# Ashok Kumar Gautam v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1591
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-11
- **Case number:** Writ-A No. 15714 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-gautam-v-state-of-u-p-ors-51753
- **Pages:** 11

## Headnote

A. Service Law - U.P. Power Corporation
Limited Servants (Discipline and Appeal)
Regulations, 2020 - Reg. 7 - Disciplinary
proceeding - Punishment - Award of
withholding
two
increments
with
cumulative effect beside recovery of Rs.
2,61422/-
-
Charge
of
sanctioning
connection without erecting new line and
by securing less metre cable than the
distance
between
the
premises
and
nearest pole was leveled - Inquiry report
did not set out the charge against the
petitioner - No consideration of any
documentary evidence was made - Effect
- Burden of proof, on whom lies - Held,
charges laid by the Establishment against
the employee cannot be taken to be proof
of themselves. It is the burden of the
Establishment to prove the charges, and
like any other judicial proceeding - In the
event, a proper charge-sheet was not
issued to the petitioner, the proceedings
go foul by one more step and oblige the
respondents to issue a fresh and properly
done charge-sheet as well. (Para 25, 26,
29 and 34)

Writ petition allowed. (E-1)

List of cases cited :-

## Text

4 All. Ashok Kumar Gautam Vs. State of U.P. & Ors.
1591
question of bona fide need and comparative
hardship which findings are based on
proper appreciation of the materials on
record and consideration of the correct law.
The findings of fact recorded do not call for
any interference by this Court in exercise of
its powers under Article 226 of the
Constitution of India particularly, in view
of the settled legal position of law that it is
for the landlord to decide how and in what
manner, he should live his own life and
cannot be guided, controlled or restricted
by any third person including the Court.

18. In view of the above, the Court
finds no merit in the writ petitions.
Accordingly, all the aforesaid writ petitions
are dismissed.

19. Parties to bear their own costs.
----------
(2024) 4 ILRA 1591
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2024

BEFORE

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

Writ-A No. 15714 of 2023

Ashok Kumar Gautam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vinay Pratap Singh, Suman Kumar Yadav

Counsel for the Respondents:
C.S.C., Abhishek Srivastava, Usha Kiran

A. Service Law - U.P. Power Corporation
Limited Servants (Discipline and Appeal)
Regulations, 2020 - Reg. 7 - Disciplinary
proceeding - Punishment - Award of
withholding
two
increments
with
cumulative effect beside recovery of Rs.
2,61422/-
-
Charge
of
sanctioning
connection without erecting new line and
by securing less metre cable than the
distance
between
the
premises
and
nearest pole was leveled - Inquiry report
did not set out the charge against the
petitioner - No consideration of any
documentary evidence was made - Effect
- Burden of proof, on whom lies - Held,
charges laid by the Establishment against
the employee cannot be taken to be proof
of themselves. It is the burden of the
Establishment to prove the charges, and
like any other judicial proceeding - In the
event, a proper charge-sheet was not
issued to the petitioner, the proceedings
go foul by one more step and oblige the
respondents to issue a fresh and properly
done charge-sheet as well. (Para 25, 26,
29 and 34)

Writ petition allowed. (E-1)

List of cases cited :-

1. Roop Singh Negi Vs P.N.B. & ors.; (2009) 2
SCC 570

2. Smt. Karuna Jaiswal Vs St. of U.P.; 2018 (9)
ADJ 107 (DB) (LB)

3. St. of U.P. & anr. Vs Kishori Lal & anr.; 2018
(9) ADJ 397 (DB) (LB)

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

1. This
writ petition
has
been
instituted challenging the order dated
14.06.2021 passed by the Managing
Director, Kanpur Electric Supply Company
Limited, 14/71, Civil Lines, KESA House,
Kanpur holding the petitioner guilty after
disciplinary proceedings and awarding him
the
punishment
of
withholding
two
increments with cumulative effect, besides
recovery of a sum of Rs. 2,09,138.40/-.
Also under challenge is the appellate order
dated 05.04.2023 passed by the Chairman,
Uttar Pradesh Power Corporation Limited,
Lucknow
passed
on
the
petitioner's
1592 INDIAN LAW REPORTS ALLAHABAD SERIES
departmental appeal whereby the Chairman
has rejected the appeal and enhanced the
penalty awarded to withholding of three
increments with cumulative effect and
maintaining the recovery ordered by the
Disciplinary Authority.

2. The facts giving rise to this petition
are that the petitioner was appointed as an
Assistant Engineer in the employ of the
Uttar Pradesh Power Corporation in the
year 1999. He was promoted to the post of
Executive Engineer on 08.06.2008 and
posted with the Electricity Distribution
Division, Vikas Nagar, Kanpur Electricity
Supply Company Limited, Kanpur Nagar
(for short, 'the KESCo'). He worked on the
said post up to 06.09.2014. On the 6th of
September,
2014,
the
petitioner
was
transferred from Vikas Nagar to Sarvodaya
Nagar. He joined his station of transfer
where he commenced performing his
duties.

3. According to the petitioner, on
19.08.2014, one Smt. Vimla Devi applied
for a new service connection. She made an
application for the purpose. The petitioner
inspected her premises on 26.08.2014 and
issued a certificate dated the 26th August,
2014, certifying the distance between the
nearest pole and her premises to be 210
meters. After the premises had been
inspected, the prospective consumer was
informed by the petitioner about the
distance charges to be borne and endorsed a
remark on the application to the effect that
the consumer is satisfied about the distance
charges. The applicant/consumer deposited
a sum of Rs. 61,200/- on 03.09.2014 under
the head of miscellaneous fee chargeable
for extra cable.

4. On the 15th of September, 2014, the
Assistant
Engineer,
Ekdhar
Charan
submitted a report asking the petitioner for
approval in regard to the connection last
mentioned. The petitioner signed his
approval about the receipt of Rs. 20,925/-
on account of security money, meter
charges, service line charges, system
loading charges et cetera.

5. The petitioner was relieved of his
duties
at
the
Electricity
Distribution
Division, Vikas Nagar, as already said, for
the next posting at Sarvodaya Nagar.

6. A random inspection of the
consumer's
premises
was
done
on
07.11.2014 by a team comprising the
Superintending Engineer, the Executive
Engineer, the Assistant Engineer and the
Junior Engineer. The inspection team
submitted a report saying that variable cost
for 170 meters of cable had been deposited
while the distance of the premises from the
electrified area was found to be 600 meters.
It was also remarked that without erecting a
new
line,
the
connection
had
been
sanctioned and installed. Therefore, the
service
connection
was
temporarily
disconnected.

7. The Superintending Engineer- IV,
vide letter dated 11.11.2014, asked the
Assistant Engineer, Ekdhar Charan to show
cause why charges for 170 meters of cable
alone had been secured when the distance
between the premises and the nearest pole
was more than 800 meters.

8. It is the petitioner's case that the
estimate for the new service connection
was drawn up by the Executive Engineer
(Distribution), R.K. Soni, the Assistant
Engineer (Distribution), Ajay Kumar and
the
Junior
Engineer
(Distribution),
Shailendra Dwivedi which was passed by
the Superintending Engineer, Circle-4th,
4 All. Ashok Kumar Gautam Vs. State of U.P. & Ors.
1593
(D-4) on 17.11.2014. It appears to be
incorrectly mentioned as 17.11.2017 in
paragraph no. 12 of the writ petition.

9. On 19.11.2014, Arvind Kishore,
Superintending Engineer- IV, KESCo,
made a complaint to the Managing Director
saying that Ekdhar Charan, the Assistant
Engineer, without complying with the
required procedure, had sanctioned a
connection to Smt. Vimla.

10. On the 28th of September, 2017,
R.K.
Soni,
Superintending
Engineer
(Commercial)/Enquiry Officer issued a
charge-sheet to the petitioner and sought
his reply. The petitioner submitted his reply
to the charges through his written statement
dated 29.10.2017.

11. It is the petitioner's case that
without considering the petitioner's reply,
the Inquiry Officer, the Superintending
Engineer (Commercial) submitted inquiry
report to the Managing Director, KESCo,
the Disciplinary Authority. A detailed
inquiry report was submitted on 08.05.2020
holding the petitioner guilty and submitted
a further inquiry report signed by himself
and the other member on the Inquiry
Committee, the Senior Accounts Officer,
holding the petitioner guilty and recording
that a total loss of Rs. 5,87,314/- had been
occasioned to the KESCo, in the matter of
sanction of service connection to Smt.
Vimla Devi. The responsibility for the loss
was apportioned by the Inquiry Committee.

12. We would allude to the inquiry
report dated 08.05.2020, on the foot of
which the Managing Director of the
KESCo and the Chairman of the Uttar
Pradesh Power Corporation Limited (for
short, 'the Corporation') have proceeded to
punish the petitioner, later in this judgment.

13. Based on the inquiry report, the
petitioner was served with a show cause by
the
Chief
Engineer,
KESCo
dated
11.05.2021. The petitioner denied the case
against him with all technical details and
facts consistent with his innocence and
submitted his reply dated 11.05.2021.

14. The Managing Director, KESCo,
according
to
the
petitioner,
without
application of mind, passed the impugned
order dated 14.06.2021 awarding a major
penalty to the petitioner in terms that
directing
two
annual
increments
be
withheld with cumulative effect, besides
the recovery of a sum of Rs. 2,61,422/.

15. The petitioner appealed to the
Chairman of the Corporation against the
order punishing him. The Chairman, not
only dismissed the petitioner's appeal vide
order dated 05.04.2023, but enhanced the
penalty by ordering the withholding of
three increments with cumulative effect,
instead of the two, ordered by the
Disciplinary Authority, the Chairman,
KESCo. The order for recovery of a sum of
Rs. 2,61,422/-, on account of loss caused to
the Corporation, was maintained by the
Appellate Authority.

16. Aggrieved, the petitioner has
instituted the present petition under Article
226 of the Constitution.

17. A counter affidavit has been filed
on behalf of respondent nos. 2 and 3 on
19.11.2023.

18. Heard Dr. Suman Kumar Yadav,
learned Counsel for the petitioner, Mr.
Abhishek
Srivastava,
learned
Counsel
appearing on behalf of the Corporationrespondent no. 2, Ms. Usha Kiran, learned
Counsel appearing for KESCo-respondent
1594 INDIAN LAW REPORTS ALLAHABAD SERIES
no. 3 and Mr. Girijesh Kumar Tripathi,
learned Additional Chief Standing Counsel
appearing on behalf of the State.

19. It is argued by the learned Counsel
for
the
petitioner
that
the
Inquiry
Committee, who submitted the report, have
hardly considered the petitioner's reply and
submitted a sketchy and unintelligible
report, on the foot of which the petitioner
could not be held guilty by the Disciplinary
Authority or in appeal.

20. It is, particularly, argued on the
strength of the amended pleas in paragraph
nos. 35A, 35B and 35C of the writ petition
that the Establishment have not produced any
witnesses to prove the charges carried in the
charge-sheet
against
the
petitioner,
in
violation of Regulation 7 of the U.P. Power
Corporation Limited Servants (Discipline and
Appeal)
Regulations,
2020
('the
Regulations', for short).

21. It is urged that it is imperative for the
Establishment, as a matter of salutary
principles governing a disciplinary inquiry
leading to the imposition of a major penalty
that, in the first instance, the charges are
proved by the Establishment producing
evidence
before
the
Inquiry
Committee/Officer. The evidence is to be
produced through a presenting officer who
must produce both documentary and oral
evidence,
particularly
witnesses.
The
witnesses produced must be exposed to crossexamination by the delinquent. After the
Establishment have produced their evidence
and the delinquent has cross-examined the
Establishment witnesses, the delinquent must
be given opportunity to produce evidence in
his defence which would comprise both
documentary
and
oral
evidence.
The
witnesses on behalf of the defence can also
be likewise cross-examined.

22. The submission of the learned
Counsel for the petitioner, Dr. Suman
Kumar Yadav is that all this procedure has
been given a go by and the Inquiry
Committee
have
returned,
whatever
findings they have, by merely going
through papers on record without any
evidence being led or the charges being
proved.

23. Mr. Abhishek Srivastava and Ms.
Usha Kiran, learned Counsel appearing for
the respondents, have strongly opposed the
aforesaid submissions saying that there is
no illegality vitiating inquiry, where the
petitioner has been given a fair opportunity
both before the inquiry and post inquiry, in
terms of a show cause notice, prior to a
decision about the petitioner's guilt by the
Disciplinary Authority. In addition, the
petitioner has also availed his remedy of
departmental appeal where the Appellate
Authority, considering the gravity of his
misconduct, has enhanced the penalty of
withholding of two increments to three
with cumulative effects. The findings of the
Authorities below are unassailable in the
submission
of
the
learned
Counsel
appearing for the KESCo, the Corporation
as well as the state.

24. Upon hearing learned Counsel for
parties, this Court finds that a perusal of the
inquiry report dated 08.05.2020 ex facie
shows it to be the handiwork of untrained
men and novices who do not have even a
faint idea about the salutary procedure of
conducting an inquiry and writing an
inquiry report dealing with the charges, the
delinquent's defence, evidence on both the
sides and the conclusions.

25. A perusal of the inquiry report
shows that the Inquiry Committee has not
only jumped to conclusions but virtually
4 All. Ashok Kumar Gautam Vs. State of U.P. & Ors.
1595
started with them. For one, this Court was
handicapped by the fact that a copy of the
charge-sheet was not placed on record by
either party. But, that would not have
mattered much if the inquiry report had
been written by a hand or a Committee,
reasonably
experienced,
in
holding
departmental inquiries and writing reports.
The inquiry report does not set out the
charge against the petitioner or the
statement of imputations. It starts off with
conclusions as if the charge is well known
to the reader of the report and so also the
petitioner's defence.

26. There is a haphazard reference to
some technical reports and conclusions
drawn to the effect that the petitioner, by
sanctioning the electricity connection after
estimating
the
distance
between
the
consumer's premises and the point where
the source of power was located, has
committed a lapse by not getting the
estimate for the entire cost of the
installation prepared. These are abrupt
conclusions recorded, on what basis is not
discernible from the inquiry report. There is
no consideration of any documentary
evidence or, more particularly evidence,
that is to say, the testimony of witnesses
which in this case we think was never
recorded. The report at best may qualify for
an investigative venture, like one that may
be expected at the time of a preliminary
inquiry, before a decision to initiate
disciplinary proceedings is taken. A report
of this kind cannot qualify for an inquiry
report sans reference to the charge/charges,
the petitioner's defence, the evidence led at
least on behalf of the Establishment and
then the Inquiry Committee's conclusions
with reference to the evidence on record.
The inquiry report is a piece of waste
paper. The relevant part of the enquiry
report for all that it says, records:

प्रबंि धनदेिक, केस्को के कायाजिय
ज्ञाप सं० 2451, हदनांक 21.08.2019 के माध्यम
से उपरोि प्रकरण में दोषी काधमजको में से हकसहकस काधमजक द्वारा हकतनी-हकतनी िनराधि की
आधर्थजक क्षधत पिुंचायी गयी, के धनिाजरण िेतु दो
सदसीय कमेर्ी गहठत की गयी, म्जसमे
अिोिस्ताक्षरी को सधमधत का अध्यक्ष ि श्री
आिीष दीम्क्षत, िेखाधिकारी, केस्को को
सदस्य बनाया गया। संलगन पर्त्राििी के
अध्ययन पश्चात् धनग्न तथ्य प्रकाि में आये :-

1. श्रीमती विमिा अििाि द्वारा
संयोजन िेतु आिेदन करने पर समबम्न्ित
काधमजकों द्वारा प्रांकिन के नाध्यग से िांधित
िनराधि न जमा कराकर मार्त्र केवबि चाजज के
रूप में रू0 61200.00 हदनांक 03.09.2014 को
जमा कराकर संयोजन दे हदया गया, जबहक
धनयमतः उनके संयोजन िेतु प्रांकिन बनाना
चाहिये र्था ि प्रांकिन िनराधि जमा कराकर
उपरोि संयोजन हदया जाना चाहिये र्था।

2. हकसी भी संयोजन को धनगजत
करने िेतु अिर अधभयन्ता द्वारा साइर् का
धनरीक्षण हकया जाता िै तर्था ररपोर्ज के आिार
पर िी उनके द्वारा प्रांकिन तैयार हकया जाता िै।
उि प्रकरण में अिर अधभयन्ता द्वारा साइर्
ररपोर्ज हदनांक 26.08.2014 द्वारा धनरीक्षण
आख्या में पररसर की धनकर्तम खमबे से दूरी
210 मीर्र दिाजयी गयी िै (संिग्नक-A) म्जसके
आिार पर अण्डीय धनवपक द्वारा िाइन चाजज से
रू0 61200.00 का प्रांकिन बनाया गया
(संिग्नक-B), जोहक श्रीमती विमिा अििाि
द्वारा जमा हकया गया तर्था संयोजन धनगजत कर
1596 INDIAN LAW REPORTS ALLAHABAD SERIES
हदया गया। तत्कािीन सिायक अधभयन्ता श्री
अजय कुमार द्वारा हदनांक 07.11.2014 को उि
पररसर का धनरीक्षण हकया गया और पाया हक
600 मीर्र िै (संिग्नक-C)। उनके द्वारा संयोजन
अस्र्थायी रूप से कार् हदया गया।

3. अिीक्षण अधभयन्ता मण्डि-चतुर्थज
के कायाजिय पर्त्र सं0 1829, हदनांक 11.11.2014
के सन्दभज में तत्कािीन सिायक अधभयन्ता श्री
अजय कुमार ने अपने जिाब पर्त्र सं० 1403,
हदनांक 17.11.2014 के द्वारा उि संयोजन को
धनगजत करने िेतु एक प्रांकिन रू0 647314.00
प्रेवषत हकया गया र्था।(संिग्नक- D)

4. श्री ए०के० गौतम तत्कािीन
अधििासी अधभयन्या विकास नगर खण्ड, श्री
एकघर चरण तत्कािीन अिर अधभयन्ता,
विकास नगर उपखण्ड एिं श्री अधनि कुमार
यादि, तत्कािीन जे०एन०डी० विकास नगर
खण्ड द्वारा प्रांकिन िनराधि रू0 647314.00
ज़मा न कराकर मार्त्र रु० 61200.00 जमा कर
विद्युत संयोजन दे हदया िै, म्जससे विभाग को रू0
647314.00 - 61200.00 रु0 587314.00 रु0 की
आधर्थजक क्षधत िुयी।

धनष्कषज

अतः समस्त अधभिेखों के अध्ययन
उपरान्त सधमधत इस धनष्कषज पर पिुंची िै हक
साइर् ररपोर्ज का पूणज दाधयत्ि अिर अधभयन्ता
का िै। अतः तत्कािीन अिर अधभयन्ता सबसे
ज्यादा दोषी िै म्जन्िोने गित साइर् ररपोर्ज
प्रेवषत की। तत्पश्चात् वबना सिायक अधभयन्ता
की संस्तुधत के अधििासी अधभयन्ता द्वारा
प्रिंकिन बनिाना भी गित िै। अतः
तत्कािीन अधििासी अधभयन्ता का दोष
हद्वतीय स्र्थान पर आता िै। उि के दृवष्टगत रू0
583314.00 की जो आधर्थजक क्षधत केस्को को िुई
िै उसकी िसूिी 50 प्रधतित श्री एकघर चरण,
तत्कािीन अिर अधभयन्ता, विकास नगर
उपखण्ड, 40 प्रधतित ए०के० गौतम तत्कािीन
अधििासी अधभयन्ता, विकास नगर खण्ड एिं
10 प्राधतित श्री अधनि यादि तत्कािीन
जे०एन०डी०, विकास नगर खण्ड से की जानी
चाहिये।

27. The report also seems to suggest that
the Inquiry Committee was tasked with
finding out the loss that was occasioned to the
Corporation by the petitioner and the other
functionaries held in fault. The inquiry report
does not even suggest that a charge was at all
drawn up and set out in the charge-sheet on
the basis of which the petitioner could be
judged guilty or exonerated. Apart from other
things, the entire tenor of words carried in the
inquiry report are so informal that we think
that this kind of a report should never have
been the foundation of any disciplinary
action, much less the award of a major
penalty. If the Disciplinary Authority or the
Appellate Authority had bestowed some
informed consideration to this report, the only
course of action for them was to remit the
matter to the Inquiry Committee for a fresh
inquiry to be done in accordance with the
salutary procedure to hold a departmental
inquiry and followed by an inquiry report
adhering to the minimum and essential
standards of a valid report in a disciplinary
matter.

28. In paragraph no. 8(iv) of the
counter affidavit, filed on behalf of
4 All. Ashok Kumar Gautam Vs. State of U.P. & Ors.
1597
respondent nos. 2 and 3, it is not disputed
for a fact that no witnesses were examined
by the Establishment in support of the
charges. Rather, the respondents have
attempted to justify their action in holding
this kind of a slipshod inquiry by saying
that witnesses are required to be examined
under Regulation 7(7) of the Regulations, if
their names are cited in the charge-sheet.
Since, in this case, no witnesses have been
cited, there was no requirement of
examining any witness at all. We are afraid
that this is not the law governing the
salutary
procedure
to
hold
a
valid
departmental inquiry in matters which may
entail the imposition of a major penalty.

29. According to the principles well
settled for holding a departmental inquiry,
it must be understood by the respondents,
and more particularly, by the Inquiry
Committee, that is charged with the
responsibility of inquiring into the charges,
that the charges laid by the Establishment
against the employee cannot be taken to be
proof of themselves. It is the burden of the
Establishment to prove the charges, and
like any other judicial proceeding, though a
departmental inquiry is certainly not that,
the Inquiry Committee/Officer must be
mindful of the fact that the proceedings
against the delinquent commence before
the Inquiry Committee/Officer with a clean
slate for the delinquent. It is for the
Establishment to prove the charges by
leading evidence, both documentary and
oral.

30. In case of inquiry into charges,
involving the imposition of a major
penalty, it is imperative by salutary
principle that witnesses, to prove the
Establishment's case, must be examined.
The Inquiry Committee or its Members, or
if there be an Inquiry Officer sole, even if
otherwise
an
officer
of
the
same
Establishment, must distance himself from
the master he serves. He must sit as an
impartial Arbiter or Tribunal to inquire into
the charges. It is then the burden, as already
said, of the Establishment to prove the
charges through a Presenting Officer. The
proceedings have to be not as formal as a
trial in a Court of law or a Judicial
Tribunal, but also not so informal that the
event passes through like any other
business of the day in the Establishment's
office. The rest of the procedure that must
be followed before the Inquiry Committee
or the officer has been alluded to
hereinabove and need not be repeated.

31. The salutary principle about the
Establishment's burden to prove the
charges by producing documentary as well
as oral evidence, particularly examining
witnesses, in a case where the proceedings
may entail the imposition of a major
penalty,
has
been
the
subject
of
considerable judicial attention in the past.
Some of the leading Authorities on the
point need notice for a more complete
guidance of the respondents in this matter
and for the future. In this connection,
reference may be made to Roop Singh
Negi Vs. Punjab National Bank and
others, (2009) 2 SCC 570, where it was
observed by the Supreme Court:

"14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon taking into consideration the materials
brought on record by the parties. The
purported
evidence
collected
during
investigation by the investigating officer
1598 INDIAN LAW REPORTS ALLAHABAD SERIES
against all the accused by itself could not
be treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove
the
said
documents.
The
management witnesses merely tendered the
documents and did not prove the contents
thereof. Reliance, inter alia, was placed by
the enquiry officer on the FIR which could
not have been treated as evidence."

32.
Likewise,
in
Smt.
Karuna
Jaiswal Vs. State of U.P, 2018 (9) ADJ
107 (DB) (LB), it has been held by a
Division Bench of this Court sitting at
Lucknow:

"15. The law in this regard is
very well-settled and does not need a
reiteration, however, we may refer to a
judgment of Hon'ble Supreme Court in the
case of State of Uttar Pradesh and others
v. Saroj Kumar Sinha, (2010) 2 SCC 772,
wherein it has clearly been held that
Enquiry Officer acts as a quasi judicial
authority and his position is that of an
independent adjudicator and further that
he cannot act as a representative of the
department or disciplinary authority and
further that he cannot act as a prosecutor
neither he should act as a judge; his
function is to examine the evidence
presented by the department and even in
the absence of the delinquent officer, has
to see as to whether the unrebutted
evidence is sufficient to bring home the
charges.

16. Hon'ble Supreme Court has
further held in the said judgment of Saroj
Kumar Sinha (supra) that it is only in case
when the Government servant, despite
notice, fails to appear during the course of
enquiry that Enquiry Officer can proceed
ex parte and even in such circumstances it
is incumbent upon the Enquiry Officer to
record the statement of witness.

17. In the instant case, no oral
enquiry was held, neither the petitioner was
given any notice to participate in any oral
enquiry by fixing date, time and place for
oral enquiry. It is only that the Enquiry
Officer after noticing that despite sufficient
time having been given to the petitioner,
she did not furnish her reply to the chargesheet, he proceeded to submit ex parte
report without conducting any oral enquiry
by fixing date, time and place for such an
oral enquiry. Accordingly, the Enquiry
Officer, in this case, has violated the
aforesaid principles, which clearly vitiates
the
enquiry
proceedings
and
any
punishment order based on such a vitiated
enquiry, is clearly not sustainable."

33. In State of U.P. and another Vs.
Kishori Lal and another, 2018 (9) ADJ
397 (DB) (LB), again a Bench decision of
this Court, the necessity of holding an oral
inquiry was emphasized in the following
words;

"14. Now coming to the question,
what is the effect of non-holding of
domestic/oral inquiry, in a case where the
inquiry officer is appointed, oral inquiry is
mandatory. The charges are not deemed to
be proved suo motu merely on account of
levelling them by means of the chargesheet unless the same are proved by the
department before the inquiry officer and
only thereafter it is the turn of delinquent
employee to place his defence. Holding
oral enquiry is mandatory before imposing
a major penalty, as held by Apex Court in
State of U.P. and another v. T.P. Lal
Srivastava, 1997 (1) LLJ 831, as well as by
a Division Bench of this Court in Subhash
Chandra Sharma v. Managing Director and
another, 2000 (1) UPLBEC 541.''

15. In another case in Subhash
Chandra Gupta v. State of U.P., 2012(4)
4 All. Ashok Kumar Gautam Vs. State of U.P. & Ors.
1599
ADJ 4 (NOC), the Division Bench of this
Court after survey of law on this issue
observed as under:

''It is well-settled that when the
statute provides to do a thing in a particular
manner that thing has to be done in that
very manner. We are of the considered
opinion that any punishment awarded on
the basis of an enquiry not conducted in
accordance with the enquiry rules meant
for that very purposes is unsustainable in
the eye of law. We are further of the view
that the procedure prescribed under the
inquiry rules for imposing major penalty is
mandatory in nature and unless those
procedures are followed, any out come
inferred thereon will be of no avail unless
the charges are so glaring and unrefutable
which does not require any proof. The view
taken by us find support from the
judgement of the Apex Court in State of
U.P. and another v. T.P.Lal Srivastava,
1997 (1) LLJ 831, as well as by a Division
Bench of this Court in Subash Chandra
Sharma v. Managing Director and another,
2000 (1) UPLBEC 541.''

16. A Division Bench decision of
this Court in the case of Salahuddin Ansari
v. State of U.P. and others, 2008(3) ESC
1667, held that non holding of oral inquiry
is a serious flaw which can vitiate the order
of disciplinary proceeding including the
order of punishment has observed as under:

'' 10....... Non holding of oral
inquiry in such a case, is a serious matter
and goes to the root of the case.

11. A Division Bench of this
Court in Subash Chandra Sharma v.
Managing Director and another, 2000 (1)
UPLBEC 541, considering the question as
to whether holding of an oral inquiry is
necessary or not, held that if no oral inquiry
is held, it amounts to denial of principles of
natural justice to the delinquent employee.
The aforesaid view was reiterated in
Subash
Chandra
Sharma
v.
U.P.Cooperative Spinning Mills and others,
2001 (2) UPLBEC 1475 and Laturi Singh
v. U.P.Public Service Tribunal and others,
Writ Petition No. 12939 of 2001, decided
on 6.5.2005.''

17. Even if the employee refuses
to participate in the enquiry the employer
cannot straightaway dismiss him, but he
must hold and ex parte enquiry where
evidence must be led vide Imperial
Tobacco Co. Ltd. v. Its Workmen, AIR
1962 SC 1348, Uma Shankar v. Registrar,
1992 (65) FLR 674 (All).

18. The Division Bench of this
Court in the case of Mahesh Narain Gupta
v. State of U.P. and others, (2011) 2 ILR
570, had also occasion to deal with the
same issue. It held:

''At this stage, we are to observe
that in the disciplinary proceedings against
a delinquent, the department is just like a
plaintiff and initial burden lies on the
department to prove the charges which can
certainly be proved only by collecting some
oral evidence or documentary evidence, in
presence and notice charged employee.
Even if the department is to rely its own
record/document
which
are
already
available, then also the enquiry officer by
looking into them and by assigning his own
reason after analysis, will have to record a
finding that hose documents are sufficient
enough to prove the charges.

In no case, approach of the
Enquiry Officer that as no reply has been
submitted, the charge will have to be
automatically proved can be approved. This
will be erroneous. It has been repeatedly
said that disciplinary authority has a right
to proceed against delinquent employee in
ex parte manner but some evidence will
have to be collected and justification to
sustain the charges will have to be stated in
detail. The approach of the enquiry officer
1600 INDIAN LAW REPORTS ALLAHABAD SERIES
of automatic prove of charges on account
of
non
filing
of
reply
is
clearly
misconceived and erroneous. This is
against the principle of natural justice, fair
play, fair hearing and, thus, enquiry officer
has to be cautioned in this respect.''

19. The principal of law which
emanates from the above judgments are
that initial burden is on the department to
prove the charges. In case of procedure
adopted for inflicting major penalty, the
department must prove the charges by oral
evidence also.

20. From perusal of enquiry
report it is demonstrably proved that no
oral evidence has been led by the
department. When a major punishment is
proposed to be passed the department has
to
prove
the
charges
against
the
delinquent/employee by examining the
witnesses and by documentary evidence. In
the present case no witness was examined
by the department neither any officer has
been examined to prove the documents on
the basis of which charges are levelled on
the claimant in the proceedings.

21. It is trite law that the
departmental proceedings are quasi judicial
proceedings. The Inquiry Officer functions
as quasi judicial officer. He is not merely a
representative of the department. He has to
act as an independent and impartial officer
to find out the truth. The major punishment
awarded to an employee visit serious civil
consequences and as such the departmental
proceedings ought to be in conformity with
the principles of natural justice.

22. Even if, an employee prefers
not to participate in enquiry the department
has to establish the charges against the
employee by adducing oral as well as
documentary evidence. In case charges
warrant major punishment then the oral
evidence by producing the witnesses is
necessary."

34. In the opinion of this Court,
therefore, for whatever has been said, all
proceedings beyond the charge-sheet, if a
properly done charge-sheet was issued to
the petitioner, stand vitiated. In the event, a
proper charge-sheet was not issued to the
petitioner, the proceedings go foul by one
more step and oblige the respondents to
issue a fresh and properly done chargesheet as well. This part is left to the
respondents' wisdom and risk.

35. In the result, this petition succeeds
and is allowed. The impugned order dated
14.06.2021 passed by the Managing
Director, Kanpur Electric Supply Company
Limited and the Appellate order dated
05.04.2023 passed by the Chairman of the
Corporation are hereby quashed. The
inquiry report dated 08.05.2020 is also
quashed.

36. It will be open to the respondents
to proceed afresh with the inquiry, either by
issuing a fresh charge-sheet or if they are
convinced that a valid charge-sheet has
been issued, on the basis of the same
charge-sheet and pass a fresh order in
accordance with law, bearing in mind the
guidance
in
this
judgment.
If
the
respondents
elect
to
pursue
fresh
proceedings
against
the
petitioner,
a
penalty higher than the one quashed by this
judgment shall not be imposed.

37. There shall be no order as to costs.

38.
Let
this
judgment
be
communicated to the Chairman, Uttar
Pradesh
Power
Corporation
Limited,
Lucknow and the Managing Director,
Kanpur Electric Supply Company Limited,
14/71, Civil Lines, KESA House, Kanpur
by the Registrar (Compliance).
----------
4 All. Alok Gupta Vs. District Judge Rent Tribunal & Ors.
1601
(2024) 4 ILRA 1601
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ A No. 2030 of 2024
With
Connected cases

Alok Gupta ...Petitioner
Versus
District Judge Rent Tribunal & Ors.
 ...Respondents

Counsel for the Petitioner:
Sharad Malviya

Counsel for the Respondents:
Deepak Kumar

A. Tenancy Law - U.P. Regulation of Urban
Premises Tenancy Act, 2021 - Sections 3
(iii),
3(iv),
21(1)
&
21(2)
-
Fresh
ejectment proceeding u/s 21(1) was
initiated after withdrawal of earlier SCC
Suit - Maintainability - Held, it is the
prerogative of the landlord/respondent to
have
either
continued
with
the
proceedings of the SCC Suit No. 28 of
2014 or initiate fresh proceedings under
the U.P. Act No. 16 of 2021. The provisions
of the U.P. Act No. 16 of 2021 does not bar
initiation of fresh proceedings under the
Act if proceedings for the same relief are
pending under other enactments. (Para 9
and 16)

B. Tenancy Law - U.P. Regulation of Urban
Premises Tenancy Act, 2021 - Ss. 3(iii),
3(iv), 21(1) and 21(2)
- Ejectment
proceeding - Premises owned by Public
Religious or Charitable Trust/Institution,
extent of applicability of the Act -
Maintainability of ejectment application
was challenged - No notification was
issued - Relevance - Held, the mandate of
the Section 3(iii) is to exempt the
applicability of the Act to premises owned
by Religious or Charitable Institution as
may be specified by the notification by the
St. Government. The Rent Tribunal found
that no such Notification by the St.
Government has been issued or filed on
record - Likewise Section 3(iv) provides
exemption to premises owned by a Waqf
registered under the Waqf Act 1995 or by
any Public Trust under applicable law. The
respondent no. 3 on the owning saying of
the tenant petitioner is a Private Trust and
as such properties owned by it are not
exempt. In the opinion of the Court there
is no error or illegality in the conclusion
drawn by the Rent Tribunal. (Para 12 and
15)

C. Tenancy law - U.P. Regulation of Urban
Premises Tenancy Act, 2021 - S. 31 -
Legal Services Authority Act, 1987 -
Failure
of
Rent
Authority
to
make
reference for settlement - No material to
demonstrate that a settlement of the
dispute was ever sought and pressed, was
produced - Effect - Held, the reference is
not mandatory in all cases. Besides,
settlement of dispute being an voluntary
act is required to be availed and pressed -
Non compliance of the provision of Section
31 of the Act is not fatal to the
proceedings and the impugned orders
cannot be set aside on this ground. (Para
18 and 19)

D. Tenancy law - U.P. Regulation of Urban
Premises Tenancy Act, 2021 - Ss. 4 and
21(2)
-
Ejectment
proceeding
-
Maintainability
-
Neither
tenancy
agreement was U.P.loaded nor the same
was informed to the tenant and straight
away notice was served U.P.on the
tenant/petitioner
to
execute
Tenancy
Agreement on unrealistic rent - Effect -
Held, a conjoint reading of the various
sub-sections of Section 4 of the Act
reveals that the intention of legislature for
requiring both the landlord and the tenant
to inform to the Rent Authority in the form
specified in the First Schedule within a
certain
time
frame
is
to
treat
the
information as conclusive proof of the
facts relating to the tenancy and matters