# Gajendra Singh v. U.P.P.C.L. & Ors

- **Citation:** (2024) 1 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Writ-A No. 14898 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gajendra-singh-v-u-p-p-c-l-ors-50937
- **Pages:** 11

## Headnote

A. Service Law - Disciplinary Proceedings
- Principles of Natural Justice - U.P.
Power Corporation Ltd. - Petitioner, a Junior
Engineer, challenged dismissal order dated
03.03.2021
and
appellate
order
dated
27.12.2021 following a disciplinary inquiry -
Charge-sheet issued on 25.06.2019 for alleged
financial irregularities - Inquiry Committee failed
to conduct a formal oral inquiry or examine
witnesses
to
prove
charges
-
Held,
in
disciplinary
proceedings
involving
major
penalties, the establishment must prove charges
through oral and documentary evidence, with
witnesses produced and subject to crossexamination - Inquiry Committee's reliance
solely on charge-sheet, petitioner's reply, and
unproven documents violates principles of
natural justice - Inquiry procedurally flawed,
vitiating the impugned orders. (Paras 7, 8, 14,
15)

B.
Service
Law
-
Disciplinary
Proceedings - Role of Inquiry Officer -
Inquiry Officer acts as an independent quasijudicial authority, not a representative of the
department - Must ensure charges are proven
by the establishment through evidence, even
in the absence of the delinquent employee -
Failure to convene a formal inquiry, produce
witnesses, or prove documents renders the
inquiry invalid - Impugned orders based on
such inquiry unsustainable. (Paras 9, 10, 11,
13)

Writ Petition Allowed - Impugned Orders
Quashed - Respondents Permitted to
Conduct Fresh Inquiry.

List of Cases cited:

## Text

1 All. Gajendra Singh Vs. U.P.P.C.L. & Ors.
637
since the letter dated 13.12.1999 of the
Secretary U.P. Madhyamik Shiksha Chayan
Board addressed to the District Inspector of
Schools
provides
for
the
year
of
recruitment means a period of 12 months
commencing from the 1st Day of July of
calendar
year
stands
withdrawn
on
17.6.2003
and
the
said
letter
was
considered in the judgement of Smt.
Sadhna (Supra) thus the position would
change and tilt in favour of the writ
petitioner appears to be attractive at the
first blush but may not detain the Court
particularly when it is apparent from the
statute i.e. Section 2(l) of the U.P. Act No.5
of 1982 which defines the year of
recruitment.

42. Since there is no challenge to the
definition of the year of recruitment
coupled with the fact that the promotion
exercise is to be undertaken based upon the
same, thus in the opinion of the Court the
writ petitioner is not entitled to any relief.

43. Moreover, nothing has been
brought into record to substantiate that the
sixth respondent Sri Gaurav Tripathi, was
not eligible or qualified, thus in the opinion
of the Court, the writ petitioner is not
entitled to any relief.

44. Accordingly, both the writ
petitions are dismissed.
----------
(2024) 1 ILRA 637
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

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

Writ-A No. 14898 of 2023
Gajendra Singh ...Petitioner
Versus
U.P.P.C.L. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manu Mishra

Counsel for the Respondents:
Sri Abhishek Srivastava, Sri Ujjwal Srivastava

A. Service Law - Disciplinary Proceedings
- Principles of Natural Justice - U.P.
Power Corporation Ltd. - Petitioner, a Junior
Engineer, challenged dismissal order dated
03.03.2021
and
appellate
order
dated
27.12.2021 following a disciplinary inquiry -
Charge-sheet issued on 25.06.2019 for alleged
financial irregularities - Inquiry Committee failed
to conduct a formal oral inquiry or examine
witnesses
to
prove
charges
-
Held,
in
disciplinary
proceedings
involving
major
penalties, the establishment must prove charges
through oral and documentary evidence, with
witnesses produced and subject to crossexamination - Inquiry Committee's reliance
solely on charge-sheet, petitioner's reply, and
unproven documents violates principles of
natural justice - Inquiry procedurally flawed,
vitiating the impugned orders. (Paras 7, 8, 14,
15)

B.
Service
Law
-
Disciplinary
Proceedings - Role of Inquiry Officer -
Inquiry Officer acts as an independent quasijudicial authority, not a representative of the
department - Must ensure charges are proven
by the establishment through evidence, even
in the absence of the delinquent employee -
Failure to convene a formal inquiry, produce
witnesses, or prove documents renders the
inquiry invalid - Impugned orders based on
such inquiry unsustainable. (Paras 9, 10, 11,
13)

Writ Petition Allowed - Impugned Orders
Quashed - Respondents Permitted to
Conduct Fresh Inquiry.

List of Cases cited:

1. St. of U.P.& ors. Vs Saroj Kumar Sinha,
(2010) 2 SCC 772
638 INDIAN LAW REPORTS ALLAHABAD SERIES
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)

6. Chamoli District Co-operative Bank Ltd. Vs
Raghunath Singh Rana & ors., AIR 2016 SC
2510

7. St. of U.P. & anr.Vs T.P. Lal Srivastava, 1997
(1) LLJ 831

8. Subhash Chandra Sharma Vs Managing
Director & anr., 2000 (1) UPLBEC 541

9. Subhash Chandra Gupta Vs St. of U.P., 2012
(4) ADJ 4 (NOC)

10. Salahuddin Ansari Vs St. of U.P. & ors., 2008
(3) ESC 1667

11. Subash Chandra Sharma Vs U.P. Cooperative
Spinning Mills & ors., 2001 (2) UPLBEC 1475

12. Laturi Singh Vs U.P. Public Service Tribunal &
ors., Writ Petition No. 12939 of 2001, decided
on 06.05.2005

13. Mahesh Narain Gupta Vs St. of U.P. & ors.,
(2011) 2 ILR 570

14. Imperial Tobacco Co. Ltd. Vs Its Workmen,
AIR 1962 SC 1348

15. Uma Shankar Vs Registrar, 1992 (65) FLR
674 (All)

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

1. The petitioner is a Junior Engineer
in
the
service
of
the
U.P.
Power
Corporation
Limited,
Lucknow.
The
petitioner was served with a charge-sheet
on 25.06.2019 issued by an inquiry
committee constituted by the U.P. Power
Corporation carrying three charges for the
period of time that he was posted as a
Junior Engineer with the Electricity Urban
Distribution Division, Farrukhabad. The
charges against the petitioner, carried in the
charge-sheet, read:

"आरोप 1 :-

धशकायिकिाग, विजय कुमार ककर्यार पुत्र
श्री राजेन्र नार्थ ककर्यार, धनिासी धमशन
कम्पाउडर् नेकपुर कला, र्िेहर्ढ जानपद
र्रुगखाबाद की धशकायि पर प्रबन्ि धनदेशक,
दजक्षणािंचल वि०वि०धन०धल० के आदेश पर
र्कठि जाूँच कमेर्ी द्वारा की र्यी जाूँच में यह
पाया र्या कक अधिशासी अधियन्िा विद्युि
नर्रीय वििरण खडर्, र्रुगखाबाद द्वारा र्ा०
राम मनोहर लोकहया हॉजस्पर्ल, आिास
विकास, र्रुगखाबाद को 33 KV स्िििंत्र पोषक
से धनबागि विद्युि आपूधिग प्रदान करने हेिु रू०
2,18,20,093.00 का प्राक्कलन पूणग जमा
योजना के अन्िर्गि िषग 2008-09 में स्िीकृि
ककया र्या र्था। परन्िु धनर्म के पास िनराधश
माह अप्रैल 2014 में प्राि होने के कारण इस
कायग को कराने में स्िािाविक वबलम्ि हुआ।
सामिी प्रबन्िन, द०वि०वि०धन०धल० द्वारा उक्त
कायग को र्नगकी आिार पर कराने के धलए मै०
अधमि इिंजीधनयररिंर् कारपोरेशन, मैनपुरी से
कदनािंक 29.10.2014 को अनुबन्ि ककया र्या।
उक्त अनुबन्ि के अन्िर्गि कायगदायी सिंस्र्था को
3.560 ककमी, 33 के0िी0 लाइन (33 KV
उपकेन्र, िोलेपुर से र्ा० राम मनोहर लोकहया
हॉजस्पर्ल िक) का धनमागण करना र्था। लेककन
प्राक्कलन स्िीकृि होने ि लाइन धनमागण में
1 All. Gajendra Singh Vs. U.P.P.C.L. & Ors.
639
लर्िर् 07 िषग का अन्िर होने एििं नर्र में
विधिन्न स्र्थानों पर मकान बन जाने के
कारण 33 के0िी0 लाइन धनिागररि रूर् से न
जाकर जजला प्रशासन के सहयोर् से सकरे
एििं छोर्े मार्ग से बनायी र्यी, जजससे लाइन
की
िास्िविक
लम्बाई
कम
हो
र्ई।
अधिशासी
अधियन्िा,
वि०न०वि०ख०,
र्रुगखाबाद द्वारा मुख्य विकास अधिकारी
जनपद र्रुगखाबाद को अपने पत्र 2216/
वि०न०वि०ख०
/
र्रुगखाबाद
कदनािंक
13.09.2018 में यह इिंधर्ि ककया र्या कक
मौके पर जी०पी०एस० सिे कराने पर, लाइन
की लम्बाई 1.931 ककमी (1.606 ककमी
उपरर्ामी + 0.325 िूधमर्ि) पाई र्ई।
आपके द्वारा कायगदायी सिंस्र्था मै० अधमि
इिंजीधनयररिंर् कारपोरेशन से धमली िर्ि कर
मानक को दरककनार कर लाइन की पूिग
धनिागररि लम्बाई 3.560 कमी के अनुरूप
विद्युि सामिी कायग शुरू होने पर मिंर्ाई र्यी
एििं सम्पूणग विद्युि सामिी का िुर्िान ककया
या परन्िु जी०पी०एस० सिे कराने पर, लाइन
की लम्बाई घर्कर 1.931 ककमी पाये जाने
पर, अधिररक्त मिंर्ाई र्ई अिशेष सामिी
मूलय रू0 23,50,247.00 को उसी समय
अक्र्ूबर 2015 में इरेक्शन के वबलों से न
कार् कर अर्थिा िडर्ार में िापस जमा न कर
कायगदायी सिंस्र्था को अधिररक्त सामिी मूलय
रू0 23,50,247 का िुर्िान हेिु वबलों का
सत्यापन कर वििार् को आधर्थगक क्षधि
पहुूँचाने एििं अपने उत्तरदाधयत्िों का धनिगहन
न करने के धलए आप प्रर्थमदृष्टया दोषी है।

आरोप 2 :-

मै० अधमि इिंजीधनयररिंर् कारपोरेशन,
मैनपुरी द्वारा रोर् क्राधसिंर् पर एच०र्ी०पी०ई०
(160mm dia) पाइप, 530 मी0 का कायग नहीिं
ककया र्या, परन्िु आपके द्वारा कायगदायी
सिंस्र्था को अनैधिक लाि पहुूँचाने के उद्देश्य से
उक्त कायग से सम्बजन्िि इरेक्शन बीजक सिं0
29 / 15-16 कदनािंक 28.10.2015 के क्रम सिं0
28 (सी) पर अिंककि कायग हेिु रू. 5,95,508.00
एििं क्रम सिं0 28 (र्ी) पर अिंककि कायग हेिु रू.
2,08,427.00, कुल रू. 8,03,935.00 का
अधिक िुर्िान हेिु वबलों का सत्यापन ककया
र्या। अिः आपके द्वारा Executed Estimate
बनिाये वबना कायगदायी सिंस्र्था को अधिक
िुर्िान हेिु वबलों का सत्यापन कर अनैधिक
लाि पहुूँचाने, वििार् को आधर्थगक क्षधि पहुूँचाने
एििं अपने उत्तरदाधयत्िों का धनिगहन न करने के
धलए प्रर्थमदृष्टया दोषी है।

आरोप 3:- आपके द्वारा धनम्नािंककि
आपूधिग बीजकों के िुर्िान हेिु वबलों का
सत्यापन, अनुबन्ि की General Requirement
of Specification की शतण सं0 15.0A (TERMS
OF PAYMENT) के अनुसार नहीिं ककया र्या,
जोकक अनुबिंि की शिों का सीिा उलिंिन है:-

3.1 आपूधिग बीजक सिंख्या 54/ कदनािंक
25.01.2015, 55/ कदनािंक 25.01.2015 एििं
56 / कदनािंक 25.01.2015 में अनुबन्ि की
शिो के अनुरूप 60 प्रधिशि िनराधश का
िुर्िान ककया जाना र्था लेककन िुर्िान हेिु
वबलों का सत्यापन 90 प्रधिशि िनराधश का
ककया र्या।
640 INDIAN LAW REPORTS ALLAHABAD SERIES

3.2 आपूधिग बीजक सिं0 42 / कदनािंक
27.01.2015 में अनुबिंि की शिों के अनुरूप
60 प्रधिशि िनराधश का िुर्िान ककया जाना
र्था लेककन िुर्िान हेिु वबलों का सत्यापन 80
प्रधिशि िनराधश का ककया र्या।

3.3 कायग बीजक सिंख्या 28/ कदनािंक
28.10.2015, 29 / कदनािंक 28.10.2015 एििं
30/ कदनािंक 28.10.2015 में अनुबिंि की शिो
के अनुरूप 90 प्रधिशि िनराधश का िुर्िान
ककया जाना र्था लेककन िुर्िान हेिु वबलों का
सत्यापन 100 प्रधिशि िनराधश का ककया
र्या।

अिः आपके द्वारा कायगदायी सिंस्र्था से
साूँठ-र्ाूँठ कर, अनुबिंि की शिो का उललिंघन
कर, उसे उपरोक्त बीजकों का अधिक िुर्िान
हेिु सत्यापन कर वििार् को आधर्थगक क्षधि
पहुूँचाने एििं अपने उत्तरदाधयत्िों का धनिगहन न
करने के धलए आप प्रर्थमदृष्टया दोषी है।"

2. The petitioner submitted his reply
dated 25.06.2019 to the charge-sheet,
submitting amongst others that the estimate
for construction of the then proposed feeder
for the Dr. Ram Manohar Lohia Hospital,
Farrukhabad was sanctioned in 2008-09,
but the expenses were deposited with the
respondent Corporation in 2014. Work
commenced during the period when Rakesh
Kumar was posted as the Junior Engineer.
He never informed the petitioner nor
handed over details of the materials issued
earlier. The charges were specifically
denied with defences in answer to each.

3. The Inquiry Committee proceeded
to hold inquiry in utter breach of the
salutary principles where no witness was
produced or examined on behalf of the
establishment to prove the charges. The
Inquiry Committee submitted their report
dated 20.06.2020, a copy whereof was
served upon the petitioner along with a
show cause notice dated 16.09.2020, asking
the petitioner to submit his reply in answer
to the findings of the inquiry report within
three weeks. The petitioner submitted his
reply to the show cause on 01.12.2020.

4. It is the petitioner's case that
without considering the petitioner's reply,
the Disciplinary Authority/ Chairman, U.P.
Power Corporation Limited, Lucknow vide
order dated 03.03.2021 punished the
petitioner with award of a censure entry
and withholding two increments with
cumulative effect. Dissatisfied with the
order of punishment, the petitioner carried
an appeal to the Board of Directors of the
U.P. Power Corporation Limited, Lucknow
vide memo of appeal dated 24.07.2021.
The Appellate Authority, by their order
impugned dated 27.12.2021, dismissed the
petitioner's appeal and affirmed the order
passed by the Disciplinary Authority.

5. The petitioner has now approached
this Court aggrieved by the two orders
impugned by means of the present writ
petition.

6. Heard Mr. Manu Mishra, learned
Counsel for the petitioner in support of the
petition
and
Mr.
Ujjwal
Srivastava,
Advocate holding brief of Mr. Abhishek
Srivastava,
learned
Counsel
for
the
respondents.

7. A perusal of the inquiry report
shows
that
the
Inquiry
Committee
proceeded in the fashion of an investigator
or at best an Inquiry Committee or officer
entrusted with holding a preliminary
1 All. Gajendra Singh Vs. U.P.P.C.L. & Ors.
641
inquiry. The Inquiry Committee's report
does not show that any formal proceedings
of inquiry were convened, as required to be
done at the stage when an inquiry into
charges that may lead to the imposition of a
major penalty is mandated by salutary
principles.
The
Inquiry
Committee,
comprising two officers of the Corporation,
looked into the charge-sheet together with
the annexed documents themselves and the
petitioner's reply. They decided upon the
worth of the charges by perusing the
charge-sheet, the reply and the documents
annexed by parties. It is not even remotely
discernible from a perusal of the inquiry
report that the Inquiry Committee convened
themselves as a formal Inquiry Tribunal,
requiring the establishment to prove the
charges through a Presenting Officer, acting
on their behalf to lead evidence both
documentary and oral. It is a salutary
requirement of the law that in all cases
involving charges that can lead to the
imposition of a major penalty, it is the
establishment's burden in the first instance
to lead evidence, particularly, oral, that is
by production of witnesses, to prove the
charges. The documents filed along with
the charge-sheet are but idle papers, which
can be galvanized into evidence once
introduced by the Presenting Officer and
proved by oral testimony of witnesses, who
depose for the establishment. The witnesses
can then be cross-examined by the
delinquent. It is after the establishment
have led evidence to prove the charges that
the delinquent can be called upon by the
Inquiry
Committee
to
produce
his
evidence, both documentary and oral, in the
same fashion. In Paragraph No.14 of the
writ petition, it is averred that no witness
was
produced
or
examined
by
the
establishment to prove the charges nor oral
inquiry conducted. The averments in
Paragraph No.14 of the writ petition
together with a host of other paragraphs, all
jumbled up, have been answered in the
counter affidavit vide Paragraph No. 3. v.,
vii. and vii., where it is averred:

"V. Further, in the chargesheet the
copy of the documents which had been
relied upon by the Corporation in support
of the charges were also provided to the
petitioner and in the chargesheet it was also
mentioned that the petitioner can file his
written reply within 15 days along with all
relevant evidences on which he wants to
rely in his defence and it was also
mentioned that in his written reply he
should also provide names of the persons
whom he wants to produce as witnesses for
examination/cross examination along with
names and address of all those witnesses
and should also bring details of the points
on which he wants to examine/cross
examine.

vii. There after the Enquiry
Committee after going through the entire
materials evidence on record, reply given
by the petitioner and examining his
statement, a detail enquiry report was
submitted on 20.6.2020 wherein all the
charges leveled against the petitioner were
found to be proved.
viii. Further after giving due opportunity of
hearing to the petitioner and on the on the
basis of material evidence on record, the
enquiry committee has submitted his report
and during the course of departmental
enquiry, the petitioner has not disputed
about the genuineness of any of the
documents provided to the petitioner during
the course of enquiry nor he had shown any
interest in asking the department to produce
any
witness
for
examination/cross
examination, therefore, once the employee
has duly participated in the departmental
enquiry and has admitted the evidence on
record, therefore, it cannot be said that any
642 INDIAN LAW REPORTS ALLAHABAD SERIES
prejudice is caused to him in not examining
any witness by the department and if we go
by the plain reading of the Regulation 7 of
the 2020 Regulation it only says, in
Regulation 7(5) that, along with the
chargesheet the copy of the documents and
list of witnesses should be provided to the
employee and Regulation 7(7) provides
that, in case the employee refuses the
charges, the enquiry committee should
call the proposed witnesses to record
their
evidence
whose
names
are
mentioned in the chargesheet and in the
present case, if names of no one are
mentioned in the chargesheet then the
enquiry committee cannot be said to have
committed any mistake in not examining
any witness. Further Regulation 7(8)
provides that, an enquiry committee can
ask any witness to appear before it and
provide any document and Regulation 7
(9) says, the enquiry committee can ask
any question to the witness to find out the
true facts, therefore, from the bare
perusal of the Regulations, 2020 it cannot
be said that the enquiry committee has
committed any the which has caused
prejudice to petitioner, who has been
given full opportunity of oral hearing
along with option to examine any witness
or dispute the admissibility of any
documents, and once the employee has
not disputed about the genuineness and
admissibility of the documents, taking
into
consideration
by
the
enquiry
committee, it cannot be said that the
enquiry was not proper."

(emphasis by Court)

8. A perusal of the respondents'
stand in the counter affidavit does not
dispute the fact that no witness was
examined before the Inquiry Committee.
Rather, it is said that since no names of
witnesses were mentioned in the chargesheet, the Inquiry Committee committed no
mistake in not requiring the establishment
to call witnesses to prove the charges. The
principle about proof of the establishment's
case in an inquiry, the manner in which the
inquiry has to proceed and what evidence
has to be produced by the establishment to
prove the charges, has already been
indicated hereinabove. The stand taken by
the respondents in the counter affidavit falls
foul of the aforesaid salutary requirements.
For the principle that it is imperative for the
establishment to examine witnesses in
support of the charges, where there is the
likelihood of imposition of a major penalty,
there is ample and consistent authority.

9. The law in this regard has been laid
down by the Supreme Court in State of
Uttar Pradesh and others v. 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
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.
1 All. Gajendra Singh Vs. U.P.P.C.L. & Ors.
643

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."
(emphasis by Court)

10. Guidance in this regard is to be
found in the holding of the Supreme Court
in Roop Singh Negi v. Punjab National
Bank and others, (2009) 2 SCC 570,
where it has been 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."

11. A Division Bench of this Court in
State of U.P. and another v. Kishori Lal
and another, 2018 (9) ADJ 397 (DB)(LB),
dealing with the same issue, 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
taken by us find support from the
644 INDIAN LAW REPORTS ALLAHABAD SERIES
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
1 All. Gajendra Singh Vs. U.P.P.C.L. & Ors.
645
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."

12. 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 is observed:

"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."

13. 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:
646 INDIAN LAW REPORTS ALLAHABAD SERIES

''(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."

14. This Court, as already held, that
the inquiry proceedings in this case do not
conform to the fundamentals of a fair
procedure. Rather, this Court is minded to
think that the inquiry in this case is hardly
an inquiry, because it was never convened
on the formal pattern of an Inquiry
Tribunal, where the members of the
Committee have to sit as an impartial
arbiter, before whom the establishment
have to prove their case by leading
evidence both documentary and oral. In this
case, the respondents have admitted that
they have not examined any witnesses. The
findings have been recorded by the Inquiry
Committee gleaning through the chargesheet and the petitioner's reply, besides
documents on record, that do not speak for
themselves. No one has explained those
documents or led them in the form of
documentary evidence before the Inquiry
Committee on behalf of the establishment.
No witness also has been examined to
introduce,
explain
and
prove
those
documents. There is nothing on record to
suggest that the petitioner has either
admitted the charges, or any of the
documents, indicating his complicity on
one or more charges.
1 All. Dr. Sheo Kumar Vs. State of U.P. & Ors.
647

15. In the circumstances, the inquiry
leading
to
the
impugned
orders,
is
procedurally flawed and prejudices the
petitioner's rights going to the root of the
matter. The impugned orders passed on the
basis of such an inquiry cannot be
sustained.

16. In the result, this writ petition
succeeds and is allowed. The impugned
order dated 03.03.2021 passed by the
Chairman,
U.P.
Power
Corporation
Limited, Lucknow and the appellate order
dated 27.12.2021 passed by the Board of
Directors, U.P. Power Corporation Limited,
Lucknow are hereby quashed. It will be
open to the respondents to proceed with the
inquiry afresh, if they so elect, from the
stage of issue of the charge-sheet and pass
fresh orders in accordance with law, after
holding a proper inquiry de novo, following
the guidance in this judgment.

17. There shall be no order as to costs.
----------
(2024) 1 ILRA 647
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 17887 of 2022
with
Writ-A Nos. 11798 of 2021 & 4236 of 2022

Dr. Sheo Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare(Sr. Advocate), Sri Kunal Shah,
Sri Suvanshit Kumar Jaiswal, Sri Vipul Raj
Gautam

Counsel for the Respondents:
C.S.C., Sri Avanish Mishra, Sri Gaurav Pundir, Sri
Hritudhwaj Pratap Sahi, Sri M.N. Singh, Sri
Sanjay Kumar Om

Equivalence of Experience for Additional
Professor and Professor - The petitioner, Dr.
Sheo Kumar, challenged the cancellation of his
selection as Principal (Allopathy) by the U.P.
Public Service Commission (UPPSC) for lacking
requisite experience as a Professor - Held, the
experience
of
an
Additional
Professor
is
equivalent to that of a Professor for the post of
Principal, as clarified by the St. Government and
supported by Medical Council of India (MCI) and
National Medical Commission (NMC) guidelines,
which equate the academic qualifications and
teaching duties of both posts. (Paras 7, 13, 14,
21, 24)

Validity of St. Government Clarifications -
The St. Government's letters dated 10.01.2022
and 30.05.2022, clarifying that the experience
of an Additional Professor counts as Professor
experience, were issued in response to UPPSC
queries and a court directive - Held, these
clarifications do not amount to changing the
recruitment rules but interpret the experience
requirement in line with MCI/NMC norms, and
thus are legally vali (Paras 7, 16, 24, 29)

UPPSC's Cancellation Order - The UPPSC
cancelled Dr. Sheo Kumar's provisional selection
vide order dated 10.08.2022, citing lack of
requisite Professor experience - Held, the
cancellation order was cryptic, failed to consider
MCI/NMC
guidelines
and
St.
Government
clarifications, and was unsustainable for lacking
reasoned justification. (Paras 7, 8, 30)

Interpretation of Recruitment Rules - The
advertisement required 10 years of teaching
experience
as
Professor/Associate
Professor/Reader, with at least 5 years as
Professor - Held, equating Additional Professor
experience with Professor experience does not
alter the essential qualifications but aligns with
the expert interpretation of MCI/NMC, as the
roles involve identical teaching duties and
academic qualifications. (Paras 5, 7, 13, 21, 24)

Distinction
from
Precedents
on
Qualification Changes - The respondents
relied
on cases like
U.P. Public Service