# Mahendra Pal Sharma v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 783
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Writ - A No. 4628 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pal-sharma-v-state-of-u-p-ors-50906
- **Pages:** 9

## Headnote

C.S.C.,
Sri
Abhishek
Srivastava,
Sri
Kaushlendra Nath Singh

A. Service Law - Disciplinary Proceedings
- Forfeiture of Pension - Major penalty
imposed without holding regular inquiry - No
witness examined - No copy of inquiry report
furnished - Violation of principles of natural
justice - Punishment unsustainable.

Held, before imposing a major penalty like
forfeiture of pension, it is imperative that the
disciplinary authority establish charges through
oral and documentary evidence in a duly
convened inquiry, where the delinquent has a
right of defence. Mere reliance on preliminary
inquiry report or interrogatories put by the
Inquiry Officer cannot substitute a valid inquiry.
(Paras 13-17)
B. Service Law - Appellate Authority -
Power of enhancement of punishment -
Must be exercised after fair procedure -
Enhancement of punishment from 3% to 100%
forfeiture of pension - Not sustainable when
inquiry itself is vitiated.

Held, when the foundation of punishment itself
is unlawful, the order of enhancement also falls.
(Paras 9, 17)
C. Departmental Inquiry - Nature of
proceedings - Quasi-judicial function -
Inquiry Officer must act as independent
adjudicator
-
Cannot
assume
role
of
investigator.

Held,
proceedings
conducted
without
examination of witnesses and without proof of
documents vitiate the inquiry. (Paras 14-15)
D. Consequential Orders - Recovery of Pension
already paid - Orders of Accounts Officer and
Treasury Officer - Having no independent basis
784 INDIAN LAW REPORTS ALLAHABAD SERIES
- Quashed as consequential to the main
disciplinary orders. (Para 18-20)

Held :
The disciplinary and appellate orders
forfeiting pension are vitiated, being
founded on no valid inquiry. Both writ
petitions
allowed.
Impugned
orders
dated
18.01.2022
and
23.02.2023
quashed. Consequential orders dated
25.05.2023
and
23.06.2023
also
quashed.
Respondents
at
liberty
to
proceed
afresh
from
the
stage
of
charge-sheet in accordance with law.
Petitioner entitled to full pension and
arrears unless fresh proceedings are
validly concluded. No order as to costs.
(Paras 17, 19, 20)

Case Law Discussed:

## Text

2 All. Mahendra Pal Sharma Vs. State of U.P. & Ors.
783

14. In similar circumstances, a
learned Single Judge of this Court in
Chatter Sen v. State of U.P. and
another, 2015 (33) LCD 2724 has held
in the context of the Regulations that
the Corporation have no jurisdiction to
initiate
or
continue
disciplinary
proceedings against an employee after
his retirement.

15. The decision of the Supreme
Court in Dev Prakash Tewari clinches the
issue. It has not at all been suggested or
urged by the respondents that there is
indeed any provision in the Regulations
empowering them to continue proceedings
against a retired employee. This Court on a
perusal of the said Regulations has not
found
any
provision
enabling
the
Corporation
to
continue
pending
disciplinary proceedings against a retired
employee.

16. In the result, this writ petition
succeeds and is allowed with costs. The
impugned order dated 12.05.2010 passed
by
the
Managing
Director
of
the
Corporation, the appellate order dated
13.06.2019 passed by the Board of
Directors of the Corporation are hereby
quashed.

17. The consequences shall follow.
Costs easy.
----------
(2024) 2 ILRA 783
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

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

Writ - A No. 4628 of 2023
Connected with
Writ - A No. 12441 of 2023

Mahendra Pal Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.K. Mishra

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

A. Service Law - Disciplinary Proceedings
- Forfeiture of Pension - Major penalty
imposed without holding regular inquiry - No
witness examined - No copy of inquiry report
furnished - Violation of principles of natural
justice - Punishment unsustainable.

Held, before imposing a major penalty like
forfeiture of pension, it is imperative that the
disciplinary authority establish charges through
oral and documentary evidence in a duly
convened inquiry, where the delinquent has a
right of defence. Mere reliance on preliminary
inquiry report or interrogatories put by the
Inquiry Officer cannot substitute a valid inquiry.
(Paras 13-17)
B. Service Law - Appellate Authority -
Power of enhancement of punishment -
Must be exercised after fair procedure -
Enhancement of punishment from 3% to 100%
forfeiture of pension - Not sustainable when
inquiry itself is vitiated.

Held, when the foundation of punishment itself
is unlawful, the order of enhancement also falls.
(Paras 9, 17)
C. Departmental Inquiry - Nature of
proceedings - Quasi-judicial function -
Inquiry Officer must act as independent
adjudicator
-
Cannot
assume
role
of
investigator.

Held,
proceedings
conducted
without
examination of witnesses and without proof of
documents vitiate the inquiry. (Paras 14-15)
D. Consequential Orders - Recovery of Pension
already paid - Orders of Accounts Officer and
Treasury Officer - Having no independent basis
784 INDIAN LAW REPORTS ALLAHABAD SERIES
- Quashed as consequential to the main
disciplinary orders. (Para 18-20)

Held :
The disciplinary and appellate orders
forfeiting pension are vitiated, being
founded on no valid inquiry. Both writ
petitions
allowed.
Impugned
orders
dated
18.01.2022
and
23.02.2023
quashed. Consequential orders dated
25.05.2023
and
23.06.2023
also
quashed.
Respondents
at
liberty
to
proceed
afresh
from
the
stage
of
charge-sheet in accordance with law.
Petitioner entitled to full pension and
arrears unless fresh proceedings are
validly concluded. No order as to costs.
(Paras 17, 19, 20)

Case Law Discussed:

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

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

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

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

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

6. Subash Chandra Gupta Vs St. of U.P., 2012
(4) ADJ 4 (NOC)

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

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

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

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

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

1. This judgment will decide Writ-A
No.4628 of 2023 and connected Writ-A
No.12441 of 2023. Writ-A No.4628 of
2023 has been heard as the leading case
and facts, therefore, will be noticed from
the said petition. Both the petitions have
been filed by Mahendra Pal Sharma, a
Technician Grade-II in the employ of the
U.P. Power Corporation, who functioned
for sometime as the In-charge Junior
Engineer
and
for
sometime
as
the
Draftsman. The petitioner has risen from
the ranks, being appointed a Coolie on
29.09.1978. He was promoted to the post of
a Technician Grade-II vide order dated
30.05.2010 and on the same day, given the
charge of Junior Engineer, 33/11 KV
Electricity
Sub-Station
Bankapur.
He
discharged those duties, as he says, ably. In
the month of July, 2017, the petitioner was
the
In-charge
Junior
Engineer.
On
16.07.2018, he was given the charge of the
Revenue In-charge by the Superintending
Engineer, apart from his regular charge of
Junior Engineer, managing the the 33/11
KV Sub-Station. In addition to both these
responsibilities, he was also given charge
of the draftsman.

2. It is the petitioner's case that on
10th
October,
2018,
the
Executive
Engineer, Jewar directed the petitioner to
take care of the duties of accounts along
with the Junior Engineer. The petitioner
was transferred to Burhana, Saharanpur and
then
to
the
Electricity
Distribution
Division, Greater NOIDA. He retired from
service on 30.06.2019, while posted at the
Electricity Distribution Division, Greater
NOIDA. He retired from the post of
Technician Grade-II, which was the post
substantively held by him. Post retirement,
the petitioner was paid his general
provident fund and dues on account of
leave encashment, but no other retiral dues,
2 All. Mahendra Pal Sharma Vs. State of U.P. & Ors.
785
including the several of his arrears and
pension were paid. This happened in the
manner that when the petitioner was on the
verge of retirement, a charge-sheet was
served upon him on 05.05.2019, carrying
charges to the effect that some tubewell
connection had been illegally sanctioned
and an inquiry was conducted vide order
dated 30.10.2018 passed by the Managing
Director, Pashchimanchal Vidyut Vitran
Nigam Limited. This was a preliminary
inquiry and the Inquiry Committee by their
report dated 05.11.2018 indicted the
petitioner.

3. The sole basis of the charge-sheet
was
whatever
material
the
Inquiry
Committee entrusted with the preliminary
inquiry gathered and submitted through
their report of 5th November, 2018. The
petitioner upon service of the charge-sheet
submitted his reply dated 15.05.2019 to the
Inquiry Officer, who was the Executive
Engineer, Electricity Urban Test DivisionII, NOIDA, stating all relevant, true and
correct facts in his defence, as the
petitioner says. It was pleaded, amongst
other things, that the petitioner had no
concern with Village Kani Garhi and he
was posted at 33/11 KV Sub-Station
Bankapur. He was detailed to revenue
duties, where his assignment was to issue
receipts. He was the Revenue In-charge.

4. It is the petitioner's case that after
his reply, the Inquiry Officer did not
proceed with the inquiry until the petitioner
attained his superannuation. It is also the
petitioner's case that the Inquiry Officer
submitted some inquiry report that he sent
to the Managing Director. He did not find
the
petitioner
guilty.
The
Managing
Director was not inclined to accept the
report and by his order dated 26.05.2020
directed the Inquiry Officer to conduct the
inquiry again and submit a fresh report.
The
Executive
Engineer
(Hydel),
Pashchimanchal Vidyut Vitran Nigam
Limited vide letter dated 19.10.2020 asked
the Inquiry Officer to complete the inquiry
within 15 days. The Inquiry Officer put
certain questions to the petitioner and also
asked him to appear for personal hearing.
The petitioner appeared before the Inquiry
Officer and answered questions, that were
put to him on 05.09.2020. No decision by
the Inquiry Officer was rendered in the
form of a report, but the pendency of the
inquiry proceedings was prejudicing the
petitioner. He was deprived of his various
post retiral benefits, that were lying
withheld.

5. It is for that reason that the
petitioner instituted Writ-A No.10388 of
2021 before this Court with a prayer to
direct the respondents to pay his retiral
benefits and pension, and further direct the
respondents to take a final decision in the
matter of the disciplinary proceedings
pending against him. This Court vide order
dated 19.08.2021 disposed of the writ
petition last mentioned with a direction to
examine the records and ascertain if the
inquiry had already been finalized. It was
further directed that it is incumbent upon
the competent Authority to pass appropriate
orders in the matter, so that the petitioner
gets appropriate relief. The Authority
concerned with the matter was directed to
take all remedial measures, so that
substantial justice would be ensured. The
respondents were directed to complete all
proceedings within two months of the date
of production of a copy of the order passed
in Writ-A No.10388 of 2021. A copy of
this order was served upon the respondents
by registered post on 23.08.2021. A
reminder was sent on 01.11.2021. These
evinced no response from the respondents.
786 INDIAN LAW REPORTS ALLAHABAD SERIES
This compelled the petitioner to institute
Contempt Application (Civil) No.5432 of
2021 against M. Devraj, Chairman, the
U.P. Power Corporation Limited and the
other contemnors.

6. It is in the contempt proceedings
that along with a compliance affidavit, the
Executive Engineer produced a copy of the
impugned order dated 18.01.2022, by
which the Disciplinary Authority had
punished the petitioner with forfeiture of
pension by 3%. After the said order was
passed, retiral dues were paid to the
petitioner with pension reduced by 3%.

7. Aggrieved by the forfeiture of his
pension by 3%, the petitioner preferred an
appeal on 07.04.2022 to the Chairman of
the U.P. Power Corporation Limited. The
petitioner was served with a notice dated
09.05.2022 by the Chairman asking him to
represent against a proposed enhancement
of punishment by the Appellate Authority.
In compliance, the petitioner submitted his
representation through registered post dated
25.08.2022 with a prayer to annul the
order, ordering a 3% forfeiture of his
pension. The petitioner claimed parity with
the matter of a similarly circumstanced
employee, Anil Kumar Sharma, who was
awarded the punishment of forfeiture of 1%
of his pension alone.

8. The appeal was not decided by the
Chairman and the petitioner again had to
approach this Court instituting Writ-A
No.803 of 2023, with a prayer to direct the
Chairman of the Power Corporation to
decide his appeal within a specified period
of time. This Court disposed of the
aforesaid writ petition with a direction to
the Chairman of the Power Corporation to
decide the petitioner's appeal within two
months. A certified copy of the said order
was sent to the Chairman by registered post
on 17.01.2023. By his order dated
23.02.2023, the Chairman, U.P. Power
Corporation Limited, Lucknow has passed
the order impugned, by which he dismissed
the petitioner's appeal and enhanced the
penalty, ordering a 100% forfeiture of his
pension.

9. This writ petition has been
instituted assailing the orders of the
Appellate Authority dismissing the appeal
and enhancing the forfeiture of pension
from 3% to 100%, as also the order of the
Disciplinary
Authority
holding
the
petitioner guilty and ordering a 3%
forfeiture of his pension.

10. At this stage, it would be apposite
to say that in consequence of the appellate
order dated 23.02.2023, the Deputy Chief
Accounts Officer, arrayed as respondent
No.4 in Writ-A No.12441 of 2023, passed
an order dated 25.05.2023, directing the
recovery of pension paid to the petitioner.
A further order dated 23.06.2023 was
passed by the Chief Treasury Officer,
Gautam Budh Nagar, arrayed as respondent
No.5 to Writ-A No.12441 of 2023, asking
the petitioner to refund the pension paid to
him.

11. Writ-A No.12441 of 2023 has
been instituted by the petitioner challenging
the order dated 25.05.2023 passed by the
Deputy
Chief
Accounts
Officer,
Pashchimanchal Vidyut Vitran Nigam
Limited, Meerut and the order dated
23.06.2023 passed by the Chief Treasury
Officer, Gautam Budh Nagar, directing
recovery of pension already paid to the
petitioner.

12. In the supplementary affidavit,
that has been filed by the petitioner, it is
2 All. Mahendra Pal Sharma Vs. State of U.P. & Ors.
787
averred that without proper and appropriate
opportunity
of
hearing,
the
Inquiry
Committee have submitted their report, on
the basis of which the impugned orders
have been passed. It is also averred in
Paragraph No.6 of the supplementary
affidavit that the respondents have not
produced any witness on behalf of the
Corporation to prove the charges detailed
in the charge-sheet. It is next averred in
Paragraph No.8 that the petitioner was
never furnished a copy of the inquiry report
and no opportunity of submitting a
representation against it was given.

13. In the counter affidavit, that has
been filed on behalf of respondent Nos.2, 3
and 4, it is evident from a perusal of
Paragraph No.7 that what the respondents
call full opportunity afforded before
imposition of a major penalty, was the
opportunity given to the petitioner to
appear before the Inquiry Committee for a
personal hearing. There is a reference to
letters from the Inquiry Officer dated
20.07.2020 and 26.08.2020, asking the
petitioner to appear and participate in the
inquiry.
There
is
also
on
record
proceedings before the Inquiry Officer held
on 05.09.2020. It carries eleven questions
that were put to the petitioner. Apparently,
in this inquiry, which has led to the
imposition of the most drastic penalty that
one can suffer after retirement, to wit, a
100% forfeiture of his pension, no witness
was
examined
on
behalf
of
the
establishment to prove the charges. The
requirement of holding a formal inquiry
before the imposition of a major penalty is
salutary and this Court thinks that forfeiture
of the entire pension is a major penalty of
the most drastic kind. In the case of
imposition
of
major
penalty,
it
is
imperative for the establishment to prove
the charges by examining evidence, both
documentary and oral before the Inquiry
Officer. The Inquiry Officer has to formally
convene inquiry proceedings, sitting as an
impartial arbiter. The establishment have to
lead evidence, both documentary and oral
through a Presenting Officer. This issue is
no longer res integra in view of the
decision of the Supreme Court in Roop
Singh Negi v. Punjab National Bank and
others, (2009) 2 SCC 570.

14. In order to elucidate the point, it
would be apposite to refer to the holding of
their Lordships of the Supreme Court in
State of Uttar Pradesh and others v.
Saroj Kumar Sinha, (2010) 2 SCC 772,
where it has been 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.

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
788 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. In State of U.P. and another v.
Kishori Lal and another, 2018 (9) ADJ
397 (DB)(LB), which is a Bench decision
of this Court, it has been 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
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.''
2 All. Mahendra Pal Sharma Vs. State of U.P. & Ors.
789

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
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."

16. A reading of the impugned orders
and the record of the inquiry leaves no
manner of doubt for a fact that the
establishment never examined any witness
in support of the charges or formally
790 INDIAN LAW REPORTS ALLAHABAD SERIES
produced evidence, documentary or oral,
before the Inquiry Officer, who was an
Executive
Engineer.
What
is
more
intriguing in this case is that beyond the
preliminary
inquiry
report
dated
05.11.2018, annexed as Annexure No.3 to
the writ petition, a copy of the inquiry
report has not appeared on record or seen
light of the day. This Court is, therefore,
constrained
to
hold
that
the
two
Authorities, that is to say, the Disciplinary
Authority and the Appellate Authority,
have proceeded to punish the petitioner,
either on the basis of the preliminary
inquiry report or some other inquiry report,
that was never furnished to the petitioner.
Surprisingly, the inquiry report was never
produced before this Court as well, though
a counter affidavit has been filed on behalf
of respondent Nos.2, 3 and 4. The
proceedings, on the basis of which the
impugned order of punishment was passed
by the Authority of first instance, are
surprisingly elusive about the date of the
inquiry report. There is no date of the
inquiry report mentioned in the order
passed by the Disciplinary Authority. In
this connection, reference may be made to
the following remarks in the order of the
Disciplinary Authority, where he has
discussed the Inquiry Officer's report.
These read:

"जाींच अनधकारी इीं० नदनेश अग्रिाल,
अनधशासी अनर्यन्ता, निद्युत नगरीय परीक्षण
खण्ड-नद्वतीय, नोएडा द्वारा प्रेनषत जाींच आख्या
के मेरठ नडस्कॉम स्तर पर नकये गये परीक्षण में
श्री मिेन्द्र पाल शमाद के निरूर्द् अनधरोनपत
आरोपोीं के सम्बन्ध में प्राप्त ननष्कषों के सापेक्ष
साक्ष्य प्रमानणत निीीं पाये जाने के दृनिगत
नैसनगदक न्याय के नसर्द्ाींत के नलए पुनैंः पत्र
नदनाींक 26.05.2020 को जाींच अनधकारी इीं०
नदनेश अग्रिाल, अनधशासी अनर्यन्ता, निद्युत
नगरीय परीक्षण खण्ड-नद्वतीय, नोएडा को
सन्दनर्दत नकया गया नजस पर जाींच अनधकारी
द्वारा सम्बक्तन्धत साक्ष्य एकत्र कर अपने पत्राींक -
2626 / नि०न०परी० खीं०- नद्व० - नोएडा नदनाींक
10.12.2020 द्वारा पुन ननयमानुसार मौक्तखक
सुनिाई का अिसर प्रदान करते हुए जाींच ि
नििेचना कर सुसींगत साक्ष्योीं एिीं ननष्कषद सनित
अपनी जाींच आख्या उपलब्ध करायी।"

17. A perusal of the order of the
Disciplinary Authority, and in particular
the relevant part quoted above, shows that
the order of the Disciplinary Authority is
conspicuous by its non-mention of the
inquiry report's date. It does speak of an
inquiry report, but when it was submitted,
is not to be found across the length and
breadth of the Disciplinary Authority's
order. Likewise, there is no mention of the
date of this report in the Appellate
Authority's order impugned, by which he
has enhanced the punishment. Before this
Court, one would expect that a copy of the
report
would
be
produced
by
the
respondent along with their return, but that
has not been done. During the hearing, all
that the respondents could show, was a
copy of the preliminary inquiry report
dated 05.11.2018, annexed as Annexure
No.3 to the writ petition. One of the
documents annexed to the counter affidavit,
also shows that the manner in which the
Inquiry Officer held inquiry, was to put
questions,
like
interrogatories
to
the
petitioner. Therefore, what was apparently
done by the Inquiry Officer, sans training
or guidance how to hold disciplinary
proceedings,
was
to
interrogate
the
petitioner like an Investigating Officer,
rather than adjudicate the matter, requiring
the establishment to prove the charges by
evidence. This Court, therefore, holds that
the orders of the Disciplinary Authority and
the Appellate Authority, are either founded
2 All. C/M Rahat Janta Inter College & Anr. Vs. State of U.P. & Ors.
791
on no other inquiry report, except the
preliminary
inquiry
report
or
some
surreptitious kind of a report that cannot
qualify for valid findings of an inquiry held
in disciplinary proceedings on the foot
whereof a major penalty may be imposed.
Since this Court proposes to quash the
impugned orders with liberty to the
respondents to proceed afresh, if they so
desire, the other issue raised by the
petitioner about violation of Article 351-A
of the Civil Service Regulations, is left
open to be examined, should occasion
arise.

18. The orders impugned in Writ-A
No.12441 of 2023 are consequential to
those impugned in the leading writ petition.
Therefore, the orders impugned in Writ-A
No.12441 of 2023 would fall as well, once
the orders impugned in Writ-A No.4628 of
2023 are quashed.

19. In the result, both the writ
petitions succeed and are allowed. The
impugned order dated 23.02.2023 passed
by the Chairman, U.P. Power Corporation
Limited, Lucknow and the order dated
18.01.2022 passed by the Managing
Director, U.P. Power Corporation Limited,
Lucknow, are hereby quashed. Unless the
respondents elect to take fresh proceedings
from the stage of the charge-sheet against
the petitioner and pass orders afresh, after
holding an inquiry in accordance with law
and the guidance in this judgment, the
petitioner shall be entitled to receive his
full pension, including arrears and other
post retiral benefits. If fresh proceedings
are taken, the entitlement to receive
pension, including arrears and other post
retiral benefits, not yet paid, will abide by
the result of orders to be made in those
proceedings.

20. The impugned order dated
25.05.2023 passed by the Deputy Chief
Account Officer, Pashchimanchal Vidyut
Vitran Nigam Limited, Meerut and the
order dated 23.06.2023 passed by the Chief
Treasury Officer, Gautam Budh Nagar in
Writ-A No.12441 of 2023 are also
quashed. The respondents are restrained
from
recovering
from
the
petitioner
pursuant to the said orders, in any manner.

21. There shall be no order as to costs.
----------
(2024) 2 ILRA 791
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2024

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ - A No. 4914 of 2022

C/M Rahat Janta Inter College & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ramesh Kumar Srivastava

Counsel for the Respondents:
C.S.C.

A. Constitution of India, Arts. 29, 30, 226
- U.P. Intermediate Education Act, 1921,
Ss. 16-FF, 16-D - Regulation 101, Ch. III -
U.P. Secondary Education Services Selection
Board Act, 1982, S. 30 - Minority Institution -
Appointment
of
Clerks
-
Whether
prior
permission of DIOS required - Held, No.
Regulation 101, Ch. III of the U.P. Intermediate
Education Act has no mandatory application to
minority institutions. Even if construed as
regulatory, it does not envisage prior approval.
Mere non-obtaining of such permission from
DIOS cannot vitiate appointments.