# Rajeev Kumar Arya, Executive Engineer, Ghaziabad v. Chairman, Power Corporation of Uttar Pradesh, Lucknow & Ors

- **Citation:** (2024) 2 ILRA 918
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Writ - A No. 18505 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-kumar-arya-executive-engineer-ghaziabad-v-chairman-power-corporation-of-50907
- **Pages:** 11

## Headnote

A. Service Law - Disciplinary proceeding -
Punishment
of
withholding
three
increments
with
cumulative
effect
-
2 All. Rajeev Kumar Arya, Executive Engineer, Ghaziabad Vs. Chairman, Power Corporation
 of Uttar Pradesh, Lucknow & Ors.
919
Charge of not taking effective control over
subordinate, who is found guilty of
embezzlement, was leveled - No evidence
for the establishment was heard in the
petitioner's presence - Effect - Inquiry
Committee, how to conduct the enquiry -
Burden of proof, on whom lie - Held, the
Inquiry
Committee
cannot
regard
themselves
as
officers
of
the
establishment.
They
have
to
sit
as
impartial arbiters - Burden to prove the
charges is on the establishment. Here, the
Inquiry Committee do not seem to have
sat as impartial arbiters, but as mere
functionaries of the establishment, who
assumed the petitioner guilty, and either
heard no evidence or did so behind the
petitioner's back - Inquiry proceedings
are vitiated on account of a serious
procedural
lapse
prejudicing
the
petitioner. (Para 18, 20 and 24)

Writ petition allowed. (E-1)

List of cases cited :-

## Text

918 INDIAN LAW REPORTS ALLAHABAD SERIES
belonging to said list of 12091 candidates,
though on the premises that they have
granted appointment but not allowed to
join, which is not substantiated, still as
referred above, now the case is that number
of candidates of list of 12091 candidates
were not participated in counselling either
no counselling was conducted or they were
not adequately informed and said fact was
not brought in record except about process
of counselling. It would be strange event if
despite knowledge of counselling, number
of candidates of said list have not
participated in counselling but remained in
litigation thereafter.

18. In view of above position and in
the interest of justice and to conclude the
controversy, it is directed that concerned
respondents
shall
issue
a
fresh
advertisement
to
call
the
candidates
belonging to said category of 12091, who
have not appeared earlier for counselling,
fixing a date in the week commencing 05th
February, 2024 and for that advertisement
shall be published in three leading
newspapers having circulation at least
of one paper in each district of State of
Uttar Pradesh on 22nd and 25th
January, 2024.

19. The candidates who have not
participated in counselling and are part of
list of 12091, will have liberty to appear in
pursuance of advertisement to be issued
without any fail and counselling shall be
concluded in accordance with law and
result thereof shall be pronounced during
last week of February, 2024.

20. Each candidate has to submit a
notarized affidavit that they have not
appeared in earlier counselling and has to
deposit
Rs.
2000/-
for
counselling
additionally before concerned authority.

21. With aforesaid observations and
directions, all the writ petitions are
disposed of.

22. Before parting with this judgment,
it is observed that this Court has proceeded
to take note of solemn affidavits of
petitioners with regard to their statement
about counselling and that they are
aspirants to become a 'Teacher', a highly
regarded position, so much as that a
Teacher has been put on a place above than
God, as many years ago Saint Kabir has
said:

गुरू गोतवन्द दोऊ खडे, कमके लमगूं
पमंर्।

बतलहमरी गुरू अपने गोतवन्द तदर्ो
बिमर्।।
----------
(2024) 2 ILRA 918
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

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

Writ - A No. 18505 of 2023

Rajeev Kumar Arya, Executive Engineer,
Ghaziabad ...Petitioner
Versus
Chairman, Power Corporation of Uttar
Pradesh, Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rohit Kumar Singh

Counsel for the Respondents:
Sri Brajesh Pratap Singh, Sri Abhishek
Srivastava

A. Service Law - Disciplinary proceeding -
Punishment
of
withholding
three
increments
with
cumulative
effect
-
2 All. Rajeev Kumar Arya, Executive Engineer, Ghaziabad Vs. Chairman, Power Corporation
 of Uttar Pradesh, Lucknow & Ors.
919
Charge of not taking effective control over
subordinate, who is found guilty of
embezzlement, was leveled - No evidence
for the establishment was heard in the
petitioner's presence - Effect - Inquiry
Committee, how to conduct the enquiry -
Burden of proof, on whom lie - Held, the
Inquiry
Committee
cannot
regard
themselves
as
officers
of
the
establishment.
They
have
to
sit
as
impartial arbiters - Burden to prove the
charges is on the establishment. Here, the
Inquiry Committee do not seem to have
sat as impartial arbiters, but as mere
functionaries of the establishment, who
assumed the petitioner guilty, and either
heard no evidence or did so behind the
petitioner's back - Inquiry proceedings
are vitiated on account of a serious
procedural
lapse
prejudicing
the
petitioner. (Para 18, 20 and 24)

Writ petition allowed. (E-1)

List of cases cited :-

1. St. of Uttar Pradesh & ors.Vs Saroj Kumar
Sinha; (2010) 2 SCC 772

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

3. Smt. Karuna Jaiswal Vs St. of U.P.; 2018 (9)
ADJ 107 (DB) (LB)

4. St. of U.P. Vs Aditya Prasad Srivastava &
anr.; 2017 (2) ADJ 554 (DB)(LB)

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

1. The petitioner is an Executive
Engineer
in
the
employ
of
the
Pashchimanchal Vidyut Vitran Nigam Ltd.,
Meerut and functioning under the overall
control of the U.P. Power Corporation
Limited, Lucknow. The petitioner is
currently posted as an Executive Engineer
with the Electricity Distribution DivisionIV, Ghaziabad and says that he has an
excellent service record. The petitioner was
appointed
an
Assistant
Entineer
on
16.06.2012 and posted as SDO (T) at
Banda on 16.06.2012. He worked there
upto 31.05.2017. After a posting at Panki
Sub-Station
from
01.06.2017
to
05.10.2017, he was promoted to the post of
an Executive Engineer on 06.10.2017.
Upon promotion, the petitioner was posted
as the Executive Engineer, Headquarters,
Meerut on 13.12.2017. The petitioner was
assigned to the Meter Department as
Executive Engineer (Meter) at Saharanpur
Zone from 13.12.2017 to 26.01.2018. He
was
transferred
to
the
Electricity
Distribution
Division-I,
Baghpat
on
26.01.2018.
The
petitioner
held
administrative powers and had to look after
the financial matters there.

2. It is the petitioner's case that in the
Finance Department, he had the assistance
of a number of ministerial functionaries,
such as the reconciliation clerk, a cashier, a
head cashier, an accountant and an assistant
accountant, working under the immediate
control of an Assistant Engineer (Finance),
who headed the Section. The petitioner, as
the Executive Engineer, had overall control
in financial matters. There were a number
of
complaints
against
the
Assistant
Accounts Officer (Revenue). Therefore, the
petitioner sent a memo dated 28.03.2018 to
Ishpal Singh, Assistant Accounts Officer
regarding the permanent disconnection
files, correction of bills and opening of the
ID in fluent grade etc., the same day. The
petitioner
recommended
the
Assistant
Accounts
Officer's
transfer
to
the
Superintending Engineer. The Assistant
Accounts Officer was transferred on the
petitioner's recommendation and relieved
on 28th May, 2018, while absenting. The
petitioner
communicated
with
the
Competent Authority at Meerut to prepare
an ID for the Assistant Accounts Officer
920 INDIAN LAW REPORTS ALLAHABAD SERIES
and for other employees in the Finance
Department. The petitioner has come up
with a number of details in his pleadings
regarding how he had controlled and dealt
with the Finance Department under his
administrative control, but all that may not
be relevant for the decision of the matter at
hand.

3. The case relating to the present
proceedings against the petitioner arose out
of the misconduct of one Suresh Babu, a
Cashier (Technician Grade-II), who was
not directly under the petitioner's control,
but working under the Assistant Engineer
(Finance). There was something suspicious
about Suresh Babu's manner of functioning.
The petitioner through a letter dated
23.04.2019 directed the Accountant to
reconcile accounts with deposits in the
Divisional Office, besides calculation of
interest and apprise him in the matter. A
deficit of Rs.1,44,84,108/- was found in the
online billing of HCL and Fluent Grade
Systems. Accordingly, a letter was written
to Suresh Babu on 10.05.2019 to deposit
the receipt/ challan relating to the balance
in three days time.

4. The petitioner lodged a First
Information Report on 15.05.2019 with the
Kotwali Police Station, Baghpat against
Suresh Babu. The petitioner also informed,
as he says, all the Authorities concerned
regarding the non-deposit of receipt-books
by Suresh Babu. Suresh Babu, in the
meantime, was promoted to the post of a
Junior Engineer and the petitioner sent a
memo dated 09.03.2019 for the closure of
his computer ID, as he was relieved on
08.03.2019 to join his promotion post.
Suresh Babu worked under the immediate
control of the Assistant Engineer and prior
to information about the deficit etc.,
received
from
the
Accountant,
the
petitioner had no information about his
misdoings. It is emphasized that so far as
the provision of a ''No Dues Certificate' to
Suresh Babu is concerned, there was
nothing
shown
against
him
up
to
06.03.2019, and on that basis a ''No Dues
Certificate' was issued to Suresh Babu.
However, when the embezzlement came to
the petitioner's notice, prompt action was
taken and a First Information Report
lodged against the delinquent. He was
arrested with the petitioner's efforts.

5. An inquiry team was constituted
on the basis of the petitioner's report by a
memo
dated
15.05.2019.
The
report
submitted by the inquiry team was one
made after comparing the cashbook and
discovering
the
embezzlement
of
Rs.1,44,00,000/-, all done by Suresh Babu,
the Cashier-cum-Bill Clerk and otherwise a
Technician Grade-II with the Electricity
Distribution Division-I, Baghpat. By time,
this report came, Suresh Babu had been
promoted as a Junior Engineer, as already
said, and posted to Loni, Ghaziabad. The
Inquiry Committee in submitting their
report, determined the total embezzlement
by Suresh Babu during his tenure from
27.01.2014 to 11.03.2019, to be a sum of
Rs.3,68,04,939/-.

6. The preliminary inquiry report
dated 28.05.2019 was submitted to the
Managing Director. Another inquiry was
ordered and they found that Suresh Babu
had embezzled a sum of Rs.5,09,16,482/-
in all. The second inquiry report, that was
submitted, was the product of a most casual
exercise and it indicted the petitioner
without considering that he had not the
slightest role in the matter, and, in fact, was
the officer, who had discovered the
embezzlement
by
Suresh
Babu
and
reported it. The petitioner's name was
2 All. Rajeev Kumar Arya, Executive Engineer, Ghaziabad Vs. Chairman, Power Corporation
 of Uttar Pradesh, Lucknow & Ors.
921
included amongst one of the employees
involved in the misconduct. He was served
with a charge-sheet dated 07.04.2019.

7. The first charge against the
petitioner was that Suresh Babu embezzled
a sum of Rs.5,09,16,000/- and odd, but the
petitioner did not take any proceedings in a
matter of such serious dimension during the
period of his posting from 26.01.2018 to
March, 2019. The formal charge, therefore,
was that the petitioner did not exercise
effective control over his subordinates and
was negligent in the discharge of his duties.
A misconduct under Rule 3 of the
Government Servant Conduct Rules Rules,
1956 (for short, 'the Rules of 1956') was
charged. The documents cited in support of
the charge was a letter by the General
Manager,
Accounts
and
Audit,
Pashchimanchal Vidyut Vitran Nigam Ltd.,
Meerut dated 23.05.2019, addressed to the
Managing Director (together with all its
annexures). The other document cited was
a published copy of the Rules of 1956.

8. The second charge against the
petitioner was that while posted at Baghpat
from 26.01.2018 to 27.07.2019, a number
of revenue cashiers during the period 2014
to March, 2019, did not return 89 revenue
receipt-books, which includes Suresh Babu,
who did not return 25. In this fashion,
Suresh Babu was not depositing cash, he
received, in the coffers of the Corporation,
and did so, with a long delay. The
petitioner is charged with the act that
during his tenure, Suresh Babu retained
various receipt-books with him, which is a
serious misconduct. The petitioner was
charged with negligence in the discharge of
his duties under the Rules of 1956. In
support of the said charge, the same
documentary evidence, as that in support of
the first charge, was relied.

9. The third charge relates to certain
failures of the system, such as the one
regarding failure to generate a computer ID
for the revenue cashiers, on account of
which, no information about the cash
collected
by
them,
could
be
taken
cognizance of, non-closure of the tender
balance on the computer system relating
to
all
revenue
cashiers
with
the
consequence that on account of lapses,
numbering ten, Suresh Babu could
embezzle funds of the Corporation. The
petitioner was charged with laxity in
control
over
his
subordinates
and
negligence in that regard, leading to the
petitioner
being
charged
with
misconduct under Rule 3 of the Rules of
1956. The two documents, that were
cited in support of the first charge, were
again the only evidence spoken of in the
charge-sheet.

10. The petitioner submitted his reply
to the charge-sheet dated 23.12.2019,
rebutting
the
charges
and
annexing
documents.

11. The petitioner's case is that the
inquiry against him was ex parte as no date,
time and place was fixed and intimated to
him. He was called only once on
29.01.2020 for the inquiry, but no inquiry
was held. Nothing was asked of him. He
was just asked to sign the Inquiry papers. It
is also asserted that at the inquiry held, no
witnesses
were
produced
by
the
Department to prove the charges, nor the
petitioner given opportunity to produce his
witnesses. The inquiry was held in breach
of Regulation 7 of the Regulations of 2020.
At this stage, it would be apposite to notice
that in Paragraph No.35 of the writ petition,
it is alleged that no date, time and place of
inquiry was fixed and in Paragraph No.37,
it is said that no witness was produced by
922 INDIAN LAW REPORTS ALLAHABAD SERIES
the Department, which apparently means in
support of the charges, regarding which the
inquiry report, an undated was submitted.

12. The petitioner was served with a
show cause notice dated 04.12.2021. The
petitioner submitted a reply to the show
cause notice on 15.02.2022. The Inquiry
Committee found the first charge partly
proved, the second charge proved and the
third charge partly proved. It was opined by
the Inquiry Committee that though these
charges are proved or partly proved, it
would be relevant to say that the
embezzlement was continuing for a period
of more than five years, but it was during
the petitioner's posting of one year in the
Division, that it was unearthed and
effective proceedings taken in that regard.

13.

After
submission
of
the
petitioner's reply, by the impugned order
dated 07.06.2023 passed by the Managing
Director, U.P. Power Corporation, the
petitioner was held partly guilty of Charges
Nos.1 and 3 and entirely on the second
charge, in agreement with the Inquiry
Committee. The petitioner was inflicted
with the punishment of withholding three
increments with cumulative effect, besides
recovery of a sum of Rs.1,01,183/-.

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

15. Heard Mr. Rohit Kumar Singh,
learned Counsel for the petitioner, Mr.
Abhishek Srivastava, learned Counsel
appearing on behalf of respondent Nos.1
and 2, and Mr. Brajesh Pratap Singh,
learned Counsel appearing on behalf of
respondent Nos.3, 4 and 5.

16. Since the petitioner has come up
with a case of wholesale violation of
principles of natural justice, where the
Department did not fixed a date, time and
place for convening the inquiry or
proving
the
charges
by
examining
witnesses, an imperative in a case, where
a major penalty may be the result of
proceedings, this petition was entertained
without the petitioner being relegated to
his alternative remedy of filing an appeal
to the Chairman of the U.P. Power
Corporation.

17. In answer to the allegation that
no date, time and place, for convening the
inquiry, was fixed, it is averred in
Paragraph
No.4(iv)
of
the
counter
affidavit that the Inquiry Committee vide
letter dated 21.01.2020 had scheduled the
date, time and place of inquiry, providing
the petitioner personal hearing. The
petitioner appeared before the Inquiry
Committee and said whatever he had to.
Annexure CA-1 and CA-2 are documents
that have been relied in support of the
said contention. This Court has gone
through the said documents. One is a
copy of the memo dated 21.01.2020,
which is a notice issued to the petitioner
by the officer, heading the Inquiry
Committee, to appear on 29.01.2020 at
11:00 a.m. before the Inquiry Committee.
The other is a record of proceedings, that
the Inquiry Committee held on 29.01.2020.
These read:

"केस सींैंः184-4

नदनाींकैंः 29.01.2020

पत्रािली व्यक्तक्तगत सुनिाई िेतु
प्रस्तुत हुई।

आरोनपत अनधकारी श्री राजीि कुमार
आयद, तत्कालीन अनधशासी अनर्यन्ता नि.नि.ख.
बागपत अनुशासननक कायदिािी के अपने
प्रकरण में आज 'जाींच सनमनत' के समक्ष
व्यक्तक्तगत रूप से उपक्तस्थत हुए।
2 All. Rajeev Kumar Arya, Executive Engineer, Ghaziabad Vs. Chairman, Power Corporation
 of Uttar Pradesh, Lucknow & Ors.
923

आरोनपत अनधकारी को 'जाींच सनमनत'
द्वारा अपना पक्ष प्रस्तुत करने का अिसर नदया
गया। आरोनपत अनधकारी ने अपने नलक्तखत
अर्ीकथन के समथदन में मौक्तखक कथन प्रस्तुत
नकया तथा यि अिगत कराया नक इसके
अनतररक्त उन्हें अपने बचाि में कोई कथन/
साक्ष्य प्रस्तुत निीीं करना िै तथा नकसी साक्ष्य/
साक्षी के परीक्षण/ प्रनतपरीक्षण की माींग निीीं की
गई।

इस प्रकार व्यक्तक्तगत सुनिाई की
कायदिािी सींपन्न हुई।

ि0 अपनठत
ि0 अपनठत
ि0
अपनठत
29/1/2020 29/1/20
 29/1/20
AO (EC)
राजीि कुमार आयद
अनधशासी अनर्यन्ता
तत्कालीन-
बागपत
(नि.नि.ख.)
सम्प्रनत- नि.न.नि.ख.-
चतुथद, गानजयाबाद,"

18. What this Court finds, therefore,
is that while the petitioner was intimated of
the date, time and place, where the Inquiry
Committee would hear him, but in the
proceedings of the day, no evidence for the
establishment was heard in the petitioner's
presence.
The
proceedings
dated
29.01.2020
show
that
the
Inquiry
Committee had either already heard the
establishment's
evidence
behind
the
petitioner's back or not heard it at all. They
assumed the petitioner to be guilty, taking
the
charge-sheet
and
the
documents
annexed, to be proof of themselves. It also
shows that there was no Presenting Officer
appointed by the establishment to present
its case before the Inquiry Committee in
order to lead evidence, both oral and
documentary, in proof of the three charges.
The charges were apparently accepted as
true on their face by the Inquiry Committee
going through idle papers on their own, as
if they were the establishment's agents. The
petitioner when asked to appear on
29.01.2020 was just required to explain
himself and offer evidence in his defence.
Even if it be assumed that some evidence
was
earlier
heard
by
the
Inquiry
Committee, the petitioner was not there and
it was all done in his absence. Therefore,
what the petitioner was required to do
before the Inquiry Committee was to
explain his innocence, either on the basis of
the presumption that the charges were true
or on evidence, that was heard behind his
back. This Court finds that no oral
testimony was recorded before the Inquiry
Committee. We have already noticed that
the record of proceedings on 29.01.2020
does not show any Presenting Officer.

19.

Learned
Counsel
for
the
respondents has emphasized that the
petitioner was given the opportunity to
produce evidence or witnesses in his
defence. This Court is afraid that the said
stage would arrive after the establishment
had led evidence before the Inquiry
Committee to prove the charges in the
presence of the delinquent, that is to say,
the petitioner. He could then be asked to
produce his evidence. This never happened
in the present case all.

20. Moreover, the imperative in all
departmental proceedings, where a major
penalty may be imposed is to lead oral
evidence, or the production of witnesses by
the establishment in support of the charges
through a Presenting Officer before the
Inquiry
Committee/
Officer.
This
is
regarded as a salutary procedure in order to
ensure procedural fairness, broadly. The
Inquiry
Committee
cannot
regard
924 INDIAN LAW REPORTS ALLAHABAD SERIES
themselves as officers of the establishment.
They have to sit as impartial arbiters,
before whom the Presenting Officer leads
both oral and documentary evidence in the
delinquent's presence. It is after the
establishment have led their evidence in
support of the charges that the delinquent
can be called upon to produce evidence in
his defence. After all, the burden to prove
the charges is on the establishment. Here,
the Inquiry Committee do not seem to have
sat as impartial arbiters, but as mere
functionaries of the establishment, who
assumed the petitioner guilty, and either
heard no evidence or did so behind the
petitioner's back. In either case, the inquiry
proceedings would be vitiated and so also
the impugned order founded on it. The
imperative of producing witnesses or
hearing oral evidence in support of the
establishment's case, has been the subject
matter of consideration by the Supreme
Court in State of Uttar Pradesh and
others v. Saroj Kumar Sinha, (2010) 2
SCC 772, where it has been held:

"28. An inquiry officer acting in a
quasi-judicial authority is in the position of
an independent adjudicator. He is not
supposed to be a representative of the
department/disciplinary
authority/Government. His function is to
examine the evidence presented by the
Department, even in the absence of the
delinquent official to see as to whether the
unrebutted evidence is sufficient to hold
that the charges are proved. In the present
case the aforesaid procedure has not been
observed. Since no oral evidence has been
examined the documents have not been
proved, and could not have been taken into
consideration to conclude that the charges
have been proved against the respondents.
 30. When a departmental enquiry
is conducted against the government
servant it cannot be treated as a casual
exercise. The enquiry proceedings also
cannot be conducted with a closed mind.
The inquiry officer has to be wholly
unbiased. The rules of natural justice are
required to be observed to ensure not only
that justice is done but is manifestly seen to
be done. The object of rules of natural
justice is to ensure that a government
servant is treated fairly in proceedings
which may culminate in imposition of
punishment including dismissal/ removal
from service."

21. The issue has further been
considered by 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 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
2 All. Rajeev Kumar Arya, Executive Engineer, Ghaziabad Vs. Chairman, Power Corporation
 of Uttar Pradesh, Lucknow & Ors.
925
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.''

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
926 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

22. The question was also considered
by a Division Bench of this Court in Smt.
Karuna Jaiswal v. State of U.P., 2018 (9)
ADJ 107 (DB) (LB), where it was held:

"15. The law in this regard is very
well-settled and does not need a reiteration,
however, we may refer to a judgment of
Hon'ble Supreme Court in the case of State
of Uttar Pradesh and others v. Saroj Kumar
Sinha, (2010) 2 SCC 772, wherein it has
clearly been held that Enquiry Officer acts
as a quasi judicial authority and his position
is that of an independent adjudicator and
further
that
he
cannot
act
as
a
representative
of
the
department
or
disciplinary authority and further that he
cannot act as a prosecutor neither he should
act as a judge; his function is to examine
the evidence presented by the department
and even in the absence of the delinquent
officer, has to see as to whether the
unrebutted evidence is sufficient to bring
home the charges.

16. Hon'ble Supreme Court has
further held in the said judgment of Saroj
Kumar Sinha (supra) that it is only in case
when the Government servant, despite
notice, fails to appear during the course of
enquiry that Enquiry Officer can proceed
ex parte and even in such circumstances it
is incumbent upon the Enquiry Officer to
record the statement of witness.

17. In the instant case, no oral
enquiry was held, neither the petitioner was
given any notice to participate in any oral
enquiry by fixing date, time and place for
oral enquiry. It is only that the Enquiry
Officer after noticing that despite sufficient
time having been given to the petitioner,
she did not furnish her reply to the chargesheet, he proceeded to submit ex parte
report without conducting any oral enquiry
by fixing date, time and place for such an
oral enquiry. Accordingly, the Enquiry
Officer, in this case, has violated the
aforesaid principles, which clearly vitiates
2 All. Rajeev Kumar Arya, Executive Engineer, Ghaziabad Vs. Chairman, Power Corporation
 of Uttar Pradesh, Lucknow & Ors.
927
the
enquiry
proceedings
and
any
punishment order based on such a vitiated
enquiry, is clearly not sustainable."

23. A Division Bench of this Court in
State of U.P. v. Aditya Prasad Srivastava
and
another,
2017
(2)
ADJ
554
(DB)(LB), after a copious review of
authority on the point, held:

"14. Recently the entire law on
the subject has been reviewed and
reiterated in Chamoli District Co-operative
Bank Ltd. v. Raghunath Singh Rana and
others, AIR 2016 SC 2510 and Court has
culled out certain principles as under:

''(i)
The
enquiries
must
be
conducted bona fide and care must be taken
to see that the enquiries do not become
empty formalities.

(ii) If an officer is a witness to
any of the incidents which is the subjectmatter of the enquiry or if the enquiry was
initiated on a report of an officer, then in all
fairness he should not be the Enquiry
Officer. If the said position becomes known
after the appointment of the Enquiry
Officer, during the enquiry, steps should be
taken to see that the task of holding an
enquiry is assigned to some other officer.

(iii)
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent charged and give an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
he wants to lead any evidence and asked to
give any explanation about the evidence led
against him.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply a
copy of the enquiry report and all
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any.''

15. The principal of law emanates
from the above judgments is that initial
burden is on the department to prove the
charges. In case where inquiry is initiated
with a view to inflict major penalty,
department
must
prove
charges
by
adducing evidence by holding oral inquiry.

17. It is trite law that the
departmental proceedings are quasi judicial
proceedings. The Inquiry Officer functions
as quasi judicial officer. He is not merely a
representative of the department. He has to
act as an independent and impartial officer
to find out the truth. The major punishment
awarded to an employee visit serious civil
consequences and as such the departmental
proceedings ought to be in conformity with
the principles of natural justice. Even if, an
employee prefers not to participate in
enquiry the department has to establish the
charges against the employee by adducing
oral as well as documentary evidence. In
case charges warrant major punishment
then the oral evidence by producing the
witnesses is necessary."

24. Upon a reading of the inquiry
report in this case, this Court finds the
charge against the petitioner is of laxity in
control over his subordinates, or negligence
as the Department have chosen to call it.
Looking to the nature of the charges and
the fact that there was a total denial of the
charges by the petitioner with a case that he
in
fact
unearthed
the
fraud,
the
establishment had to prove their charges by
leading
both
documentary
and
oral
evidence. More than that, the Inquiry
Committee, as already remarked, did not
conduct themselves as impartial arbiters
and seem to have proceeded on an
assumption of guilt. They summoned the
928 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner on 29.01.2020 to appear before
them virtually to explain himself. That is
not how an inquiry into charges, serious in nature
and likely to lead to the imposition of a major
penalty, is held. These facts and the manner in
which the inquiry has been held, leads this Court
to the irresistible conclusion that the inquiry
proceedings are vitiated on account of a serious
procedural lapse prejudicing the petitioner.

25. In the considered opinion of this Court,
therefore, this is a case, where the impugned order
deserves to be quashed with liberty to the
respondents, if they so chose, to proceed afresh
against the petitioner from the stage of the chargesheet, holding inquiry de novo in accordance with
law.

26. In the result, this petition succeeds and is
allowed in part. The impugned order dated
07.06.2023 passed by the Managing Director,
U.P. Power Corporation Limited, Lucknow is
hereby quashed. The respondents shall be at
liberty, if they so elect, to proceed afresh with the
inquiry in accordance with law, from the stage of
issue of the charge-sheet, bearing in mind the
guidance in this judgment.

27. There shall be no order as to costs.
----------
(2024) 2 ILRA 928
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023

BEFORE

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

Writ - A No. 19796 of 2023

Mushran ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Sanjeet Kumar Mishra
Counsel for the Respondents:
C.S.C., Sri Jainendra Kumar Mishra

A. Service Law - Appointment - Post of
Sweeper
-
Qualification
-
Maximum
matriculation was required - Petitioner
claimed himself as Class VIII passed
candidate, however, he was declared
illegible on the basis that in his KYC Form,
qualification of Graduate was mentioned -
Validity challenged - KYC Form, how far
bear significance for public employment -
Plea of inaccuracy in date of birth was also
raised in counter affidavit - Permissibility
- Held, it is a well settled principle of law
that an order under challenge before the
Court cannot be asked to be sustained by
a respondent on the grounds other than
those mentioned in the order itself - The
impugned order cannot be supplemented
for its reasons by an affidavit - Held
further, a KYC Form, submitted by a
customer, while opening a bank account,
cannot be the basis of finally determining
his rights or visiting him with adverse civil
consequences in a matter as profound as
public employment -No inference can be
drawn about the petitioner's qualification
based on the KYC Form. (Para 11, 13 and
16)

Writ petition allowed. (E-1)

List of cases cited :-

1. Mohinder Singh Gill & anr. Vs The Chief
Election Commissioner, New Delhi & ors.;
(1978) 1 SCC 405

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

1. An advertisement was published by
the Punjab National Bank on 18.11.2021,
inviting applications for post of part-time
sweepers in their establishment. The
advertisement
was
published
in
newspapers. The petitioner applied for the
post of a part-time sweeper and submitted
his application form in the office of the
Chief Manager, Human Resource and