# Ashwani Bedi v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 1235
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-A No. 13111 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashwani-bedi-v-state-of-u-p-ors-50859
- **Pages:** 13

## Headnote

Law
-
U.P.
Government
Servant's Conduct Rules, 1956 - Rule 3
-
Salary/allowance
-
Withholding
-
Disciplinary
Authority,
while
writing
impugned order, has heavily relied upon
contents of letter dated 11.09.2015 issued
by Executive Engineer which reports story of
petitioner's involvement in illegal shifting of
electricity line, also electric poles without
permission of competent authority - Contents
of letter could be true but it would require
production of relevant witnesses, including
former Executive Engineer, who addressed
letter dated 11.09.2015 to Higher Authority,
accusing petitioner of illegal shifting - In
absence of production of relevant witnesses,
including Executive Engineer, respondents
have fallen for grave error in returning
finding of guilt against petitioner, based on
letters and idle papers - Thus impugned
order unsustainable, respondents are at
liberty to proceed afresh from stage of
charge-sheet. (Para 30, 31)
Writ petition allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,993 of 43,391. This is a partial read: ask again with offset=39993 for what follows._

1 All. Ashwani Bedi Vs. State of U.P. & Ors.
1235
the regulations pursuant to the inquiry
report dated 25.9.2021 submitted by the
Inquiry Officer before the Disciplinary
Authority/Competent Authority.
----------
(2024) 1 ILRA 1235
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

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

Writ-A No. 13111 of 2023

Ashwani Bedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pranesh Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava, Sri Jitendra
Sarin, Sri Kartikeya Saran, Sri Kaushalendra
Nath Singh, Sri Vinayak Ranjan

Service
Law
-
U.P.
Government
Servant's Conduct Rules, 1956 - Rule 3
-
Salary/allowance
-
Withholding
-
Disciplinary
Authority,
while
writing
impugned order, has heavily relied upon
contents of letter dated 11.09.2015 issued
by Executive Engineer which reports story of
petitioner's involvement in illegal shifting of
electricity line, also electric poles without
permission of competent authority - Contents
of letter could be true but it would require
production of relevant witnesses, including
former Executive Engineer, who addressed
letter dated 11.09.2015 to Higher Authority,
accusing petitioner of illegal shifting - In
absence of production of relevant witnesses,
including Executive Engineer, respondents
have fallen for grave error in returning
finding of guilt against petitioner, based on
letters and idle papers - Thus impugned
order unsustainable, respondents are at
liberty to proceed afresh from stage of
charge-sheet. (Para 30, 31)
Writ petition allowed. (E-13)

List of Cases cited:

1. St. of U.P. & ors. Vs Saroj Kumar Sinha,
(2010) 2 SCC 772, (Paras 27, 28)

2. Roop Singh Negi Vs Punjab National Bank &
ors. (2009) 2 SCC 570, (Para 14)

3. St. of U.P. & anr. Vs Kishori Lal & anr., 2018
(9) ADJ 397 (DB)(LB), (Paras 14, 17 to 19)

4. Smt. Karuna Jaiswal Vs St. of U.P, 2018 (9)
ADJ 107 (DB) (LB), (Paras 15 to 17)

5. Ashish Kumar Tiwari Vs St. of U.P. & ors.
2021 (1) ADJ 420

6. Ranveer Singh Vs U.O.I. & ors. 2021 (5) ADJ
136

7. Prem Narain Singh Vs St. of U.P. & anr., 2023
(2) ADJ 580

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

1. This writ petition is directed
against the order dated 20.08.2022, passed
by the Managing Director, Paschimanchal
Vidyut Vitaran Nigam Limited, Meerut,
punishing the petitioner with award of a
censure
entry
and
withholding
one
increment with cumulative effect. Also,
under challenge is the charge-sheet dated
15.02.2021 and the inquiry report dated
02.03.2022, the inquiry report being one
submitted by the Temporary Inquiry
Committee, VI.

2. The facts giving rise to this writ
petition
are
that
the
petitioner
was
appointed an Assistant Engineer in the
service of the U.P. Power Corporation on
24.07.2014. He was posted as the Sub
Divisional Officer, Electricity Sub-Station
Division-II, Gulawathi under the Electricity
Distribution Division-I, Bulandshahr on
08.08.2014. He is presently posted as the
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistant Engineer (Revenue), Electricity
Distribution Division-III, Bulandshahr. A
letter dated 11.09.2015 was issued by the
Executive
Engineer,
Electricity
Distribution Division-I, Bulandshahr and
forwarded by the Superintending Engineer,
Electricity
Distribution
Circle-II,
Bulandshahr
to
the
Chief
Engineer
(Distribution) Ghaziabad Zone, Ghaziabad.
It was said that there was an illegal shifting
of some electricity poles carrying the 33
KV line from the 132/33 KV Sub-Station,
Gulawathi to 33/11 KV Sub-Station,
Gulawathi No.1, wherein the petitioner
appeared to be involved. On the basis of the
said
allegation,
the
petitioner
was
suspended from service pending inquiry
vide
order
dated
18.09.2015.
Upon
condition that the inquiry would continue,
the petitioner was reinstated in service by
the Chief Engineer, Ghaziabad Circle
Ghaziabad vide order dated 01.10.2015.
The petitioner was attached to the office of
Electricity
Distribution
Circle-II,
Bulandshahr.

3. There are then averments about the
grievance made by the petitioner to release
his salary and allowances for the period of
suspension, as the disciplinary proceedings
were continuing for a very long period of
time and no charge-sheet was served for
more than four years. In the meantime, the
respondents
stopped
the
petitioner's
increment
pending
settlement
of
his
entitlement to receive salary for the period
of suspension from service. This led to a
writ petition before this Court, being Writ
Petition No. 825 of 2020. These are details
and matters, which are not very relevant for
the purpose of the present writ petition. The
petitioner was served with a charge-sheet
on 15.02.2021, that is to say, more than
five years after the suspension order was
passed against him. The charge against the
petitioner, carried in the charge-sheet dated
15.02.2021, which is the solitary charge
and issued by the Inquiry Committee with
the approval of the Managing Director,
reads:

"आिोप सींख्या :-01

आपक उपखण्ड अनर्काि , नवद्युत
नवतिण उपखण्ड- गुलावठ अन्तगात नवद्युत
नवतिण खण्ड - प्रथम, बुलन्दिहि के पद पि
नदिाींक 16.01.2015 से 04.03.2017 क अवनर्
के दौिाि तत्काल ि आनर्िास अनभयन्ता,
नवद्युत नवतिण खण्ड- प्रथम, बुलन्दिहि द्वािा
अर् क्षण अनभयन्ता, नवद्युत नवतिण मण्डल -
नद्वत य,
बुलन्दिहि
को
सम्बोनर्त
अपिे
कायाालय पत्र सीं0-3293 नदिाींक 11.09.2015 के
माध्यम से अवगत किाया गया नक नदिाींक
06.09.2015 क िानत्र में उन्हें दूिभार् पि सूचिा
नमल नक 132/33 के0व 0 उपकेन्द्र गुलावठ से
निकलिे वाल 33 के०व ० नवद्युत लाईि जो नक
33/11 के०व गुलावठ िीं0 01 को जात है, क
लाइि के कुछ पोल निफ्ट कि नदये गये हैं तथा
उि
काया
नदिाींक
05.09.2015
एवीं
06.09.2015 में नकया गया है। इस सम्बन्ध में
आपसे पूछिे पि आपके द्वािा कोई स्पष्ट् उिि
िह ीं नदया गया। तत्पश्चात सम्बक्तन्धत 132 के0व 0
उपकेन्द्र पािेर्ण के एस0एस0ओ0 से पूछिे पि
बताया गया नक उन्होिे यह काया उपखण्ड
अनर्काि श्र अश्वि वेद क देख-िेख में तथा
िेक्तस्ट्ींग प रियड में दूिभार् के माध्यम से पािेर्ण
से अिानर्कृत ििडाउि लेकि किाया गया है।
इस प्रकाि आपके द्वािा नवभाग य नियमोीं के
नवपि त प्लॉि मानलक से नमल भगत किके यह
काया नबिा सक्षम स्ति से स्व कृनत प्राप्त नकये
किाया गया है।

इस प्रकाि आपको अपिे दानयत्योीं के
प्रनत निनथलता एवीं लापिवाह बितिे, निनथल
कायाप्रणाल का परिचय देिे, वस्तुक्तथथनत से
1 All. Ashwani Bedi Vs. State of U.P. & Ors.
1237
अपिे उच्चानर्कारियोीं को अवगत ि किािे, तथा
उ0प्र0 सिकाि कमाचाि आचिण नियमावल
1956 क र्ािा-3 का उल्लींघि कििे हेतु
आिोनपत नकया जाता है।"

4. In support of the charge, the
following documents were relied upon to
prove it:

"उपिोि आिोप के समथाि में
निम्ननलक्तखत साक्ष्य प्रस्तानवत है:-

1. अनर्िास अनभयन्ता, नवद्युत
नवतिण खण्ड- प्रथम, बुलन्दिहि के पत्र सीं03293
/नव०नव०
ख०प्र०
/
बु०/
नदिाींक
11.09.2015 क छायाप्रनत ।

2.
अर् क्षण
अनभयन्ता,
नवद्युत
नवतिण मण्डल - नद्वत य, बुलन्दिहि के पत्र
सीं0-8232 / नव० नव० द्व ० / बु०/ नदिाींक
19.09.2015 क छायाप्रनत ।

3. कमाचाि आचिण नियमावल
1956 प्रकानित अनभलेख के नियम 3 का सींगत
अींि । कमाींक 01 एवीं 02 पि अींनकत साक्ष्य
सींलि नकये जा िहे है तथा कमाींक 03 पि अींनकत
साक्ष्य प्रकानित अनभलेख है, नजसे आप अपिे
स्ति से प्राप्त किें।"

5. It must be remarked here that the
relevant part of Rule 3 of the U.P.
Government Servant's Conduct Rules,
1956, cited as a document, is by no means a
document. To refer to the provision of a
service rule as a document, ex facie betrays
lack of understanding of the law by
Members of the Inquiry Committee as well
as the Managing Director, who issued, and
approved the charge-sheet, respectively,
about something as elementary as what
constitutes a document or documentary
evidence and what is, in fact, nothing more
than the law, under which the employee
was charged. Though, failure by men not
trained in law, to understand the distinction
between what is law and what is
documentary
evidence
in
a
case,
particularly, when it is a matter of a
reference alone in the charge-sheet, may
not be very material but it betrays that lack
of
understanding
of
something
very
essential, which could ultimately bear upon
the soundness of judgment of the Inquiry
Tribunal as well as the Disciplinary
Authority. This Court expects that in future
a provision in a Service Rule shall never be
referred to in a charge-sheet as a document
by the respondent Corporation.

6. It is the petitioner's case that he was
not provided with a copy of the letters
dated 11.09.2015 and 19.09.2015, the two
documents annexed to the charge-sheet
though shown as annexures there. The
petitioner, therefore, addressed a memo
dated 18.03.2021 to the respondents as well
as the Inquiry Committee asking to be
provided with copies of these letters. The
memo dated 18.03.2021, addressed to the
Superintendent
Engineer,
Electricity
Distribution
Division-I
and
II,
Bulandshahr, with a copy to the convener
of the Inquiry Committee, and the Chief
Engineer concerned was sent by registered
post, receipts whereof are placed at page
no. 53 of the paper book. The petitioner
says that these documents were not
supplied. With time running out, the
petitioner submitted a reply to the chargesheet, denying the charge and saying that it
was
based
on
no
evidence
besides
conjecture. The circumstances appearing in
favour of the petitioner are also indicated.

7. It is averred in paragraph no. 16 of
the writ petition that though the petitioner
was personally heard by the Inquiry
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee on 02.03.2022, through video
conferencing,
but,
no
witness
was
examined on behalf of the establishment in
support of the charge. In short, no oral
evidence
was
led
by
the
employers/establishment
to
prove
the
charge against the petitioner. The Inquiry
Committee
submitted
a
report
dated
02.03.2022, holding the solitary charge
proved. On the basis of the said inquiry
report, the petitioner was issued with a
show cause notice dated 06.04.2022 by the
Managing Director, Paschimanchal Vidyut
Vitran
Nigam
Limited,
Meerut,
the
Disciplinary
Authority.
The
petitioner
submitted a reply in response to the show
cause
notice
on
26.04.2022
to
the
Managing Director. The Managing Director
then proceeded to pass the order impugned
dated 20.08.2022, punishing the petitioner
with a censure entry and withholding of
one increment with cumulative effect.

8. Aggrieved by the said order, this
writ petition has been instituted.

9. It is averred in paragraph nos. 16,
25 and 28 of the writ petition that the
Inquiry Committee, while holding the
inquiry, did not have any witness or oral
evidence produced before it by the
establishment in support of the charge.
There was, thus, no occasion for the
petitioner to cross-examine any witness.
The short counter-affidavit that has been
filed in answer to this writ petition, clearly
avers in paragraph no. 7 to the following
effect:

"That
no
witnesses
were
examined by the department in respect of
Charge-sheet dated 15.02.2021, as there
was only documentary evidence against the
Petitiner and the same were supplied to
Petitioner along-with charge-sheet."

10. Heard Mr. Pranesh Kumar
Mishra, learned Counsel for the petitioner
and Mr. Vinayak Ranjan, Advocate,
holding brief of Mr. Kartikeya Saran,
learned Counsel for respondent no.3. The
record has been perused.

11. A statement was made on behalf
of respondent nos. 1, 2, 4 and 5 that they do
not wish to file a return because essentially
the issue arises between the petitioner and
respondent no.3.

12. Upon a perusal of the aforesaid
averments in the writ petition and the
respondent's admission in paragraph No. 7
of the short counter affidavit, it is evident
that the Inquiry Committee proceeded to
record a finding of guilt, glossing through
papers
alone,
without
the
establishment/employers
producing
any
witness to prove the solitary charge, on the
basis of which, the impugned order has
been passed by the Managing Director.

13. A perusal of the inquiry report
shows that in the first part of the report,
there is a description of the origin and
course
of
proceedings
against
the
petitioner. In the second part, the solitary
charge, numbered as Charge No. 1, has
been set forth. In the third part, the
petitioner's reply to the charge-sheet has
been set out. In the fourth part, there is a
brief discussion to hold the charge proved.
The findings recorded read:

"नववेचिा :-

आिोप अनर्काि के प्रनतउिि,
व्यक्तिगत सुिवाई एवीं पत्रावल में उपलब्ध
प्रािींनभक जाुँच इत्याद अनभलेखोीं क नववेचिा
एवीं परिक्षोणोपिान्त यह पाया गया है नक नदिाींक
06.09.2015 को तत्काल ि अनर्िास अनभयन्ता
1 All. Ashwani Bedi Vs. State of U.P. & Ors.
1239
नवद्युत नवतिण खण्ड- प्रथम, बुलन्दिहि को
उिके दूिभार् पि सूचिा नमल नक 33 के०व ०
लाईि गुलाब -1 के कुछ पौल निफ्ट कि नदये
गये है इस सम्बन्ध में तत्काल ि अनर्िास
अनभयन्ता (नवतिण) द्वािा श्र अश्वि वेद
उपखण्ड अनर्काि से पूछिे पि श्र अश्वि वेद
द्वािा कोई स्पष्ट् उिि िह ीं नदया गया व अवि
अनभयन्ता श्र द पक दुबे से जब पूछा गया तो
उन्होि उपिोि अवनर् में छुट्ट पि होिे के
सम्बन्ध में सूनचत नकया तथा थो़ि देि बाद फोि
पि बताया क उन्होींिे लाईि मैि से पूछा तो पता
लगा है नक लाईि निफ्ट क गई है उन्होींिे यह
भ बताया क 132 के०व ० उपकेन्द्र पािेर्ण के
एस०एस०ओ० से पूछिे पि उन्होींिे काया
उपखण्ड अनर्काि श्र अश्वि वेद क देखिेख
िे तथा िोक्तस्ट्ींग नपियड में दूिभार् के माध्यम से
पािेर्ण से अिानर्कृत ििडाउि लेकि गलत
ि यत से किाया गया है। उि के सम्बन्ध में
नवद्युत नवतिण खण्ड-नद्वत य बुलन्दिहि द्वािा
अपिे पत्राींक 3293 नदिाींक 11.09.2015 (पृष्ठ
स० 13 ) के माध्यम से अर् क्षण अनभयन्ता,
नव०नव०ग०- नद्वत य बुलन्दिहि को पूणा घििा
क्रम से अवगत किाते हुए श्र अश्वि वेद के
नवरूद्ध कठोि कायावाह क सींस्तुनत क गय ।
अर् क्षण अनभयन्ता नवद्युत नवतिण मण्डल -
नद्वत य बुलन्दिहि द्वािा अपिे पत्राींक 8232
नदिाींक 16.09.2015 (पृष्ठ सीं0 12 ) द्वािा मुख्य
अनभयन्ता गानजयाबाद क्षेत्र गानजयाबाद को पत्र
के माध्यम से श्र अश्वि वेद के नवरूद्ध कठोि
कायावाह के साथ जाुँच क भ सींस्तुनत क गय ।

उपिोि
अनर्िास
अनभयन्ता
नवद्युत नवतिण खण्ड प्रथम बुलन्दिहि एवीं
अर् क्षण अनभयन्ता नवद्युत नवतिण मण्डल
नद्वत य बुलन्दिहि क सींस्तुनत के आर्ाि पि
मुख्य अनभयन्ता गानजयाबाद क्षेत्र गानजयाबाद
द्वािा श्र अश्वि वेद को कायाालय ज्ञाप सीं0 7586
नदिाींक 18.09.2015 (पृष्ठ सीं0 58) को निलक्तम्बत
कि नदया गया था। 33 के०व ० नवद्युत लाईि के
पोल निफ्ट होिे क तत्काल ि अनर्िास
अनभयन्ता व अर् क्षण अनभयन्ता द्वािा भ पुनष्ट्
क गय है। अतः आिोप पि आिोप नसद्ध होता
है।"

14. It is by now well settled as a
salutary principle, governing departmental
inquiries, where the findings are likely to
lead to the imposition of a major penalty,
that it is the duty of the establishment or the
employer to examine witnesses before the
Inquiry Committee or the Inquiry Officer,
producing them along with documentary
evidence. The Inquiry Committee or the
Inquiry
Officer,
though
officers
or
personnel of the establishment, must act as
impartial arbiters and the charge must be
established
before
them
by
the
establishment through a Presenting Officer,
leading
evidence
both
oral
and
documentary. In case of a major penalty, it
is imperative that the charge be proved by
examining witnesses, and not merely
relying on documents that are no more than
idle papers unless proved by the oral
testimony of witnesses. This has certainly
not been done. How vital it was in this case
would be evident from a perusal of the
findings
recorded
by
the
Inquiry
Committee.

15. The Inquiry Committee has
sustained the charge about the illegal
shifting of the 33 KV electricity line, which
involved shifting of some electric poles by
the petitioner also, said to be without
permission of the Competent Authority,
relying on a statement by the Executive
Engineer recorded during the preliminary
inquiry, based on information gathered by
the
Executive
Engineer,
Electricity
Distribution Division-I, Bulandshahr over
telephone from different persons. The
statement of the Executive Engineer says
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
that he learnt over telephone that some
poles of the 33 KV line, under Gulawathi-1
have been shifted. In his statement recorded
at the preliminary inquiry, it is mentioned
that, in this connection, the former
Executive
Engineer,
Electricity
Distribution said that upon enquiry from
Ashwani Bedi, the Sub-Station Officer, no
clear answer was given. But, upon enquiry
from Deepak Dubey, Junior Engineer, he
said that, during the period in question,
Deepak Dubey was on leave, but later on
informed the Executive Engineer over
telephone that, upon enquiry from the
lineman, he came to know that the
electricity line had been shifted. The Junior
Engineer also informed that upon enquiry
from the Sub-Station Officer of the 132 KV
Sub-Station, he said that he had got this
work done under the supervision of Aswani
Bedi,
Sub
Divisional
Officer,
after
effecting rostering of electricity bringing
about an unauthorised shutdown with an
ill-intention. It is then noted by the Inquiry
Committee that the Electricity Distribution
Division-II, Bulandshahr by a letter No.
3293 dated 11.09.2015, informed the
Superintending
Engineer,
Electricity
Distribution Division-II of the entire
episode recommending strict action against
the petitioner. The Inquiry Committee has
then noticed a letter by the Superintending
Engineer, Electricity Distribution DivisionII, Bulandshahr, bearing No. 8232 dated
16.09.2015,
addressed
to
the
Chief
Engineer, Ghaziabad Zone, Ghaziabad,
recommending strict action against the
petitioner and an inquiry. This is all for a
finding that the Inquiry Committee have
recorded in substance.

16. It is true that in a departmental
enquiry, the Evidence Act does not apply
but, the Evidence Act, after all, is a very
systematic enunciation of the adjective law
of evidence, applicable to trials before a
Court of law. A domestic Tribunal need not
worry about what the law of evidence says.
Nevertheless,
salutary
procedures,
governing
consideration
of
relevant
evidence and some salutary Rules about
proof of facts, have to be observed in order
to ensure that a delinquent in a domestic
inquiry, who would be visited with adverse
civil consequences, is not punished by the
ignorance of a lay Inquiry Tribunal.

17. If one were to read the findings of
the Inquiry Committee, which have been
extracted verbatim in Hindi, and then also
rendered almost for the whole of it in
English, it would show that the Inquiry
Committee have based their findings on
three communications - two telephonic
calls and a letter. The first telephonic call is
the one dated 06.09.2019 received by the
former Executive Engineer, Electricity
Distribution Division-I, Bulandshahr on his
telephone, giving him information that the
33 KV line, Gulawathi-I has had a shifting
of its electric poles. The former Executive
Engineer inquired about the fact from
Ashwani Bedi, Sub-Divisional Officer
(petitioner), but did not receive a clear
answer. The former Executive Engineer
then inquired about the fact of Deepak
Dubey, a Junior Engineer. Dubey said in
the first instance that during the relevant
period of time, he was on leave. But, a little
later, he called over telephone to tell the
former Executive Engineer that he (Dube,
J.E.) had inquired of the lineman about the
fact and come to know that the electric line
had been shifted. Dubey also informed the
Executive Engineer that the Sub-Station
Officer, 132 KV Sub-Station, upon being
asked about the fact, had revealed that he
had done this work (shifting the electric
line) under the supervision of Ashwani
Bedi and carried it out during the rostering
1 All. Ashwani Bedi Vs. State of U.P. & Ors.
1241
period, which was managed on telephone
by an unauthorised shutdown got done with
an ill-intention. The said fact was also
communicated
by
the
Electricity
Distribution
Division-II,
Bulandshahr
through
their
Letter
No.3293
dated
11.09.2015 to the Superintending Engineer,
Electricity
Distribution
Division-II,
Bulandshahr,
setting
forth
the
entire
calendar of events and recommending
strong action to be taken against the
petitioner. This is, more or less, the
evidence on which the Inquiry Committee
have founded their conclusions. Amongst
the three items of evidence considered, of
the two telephonic communications, one is
without the mention of its date. It is the one
between the former Executive Engineer,
Electricity
Distribution
Division-I,
Bulandshahr and the Junior Engineer,
Deepak Dubey. The other communication
dated 06.09.2015, which triggered action
against the petitioner, speaks about an
information
received
by
the
former
Executive
Engineer,
Electricity
Distribution Division-I, Bulandshahr over
his telephone from a caller, whose identity
has not been specified at all. The third and
the only documentary evidence is the letter
dated 11.09.2015 from the Electricity
Distribution Division-II, Bulandshahr to the
Superintending
Engineer,
Electricity
Distribution
Division-II,
Bulandshahr,
which is said to carry the entire sequence of
events leading to the unauthorised shifting
of electricity line, including electric poles,
by the petitioner.

18. A perusal of the charge-sheet
would show that the only document relied
upon to sustain the charge is the letter dated
11.09.2015 from the Executive Engineer,
Electricity
Distribution
Division-I,
Bulandshahr, addressed to whom is not
mentioned there. The other is a letter dated
19.09.2015
from
the
Superintending
Engineer, Electricity Distribution DivisionII, Bulandshahr, with the addressee not
being mentioned in the charge-sheet. There
appears to be some inaccuracy about the
authors of the letter dated 11.09.2015, in as
much as, the reference number of the letter
dated 11.09.2015 in the charge-sheet and
the inquiry report are identical, that is to
say, 3293. The date and the reference
number tally in the charge-sheet and the
findings in the inquiry report. What does
not tally is that, in the charge-sheet, the
author of the letter bearing number 3293
dated
11.09.2015,
is
shown
as
the
Executive
Engineer,
Electricity
Distribution
Division-I
Bulandshahr,
whereas, in the findings recorded in the
inquiry report, the author of the said letter
with the same reference number and date is
shown to be the Electricity Distribution
Division,-II
Bulandshahr,
without
mentioning even an official human for the
author. These small inaccuracies have been
pointed out not to pick holes in the findings
of the Inquiry Committee but to notice the
demonstrably casual nature of the Inquiry
Committee's approach in recording their
findings. Substantially, this Court notices
that the Inquiry Committee have relied
upon a telephonic communication dated
06.09.2015
received
by
the
former
Executive
Engineer,
Electricity
Distribution Division-I, Bulandshahr from
some unknown quarter and then the
telephonic communication between the
former Executive Engineer, Electricity
Distribution Division-I, Bulandshahr and
Deepak Dubey, Junior Engineer, of which
the date does not find mention.

19. Now, a perusal of the findings,
based on the phone call dated 06.09.2015
received by the former Executive Engineer,
Electricity
Distribution
Division-I,
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
Bulandshahr through an unknown caller
and the other phone call that the said
Executive Engineer received from Deepak
Dubey, Junior Engineer with no date of the
call mentioned, have been relied by the
Inquiry Committee as gospel truth and
proof of all that is said in the two phone
calls. The mention of these phone calls and
the contents of the conversation have been
taken note of by the Inquiry Officer on a
perusal of some preliminary inquiry report,
where all these facts are recorded. The
former Executive Engineer, Electricity
Distribution Division-I, Bulandshahr was
never called as a witness before the Inquiry
Committee in support of the charge to
testify to all that he had heard during the
telephonic conversation on 06.09.2015, and
the later one of some unknown date with
Deepak Dubey. Deepak Dubey too was not
called as a witness, nor was the lineman, on
whose information, Deepak Dubey relied to
inform the Executive Engineer about the
fact of the line and the electric poles being
shifted.

20. The Sub-Station Officer, 132 KV
Sub-Station, from whom Dubey gathered
the further facts that the shifting of the
electric line and poles was done under the
supervision of the petitioner after managing
a rostering period through a shutdown of
electric supply, done maliciously, was also
not produced as a witness at the inquiry.
These facts have been gathered from
whatever the former Executive Engineer
said during the preliminary inquiry about
the
telephonic
conversation,
the
information that he received through some
unknown caller, on 06.09.2015 and then
again on some unspecified date from
Deepak Dubey, the Junior Engineer. In the
preliminary inquiry report too, the former
Executive Engineer has given facts based
on hearsay of remote origin.

21. The findings of the Inquiry
Committee are, therefore, based on utter
hearsay, recorded in a preliminary inquiry
report, based on phone calls. There is a
letter dated 11.09.2015 from the Electricity
Distribution Division-II, addressed to the
Superintending
Engineer,
Electricity
Distribution Division-II, Bulandshahr, said
to be apprising him of the entire sequence
of
events,
but
in
the
absence
of
identification of its author, can hardly be of
any worth. The said letter too, by
whomsoever
written,
seems
to
have
depended upon the telephonic conversation
that
the
former
Executive
Engineer,
Electricity
Distribution
Division-I,
Bulandshahr had with Dubey, and reported
during the preliminary inquiry.

22. This Court must say, therefore,
that even if these are facts that the
respondents had collected through inquiries
made by the former Executive Engineer,
Electricity
Distribution
Division-I,
Bulandshahr, all this had to be proved
before the Inquiry Tribunal by examining
witnesses, who are said to have told the
Executive Engineer that the shifting of the
electricity line and poles took place
unauthorisedly,
under
the
petitioner's
supervision. A finding of this kind cannot
be
based
on
reports
of
telephonic
conversation recorded during a preliminary
inquiry, referring to hearsay from men,
who have never made it before the Inquiry
Committee to depose in favour of the
charge, or whatever they are reported to
have said. The findings of the Inquiry
Committee are based on the statement of a
man, the former Executive Engineer,
Electricity
Distribution
Division-I,
Bulandshahr,
recorded
during
the
preliminary inquiry, who heard about the
fact, subject matter of the charge from
Deepak Dubey, Junior Engineer, who, in
1 All. Ashwani Bedi Vs. State of U.P. & Ors.
1243
turn, came to know of it from a Sub-Station
Officer. Interestingly, the name of the SubStation Officer is not mentioned across the
entire length and breadth of the Inquiry
Committee's report. The statement of the
former Executive Engineer, Electricity
Distribution
Division-I,
Bulandshahr
recorded during the preliminary inquiry,
upon which the Inquiry Committee have
placed reliance to sustain the charge, is
hearsay and irrelevant evidence, on which
nothing can turn.

23. Before proceeding further in the
matter, this Court must remark that the
respondent
Corporation
are
a
big
establishment, whom this Court believes
would have a Law Department of their
own. Even if the best legal brain would not
go to the respondents and join their Law
Department, a legally trained mind would,
at least suggest laymen heading the inquiry,
or the Managing Director, who is the
Disciplinary Authority, also a layman, in
contra-distinction to a legally trained mind,
the essence of the hearsay rule and avoid
acting on hearsay. It seems that the Inquiry
Tribunal and the Managing Director have
fallen into this error of acting on remote
hearsay because they seem to think like
many other educated men in fields, other
than the law, that law is pure commonsense. This is an utter misconception,
which must not be harboured by anyone
and whenever confronted with duties that
affect rights of citizens necessarily calling
for legal training, those charged with that
responsibility and not trained in the
discipline must not hesitate to seek
appropriate advice.

24. This Court has no hesitation to
say that the kind of evidence, on which the
Inquiry Committee have acted to hold the
charge proved, is absolutely irrelevant and
far from competent to bring it home. A
grave miscarriage of justice has been
committed by the Inquiry Committee in
holding the petitioner guilty of the charge,
acting on a statement of the former
Executive
Engineer,
Electricity
Distribution
Division-I,
Bulandshahr,
recorded during the preliminary inquiry,
reporting facts based on remote hearsay,
that have no relevance to prove the charge.
That what ought to have been done in a
situation is something, which, in any case,
is the inevitable course to follow in any
domestic inquiry, where charges are serious
enough, if proved, to lead to the imposition
of a major penalty. The requirement is that,
in a case involving the imposition of a
major
penalty,
as
already
said,
the
establishment must examine witnesses in
support of the charge through a Presenting
Officer before their own Inquiry Officer or
Inquiry Committee, who should, in that
role, act as impartial arbiters; not Officers
of the establishment.

25. This issue engaged the attention
of their Lordships of the Supreme Court in
State of U.P. and others vs. Saroj Kumar
Sinha, (2010) 2 SCC 772, where it has
been held:

"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
1244 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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."

26. Regarding the issue in hand, the
Supreme Court in Roop Singh Negi vs.
Punjab National Bank and others, (2009)
2 SCC 570, 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."

27. A Division Bench of this Court in
State of U.P. and another vs. Kishori Lal
and another, 2018 (9) ADJ 397 (DB)(LB)
had occasion to consider the issue about the
procedure by which an inquiry is to be held
in matters involving the imposition of a
major penalty and observed:

"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.

X X X X

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).
1 All. Ashwani Bedi Vs. State of U.P. & Ors.
1245

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 any 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."

(Emphasis by Court)

28. The issue again came up before a
Division Bench of this Court in Smt.
Karuna Jaiswal vs. State of U.P, 2018 (9)
ADJ 107 (DB) (LB), where it was 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
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

29. I also had occasion to consider
this issue in Ashish Kumar Tiwari vs.
State of U.P. and others, 2021 (1) ADJ
420 as well as Ranveer Singh vs. Union of
India and others, 2021 (5) ADJ 136,
besides Prem Narain Singh vs. State of
U.P. and another, 2023 (2) ADJ 580. The
principle, culled out in those decisions, is
also to the same effect that in domestic
inquiries, involving the likelihood of
imposition of a major penalty, it is
imperative for the establishment/employer
to produce witnesses/ oral evidence in
support of the charge, which must be
proved in the first instance by the
establishment. It is then that the burden
shifts to the employee, if he so desires, to
lead evidence in rebuttal. Nothing of the
kind has been done in this case. There has
been no Presenting Officer, no witness, no
document produced properly in evidence
and proved where the petitioner could
cross-examine
the
witness
and
then
produce, if required, evidence in defence.
The Inquiry Committee seem to have held
an oral hearing for the petitioner of the
viva-voce kind, putting questions to him
like interogators, gleaned through the
papers produced by the establishment
proved by nobody and acted on the
contents that were nothing more than dead
letters.

30. The Disciplinary Authority, while
writing the impugned order, has heavily
relied upon the contents of the letter dated
11.09.2015
issued
by
the
Executive
Engineer, Electricity Distribution DivisionI, Bulandshahr, which reports a story of the
petitioner's involvement in the illegal
shifting of the electricity line. The contents
of the letter could be true but it would
require,
as
said
more
than
once
hereinbefore, the production of relevant
witnesses, including the former Executive
Engineer, Electricity Distribution DivisionI, Bulandshahr, who addressed the letter
dated 11.09.2015 to the Higher Authority,
accusing the petitioner of illegal shifting. In
the absence of production of relevant
witnesses,
including
the
Executive
Engineer, the respondents have fallen for a
grave error in returning a finding of guilt
against the petitioner, based on letters and
idle papers.

31. This Court is, therefore, of
opinion that the impugned order cannot be
sustained and the respondents should be
left free, if they so elect, to proceed afresh
against the petitioner from the stage of the
charge-sheet.

32. In the result, this writ petition
succeeds and is allowed.