputy
General
Manager,
where
the
entire
allegations were directed at the cashier and
the
petitioner
held
responsible
for
negligence of duty. There is then by the
petitioner a whole lot of pleas of fact and
law raised to demonstrate the absence of
any liability for him, but that is not a matter
with which this Court is concerned.

6. A First Information Report was
lodged against Harish Chandra Gautam and
the petitioner, giving rise to Crime No.424
of 2022, under Sections 420, 409 IPC, P.S.
Bhogaon, District Mainpuri. The petitioner
was granted anticipatory bail in the matter
by this Court vide order dated 31.10.2022
passed in Criminal Misc. Anticipatory Bail
Application u/s 438 Cr.P.C. No.10110 of
2022. The Investigating Officer, during the
investigation, did not find any complicity
for the petitioner and exculpated him. The
petitioner, however, remained suspended
from service. The petitioner says that he
was
the
man,
who
unearthed
the
embezzlement by the cashier, and yet he
was proceeded with against by the
respondents
in
their
disciplinary
jurisdiction. He was served with two
charge-sheets, one dated 31.10.2022 and a
supplementary dated 03.01.2023, charging
him with embezzlement of funds in
collusion with the cashier.

7. It is the petitioner's case that he
demanded evidence collected against him
and wrote various letters demanding
documents. Nothing was provided to the
petitioner in order to enable him to submit
an effective reply to the charge-sheet. The
bank proceeded unilaterally and called
upon the petitioner through a show cause
notice dated 03.04.2023, asking him to
show cause why he may not be held guilty
and punished with reversion from the post
of Manager Grade-II to Manager Grade-III,
and saddled with recovery of a sum of
Rs.8,53,480/-, on the charge of embezzling
funds in connivance with the cashier. The
petitioner answered the show cause notice
vide his reply dated 13.04.2023, where
again the grievance raised was that
necessary
documents
had
not
been
provided to him. He again pleaded not
guilty. On the 15th of April, 2023, the
Committee of Management of the Bank
passed a resolution calling upon their
members
to
discuss
certain
points,
including the issue of considering the
petitioner's reply to the show cause notice
with personal opportunity to him.

8. Pursuant to the said resolution, the
petitioner was directed to appear before the
Committee of Management on 27.04.2023.
He appeared before the Committee on the
date fixed, and thereafter, submitted his
representation on 02.05.2023. It is the
petitioner's case that there was a dissent in
380 INDIAN LAW REPORTS ALLAHABAD SERIES
the Committee with a divided house of 7 to
6, out of the total 13. Six members spoke
for the petitioner. However, on 27.04.2023,
a resolution was passed by the Committee
of Management to punish the petitioner,
on which the impugned order dated
26.07.2023 passed by the Secretary/
Chief Executive Officer of the Bank has
followed.

9. Heard Mr. Aditya Yadav, learned
Counsel for the petitioner, Mr. Ashok
Kumar Lal, learned Counsel appearing on
behalf of respondent Nos. 3 and 4 and
Mr. R. D. Mishra, learned Standing
Counsel on behalf of the State.

10. It is submitted by the learned
Counsel for the petitioner in the first
place that going by the provisions of
Regulation 84 of the Regulations, two
punishments cannot be awarded to an
employee and has placed reliance for the
purpose upon the law laid down by a Full
Bench of this Court in Pancham Ram
Yadav
Vs.
U.P.
Co-Operative
Federation Ltd. and another, 2019(9)
ADJ 1 (FB). Reliance has also been
placed on the authority of a learned
Single Judge in Vijay Bahadur Yadav v.
Chairman,
U.P.
Cooperative
Federation Ltd., Lucknow and others,
1992 AWC 1479 All.

11. The other submission, that is
founded on the averments in paragraph
No.5 of the supplementary affidavit, is
that the establishment bore the burden of
proving
the
charges
by
producing
evidence on their behalf before the
Inquiry Officer, including witnesses. It is
argued that even if the petitioner was ex
parte before the Inquiry Officer, it was
the bounden duty of the establishment to
produce evidence through a Presenting
Officer, both documentary and oral, to
prove the charges. The Inquiry Officer
could not assume the charges in the chargesheet to be true merely because the
petitioner had not filed a reply or not
appeared before the Inquiry Officer and
produced evidence in his defence.

12. Mr. Ashok Kumar Lal and the
learned Standing Counsel, on the other
hand, have supported the impugned order
and said that the entire record of
proceedings show that despite extravagant
opportunity provided to the petitioner, he
chose not to avail the same and kept on
harping on an issue of no consequence, to
wit, the provision of copies of documents,
on the basis of which the case was founded
against him by the establishment.

13. This Court has considered the
submissions advanced on behalf of the
parties by learned Counsel very carefully
and perused the record.

14. So far as the first point urged on
behalf of the petitioner is concerned, it is
necessary to refer to the provisions of
Regulation 84 of the Regulations, which
read:

"84.
Penalties.-
(i)
Without
prejudice to the provisions contained in any
other
regulation,
an
employee
who
commits a breach of duty enjoined upon
him or has been convicted for criminal
offence or an offence under section 103 of
the Act or does anything prohibited by
these regulations shall be liable to be
punished by any one of the following
penalties: -

(a) censure,

(b) with holding of increment,

(c) fine on an employee of
Category IV (peon, chaukidar, etc.).
4 All. Anchal Kumar Tiwari Vs. State of U.P. & Ors.
381

(d) recovery from pay or security
deposit to compensate in whole or in part
for any pecuniary loss caused to the cooperative
society
by
the
employee's
conduct,

(e) reduction in rank or grades
held substantively by the employee,

(f) removal from service, or

(g) dismissal from service.

(ii)
Copy
of
order
of
the
punishment shall invariably be given to the
employee concerned and entry to this effect
shall be made in the service record of the
employee.

(iii) No penalty except censure
shall be imposed unless a show cause
notice has been given to the employee and
he has either failed to reply within the
specified time or his reply has been found
to be unsatisfactory by the punishing
authority.

(iv)
(a)
The
charge-sheeted
employee shall be awarded punishment by
the appropriate authority according to the
seriousness of the offence:

Provided that no penalty under
sub-clause (e), (f) or (g) of clause (i) shall
be imposed without recourse to disciplinary
proceedings.

(b)
No
employee
shall
be
removed or dismissed by an authority other
than by which he was appointed unless the
appointing
authority
has
made
prior
delegation of such authority to such other
person or authority in writing.

(v) The appointing authority or
person authorised by him while passing
orders for stoppage of increments shall
state the period for which it is stopped and
whether it shall have effect of postponing
future increments or promotion."

15. The question, if it was open to an
establishment, the terms and conditions of
whose employees are governed by the
Regulations to impose more than one
punishment, bearing in mind the provisions
of Regulation 84 of the Regulations,
received consideration of this Court in
Vijay Bahadur Yadav (supra). In Vijay
Bahadur Yadav, the learned Single Judge
of this Court in the context of imposition of
three penalties on the employee, whose
terms and conditions of service were
governed by Regulation 84, held:

"4. ........

Under the aforesaid Regulation,
the punishing authority is authorised to
impose any one of the penalties provided
there under. Censure, withholding of
increment and recovery from pay are the
penalties provided under the aforesaid
Regulation."

16. There was thereafter much
conflict of opinion on the issue, which led
to a reference being made to a larger Bench
by a Division Bench of this Court. The
matter came up before the Full Bench in
Pancham Ram Yadav (supra). The
questions referred to the Full Bench were:

"1. Whether Regulation 84 of the
U.P. Co-operative Societies Employees'
Service Regulation 1975 read with Rule 83
of
the
U.P.
Co-operative
Federation
Limited Karmchari Seva Niyamawali, 1980
services can be harmonized so as to uphold
the punishment by way of dismissal of an
employee coupled with an order directing
recovery of an amount on the charge of a
financial
embezzlement
or
misappropriation to be included within the
fold of Regulation 84?

2. Whether the law laid down in
the case of Virendra Kumar Gupta v. State
of U.P. and others (Supra) in respect of the
true import of Regulation 84 read with Rule
83 aforesaid does not state the correct
382 INDIAN LAW REPORTS ALLAHABAD SERIES
position of law as against the reasoning
given by the learned Single Judge in
paragraph No. 13 in the case of Satya
Narain Mishra v. Praband Nideshak and
another (Supra) and alternatively as to
whether the statement of law in that regard as
explained in the judgment of Satya Narain
Mishra v. Praband Nideshak and another
(Supra) should be accepted as the correct
position of law ?''

17. Their Lordships of the Full Bench
answered the reference in the following
terms:

"42. We, therefore, answer the
questions referred to us as under:

(1) Since evident contradiction in
the language of Regulation 84 of Regulations,
1975 and Rule 83 of Rules, 1980, the
aforesaid provisions cannot be harmonized,
hence Regulation 84 of Regulations, 1975
shall prevail over Rule 83 of Rules, 1980 and
only one of the punishments prescribed can
be
imposed
as
specifically
stated
in
Regulation 84 of Regulations, 1975.

(2) The Division Bench judgment
in Virendra Kumar Gupta's case (supra) lays
down correct law and otherwise view
expressed by learned Single Judge in Satya
Narain Mishra's case (supra) as also
expressed in the Reference order is not
correct position of law."

18. The aforesaid position of the law
makes it clear that Regulation 84 of the
Regulations
limits
the
power
of
the
establishment to the award of one of the
enumerated punishments. The establishment
cannot award more than one of the
punishments enumerated under Regulation
84 at the same time.

19. In this view of the matter, so far
as the first point goes, it has to be answered
in favour of the petitioner, inasmuch as the
order impugned awards distinctly two of
the
enumerated
punishments
under
Regulation 84, to wit, one under clause (d)
of Regulation 84(1) and the other under
clause (e).

20. The next point, that is urged on
behalf of the petitioner, is that even if an
employee does not file a written statement
to the charge-sheet or appear at the inquiry,
it does not entitle the respondents to
assume the charges to be true. It is the
establishment's burden, particularly, in a
case where a major penalty may be the
outcome,
to
produce
evidence,
both
documentary and oral in support of the
charges before the Inquiry Officer. A
perusal of the supplementary counter
affidavit shows that the respondents say
that the date, time and place of hearing was
fixed by the Inquiry Officer, but the
petitioner did not appear. He did not file a
reply to the two charge-sheets, including
the supplementary. Repeat opportunities
were
given
and documents
that
he
demanded supplied. The fact, however, is
not denied that the establishment did not
produce any witnesses in support of the
charges, though a copy of the inquiry report
has not been annexed by either party. A
perusal of the averments in the counter
affidavit,
and
more
particularly,
the
impugned order as also the resolution of the
Committee
of
Management
dated
27.04.2023, show that the Inquiry Officer
submitted an appraisal note on the two
charge-sheets,
described
in
Hindi
as
'समीक्षात्मक सटप्पणी', holding the petitioner
guilty. There is no reference in the
resolution
of
the
Committee
of
Management or the impugned order about
the Inquiry Officer having had before him
any evidence produced in a formal
proceeding on behalf of the establishment
4 All. Anchal Kumar Tiwari Vs. State of U.P. & Ors.
383
through a Presenting Officer on charges,
which in this case on the own showing of
the respondents, ran into as many as thirtysix in the first charge-sheet, and another
five, in the supplementary. The tenor of the
resolution passed by the Committee of
Management dated 27.04.2023 and the
impugned order clearly show that the
Inquiry Officer dealt with the matter
through an appraisal note, based on a
perusal of the papers annexed to the
charge-sheet and handed over by the
establishment to him.

21. It is settled for a salutary principle
that in an enquiry involving the imposition
of a major penalty, it is imperative for the
Inquiry Officer, even if he is otherwise an
officer of the establishment, to distance
himself and convene formal proceedings
acting as an impartial arbiter. It is the
burden of the establishment to produce
evidence before the Inquiry Officer through
a Presenting Officer, both documentary and
oral, particularly, oral, that is to say,
witnesses in support of the charges, where
a major penalty may be imposed. It is open
to the delinquent at the inquiry to appear
and cross-examine witnesses produced by
the establishment. After the establishment
have
produced
their
evidence,
both
documentary and oral, and the stage of
cross-examination of the establishment's
witnesses is over, the delinquent is to be
given opportunity to produce evidence in
his defence. If the delinquent does not file a
reply to the charge-sheet or does not appear
before the Inquiry Officer at all, that does
not relieve the establishment of their
burden to prove the charges. It also does
not license the Inquiry Officer to think that
the charges set forth in the charge-sheet are
proved because the delinquent has not
appeared to explain himself. The Inquiry
Officer has to direct the establishment to
produce evidence and cannot hold the
delinquent
guilty
by
default.
The
delinquent can also not be held guilty by
the Inquiry Officer by merely going
through the charge-sheet and the papers
annexed therewith. May not be the
formality of evidence, as done in a Court of
law, where procedure is regulated by the
Indian Evidence Act, basic fairness in
procedure requires that the establishment
must produce both documentary evidence
and witnesses in the first instance to
establish the truth of the charges. This is
quite independent of the fact, whether the
delinquent defends himself or abstains from
the beginning or at any later stage of the
inquiry. In this regard, reference may be
made to the decision of the Supreme Court
in State of U.P. v. T.P. Lal Srivastava,
(1996) 10 SCC 702, where it has been held
by their Lordships:

"4. This appeal by special leave
arises from the judgment of the Allahabad
High Court made on 15-3-1993 in Writ
Petition No. 12480 of 1987. The admitted
position is that while the respondent was
working as a Senior Marketing Inspector, a
charge-sheet was served on him on 23-111984 calling upon him to explain the
charges for committing gross irregularities
in the movement of wheat outside the State
of U.P. Instead of submitting reply to the
charge-sheet, he went on dilly-dallying in
submitting
the
reply.
Several
letters
addressed
to
the
respondent
proved
ineffective. Resultantly, the appellants took
a decision on 26-6-1987 holding that the
respondent
was
found
guilty
of
misappropriation. Consequently, he came
to
be
dismissed
from
service.
The
respondent challenged the same in the writ
petition. The High Court has set aside the
order in the impugned order holding that
the documents have not been supplied to
384 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondent and, therefore, the action
was vitiated by error of law. We do not find
any justification in the view taken by the
High Court; the substratum of the result is
that the appellants have not conducted any
enquiry though the respondent had been
avoiding to give the reply. Since the
respondent had avoided to submit the reply,
he has forgone his right to submit his reply.
Nonetheless, the appellants are not absolved
of the duty to hold an ex parte enquiry to find
out whether or not the charge has been
proved. In the event of the Enquiry Officer
finding that the charge is proved, he would
submit his report to the disciplinary authority.
The
disciplinary
authority
should
communicate the copy of the enquiry report
to the respondent and seek an explanation for
the proposed action thereon. If the respondent
submits any explanation, the same may be
taken into consideration and appropriate
order may be passed according to law. Until
then, the respondent must be deemed to be
under suspension."

22. So far as the salutary procedure
governing inquiries, where a major penalty
may be imposed is concerned, the law that it
is the establishment's burden to prove the
charges in the first instance not only by
formally producing evidence before the
Inquiry Officer through a Presenting Officer,
but also to examine witnesses imperatively, is
well settled in view of the authority of the
Supreme Court in State of Uttar Pradesh
and others v. Saroj Kumar Sinha, (2010) 2
SCC 772, Roop Singh Negi v. Punjab
National Bank and others, (2009) 2 SCC
570, State of Uttaranchal and others v.
Kharak Singh, (2008) 8 SCC 236 and the
Bench decisions of this Court in State of
U.P. and another v. Kishori Lal and
another, 2018 (9) ADJ 397 (DB)(LB), Smt.
Karuna Jaiswal v. State of U.P., 2018 (9)
ADJ 107 (DB)(LB) and State of U.P. v.
Aditya Prasad Srivastava and another,
2017 (2) ADJ 554 (DB)(LB).

23. In the result, this petition succeeds
and is allowed. The impugned order dated
26.07.2023 passed by the Secretary/ Chief
Executive
Officer,
Mainpuri
District
Cooperative Bank Ltd., Mainpuri and the
resolution of the Committee of Management
dated 27.04.2023 are hereby quashed. It will
be open to the respondents, if they so elect, to
proceed against the petitioner afresh from the
stage
of
charge-sheet,
granting
due
opportunity to him and bearing in mind
the guidance in this judgment about the
procedure to hold an inquiry. It is further
ordered that if the respondents elect to
initiate fresh proceedings, not more than
one of the penalties, enumerated under
Regulation 84 of the Regulations, shall be
imposed. It is also ordered that in case of
fresh
proceedings
being
taken,
no
punishment higher than that which was
imposed by the impugned order, since
quashed by this judgment, shall be
awarded.

24. There shall be no order to costs.
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(2024) 4 ILRA 384
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 13570 of 2023

Manohar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Singh, Sri Ifran Raza Khan, Sri
Niyaz Ahmad Khan (Sr. Advocate)