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

- **Citation:** (2024) 2 ILRA 860
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-18
- **Case number:** Writ - A No. 14750 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-yadav-v-state-of-u-p-ors-51497
- **Pages:** 11

## Headnote

A. Service Law - Dismissal - Departmental
enquiry - Right of cross-examination -
Recovery of lost money from chargedemployee was also directed - Charge of
embezzlement was leveled - Burden of
proof, on whom lie - Neither solitary
witness was examined on behalf of the
establishment nor any kind of evidence
was led before the Inquiry Officer - Effect
- Inquiry officer, how to act and proceed
enquiry - Held, Inquiry officer must
convene himself as an impartial arbiter, an
Inquiry
Tribunal,
before
whom
the
establishment must, in the first instance,
lead evidence, both documentary and oral,
through a Presenting Officer to prove the
charge - When the establishment produce
their witnesses in support of the charge/
charges, the employee has the right to
cross-examine them - Manner in which
disciplinary proceedings have been held
by the Inquiry Officer are manifestly
2 All. Ashok Kumar Yadav Vs. State of U.P. & Ors.
861
illegal and the order impugned, founded
on such proceedings, cannot be sustained.
(Para 15, 16 and 22)

Writ petition allowed. (E-1)

List of cases cited :-

## Text

860 INDIAN LAW REPORTS ALLAHABAD SERIES

" ७३. िमारे मक्तस्तष्क में नननित रूप
से कोई सींदेि निी िै, नक साधारणतैंः राज्य के
नीनतगत ननणदयोीं में सींिैधाननक न्यायालयोीं द्वारा
उसके पुनैंः ननरीक्षण अनधकारो के अींतगदत
िस्ताक्षेप निीीं नकया जा सकता िै। इसी के साथ
अगर नीनतगत ननणदय स्वयीं में िी निनध के निरूर्द्
और िो मनमाना ि तकदिीन िो तो पुनैंःननरीक्षण
के अनधकार का उपयोग करना िी चानिये।"

२०. मा० उच्चतम न्यायालय द्वारा एक
अन्य प्रकरण सत्यदेव बमगुर प्रति रमजस्थमन
शमसन व अन्य (२०२२)५ एस.सी.सी. ३२४, के
प्रकरण मे पूिद मे पाररत कृष्णन्न कक्कनमथ
प्रति केरल रमज्यः(१९९७)९ एस.सी.सी. ४९५
ि शेर तसंह प्रति भमरि संघः (१९९५)६
एस.सी.सी. ५१५ के ननणदयोीं का सींदर्द लेते हुए
यि ननणीत नकया नकैंः-

" १५. यि अनतसामान्य िै नक
न्यायालय नीनतगत मामलो में िस्तक्षेप करने में
मन्द रिेंगे, जब तक नक नीनत स्पि रूप से
पक्षपाती और मनमानी न स्थानपत िो जाये। यि
न्यायालय राज्य की नीनतगत ननणदय में िस्तक्षेप
निी करेगा, जब राज्य यि इींनगत कर सके नक
नीनत के कायादििन में युक्तक्तयुक्त अींतर िै और
िो युक्तक्तयुक्त अींतर, उसके उद्देश्य की प्राक्तप्त से
सींबींध रखता िै।"

8. Heavy reliance placed by
learned counsel for petitioners on
office memorandum dated 01.09.2006
will also not be helpful since the word
used
therein
is
'treated'
only.
Otherwise also, as referred above,
territorial area of service under Delhi
Police is only limited to N.C.T. of
Delhi, not beyond.

9. In above background as well as
taking note of an explanation afforded by
State, I do not find that there is any
arbitrariness on the part of respondents in
not granting any marks to petitioners on
strength of their spouses being working in
Delhi Police.

10. The writ petitions are accordingly
dismissed.
----------
(2024) 2 ILRA 860
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2024

BEFORE

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

Writ - A No. 14750 of 2020

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

Counsel for the Petitioner:
Sri Samarath Singh, Sri Ajay Kumar, Sri
Sankalp Narayan

Counsel for the Respondents:
C.S.C., Sri Jagannath Maurya

A. Service Law - Dismissal - Departmental
enquiry - Right of cross-examination -
Recovery of lost money from chargedemployee was also directed - Charge of
embezzlement was leveled - Burden of
proof, on whom lie - Neither solitary
witness was examined on behalf of the
establishment nor any kind of evidence
was led before the Inquiry Officer - Effect
- Inquiry officer, how to act and proceed
enquiry - Held, Inquiry officer must
convene himself as an impartial arbiter, an
Inquiry
Tribunal,
before
whom
the
establishment must, in the first instance,
lead evidence, both documentary and oral,
through a Presenting Officer to prove the
charge - When the establishment produce
their witnesses in support of the charge/
charges, the employee has the right to
cross-examine them - Manner in which
disciplinary proceedings have been held
by the Inquiry Officer are manifestly
2 All. Ashok Kumar Yadav Vs. State of U.P. & Ors.
861
illegal and the order impugned, founded
on such proceedings, cannot be sustained.
(Para 15, 16 and 22)

Writ petition allowed. (E-1)

List of cases cited :-

1. St. of U. P. & ors. Vs Saroj Kumar Sinha;
(2010) 2 SCC 772

2. Roop Singh Negi Vs Punjab National Bank &
ors.; (2009) 2 SCC 570

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

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

5. St. of U.P. Vs Aditya Prasad Srivastava &
anr.; 2017 (2) ADJ 554 (DB)(LB)

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

1. This writ petition is directed
against an order of dismissal from service
and recovery of the price of wheat said to
be embezzled by the petitioner. This order
has been made against the petitioner by the
Executive Director, U.P. Rajya Karamchari
Kalyan Nigam, Lucknow on 22.09.2020
and shall hereinafter be referred to as the
impugned order.

2. The petitioner was a Centre
Superintendent in the employ of the U.P.
Rajya
Karamchari
Kalyan
Nigam,
Lucknow (for short, 'the Corporation'). He
was appointed a Centre Superintendent at
the Wheat Purchase Centre, Vijay Nagla,
District Badaun in the month of March,
2018. The petitioner was transferred from
District Badaun to District Agra on
13.07.2018. On 16th of July, 2018 in a
quick movement of events, the petitioner
was transferred from District Agra to
District Sambhal and posted as a Salesman/
Accounts Clerk by the Managing Director,
Uttar Pradesh State Food and Essential
Commodities
Corporation
Limited,
Lucknow. The petitioner joined the station
of transfer on 16.07.2018. On 24th July,
2019, a little over a year after his preceding
transfer to Sambhal, the petitioner was
transferred back to District Agra, where he
joined on 19.08.2019.

3. It is the petitioner's case that while
posted as the Centre In-charge, Wheat
Purchase Centre, Vijay Nagla, District
Badaun, an incident took place on
15.06.2018, where records relating to
purchase of wheat were forcibly taken
away by one Harish Shankhdhar, a
government contractor. The petitioner
made a complaint regarding the incident to
the Executive Director of the Corporation
as well as the District Magistrate through
registered post on 12.07.2018. Another
complaint regarding the incident was
addressed
to
the
Director
of
the
Corporation on 23.07.2018. The petitioner
says that no action was taken by these
Authorities upon his complaints. The
petitioner was served with a show cause
notice instead, by the Eecutive Director last
mentioned on 03.08.2019, where it was
claimed that the petitioner was guilty of
short-deposit of wheat in the stocks of the
Corporation, compared to the quantity
purchased while posted at Badaun. The
short-deposit was alleged to be a quantity
of 2411.60 quintals.

4. The show cause notice was
answered by the petitioner on 09.08.2019.
The allegation was denied. In his reply, the
petitioner said that he was transferred from
Badaun on 13.07.2018, handing over
charge to one Ashok Kumar Saxena. He
joined the station of transfer on 14.07.2018.
The stand of the petitioner was that he had
862 INDIAN LAW REPORTS ALLAHABAD SERIES
no
information
regarding
any
embezzlement or shortage of wheat, which
took place afterwards.

5. The Executive Director of the
Corporation placed the petitioner under
suspension pending inquiry vide order
dated 31.10.2019. He was served with a
charge-sheet on the day he was suspended.
The charge-sheet says that the petitioner
was prima facie found to have caused a
loss of Rs.46,38,592.02 to the Corporation
in that, that out of a total procurement of
11000 quintals of wheat at the Centre
during the Rabi Season of 2018-19, the
petitioner had deposited with the Food
Corporation of India 8588.40 quintals,
leaving a shortfall of 2411.60 qunitals. It
was said in the charge that calculating the
worth of the shortfall at the rate prescribed
by the Food Corporation of India, which
was Rs.1923.45 per qunital, the petitioner
was guilty of embezzling a sum of
Rs.46,38,592.02, and thus, causing serious
financial loss to the Corporation. It is also
said in the charge that the petitioner was
required to show cause, but his reply did
not clarify the position. He was summoned
by the Executive Director vide his memo
dated 11.09.2019, requiring the petitioner
to appear before the Director aforesaid on
13.09.2019 in his office and clarify matters.

6. The petitioner, upon appearing
before the Executive Director of the
Corporation, had sought a month's time to
make good the shortfall of wheat, but did
not keep his word. The petitioner was,
therefore, charged with serious financial
irregularity and the resultant act of
misconduct punishable under the Model
Conduct Discipline and Appeal Rules
framed by the Corporation. The petitioner
was required to submit reply to the chargesheet, which carried a solitary charge as
aforesaid. The petitioner submitted his
reply dated 19.11.2019 denying the charge.

7. It was the petitioner's case in his
reply that the embezzlement was done by
government contractors, Santosh Mishra
and Harish Shankhdhar, regarding which
information had already been conveyed by
the petitioner and permission also sought to
lodge a first information against the said
contractors. It was pointed out that further
action was not taken due to want of
instructions from the Authorities of the
Corporation. A First Information Report
was nevertheless lodged by the petitioner
on
23.09.2019
against
government
contractors, Santosh Mishra and Harish
Shankhdhar on 23.09.2019, which was
registered as Case Crime No.238 of 2019,
under Sections 406, 420, 341, 506 IPC,
Police Station Vinawar, District Badaun.

8. The petitioner challenged his
suspension from service by means of WritA No.2731 of 2020, which was disposed of
by this Court vide an order dated
18.02.2020, directing the respondents to
complete
departmental
proceedings
expeditiously. This Court's order was
observed
in
breach,
compelling
the
petitioner to move Contempt Application
(Civil) No.3699 of 2020. Pending these
contempt proceedings, the petitioner was
issued with a show cause notice by the
respondents on 17.07.2020, requiring him
to submit a reply to the inquiry report, a
copy of which was supplied to him along
with the show cause. This was followed by
the impugned order of dismissal from
service dated 22.09.2020, which further
directed that a sum of Rs.15,46,197.33/-
shall be recovered from the petitioner and
that he will not be paid any sum of money
for the period of his suspension, except the
subsistence allowance. Amongst other
2 All. Ashok Kumar Yadav Vs. State of U.P. & Ors.
863
pleas, that are urged, it is averred in
Paragraph No.32 of the writ petition that
after receipt of his reply to the chargesheet, no date, time and place of inquiry
was fixed and intimated to the petitioner,
where he could appear and cross-examine
witnesses in support of the charge or
answer other evidence led. It is averred that
a namesake of inquiry was held without
giving the petitioner a fair opportunity of
hearing.

9. In the counter affidavit filed on
behalf of the Corporation in Paragraph
No.22, Paragraph No.32 of the writ
petition, along with a host of other
paragraphs, ranging from 26 to 38 of the
writ petition, have been answered. All the
averments in the relative paragraphs have
been 'not admitted'. Paragraph No.22 of
the counter affidavit reads:

"22.
That
the
contents
of
paragraph nos. 26 to 38 of the writ petition
are not admitted. In reply thereto it is
submitted
that
for
the
aforesaid
embezzlement
of
Rs.46,38,592.02,
departmental enquiry was initiated against
the petitioner and vide order dated 31-012019 he was placed under suspension and
Finance & Accounts Officer, Uttar Pradesh,
Rajya Karmchari Kalyan Nigam, Lucknow
was appointed as Enquiry Officer. It is
further submitted that the Enquiry Officer
after conducting enquiry into the matter
submitted enquiry report dated 07-08-2020
in which the charge of embezzlement
levelled against the petitioner was proved.
On the basis of enquiry report dated 07-082020 submitted by the Enquiry Officer, the
Executive Director, Uttar Pradesh, Rajya
Karmchari
Kalyan
Nigam,
Lucknow(respondent no.2) after affording
opportunity
of
hearing
to
the
petitioner/delinquent
employee,
passed
order dated 22-09- 2020 whereby the
petitioner was dismissed from service with
further direction to recover an amount of
Rs.15,46,197.33 from the petitioner."

10. Heard Mr. Sankalp Narayan,
learned Counsel for the petitioner, Mr. J. N.
Maurya, learned Counsel for respondent
Nos. 2 and 3 and Mr. Girijesh Kumar
Tripathi, learned Additional Chief Standing
Counsel for respondent No.1.

11. The thrust of the petitioner's
submission is that the inquiry held was a
slipshod affair, where no date, time and
place was fixed and intimated to the
petitioner. Elaborating his submissions, the
learned Counsel for the petitioner has urged
that in matters involving the possible
imposition of a major penalty, it is
incumbent upon the Inquiry Officer to fix a
date, time and venue, which should be
intimated to the delinquent. It is also
imperative that in the inquiry held, some
kind of a formal proceeding be undertaken,
where the Inquiry Officer should hear
evidence on behalf of the establishment,
requiring them to prove the charge by
evidence, both documentary and oral. It is,
particularly, urged that in matters involving
the likelihood of imposition of a major
penalty,
it
is
imperative
for
the
establishment that they examine witnesses
in support of the charge with opportunity to
the delinquent to cross-examine them. It is
after the establishment have led evidence to
prove the charge/ charges, that the
delinquent is to be afforded opportunity to
produce evidence in his defence, both
documentary and oral.

12. The learned Counsel appearing for
the respondents are in unison to say that the
petitioner
has
been
given
adequate
opportunity in the sense that he was served
864 INDIAN LAW REPORTS ALLAHABAD SERIES
with a copy of the charge-sheet, to which
he submitted a reply, and further was given
a copy of the inquiry report with
opportunity to show cause at that stage. In
the submission of the learned Counsel
appearing for the respondents, there is no
procedural lapse or unfairness, causing
prejudice to the petitioner, calling for
interference by this Court.

13. Upon hearing learned Counsel for
the parties and going through the record,
what this Court finds is that the inquiry
indeed has been held in a slipshod manner
by the establishment without following
salutary principles for proving the charge
they have laid. A copy of the inquiry report
is not available on the record of the writ
petition, but surprisingly it has not been
annexed to the counter affidavit as well.
The best material to know about the
proceedings of the inquiry and what
happened before the Inquiry Officer is the
order impugned itself. It is recorded about
the proceedings of the inquiry in the order
impugned as follows:

"तत्पिात प्रकरण में कायादलय पत्र
सीं0-18 स्था0 / बत्तीस - 2020 नदनॉक
08.01.2020 द्वारा अपचारी कमदचारी की
व्यक्तक्तगत सुनिाई / बयान अनर्नलक्तखत करने
िेतु नदनॉक 13.01.2020 की नतनथ ननयत की
गयी, अपचारी कमदचारी व्यक्तक्तगत सुनिाई िेतु
ननयत नतनथ को उपक्तस्थत हुआ तथा अपना बयान
अींनकत कराया गया। अपचारी कमदचारी के
निरूर्द् ननगदत आरोप पत्र प्राप्त अनर्नलक्तखत
कथन, अपचारी कमदचारी का अींनकत बयान तथा
अनर्लेखीय
साक्ष्योीं
का
परीक्षण
एिीं
नििचनोपरान्त, निनध सित जॉचोपरान्त जॉच
अनधकारी द्वारा अपनी जॉच आख्या नदनॉक
07.08.2020 को प्रस्तुत की गयी, नजसमें मात्र 01
आरोप लगाया गया िै, जो नक नसर्द् पाया गया
िै।"

14. A perusal of the aforesaid
proceedings of the inquiry shows that 13th
January, 2020 was the date fixed before the
Inquiry Officer that was intimated to the
petitioner by the respondents through their
memo dated 8th January, 2020. This date
was described as a date for the petitioner's
personal
hearing.
A
perusal
of
the
description
of
proceedings,
above
extracted, would show that on 13.01.2020,
the petitioner appeared before the Inquiry
Officer and his evidence or statement was
recorded.
The
Inquiry
Officer
then
proceeded to hold the petitioner guilty
looking
into
the
charge-sheet,
the
employee's reply to the charge-sheet, the
evidence or statement of the petitioner and
the documents. The Inquiry Officer looked
into
this
material
and
held
these
proceedings
as
above
described
and
nothing
else.
In
his
report
dated
07.08.2020, as the impugned order would
show, he found on the aforesaid material
the solitary charge proved against the
petitioner.

15. Now, in doing all this, the Inquiry
Officer fell foul of the most salutary
principle governing the procedure to hold
departmental
inquiries.
Wherever
the
charge/ charges is/ are serious and there is
likelihood of imposition of a major penalty,
the most salutary principle that applies to
departmental inquiries is that charges are
not to be regarded as proofs of themselves
and it is the establishment's burden to prove
them before the Inquiry Officer. The
Inquiry Officer must convene himself as an
impartial arbiter, an Inquiry Tribunal,
before whom the establishment must, in the
first
instance,
lead
evidence,
both
documentary and oral, through a Presenting
Officer to prove the charge. It is also of the
most salutary importance, in matters where
the charge is serious that the establishment
2 All. Ashok Kumar Yadav Vs. State of U.P. & Ors.
865
do examine witnesses to prove it in the first
instance. The Inquiry Officer cannot just
look
into
the
charge-sheet
and
the
delinquent's reply, besides documents on
record that are idle papers, to form his
opinion. The documents have to be
produced before the Inquiry Officer as
evidence and proved by witnesses. It is
after the establishment have discharged
their burden of proving the charge by
producing both documentary and oral
evidence that the employee may be called
upon to produce evidence in defence.

16. Also, when the establishment
produce their witnesses in support of the
charge/ charges, the employee has the right
to cross-examine them. The course of
proceedings before the Inquiry Officer, as
extracted in the order impugned, shows that
what the Inquiry Officer looked into was
the charge-sheet, the petitioner's reply and
took down the petitioner's statement,
holding the charge proved. He also did look
into some documents of his own that were
never produced before him by a Presenting
Officer and proved by witnesses. The
Inquiry Officer seems to have proceeded on
the supposition that the charge was proof of
itself and the petitioner's statement was
virtually considered like an explanation in a
preliminary
inquiry
that
was
not
satisfactory. This kind of a disciplinary
inquiry is no inquiry in the eye of law. The
petitioner's defence to the charge was also
based on the incident dated 15.06.2018,
where records relating to the purchase of
wheat were forcibly taken away by Harish
Shankhdhar, a government contractor. The
matter was complained by the petitioner,
but no action was taken as he says. The
defence is further based on the fact that the
petitioner had left charge of the Centre
during the relevant year and his successor
in office, to whom he had handed over
charge, was responsible for the shortfall.
Now, the charge in the very nature, would
require the establishment to prove it by the
testimony of witnesses on their behalf,
apart from the principle that witnesses must
always be examined in a charge involving
the possible imposition of a major penalty.

17. Here, as already remarked, not a
solitary witness was examined on behalf of
the establishment nor any kind of evidence
led before the Inquiry Officer. Far from
functioning as an impartial arbiter, the
Inquiry Officer seems to have functioned as
a servant of the establishment to endorse
the
charge-sheet
blindfoldedly.
The
salutary
principles
in
regard
to
a
departmental inquiry have been laid down
by the Supreme Court in State of Uttar
Pradesh and others v. Saroj Kumar
Sinha, (2010) 2 SCC 772, where it is
observed:

"27. A bare perusal of the
aforesaid sub-rule shows that when the
respondent had failed to submit the
explanation to the charge-sheet it was
incumbent upon the inquiry officer to fix a
date for his appearance in the inquiry. It is
only in a case when the government servant
despite notice of the date fixed failed to
appear that the inquiry officer can proceed
with the inquiry ex parte. Even in such
circumstances it is incumbent on the
inquiry officer to record the statement of
witnesses mentioned in the charge-sheet.
Since the government servant is absent, he
would clearly lose the benefit of crossexamination
of
the
witnesses.
But
nonetheless in order to establish the
charges the Department is required to
produce the necessary evidence before the
inquiry officer. This is so as to avoid the
charge that the inquiry officer has acted as
a prosecutor as well as a judge.
866 INDIAN LAW REPORTS ALLAHABAD SERIES

28. An inquiry officer acting in a
quasi-judicial authority is in the position of
an independent adjudicator. He is not
supposed to be a representative of the
department/disciplinary
authority/Government. His function is to
examine the evidence presented by the
Department, even in the absence of the
delinquent official to see as to whether the
unrebutted evidence is sufficient to hold
that the charges are proved. In the present
case the aforesaid procedure has not been
observed. Since no oral evidence has been
examined the documents have not been
proved, and could not have been taken into
consideration to conclude that the charges
have been proved against the respondents."

18. To the same end, is the decision of
the Supreme Court in Roop Singh Negi v.
Punjab National Bank and others, (2009)
2 SCC 570, where it was observed:

"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 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."

19. Dealing with the same issue, a
Division Bench of this Court in State of
U.P. and another v. Kishori Lal and
another, 2018 (9) ADJ 397 (DB)(LB),
held:

"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)
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
2 All. Ashok Kumar Yadav Vs. State of U.P. & Ors.
867
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
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
868 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

20. The same principle has been
reiterated by the Division Bench of our
Court in Smt. Karuna Jaiswal v. State of
U.P., 2018 (9) ADJ 107 (DB) (LB), where
it has been held:

"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."

21. In State of U.P. v. Aditya Prasad
Srivastava and another, 2017 (2) ADJ
554 (DB)(LB), again a Bench decision of
this Court, it was held:

"14. Recently the entire law on
the subject has been reviewed and
reiterated in Chamoli District Co-operative
Bank Ltd. v. Raghunath Singh Rana and
others, AIR 2016 SC 2510 and Court has
culled out certain principles as under:
2 All. Ashok Kumar Yadav Vs. State of U.P. & Ors.
869

''(i)
The
enquiries
must
be
conducted bona fide and care must be taken
to see that the enquiries do not become
empty formalities.

(ii) If an officer is a witness to
any of the incidents which is the subjectmatter of the enquiry or if the enquiry was
initiated on a report of an officer, then in all
fairness he should not be the Enquiry
Officer. If the said position becomes known
after the appointment of the Enquiry
Officer, during the enquiry, steps should be
taken to see that the task of holding an
enquiry is assigned to some other officer.

(iii)
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent charged and give an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
he wants to lead any evidence and asked to
give any explanation about the evidence led
against him.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply a
copy of the enquiry report and all
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any.''

15. The principal of law emanates
from the above judgments is that initial
burden is on the department to prove the
charges. In case where inquiry is initiated
with a view to inflict major penalty,
department
must
prove
charges
by
adducing evidence by holding oral inquiry.

17. 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. 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."

22. The said principles would show
that the manner in which disciplinary
proceedings have been held by the Inquiry
Officer are manifestly illegal and the order
impugned, founded on such proceedings,
cannot be sustained.

23. It goes without saying that the
charge being serious, involving allegations
of embezzlement of valuable goods of the
Corporation, it would be open to the
respondents to hold proceedings afresh
against the petitioner from the stage of the
charge-sheet, in accordance with law and
the guidance in this judgment. The
respondents would be at liberty to pass
fresh orders, if they elect the aforesaid
course.

24. In the result, this writ petition
succeeds and is allowed in part. The
impugned order dated 22.09.2020 passed
by
the
Executive
Director
of
the
Corporation
is
hereby
quashed.
A
mandamus is issued to respondent Nos.2
and 3, ordering them to reinstate the
petitioner forthwith in service and pay him
current salary from the date of this
judgment. The payment of arrears of salary
will abide by the result of disciplinary
proceedings, if taken afresh. Else, 50% of
the due emolument will become payable to
870 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner, that is, if the respondents
chose not to pursue fresh proceedings. It
would be open to the respondents after
reinstating the petitioner to assign him
duties at such station as they wish and pay
him current salary or place him under
suspension pending inquiry, in which event
the petitioner shall be regularly paid his
subsistence allowance, without asking him
to furnish a non-alternative engagement
certificate. If fresh proceedings are taken,
the entitlement of the petitioner to receive
emoluments for the period of his ouster
from service will abide by the final result
of those proceedings. If the petitioner is
finally reinstated in service at the end of
proceedings, with whatever punishment is
meted out to him, other than a terminal
punishment, he will be entitled to all
benefits of seniority and continuity.

25. There shall be no order as to costs.
----------
(2024) 2 ILRA 870
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2024

BEFORE

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

Writ - A No. 14972 of 2023

Arbind Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ritesh Srivastava, Ms. Shweta Singh

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava

A. Service Law - Disciplinary proceeding -
Punishment - Demotion - Award of a
censure and stopping one increment with
cumulative
effect
-
Quantum
of
punishment - Scope of interference -
Charge of travelling on a air ticket
purchased
by
the
Firm,
where
the
petitioner was going to inspect quality,
was leveled - Defence of cancellation of
earlier
flight,
for
which
petitioner
purchased the ticket, and further of
paying the price of ticket upon destination
was taken - Though no witnesses were
examined by the establishment, but there
was admission of the petitioner to travel
on Firm's ticket - Effect - Held, the finding
of the Disciplinary Authority is not bad,
based on the petitioner's admission about
his
impropriety
of
conduct
or
the
misconduct in travelling on a ticket
purchased by the Firm's representative,
where he was going to inspect, as also the
finding in not believing the evidence about
paying off the Firm's representative upon
arrival at destination, the quantum of
punishment imposed, may still be the
subject matter of some scrutiny by this
Court on settled parameters - High Court
can
interfere
with
the
quantum
of
punishment only if we find it to be
shockingly disproportionate - Given the
totality of circumstances, where the conduct
of the petitioner appears to be indiscreet
and highly irregular, but not dishonest, or
one that has caused any kind of a loss to the
Corporation, the punishment of demotion by
the Revisional Authority, to this Court's
conscience,
is
indeed
shockingly
disproportionate. (Para 12, 14, 21 and 23)

B. Service law - Violation of natural justice -
Punishment
-
Revisional
authority
enhanced the punishment - No notice of
enhancement
was
served
upon
the
petitioner - Effect - Held, the requirement
to serve a notice before enhancement of
punishment is also a requirement under the
Regulations, and, in any case, its nonservice would be a violation of the principles
of natural justice. (Para 20)

Writ petition partly allowed. (E-1)

List of cases cited :-

1. St. of U. P. & ors.Vs Saroj Kumar Sinha;
(2010)
2
SCC
772