# Manohar Singh v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 384
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-19
- **Case number:** Writ A No. 13570 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manohar-singh-v-state-of-u-p-ors-50968
- **Pages:** 10

## Headnote

Law
-
Uttar
Pradesh
Power
Corporation
Limited
-
Disciplinary
Proceedings - Principles of Natural Justice
-
Departmental
Inquiry
-
Medical
Condition - Suspension and Dismissal -
Embezzlement Allegations - Right to Fair
Hearing

The petitioner, Manohar Singh, a Technician
Grade-II/Cashier with Dakshinanchal Vidyut
Vitran Nigam Limited, challenged his dismissal
from
service
and
recovery
order
dated
27.04.2022 by the Managing Director and the
appellate order dated 16.05.2023 by the
Chairman, Uttar Pradesh Power Corporation
Limited, following allegations of embezzlement.
The petitioner, bedridden since 2018 due to a
brain haemorrhage and paralysis, argued that
the disciplinary inquiry violated natural justice as
no witnesses were examined, and his medical
condition was not considered, rendering him
unable to defend himself. The respondents
contended that the inquiry followed rules and
the charges were serious. Held: (1) The
petition was allowed, and the impugned orders
dated
27.04.2022
and
16.05.2023
were
quashed. (2) The inquiry was vitiated due to the
respondents' failure to ascertain the petitioner's
claimed paralytic condition, which, if true,
rendered him unable to participate in the
inquiry, violating principles of natural justice. (3)
No formal inquiry was conducted, as the
establishment failed to produce evidence or
examine witnesses to prove the charges, a
mandatory requirement for major penalties, as
per St. of Uttar Pradesh Vs Saroj Kumar Sinha
and other precedents. (4) The respondents
were directed to constitute a Medical Board to
ascertain the petitioner's medical condition
before resuming any fresh inquiry, which can
only proceed if the petitioner is medically fit. (5)
If the petitioner is found unfit or no fresh
inquiry is initiated, consequences of quashing
the impugned orders shall follow, with the
petitioner's case governed by relevant service
rules for medical leave or disability.

List of Cases cited:

## Text

384 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondent and, therefore, the action
was vitiated by error of law. We do not find
any justification in the view taken by the
High Court; the substratum of the result is
that the appellants have not conducted any
enquiry though the respondent had been
avoiding to give the reply. Since the
respondent had avoided to submit the reply,
he has forgone his right to submit his reply.
Nonetheless, the appellants are not absolved
of the duty to hold an ex parte enquiry to find
out whether or not the charge has been
proved. In the event of the Enquiry Officer
finding that the charge is proved, he would
submit his report to the disciplinary authority.
The
disciplinary
authority
should
communicate the copy of the enquiry report
to the respondent and seek an explanation for
the proposed action thereon. If the respondent
submits any explanation, the same may be
taken into consideration and appropriate
order may be passed according to law. Until
then, the respondent must be deemed to be
under suspension."

22. So far as the salutary procedure
governing inquiries, where a major penalty
may be imposed is concerned, the law that it
is the establishment's burden to prove the
charges in the first instance not only by
formally producing evidence before the
Inquiry Officer through a Presenting Officer,
but also to examine witnesses imperatively, is
well settled in view of the authority of the
Supreme Court in State of Uttar Pradesh
and others v. Saroj Kumar Sinha, (2010) 2
SCC 772, Roop Singh Negi v. Punjab
National Bank and others, (2009) 2 SCC
570, State of Uttaranchal and others v.
Kharak Singh, (2008) 8 SCC 236 and the
Bench decisions of this Court in State of
U.P. and another v. Kishori Lal and
another, 2018 (9) ADJ 397 (DB)(LB), Smt.
Karuna Jaiswal v. State of U.P., 2018 (9)
ADJ 107 (DB)(LB) and State of U.P. v.
Aditya Prasad Srivastava and another,
2017 (2) ADJ 554 (DB)(LB).

23. In the result, this petition succeeds
and is allowed. The impugned order dated
26.07.2023 passed by the Secretary/ Chief
Executive
Officer,
Mainpuri
District
Cooperative Bank Ltd., Mainpuri and the
resolution of the Committee of Management
dated 27.04.2023 are hereby quashed. It will
be open to the respondents, if they so elect, to
proceed against the petitioner afresh from the
stage
of
charge-sheet,
granting
due
opportunity to him and bearing in mind
the guidance in this judgment about the
procedure to hold an inquiry. It is further
ordered that if the respondents elect to
initiate fresh proceedings, not more than
one of the penalties, enumerated under
Regulation 84 of the Regulations, shall be
imposed. It is also ordered that in case of
fresh
proceedings
being
taken,
no
punishment higher than that which was
imposed by the impugned order, since
quashed by this judgment, shall be
awarded.

24. There shall be no order to costs.
----------
(2024) 4 ILRA 384
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2023

BEFORE

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

Writ A No. 13570 of 2023

Manohar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Singh, Sri Ifran Raza Khan, Sri
Niyaz Ahmad Khan (Sr. Advocate)
4 All. Manohar Singh Vs. State of U.P. & Ors.
385
Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava, Sri Manu
Ghildyal

Civil
Law
-
Uttar
Pradesh
Power
Corporation
Limited
-
Disciplinary
Proceedings - Principles of Natural Justice
-
Departmental
Inquiry
-
Medical
Condition - Suspension and Dismissal -
Embezzlement Allegations - Right to Fair
Hearing

The petitioner, Manohar Singh, a Technician
Grade-II/Cashier with Dakshinanchal Vidyut
Vitran Nigam Limited, challenged his dismissal
from
service
and
recovery
order
dated
27.04.2022 by the Managing Director and the
appellate order dated 16.05.2023 by the
Chairman, Uttar Pradesh Power Corporation
Limited, following allegations of embezzlement.
The petitioner, bedridden since 2018 due to a
brain haemorrhage and paralysis, argued that
the disciplinary inquiry violated natural justice as
no witnesses were examined, and his medical
condition was not considered, rendering him
unable to defend himself. The respondents
contended that the inquiry followed rules and
the charges were serious. Held: (1) The
petition was allowed, and the impugned orders
dated
27.04.2022
and
16.05.2023
were
quashed. (2) The inquiry was vitiated due to the
respondents' failure to ascertain the petitioner's
claimed paralytic condition, which, if true,
rendered him unable to participate in the
inquiry, violating principles of natural justice. (3)
No formal inquiry was conducted, as the
establishment failed to produce evidence or
examine witnesses to prove the charges, a
mandatory requirement for major penalties, as
per St. of Uttar Pradesh Vs Saroj Kumar Sinha
and other precedents. (4) The respondents
were directed to constitute a Medical Board to
ascertain the petitioner's medical condition
before resuming any fresh inquiry, which can
only proceed if the petitioner is medically fit. (5)
If the petitioner is found unfit or no fresh
inquiry is initiated, consequences of quashing
the impugned orders shall follow, with the
petitioner's case governed by relevant service
rules for medical leave or disability.

List of Cases cited:
1. St. of Uttar Pradesh & ors. Vs Saroj Kumar
Sinha, (2010) 2 SCC 772;

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

3. St. of Uttaranchal & ors. Vs Kharak Singh,
(2008) 8 SCC 236;

4. St. of U.P. & anr. Vs Kishori Lal & anr., 2018
(9) ADJ 397 (DB)(LB); 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. Syed Amirul Haq Vs St. of U.P. & ors., 2016
(2) ADJ 107 (LB);

7. Anil Kumar @ Anil Kumar Lakada Vs St. of
Bihar & ors., 2022 (1) BLJ 558.

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

1. Manohar Singh, the petitioner was a
Technician Grade-II, working with the
Dakshinanchal Vidyut Vitran Nigam Limited
and posted in the establishment of the
Executive Engineer, Electricity Distribution
Division-VI, Dakshinanchal Vidyut Vitran
Nigam Limited, Aligarh. He was initially
appointed on 30.07.1999 as a Coolie with the
Electricity
Distribution
Division,
Dakshinanchal
Vidyut
Vitran
Nigam
Limited,
Aligarh,
after
following
the
procedure prescribed. In the year 2010,
Manohar Singh was promoted to the position
of a Technician Grade-II/ Cashier in
accordance with rules. He says that he has
been working with devotion and sincerity,
appreciated by his superiors. For the present,
he was posted as Technician Grade-II/
Cashier
at
the
33/11 KV
Electricity
Substation, Akarabad, Aligarh. His service
record, until the event subject matter of this
petition, is said to be unblemished.

2. Manohar Singh says that while
posted at the Electricity Distribution
386 INDIAN LAW REPORTS ALLAHABAD SERIES
Division-VI, Aligarh, on the 8th of March,
2010, he suffered from some heart ailment
and took his treatment at the Metro
Hospital and Heart Institute, New Delhi.
He underwent a surgery. Once fit, he joined
his duties. Much later, on 10.01.2018, when
he was transferred to the Electricity
Distribution
Division-VI,
Aligarh,
he
suffered another setback to his health. On
the 12th of January, 2018, he had a brain
haemorrhage that led to paralysis in the
right side of his body. He was again
admitted to the care of the Metro Hospital
and Multi-Speciality Wing, Sector 11,
NOIDA. He is confined to bed eversince.

3. The petitioner was transferred once
more
to
the
Electricity
Distribution
Division, 33/11 KV Substation, Akarabad,
Aligarh in the month of January, 2020. He
says that there, a certain cashier, Dhanesh
Singh Yadav, an Assistant Accountant Ram
Prakash, besides a Junior Engineer and an
Executive Engineer, in collusion with each
other, made an ID of the petitioner's for
revenue
collection.
After
suffering
paralysis, the petitioner is unable to move
anywhere.
This
gave
opportunity
to
Dhanesh Singh, Ram Prakash, the Junior
Engineer and the Executive Engineer to
collect
revenues
under
the
one-time
settlement scheme, utilising the petitioner's
ID. Later on, they came up with allegations
of embezzlement against the petitioner, on
the basis of which, the Executive Engineer
passed an order of suspension pending
inquiry against him on 18.05.2021.

4. It is the petitioner's case that during
this period of time, on the same allegations
as those subject matter of the contemplated
departmental inquiry, at that stage, a First
Information Report was also lodged against
him on 23.05.2021. The petitioner says that
he is bedridden since the year 2018 till the
date he instituted this petition. He cannot
speak, move or take care of his daily
routine. He has not discharged his duties
since the year 2018. It is this nonambulatory condition of the petitioner,
which has given opportunity to Dhanesh
Yadav,
the
Cashier,
the
Assistant
Accountant Ram Prakash, the Junior
Engineer and the Executive Engineer to
perpetrate
embezzlement
of
revenue
collections belonging to the Dakshinanchal
Vidyut Vitran Nigam Limited (for short,
'the Distribution Corporation'). There is
some reference to the police case, regarding
which investigation seems to have been
carried on while the petitioner lay in a
vegetative state, as he says, but that is not
of much relevance for the purpose of the
present writ petition.

5. The petitioner challenged his
suspension from service by means of WritA No.15568 of 2021, which was disposed
of with a direction to the Disciplinary
Authority,
the
Executive
Engineer,
Electricity Distribution Division-VI of the
Distribution Corporation to conclude the
pending disciplinary proceedings against
the petitioner within a period of three
months from the date of production of a
certified copy of this Court's order. The
petitioner was served with a charge sheet,
to which he submitted a reply.

6. It is the petitioner's case that
without considering his reply or affording
him any opportunity of hearing, the
Disciplinary
Authority,
to
wit,
the
Managing Director of the Distribution
Corporation,
passed
an
order
dated
27.04.2022, dismissing the petitioner from
service and further ordering recovery of a
sum of 50,44,673/-. The petitioner appealed
the order to the Chairman of the Uttar
Pradesh
Power
Corporation
Limited,
4 All. Manohar Singh Vs. State of U.P. & Ors.
387
Lucknow (for short, 'the Corporation'). The
departmental appeal was not decided,
forcing the petitioner to move this Court
again through Writ-A No.11303 of 2022.
This Court vide order dated 03.08.2022,
directed the appeal to be decided within a
period of two months of the date of
production of a certified copy of this
Court's order. The petitioner's appeal was
dismissed by the Appellate Authority vide
order dated 16.05.2023.

7. Aggrieved, this writ petition has
been instituted.

8. A counter affidavit has been filed
on behalf of respondent No.4 and another
on the behalf respondent No.2, that is to
say, the Executive Engineer, Electricity
Distribution Division-VI, Dakshinanchal
Vidyut Vitran Nigam Limited, Aligarh and
the Corporation. A further counter affidavit
on behalf of respondent No.4 dated
17.10.2023 was filed in answer to the
amended pleas in the writ petition. A
supplementary counter affidavit was filed
on
behalf
of
respondent
No.2
on
15.10.2023. The petitioner filed a rejoinder
affidavit. This petition was admitted to
hearing on 18.10.2023 and heard forthwith.
Judgment was reserved.

9. Heard Mr. Niyaz Ahmad Khan,
learned Senior Advocate assisted by Mr.
Abhishek Singh, learned Counsel for the
petitioner,
Mr.
Abhishek
Srivastava,
learned Counsel for respondent No.2, Mr.
Manu Ghildyal, learned Counsel for
respondent Nos.3 and 4 and Ms. Amrita
Singh, learned Additional Chief Standing
Counsel on behalf of respondent No.1.

10. The petitioner has raised two
points in support of his petition. The first is
that during the departmental inquiry, no
witness was examined on behalf of the
establishment to prove the charges, though
the matter involved the imposition of a
major penalty. It is the burden of the
establishment, according to the learned
Counsel for the petitioner, to prove the
charges by their own evidence aliunde.
They cannot rely on the lacunae in the
employee's defence to hold the charges
proved. The learned Senior Advocate for
the petitioner has extensively argued that in
any departmental inquiry, where a major
penalty is likely to be imposed, if the
charges are proved, it is the bounden duty
of the Inquiry Officer to convene himself as
an Inquiry Tribunal, an impartial arbiter,
distanced
from
the
employers'
establishment. The charges then have to be
proved by the establishment by leading
evidence, both documentary and oral in the
first instance. The examination of witnesses
is essential in case where a major penalty is
involved. After the employers have led
their evidence through a Presenting Officer,
it is the delinquent's right to cross-examine
the establishment's witnesses. After this
stage is over, the delinquent/ employee is to
be given opportunity to produce evidence
in his defence, both documentary and oral.
It is submitted that nothing of this kind has
been done and the Inquiry Officer has
submitted a report, treating the charges to
be proof of themselves.

11. The other submission, that has
been made with much emphasis, is that
since the year 2018, the petitioner, who had
suffered a brain haemorrhage, is paralysed.
In that condition, apart from the fact that
the charge against him of embezzling funds
of the Distribution Corporation, seems
incredible, the petitioner was utterly unable
to defend himself. It is pointed out that the
respondents did refer the petitioner for his
medical examination by a panel of doctors,
388 INDIAN LAW REPORTS ALLAHABAD SERIES
that may include a Neurologist and submit
a report regarding his medical condition. A
reference was made by the Chief Medical
Officer, Aligarh at the instance of the
respondents, to the Sanjay Gandhi Post
Graduate Institute of Medical Sciences,
Lucknow (for short, 'the SGPGI'). It is
pointed out that there is on record a letter
dated 01.04.2023, addressed to the Chief
Medical Officer, Aligarh by the Medical
Superintendent, SGPGI, saying that the
institute constitutes Medical Board for its
own employees only, and also does so for
others, on orders of Courts, declining the
respondents' request. It is pointed out
further by the learned Senior Advocate
for the petitioner that nothing was done
thereafter by the respondents to ascertain
the
petitioner's
medical
condition,
whereas he was, during the course of
inquiry, lying bedridden, unable to move
or even sign.

12. Attention of this Court is also
drawn by the learned Senior Advocate to
an application dated 01.09.2022 moved
by the petitioner under his thumb
impression, because he could not sign. It
is signed by his wife, saying that he has
suffered a brain stroke and paralysis. He
is lying in a vegetative state. This
application seems to have been moved
while the petitioner's appeal was pending.
A copy of this application is on record as
Annexure No.7 to the writ petition. There
is also on record a slew of medical
treatment papers from the Metro Hospital
and Heart Institute, New Delhi, which
show that the petitioner was in a seriously
impaired
condition
of
health.
The
submission, on the foot of these facts, is
that the entire disciplinary proceedings, that
were undertaken while the petitioner was
bedridden, constitute gross violation of the
principles of natural justice, so much so
that the inquiry against the petitioner or the
orders of punishment made, must be held
bad on this count alone.

13. Mr. Manu Ghildyal and Mr.
Abhishek Srivastava appearing on behalf of
the respondents have refuted the petitioner's
submission and said that the charges
against him are very serious, involving
embezzlement of huge funds of the
Distribution Corporation. It is argued by
them that the inquiry proceedings were
held in accordance with rules, giving full
opportunity to the petitioner. They submit
that this is a case where the petitioner is not
entitled to invoke this Court's equitable
jurisdiction under Article 226 of the
Constitution.

14. We have carefully considered the
submissions advanced on behalf of both
parties and perused the record. There is a
categorical averment in paragraph No.14 of
the writ petition that the petitioner, on
account of suffering a brain stroke, is
bedridden since the year 2018. He cannot
speak, move or carry on his daily routine. It
is this disability of the petitioner's that has
led four of the employees, including the
Executive Engineer, to perpetrate a fraud
misusing his ID. As remarked earlier, we
are not concerned with the petitioner's
defence on this score. However, the fact
that the petitioner is bedridden since the
year 2018, asserted in paragraph No.14 of
the writ petition, has been denied rather
unsatisfactorily in paragraphs Nos.13 and
14 of the counter affidavit filed on behalf
of respondent No.4, where it is said that the
petitioner was given a medical fitness
certificate and he signed the attendance
register, which would show that it is
misleading to say that the petitioner is
unable to move anywhere or carry on his
daily routine. This denial is far from
4 All. Manohar Singh Vs. State of U.P. & Ors.
389
satisfactory. The letter of reference by the
Chief Medical Officer, Aligarh at the
instance of the respondents to constitute a
Medical Board in order to undertake a
medical examination of the petitioner,
addressed to the SGPGI, Lucknow shows
that, may be later in the day, the
respondents did harbour doubts, regarding
the
petitioner's
health
and
medical
condition, which they wanted ascertained.

15. The kind of medical condition,
that the petitioner has described in
paragraph No.14 of the writ petition, did
not require a Medical Board to broadly
ascertain the truth of it. If a man, facing
disciplinary proceedings, says that he is
bedridden, non-ambulatory and almost in a
vegetative state, it is incumbent upon the
Inquiry Officer to go over to the place,
wherever the delinquent is, and see for
himself the physical condition that the
employee is in. It is true that the Inquiry
Officer, not being a doctor, cannot evaluate
the delinquent's medical condition or his
claimed ailment, but he can certainly
ascertain from a look at the person, if
indeed he is in an utterly paralysed state,
almost vegetative, as the petitioner claims.
He
may
straightaway
seek
medical
assistance to ascertain the fact if the
delinquent is truly paralysed and nonambulatory.

16. Here, the Inquiry Officer and the
respondents have been utterly insensitive to
this issue. They have failed to discharge
their obligation to ascertain, in the face of
repeat information and applications made
on behalf of the petitioner, that he was nonambulatory, to ascertain the fact physically,
by visiting the delinquent. They have also
not taken any steps to ascertain the veracity
of the petitioner's claim that he was in a
paralysed state, unable to move. The
condition described by the petitioner is one
which did not require a Medical Board
from an institution like the SGPGI,
Lucknow or the AIIMS, New Delhi to
ascertain its truth. The Chief Medical
Officer could have been detailed to the task
or asked to constitute a Medical Board,
who could have medically evaluated the
petitioner. This is quite apart from the
Inquiry Officer's own obligation in the face
of such allegations to find out if the
delinquent, that is to say, the petitioner
here, was indeed a paralysed man. If he
was indeed apparently a paralysed man,
who could not move at all, the inquiry that
the Inquiry Officer conducted or the orders
that the Disciplinary and the Appellate
Authorities have passed, would all be
nullity.

17. This is quite apart from the issue
about the merits of the petitioner's defence,
founded on his allegation of being
paralysed since the year 2018, which would
if proved, may be a complete answer to the
charges against him. That aspect of the
matter, this Court is not inclined to go into.
But, so far as the issue that neither the
Inquiry Officer nor the establishment took
the slightest pain to ascertain if indeed the
man they were proceeding against in a
departmental inquiry was paralysed, utterly
unable to defend himself, is concerned,
must be answered for the petitioner. We
think that it was incumbent upon the
respondents, including the Inquiry Officer,
to inquire into the fact, before commencing
disciplinary proceedings, if indeed on the
date
they
commenced
inquiry
and
concluded or passed subsequent orders, the
petitioner was a paralysed man, nonambulatory and unable to do anything for
himself. There is no evidence to show,
except
an
inchoate
effort
on
the
respondents' part to ascertain the state of
390 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner's health, which too came at a
very late stage after the inquiry was over.
For the respondents' failure to ascertain the
petitioner's state of health, on the day they
issued a charge sheet to him and thereafter
when the inquiry was scheduled or held, we
think the proceedings of the inquiry and the
resultant orders must be held bad.

18. In this regard, though not on facts
as drastic as those alleged here, about the
delinquent's medical condition, and on a
different point, about the validity of the
charge regarding unauthorized absence,
where the employee claimed to have
suffered a paralytic attack, it was held by
this Court in Syed Amirul Haq v. State of
U.P. and others, 2016 (2) ADJ 107 (LB):

"13. In the instant case, on
perusal of the averments made in the
counter-affidavit, it comes out that no
reason has been indicated as to why the
medical certificate issued by the doctor was
not accepted by the authorities. There is no
whisper as to how the authorities came to
the conclusion that the medical certificates
were
fabricated
one.
The
Inquiry
Officer/Disciplinary Authority had neither
summoned the doctor nor otherwise made
an efforts to verify the genuineness of the
medical certificate. Thus the Inquiry
Officer/disciplinary authority has violated
the principle of natural justice. A perusal of
relevant record reveals that it is the definite
stand of the petitioner before the Inquiry
Officer to summon the three doctors who
had treated him to prove the factum of his
illness and the genuineness of the medical
certificates submitted by him but the
Inquiry Officer did not summon the
aforesaid
witnesses
causing
serious
prejudice to the petitioner. No documents
have been brought on record on the basis of
which
genuineness
of
the
Medical
Certificates produced by the petitioner were
doubted by the Inquiry Officer and
believed by other authorities. Without
summoning and examining the Doctor, the
conclusion of the authorities that the
Medical
certificates
are
not
genuine
documents,
is
wholly
erroneous
and
unjustified. No finding could have been
recorded by the Inquiry Officer with regard
to certificates or the factum of illness of the
petitioner without summoning the doctors,
and denial by them with regard to illness
and treatment given to the petitioner by
them. As regard the finding recorded by the
Inquiry Officer that the petitioner did not
inform the authorities of his illness, the
record which have been produced by the
respondents, shows that there are various
applications
and
medical
certificates
available on the record submitted by the
petitioner with regard to grant of leave and
extension of leave. The different doctors
like, In-charge Medical Officer, State
Unani Hospital, Musafirkhana,Sultanpur
and
Medical
Officer
GHMC
and
Hospital,Ghazipur
had
diagnosed
the
petitioner as a patient of paralysis on right
side of the body. Apart from above, the
petitioner had attacked the impugned orders
on the ground of various defects in the
disciplinary proceedings."

19. Now, the decision in Syed
Amirul Haq (supra) takes the medical
disability on account of the paralytic
attacks, two in number, suffered by the
employee in that case as a defence that had
to be examined seriously to the charge of
unauthorized absence from duty, which
may also be one of the aspects here to be
examined. But, the more important part is
that the principle is acknowledged that if an
employee, facing disciplinary proceedings,
says that he is bedridden or non-ambulatory
with a serious medical condition, it is the
4 All. Manohar Singh Vs. State of U.P. & Ors.
391
duty of the establishment to ascertain his
condition through their own resources,
including
doctors
of
their
own
or
summoning the doctor, who had certified
the ailment, to verify the genuineness of the
employee's medical condition. Quite apart
from the fact, if the medical condition of
the petitioner claimed, upon due inquiry
into its veracity and resultant affirmation,
which is one of the possibilities, may lead
to his exculpation on the charge, which is
the Inquiry Officer's province, it would
certainly vitiate the inquiry on grounds of
violation of principles of natural justice.

20. To like effect is the holding in a
Bench decision of the Patna High Court in
Anil Kumar @ Anil Kumar Lakada v.
State of Bihar and others, 2022 (1) BLJ
558, where it was observed:

"14. ....... However, when at the
appellate and memorial stage, the appellant
had specifically raised issues, both on facts
as well as in law and had also enclosed
supporting documents, especially with
regard to his illness, giving doctors'
certificates, in the considered opinion of the
Court, the same were required to be looked
into as the purpose of giving a person a
chance to file an appeal/memorial is that
there is no miscarriage of justice and if
there has been any omission at the previous
stage, the superior authorities are able to
correct such mistake. The State being a
model employer and the purpose and the
spirit of law being that no injustice should
be caused to anyone, required, at the very
least, consideration of the issues raised by
the appellant, both factual as well as legal.
In the present case, the issue that there was
no Presenting Officer appointed and the
appellant, in his Memo of Appeal, giving
specific details of the circular of the
Director General of Police, by which all
departmental proceedings had been negated
only on the ground that there was no
Presenting
Officer
appointed
by
the
Department, has not been dealt with.
Furthermore, the issue that the certificates
given by the doctors, just because they
were not from an authorized hospital, is, in
our opinion, a non-est ground, for every
doctor who has got a licence to practice,
being registered with the Medical Council
of India, is supposed to be, in law,
competent as a professional to give such
certificate with regard to the medical
condition of a person. Thus, the onus was
on the authorities to negate those reports on
grounds of them being, for instance,
collusive or forged and fabricated. This
has, admittedly, not been done........"

21. The other issue, if the inquiry is
otherwise valid because the establishment
did not produce any evidence in a formally
convened inquiry, must now be considered.
It is a salutary principle that in any
departmental inquiry, where there is
likelihood of the imposition of a major
penalty, it is imperative for the Inquiry
Officer to convene a formal inquiry, where
he acts as an impartial arbiter. It is the
establishment's burden to prove the charges
against the delinquent in the first instance
by producing before the Inquiry Officer
evidence, both documentary and oral. It is
also imperative to examine witnesses, if the
penalty is likely to be a major one. The
charges cannot be held proved because the
employee has not defended himself or
proved his defence. The Inquiry Officer
cannot assume the charges to be true,
because they figure in the charge sheet. The
Inquiry Officer also cannot hold the
charges proved by perusing the charge
sheet and the delinquent's reply together
with papers supplied by the establishment
in support of the charge sheet. It is for the
392 INDIAN LAW REPORTS ALLAHABAD SERIES
establishment to prove the charges by
producing evidence. Once evidence is
produced before the Inquiry Officer on
behalf of the establishment, which would
include witnesses, the delinquent is entitled
to cross-examine witnesses. After the
establishment have led all their evidence,
the delinquent must be called upon to
produce evidence in his defence. For his
failure to produce evidence, the charges
cannot be held proved. These must be held
proved by the establishment's evidence,
may be by standards of preponderant
probability.

22. Here, this Court does not find that
any formal inquiry was convened or the
establishment led evidence to prove the
charges. Admittedly, no witnesses were
examined.
That
witnesses
were
not
examined, is a fact admitted in the counter
affidavit dated 17.10.2023, filed on behalf
of respondent No.4, in answer to the
amended pleas. In paragraph No.5 of this
affidavit, it is averred:

"5. That, however, from perusal
of the record it is evident that no witness
was proposed either in the charge sheet or
any witness was named by the petitioner to
examine during the departmental enquiry,
therefore, no witness was examined to
prove the charges during the course of
departmental enquiry in the present case.
Further to remove all these anomalies an
Office Memorandum dated 14.8.23 has
been issued by the Corporation wherein it
has been directed to all the authorities of
the Corporation and the discoms that they
should strictly adhere to the provisions of
Rule 7 of the Regulations 2020 and during
the departmental enquiry they must first
examine the officers on behalf of the
Corporation to prove the charges and only
thereafter they should provide opportunity
to the employees to either cross examine
them or to produce any witness on behalf
of his defense."

23. The said averment shows that the
respondents have admitted their lapse in
not examining witnesses and for the future
rectified course as well. That would not
redeem the respondents of the flaw that has
crept into the impugned proceedings
against the petitioner, vitiating them
beyond the charge sheet. The principles
that in a case involving the imposition of a
major penalty, it is imperative for the
employer to produce evidence in support of
the charges before the Inquiry Officer,
which must include oral evidence, to wit,
witnesses, are salutary and well established.
In this regard, reference may be made to
the decisions of the Supreme Court in State
of Uttar Pradesh and others v. Saroj
Kumar Sinha, (2010) 2 SCC 772, Roop
Singh Negi v. Punjab National Bank and
others, (2009) 2 SCC 570, State of
Uttaranchal and others v. Kharak Singh,
(2008) 8 SCC 236 and the Bench decisions
of this Court in State of U.P. and another
v. Kishori Lal and another, 2018 (9) ADJ
397 (DB)(LB), Smt. Karuna Jaiswal v.
State of U.P., 2018 (9) ADJ 107 (DB)(LB)
and State of U.P. v. Aditya Prasad
Srivastava and another, 2017 (2) ADJ
554 (DB)(LB).

24. This case is rather unusual and
does present some difficulty for the
respondents, but these facts would not lead
this Court to dither about what must be
done and what must follow.

25. In the result, this petition succeeds
and is allowed. The impugned order dated
16.05.2023 passed by the Chairman of the
Corporation and the order dated 27.04.2022
passed by the Managing Director of the
4 All. Rajesh Kumar Yadav Vs. State of U.P. & Ors.
393
Distribution
Corporation
are
hereby
quashed. The respondents would, of
course, be at liberty to proceed against the
petitioner afresh from the stage of issue of
the charge sheet against him, strictly in the
manner indicated in this judgment and the
law. But, before going ahead with the
proceedings
of
inquiry
against
the
petitioner,
the
respondents
will
immediately
get
a
Medical
Board
constituted by the Chief Medical Officer of
the district, wherever the petitioner is
currently staying. The members of the
Medical Board shall proceed to the
petitioner's residence and ascertain his
medical condition, particularly, if he is
paralysed, non-ambulatory and unable to
communicate. If that be his medical
condition, fresh proceedings of inquiry will
not be taken against him, until the
petitioner is in a medically certified fit
condition to understand the consequences
of the charges against him and face the
inquiry. If, however, the petitioner is found
medically fit, the Medical Board will
examine all his certificates and medical
history, and inquiry proceedings, if elected
to be pursued, would be resumed as above
directed, taking into account the opinion
about his medical condition during the
relevant period of time. In the event the
respondents do not elect to resume fresh
proceedings against the petitioner, or his
subsisting medical condition does not
permit the resumption of such proceedings,
in either case the consequences of quashing
of the orders impugned shall follow. It is
clarified
that
if
the
petitioner
be
irredeemably indisposed, he would be dealt
with according to the relevant service rules
as to medical leave, medically incurred
disability by employees, as the case may
be.

26. There shall be no order as to costs.
----------
(2024) 4 ILRA 393
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2024

BEFORE

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

Writ A No. 13605 of 2023

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

Counsel for the Petitioner:
Sri Rajpal Singh

Counsel for the Respondents:
C.S.C.

Civil Law - U.P. Municipalities Act, 1916 -
Section 34 - Constitution of India,1950 -
Part IX-A - District Magistrate's Authority
- Local Self-Governance - Service Matters
- Medical Leave - Salary Disbursement -
Principles of Natural Justice
The petitioner, Rajesh Kumar Yadav, a Zonal
Sanitary
Officer,
challenged
the
District
Magistrate, Hapur's order dated 06.04.2022,
stopping his salary for March and April 2022,
alleging unauthorized absence during medical
leave for a spinal condition and cataract
surgery. The petitioner sought quashing of the
order, release of withheld salary, and forwarding
of his medical leave applications to the
Commissioner, Meerut Division. The District
Magistrate
claimed
general
administrative
oversight, citing government orders and the
U.P. Public Health and Epidemic Diseases
Control Act, 2020. Held: (1) The petition was
allowed with costs, and the District Magistrate's
order dated 06.04.2022 was quashed as ultra
vires.
(2)
The
District
Magistrate
lacked
jurisdiction under Section 34 of the U.P.
Municipalities Act, 1916, to interfere in the
Nagar Palika Parishad's service matters, as such
powers are limited to prohibiting resolutions
causing public obstruction, injury, or danger to
life, health, safety, or public order. (3) The