# Pankaj Kumar Sharma v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1305
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-A No. 13013 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-kumar-sharma-v-state-of-u-p-ors-49327
- **Pages:** 9

## Headnote

Service Law - U.P. Power Corporation
Limited Employees (Discipline and Appeal)
Regulations,
2020
-
Regulation
7
-
Disciplinary
Proceedings
-
Termination
-
Principles of Natural Justice - Requirement of
Oral Evidence in Major Penalty Cases - U.P.
Power
Corporation
Limited
Employees
(Discipline and Appeal) Regulations, 2020 -
Regulation 7.

Held: The impugned order of termination dated
28.06.2023 and the inquiry report submitted on
24.02.2023 were quashed due to violation of
principles of natural justice. The inquiry was
flawed as no witnesses were produced by the
establishment to prove serious charges leading
to a major penalty, and the Inquiry Committee
acted as both prosecutor and arbiter. The
burden
to
prove
charges
lies
on
the
establishment, requiring oral evidence in cases
of major penalties. The petitioner was falsely
implicated in a bribery case, and the inquiry
failed to provide an opportunity for crossexamination or produce essential witnesses. The
petitioner is to be reinSt.d in service forthwith,
with liberty to the respondents to resume
disciplinary proceedings from the charge-sheet
stage in accordance with law. No back wages to
be paid pending fresh inquiry, but the petitioner
is entitled to current salary from the date of
judgment. Continuity and seniority to be
determined based on the outcome of fresh
proceedings.

Case Law Discussed:

## Text

10 All. Pankaj Kumar Sharma Vs. State of U.P. & Ors.
1305
the same shall be concluded expeditiously,
wherein the petitioner shall cooperate.

20. There shall be no order as to costs.
----------
(2023) 10 ILRA 1305
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

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

Writ-A No. 13013 of 2023

Pankaj Kumar Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajai Kumar Singh Kushwaha, Sri Pankaj
Agarwal

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

Service Law - U.P. Power Corporation
Limited Employees (Discipline and Appeal)
Regulations,
2020
-
Regulation
7
-
Disciplinary
Proceedings
-
Termination
-
Principles of Natural Justice - Requirement of
Oral Evidence in Major Penalty Cases - U.P.
Power
Corporation
Limited
Employees
(Discipline and Appeal) Regulations, 2020 -
Regulation 7.

Held: The impugned order of termination dated
28.06.2023 and the inquiry report submitted on
24.02.2023 were quashed due to violation of
principles of natural justice. The inquiry was
flawed as no witnesses were produced by the
establishment to prove serious charges leading
to a major penalty, and the Inquiry Committee
acted as both prosecutor and arbiter. The
burden
to
prove
charges
lies
on
the
establishment, requiring oral evidence in cases
of major penalties. The petitioner was falsely
implicated in a bribery case, and the inquiry
failed to provide an opportunity for crossexamination or produce essential witnesses. The
petitioner is to be reinSt.d in service forthwith,
with liberty to the respondents to resume
disciplinary proceedings from the charge-sheet
stage in accordance with law. No back wages to
be paid pending fresh inquiry, but the petitioner
is entitled to current salary from the date of
judgment. Continuity and seniority to be
determined based on the outcome of fresh
proceedings.

Case Law Discussed:

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

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

3. Dukh Haran Prasad Vs St. of U.P., 2015 (3)
ADJ 677

4. St. of Uttaranchal Vs Kharak Singh, (2008) 8
SCC 236

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

6. Subhash Chandra Sharma Vs Managing
Director, 2000 (1) UPLBEC 541

7. Salahuddin Ansari Vs St. of U.P., 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. Sharad Kumar Varma Vs St. of U.P., 2006
(110) FLR 630

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

1. This writ petition is directed
against an order of termination from
service dated 28.06.2023 passed against the
petitioner by the Chairman, U.P. Power
Corporation Ltd., Lucknow. The petitioner
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
has prayed that the order be quashed and a
mandamus issued to the respondents to
reinstate the petitioner in service without
consequential benefits.

2. The brief facts giving rise to this
petition are that the petitioner was
appointed a Junior Engineer on 14.03.2016
in terms of an appointment letter dated
03.02.2016, issued by the Chief Engineer
(Hydro-Electric), U.P. Power Corporation
Ltd., Lucknow. The petitioner successfully
completed his probation and confirmed in
service. While posted as a Junior Engineer
at the Sultanpur Electricity Substation,
Moradabad, a complaint was laid against
him by one Nazim Ali to the effect that the
complainant's application for sanction of a
commercial electricity connection was
pending
with
the
petitioner.
The
complainant alleged that on 16.09.2022
when he went to meet the petitioner, he told
him that he would take proceedings on his
application, if the complainant paid him a
bribe of Rs.15,000/-. In fact, the complaint
says
that
the
petitioner
asked
the
complainant to come back again on
17.09.2022 to his office with the bribe. The
complainant is said to have alleged that he
does not want to pay any bribe and wishes
that the petitioner be caught red-handed.
The complainant demanded action.

3. The case of the petitioner is that he
has been falsely implicated in the case at
the instance of the complainant, the scribe
of the complaint and his co-workers at the
substation. The petitioner's co-workers,
according to him, were not discharging
their duties and the petitioner being the
Junior Engineer, had complained to higher
authorities against the erring employees.
His employees were contractual and on the
petitioner's complaint, their contract was
terminated. It is on this account that these
employees/ workmen bore a grudge against
the petitioner and sought to wreak
vengeance,
leading
to
the
ill-found
complaint against him. It is averred that the
complainant acted in connivance with the
errant employees in order to harass,
humiliate the petitioner and spite him. The
petitioner says of the complainant, Nazim
Ali, that he had applied for a commercial
connection seeking sanction of a 3 KW
load. The application was transferred to the
S.D.O., whereas the petitioner was asked to
prepare a Technical Feasibility Report. The
petitioner drew up the report on 10.09.2022
and sent the same to the S.D.O. for review.
It is after a review by the S.D.O. of the
Technical Feasibility Report drawn up by
the petitioner and an onsite visit undertaken
by the S.D.O. that a payment receipt would
be issued. Afterwards, the connection
would be sanctioned and a meter installed.

4. In the present case, the petitioner,
being a Junior Engineer, was supposed to
draw up a Technical Feasibility Report,
which he did on 10.09.2022 and submit it
to the S.D.O., which was done. Thereafter,
the petitioner's obligation came to an end
and the other proceedings had to be
undertaken by the S.D.O. There was
nothing, according to the petitioner, to be
done by him, which the complainant could
be aggrieved about. Nevertheless, the
motivated complaint was made at the
instance of Nazim Ali and without hearing
the petitioner, he was placed under
suspension vide order dated 17.09.2022.
The petitioner was issued a charge-sheet
carrying two charges in respect of which
disciplinary proceedings were undertaken.
The
charge-sheet
was
issued
on
19.12.2022. The petitioner sought time on
28.12.2022 and 19.01.2023 to tender his
reply, so that he could submit a proper one.
The Inquiry Officer neither gave the
10 All. Pankaj Kumar Sharma Vs. State of U.P. & Ors.
1307
petitioner documents relative to the charge,
nor a copy of the preliminary inquiry
report, on the basis of which the chargesheet was issued.

5. There are then averments showing
that the petitioner sought time on more than
one occasion to submit a reply and
ultimately did submit one on 12.04.2023,
denying the charges. It appears, however,
that before that could be done, an inquiry
report was submitted in the matter through
an office note dated 24.02.2023 by the
Temporary Inquiry Committee-VII. It also
appears from the averments and the record
annexed to the writ petition that in
connection with the charge of demanding
bribe from the complainant, Nazim Ali,
which is the subject matter of disciplinary
proceedings, the petitioner was trapped and
arrested on 17.09.2022, accepting a sum of
Rs.15,000/- in his office; or as the
allegations would go. In this connection,
the petitioner was challaned vide Case
Crime No.315 of 2022, under Section 7 of
the Prevention of Corruption Act, Police
Station Bhojpur, District Moradabad. This
Court granted bail to the petitioner on
20.12.2022
in
Criminal
Misc.
Bail
Application No.55718 of 2022.

6. The Chairman, U.P. Power
Corporation vide the order impugned dated
28.06.2023 dismissed the petitioner from
service, acting on the antedated inquiry
report submitted through the office note
dated 24.02.2023.

7. Heard Mr. Pankaj Agarwal, learned
Counsel for the petitioner, Ms. Monika
Arya, learned Additional Chief Standing
Counsel for respondent No.1 and Mr.
Abhishek Srivastava, learned Counsel
appearing on behalf of respondent Nos. 2, 3
and 5. No one appears on behalf of
respondent Nos. 4 and 6.

8. Mr. Pankaj Agarwal, learned
Counsel for the petitioner has urged that the
impugned order is patently flawed and one
passed in violation of rules of natural
justice. The inquiry report, that is the
foundation of the order impugned, is also
flawed, inasmuch as the Inquiry Committee
did not fix a time, date and place of inquiry.
Also, the Establishment did not produce
witnesses in support of the charges, though
the charge was so serious that if proved,
would have led to the imposition of a major
penalty; and in fact major penalty was
imposed. The attention of the Court has
been drawn to Paragraph Nos.36, 37 and 38
of the writ petition, where in the first of the
two mentioned paragraphs, it is averred that
a copy of the inquiry report was not served
upon the petitioner and in the last
paragraph, it is averred that no witness was
produced in support of the charges by the
Establishment to prove their case. It is also
averred in Paragraph No.36 that the inquiry
proceedings were held ex parte.

9. In answer, it is averred in
Paragraph No.5 of the counter affidavit that
the petitioner was provided a copy of the
charge-sheet dated 19.12.2022 and supplied
the necessary documents on 22.12.2022. It
is also pleaded that at the time the
petitioner filed his reply, he was informed
by the Inquiry Committee that he can in
writing intimate the Inquiry Committee the
names of witnesses, whom he wants to
examine or cross-examine and the names of
all those persons, whom he wishes to
produce
to
examination
or
crossexamination. It is also averred that during
departmental inquiry, the petitioner was
issued a letter by the Inquiry Committee on
31.03.2023, by which the petitioner was
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
called to participate in the inquiry on the
date, time and place scheduled. The date
was 07.02.2023. The petitioner appeared
before
the
Inquiry
Committee
on
07.02.2023 along with his reply to the
charge-sheet as well as evidence. It was
thereafter that the inquiry report was
submitted on 24.02.203.

10. The learned Counsel for the U.P.
Power
Corporation,
Mr.
Abhishek
Srivastava, has drawn the Court's attention
to Annexure No.1 to the counter affidavit,
which is a memo dated 31.01.2023 issued
to the petitioner by the Chief Engineer,
heading the
Inquiry
Committee.
It
intimates the petitioner that the charges
against him would be heard by the
Inquiry Committee-VII on 07.02.2023
at 11:00 a.m. It was also indicated that
the petitioner could appear in person
before
the
inquiry.
It
is
further
contended by Mr. Abhishek Srivastava
that Regulation 7 of the U.P. Power
Corporation
Limited
Employees
(Discipline and Appeal) Regulations,
2020 (for short, 'the Regulations of
2020') provides vide Regulation 7(4)
that along with the charge-sheet a list of
documents and the list of witnesses
together with their statements, if any,
are to be provided to the delinquent
employee and vide Regulation 7(7) of
the Regulations of 2020, it is provided
that where the delinquent denies the
charges, the Inquiry Officer would call
witnesses proposed to be examined vide
the charge-sheet in the presence of
delinquent,
who
would
have
opportunity to cross-examine them. He
argues that witnesses are not required to
be produced in every case, because if
no names are mentioned in the chargesheet, then the Inquiry Committee cannot
be said to be under obligation to examine
witness.

11.

This
Court
has
carefully
considered the submissions advanced by
learned Counsel for both parties.

12. The principles, according to
which a departmental enquiry is to be held,
are well established in cases where the
charges are so serious, that if proved, may
lead to the imposition of a major penalty.
The establishment/ employer is under an
obligation to produce not only documentary
evidence, but witnesses by whom the
charges, may be proved. In an enquiry,
which may lead to the imposition of a
major penalty, the production of witnesses
by the establishment, in the first instance,
to prove the charges is imperative. The
further requirement is that the Inquiry
Officer has to act as an impartial arbiter
and not someone, who identifies himself as
an officer of the establishment, more
friendly to the presenting officer than the
delinquent or the defence assistant. It is
before such an impartial arbiter of an
enquiry officer, who has, for the purpose of
the enquiry, distanced himself of his
loyalties with the establishment, that the
presenting officer has to produce evidence
on behalf of the establishment, particularly,
witnesses, besides documentary evidence,
to prove charges against the employee.

13. It is only after some evidence has
been let in on behalf of the establishment
that the burden shifts to the employee to
produce evidence in his defence. Of course,
even if the employee does not produce any
evidence in his defence, the establishment
nevertheless have to prove the charges and
face the employee's cross-examination. It is
not that the employee is to be asked, if he
wants to cross-examine any witness.
10 All. Pankaj Kumar Sharma Vs. State of U.P. & Ors.
1309

14. Here, it is the respondents' case
pleaded in paragraph No.5 of the counter
affidavit that it was mentioned in the
charge-sheet that the petitioner/ employee
can also inform the Inquiry Committee in
writing providing the names of witnesses,
whom he wants to examine or crossexamine, and the names of those persons as
well, whom he wants to produce for
examination or cross-examination. The
averment, to say the least, betrays utter lack
of understanding of the elements of
procedural law, that applies to domestic
inquiries. One cannot imagine that an
employee
would
be
asked
by
the
establishment to name witnesses for the
establishment, whom he wants to examine
on their behalf and then wishes to crossexamine them.

15. From a reading of the averments
in paragraph No.5 of the affidavit, it
appears that the deponent as well as the
officer, who issued the charge-sheet,
calling upon the petitioner, to inform the
Inquiry Committee, providing the names of
witnesses, whom he wants to 'examine or
cross-examine', does not understand what is
meant
by
examination
and
crossexamination. It is unimaginable to think of
cross-examination by the employee unless
the establishment choose to produce their
witnesses for their examination-in-chief in
support of the charge/ charges. Crossexamination is a procedure or a tool in the
hands of the side arrayed opposite the one
producing a witness to test the veracity of
the witness and discredit him. Of course, in
the process, the witness's testimony in the
examination-in-chief
may
come
out
sterling.

16. This Court does not wish to say
that the Evidence Act ought to be imported
into the relatively informal and untrained
arena of a domestic enquiry, but the
essentials of what is meant by examinationin-chief and cross-examination, cannot be
mixed up, misunderstood and given a goby. There is just no way in which the
employee, as suggested in paragraph No.5
of the counter affidavit, could be asked to
request production of the employers'
witnesses and then opt to cross-examine
them.

17. This submission advanced on
behalf of the respondents that the petitioner
has not disputed the genuineness of the
documents provided to the petitioner during
the course of the enquiry nor had shown
any interest in asking the establishment to
produce any evidence for examination or
cross-examination,
would
relieve
the
establishment of their obligation to produce
witnesses, is completely misplaced. There
is nothing on record to show that the
petitioner admitted the documents either by
endorsement or a record of his statement to
that effect by the Inquiry Committee. No
minutes of the enquiry have been produced
to show that the Inquiry Committee
recorded the fact that all documents cited
on behalf of the establishment have been
admitted - either with reference to
particular documents, or all of them
generally. With the petitioner/ employee
denying the charges, it cannot be said that
he has admitted the documents, or deemed
to have admitted them. Therefore, the
burden to prove the charges, galvanizing
the documents that are idle papers into
documentary evidence, through testimony
of the witnesses before the Inquiry
Committee, could never be forsaken by the
respondents,
if
charges
against
the
petitioner were to be proved.

18. It would be of profit to review
authority on the point regarding the
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
establishment's obligation to prove charges
before the Inquiry Committee and in what
manner that burden is to be discharged. In
Roop Singh Negi v. Punjab National
Bank and others, (2009) 2 SCC 570, it
was held:

"14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon taking into consideration the materials
brought on record by the parties. The
purported
evidence
collected
during
investigation by the investigating officer
against all the accused by itself could not
be treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove
the
said
documents.
The
management witnesses merely tendered the
documents and did not prove the contents
thereof. Reliance, inter alia, was placed by
the enquiry officer on the FIR which could
not have been treated as evidence."

19. The question fell for consideration
before a Division Bench of this Court in
State of U.P. and another v. Kishori Lal
and another, 2018 (9) ADJ 397 (DB)
(LB), where it was 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
charge-sheet 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.

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
10 All. Pankaj Kumar Sharma Vs. State of U.P. & Ors.
1311
1962 SC 1348, Uma Shankar v. Registrar,
1992 (65) FLR 674 (All).

19. The principal of law which
emanates from the above judgments are
that initial burden is on the department to
prove the charges. In case of procedure
adopted for inflicting major penalty, the
department must prove the charges by oral
evidence also."

(emphasis by Court)

20. The issue under consideration
here engaged the attention of this Court in
Dukh Haran Prasad v. State of U.P. and
others, 2015 (3) ADJ 677. In Dukh
Haran Prasad (supra), it was observed:

"16. It is not disputed by the
learned
Standing
Counsel
that
the
imposition of the penalty of stoppage of
three increments with cumulative effect
upon the petitioners was a major penalty. If
that be the admitted position, the procedure
prescribed under Rule 7 was to be
mandatorily
followed.
It
has
been
repeatedly held by this Court that in the
case of imposition of a major penalty, a
failure to hold an oral inquiry is fatal. If
there be any need to refer to authority for
this proposition, one may only note the
judgment rendered by a Division Bench of
this Court in the case of Sharad Kumar
Varma v. State of U.P. and others; 2006
(110) FLR 630."

21. It is of prime importance in this
case to look into the nature of the charges
against the petitioner and how they could
be proved. The charges against the
petitioner are about accepting illegal
gratification. The event is the same that is
said to have happened on 17.09.2022 at 1
o'clock. Two charges against the petitioner
read:

"आरोप सुंख्या 1 :-

आपके द्वारा सदनाुंक 17.09.2022 को समय
लगभग 13:00 िजे श्री नासजम अली प त्र श्री तसब्िूर अली हुसैन
सनवासी ग्राम जटप रा जनपद म रादािाद से वासिज्यक सुंयोजन सनगयत
करने के एवज में उत्कोच ग्रहि करते हुये भ्रष्टाचार सनवारि सुंगठन
म रादािाद इकाई सससवल लाईन्स, म रादािाद (उ०प्र०) द्वारा रुंगे हाथो
सगरफ्तार सकया गया था। सवभागीय कायय के एवज में उत्कोच ग्रहि
सकया जाना उ0प्र0 सरकारी सेवक आचरि सनयमावली-1956 का
स्पष्ट उल्लुंघन है। इस पूरे प्रकरि में आपके द्वारा सवभाग की छसव
धूसमल की गयी है।

आरोप सुंख्या 2 :-

आपकी उपरोक्त अवसध में, 33/11 के0वी0 सवद्य त
उपकेन्र जहाुँगीरप र का असतररक्त काययभार देखने के दौरान, श्रीमसत
तयैिा खतून पत्नी मौ0 ररजवान सनवासी ग्राम गौहरप र स ल्तानप र
को, 01 नुं0 घरेल सवद्य त सुंयोजन सनगयत सकया गया। सजसकी
सवद्य त पोल से दूरी 43 मी0 थी एवुं यह सवद्य त सुंयोजन घोसीप रा
11 के0वी0 फीडर से सनगयत सकया गया। सजसकी जाुँच करने पर
पाया गया सक, पररसर पर दवाईयों की पैसकुंग इत्यासद का कायय होता
है। सजसका सवद्य त सुंयोजन वासिज्यक सवधा में होना था एवुं उक्त
सवद्य त सुंयोजन की पोल से दूरी 300 मी० पायी गयी। ऐसी सस्थसत
में सवद्य त सुंयोजन का प्राक्कलन तैयार करके सवद्य त सुंयोजन
वासिज्यक सवधा में सनगयत सकया जाना था । परन्त आपके द्वारा उक्त
सुंयोजन को उत्कोच ग्रहि करके घरेलू सुंयोजन सवधा में सदया गया।
आपके द्वारा उक्त सुंयोजन को सही सवधान में सनयायत सकया जाता तो
सवभाग को आसथयक क्षसत नही होती।"

22. The first charge is that the
petitioner was arrested red-handed while
accepting
illegal
gratification
on
17.09.2022 at 1 o'clock in the afternoon
from Nazim Ali son of Tasabbur Ali for the
purpose
of
sanctioning
the
latter's
commercial electricity connection. The
other
charge
is
that
while
holding
additional charge of 33/11 KV Electricity
Substation
Jahangirpur,
the
petitioner
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
sanctioned a domestic connection in favour
of one Smt. Taiyyaba Khatun, whose
premises were located at a distance of 43
meters from the pole. The connection was
sanctioned from the 11 KV Feeder. Upon
inspection, it was found that in the
premises, where the connection was
sanctioned,
commercial
activity
of
packaging of medicines etc. was done. The
connection that had to be sanctioned,
should have been a commercial one. It was
also found during inspection that the
distance of the premises from the electricity
pole was 300 meters. The charge was that
the petitioner accepted a bribe, sanctioned a
domestic connection, where a commercial
connection ought to have been sanctioned,
causing financial loss to the Corporation.

23. The aforesaid charges, by their
very nature, are such that these involve
transactions between persons at multiple
levels and certain parts within those
transactions. The foremost is acceptance of
the bribe, where the petitioner was caught
red-handed. Regarding the other charge,
what is of importance is the nature of the
work done in the premises, where a
domestic
connection
was
sanctioned,
instead of a commercial one, that ought to
have been sanctioned, as the respondents
say, by the petitioner's accepting illegal
gratification.

24. The second charge is based on
inspection of the premises and then about a
case that bribe was taken to sanction a
domestic connection. All these various
facts, that form the gamut of the two
charges, inherently require oral testimony
by production of witnesses. The witnesses
of the trap may or may not have been
produced before the learned Judge, trying
the criminal case arising out of the incident,
but before the Inquiry Committee witnesses
of the trap are so essential to prove the first
charge that in their absence, it is difficult to
imagine the first charge being established.
Likewise is the position of the second
charge.

25. The man, who did the inspection
of the premises, where the petitioner
sanctioned a domestic connection and
found commercial activity going on there,
was an essential witness to prove the said
charge. Nothing of the kind was undertaken
in the enquiry. A reading of the enquiry
report shows that in support of the first
charge, report of the Executive Engineer,
Electricity
Distribution
Division-III,
regarding the case where the petitioner is
said to have been trapped accepting a bribe,
was taken into consideration. Both the
charges have been held proved, looking
into documents which are nothing but mute
papers, that shed no light and speak no
word to substantiate both the charges. In
the circumstances, the failure to examine
witnesses in this case renders the enquiry
report a document to be outrightly
discarded.

26. From a reading of the inquiry
report, it appears that, not only was there a
failure to examine any witness, no
presenting officer seems to have functioned
before the Inquiry Committee, to present
the establishment's case. The Inquiry
Committee acted as presenting officers, to
wit, prosecutors and arbiters at the same
time. This kind of a procedure has been
disapproved by the Supreme Court in State
of Uttaranchal and others v. Kharak
Singh, (2008) 8 SCC 236, where it was
observed:

"17. On the other hand, one Mr
P.C. Lohani, Dy. Divisional Forest Officer,
Nandhaur acting as an enquiry officer after
putting certain questions and securing
10 All. Pankaj Kumar Sharma Vs. State of U.P. & Ors.
1313
answers submitted a report on 16-11-1985.
No witnesses were examined. Apparently
there was not even a presenting officer. A
perusal of the report shows that the enquiry
officer himself inspected the areas in the
forest and after taking note of certain
alleged deficiencies secured some answers
from the delinquent by putting some
questions. It is clear that the enquiry officer
himself has acted as the investigator,
prosecutor and judge. Such a procedure is
opposed to principles of natural justice and
has been frowned upon by this Court."

27. In the totality of circumstances,
this Court finds that the impugned order
dated
28.06.2023
passed
against the
petitioner cannot be sustained, as also the
undated enquiry report submitted along
with covering memo dated 24.02.2023.

28. In the result, this petition succeeds
and is allowed. The impugned order dated
28.06.2023 passed by the Chairman, U.P.
Power Corporation and the enquiry report
dated nil submitted through covering memo
dated 24.02.2023 are hereby quashed. A
mandamus is issued to reinstate the
petitioner in service forthwith. It will be
open to the respondents to resume
disciplinary
proceedings
against
the
petitioner from the stage the charge-sheet
was issued and hold an enquiry afresh in
accordance with law, bearing in mind the
guidance in this judgment. Should the
respondents elect to proceed afresh against
the petitioner, he will not be paid his back
wages or any part thereof, pending such
enquiry. However, the petitioner will be
entitled to receive current salary from the
date of this judgment. The question of back
wages will be decided by the respondents
dependent on the event in the disciplinary
proceedings.
If
at
the
end
of
all
proceedings, the petitioner is reinstated in
service, with or without penalty, he would
be entitled to continuity and seniority.
Costs easy.
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