# Rajesh Kumar Saraswat v. The Director, Board of U.P. Power Corp. Ltd. & Ors

- **Citation:** (2023) 11 ILRA 887
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-A No. 13315 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-saraswat-v-the-director-board-of-u-p-power-corp-ltd-ors-49433
- **Pages:** 10

## Headnote

A. Service Law - Dismissal - Disciplinary
enquiry - Incident of robbery occurred
causing huge loss to the Bank - Inquiry
Committee proceeded on an assumption
that the charges are proof of themselves
and it is for the charged employee to offer
evidence to establish that he is not guilty
- Permissibility - Held, even if any
charged employee does not produce any
witness in his defence, that would not
absolve the Establishment of their burden
of proving the charges, by producing
documentary as well as oral evidence in
support thereof, at the hearing before the
Inquiry Committee/Officer - The charges
being grave do not mean that the
employee can be punished surreptitiously
in breach of the established procedure to
hold a departmental inquiry. (Para 17, 18
and 24)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

11 All. Rajesh Kumar Saraswat Vs. The Director, Board of U.P. Power Corp. Ltd. & Ors.
887

32. In the result, this petition succeeds
and is allowed. The impugned order dated
17.06.2021 passed by the Secretary/ Chief
Executive Officer, District Cooperative
Bank Ltd. Ghazipur, the order dated
13.06.2022 passed by the Registrar and
Commissioner, Cooperative U.P., Lucknow
and the enquiry report dated 08.02.2019
submitted by the Inquiry Officer/ General
Manager, District Cooperative Bank Ltd.,
Ghazipur (Annexure No.1 to the counter
affidavit) are hereby quashed. A mandamus is
issued directing the respondents to reinstate the
petitioner in service forthwith. The petitioner
shall be entitled to the salary from the date of this
judgment. It will be open to the respondents to
proceed afresh against the petitioner from the
stage of charge-sheet, strictly in accordance with
law, bearing in mind the guidance in this
judgement. If the respondents elect to proceed
afresh against the petitioner, the question of back
wages shall be decided, subject to the result
of
proceedings.
In
the
event,
the
respondents do not elect to proceed afresh
against the petitioner, she would be entitled
to 50% back wages. In the event, in any
contingency, if the petitioner is reinstated
finally, she would be entitled to continuity
of service and seniority.
----------
(2023) 11 ILRA 887
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

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

Writ-A No. 13315 of 2023

Rajesh Kumar Saraswat ...Petitioner
Versus
The Director, Board of U.P. Power Corp.
Ltd. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh, Sri Adarsh Singh, Sri
Varun Kumar Agnihotri

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava, Sri Manu
Ghildyal, Sri Ujjawal Srivastava

A. Service Law - Dismissal - Disciplinary
enquiry - Incident of robbery occurred
causing huge loss to the Bank - Inquiry
Committee proceeded on an assumption
that the charges are proof of themselves
and it is for the charged employee to offer
evidence to establish that he is not guilty
- Permissibility - Held, even if any
charged employee does not produce any
witness in his defence, that would not
absolve the Establishment of their burden
of proving the charges, by producing
documentary as well as oral evidence in
support thereof, at the hearing before the
Inquiry Committee/Officer - The charges
being grave do not mean that the
employee can be punished surreptitiously
in breach of the established procedure to
hold a departmental inquiry. (Para 17, 18
and 24)
Writ petition allowed. (E-1)
List of Cases cited:
1. St. of U.P. & 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 U.P. & anr. Vs Kishori Lal & anr.; 2018
(9) ADJ 397(DB)(LB)
4. Smt. Karuna Jaiswal Vs St. of U.P.; 2018 (9)
ADJ 107(DB)(LB)
5. Ashish Kumar Tiwari Vs St. of U.P. & ors. ;
2021 (1) ADJ 420
6. Ranveer Singh Vs U.O.I. & ors. ; 2021 (5)
ADJ 136
7. Prem Narain Singh Vs St. of U.P. & anr.; 2023
(2) ADJ 580

(Delivered by Hon'ble J.J. Munir, J.)
888 INDIAN LAW REPORTS ALLAHABAD SERIES

The petitioner, who was an Office
Assistant-III/Cashier (Revenue) in the
employ of the U.P. Power Corporation
Limited (for short, 'the Corporation'),
impugns his dismissal from service vide
order dated 07.12.2021 passed by the
Chairman of the Corporation as well as the
order dated 17.09.2022 passed by the
Board of Directors of the Corporation,
dismissing the petitioner's appeal and
affirming the Disciplinary Authority.

2. The facts giving rise to this petition
are that the petitioner was appointed as an
Office Assistant-III under the Dying-inHarness
Rules,
favoured
with
a
compassionate appointment on account of
his father's demise in harness. The
petitioner's father was a Junior Engineer.
He died on 12.08.2008. The petitioner was
appointed on 20.11.2008. The petitioner
joined service on the date the letter of
appointment was issued and commenced
discharging his duties. The petitioner was
appointed in the office of Superintending
Engineer, Dakshinanchal Vidyut Vitran
Nigam Limited, District Hathras. The
petitioner was transferred to the newly
created office of the Electricity Distribution
Division, Sadabad, Hathras and relieved on
21.08.2010. The petitioner joined as an
Assistant-III in the newly created office of
the
Electricity
Distribution Division-IV,
Sadabad, Hathras on 22.08.2010. The petitioner
says that while holding the post of a Cashier
(Revenue) in the office of the Executive
Engineer, there was a robbery on 16.04.2013.
The petitioner reported the incident to the
respondents and also lodged a first information
report at the Police Station the same day. The
Superintending Engineer made a preliminary
inquiry into the incident and submitted a report
dated 16.04.2013. He held no employee of the
Corporation responsible for the incident. It was
a case of loot of the bag, carrying cash in the
sum of Rs. 22,70,000/- by three motorcycleborne robbers, who robbed the petitioner at gun
point, just as he was about to enter the Bank
with the cash bag, after parking his vehicle. It is
averred that at the relevant date and time i.e.
16.04.2013, there was neither any guard
appointed nor any security detailed to facilitate
the safe deposit of cash in the Bank. It is also
pleaded that there was an insurance to the extent
of Rs. 16,00,000/-, whereas the recovery and
collection in the Bank was always more than
the said sum. Subsequently, on account of
aforesaid incident dated 16.04.2013, the
Superintending Engineer passed an order dated
03.05.2013, placing the petitioner under
suspension pending inquiry. The petitioner was
arrested in Crime No. 395 of 2013 under
Section 409 IPC, P.S Sadabad, District Hathras
and sent to jail. It is submitted that the petitioner
was falsely implicated and has been charged
with loss of the said sum vide a charge-sheet
dated 16.03.2017. The petitioner submitted his
reply to the charge-sheet after gathering
relevant facts and materials in support of his
case. The charge-sheet carried twelve charges,
all of which were denied by the petitioner.

3. It is the petitioner's case
specifically pleaded in paragraph no. 15 of
the
writ
petition
that
the
Inquiry
Committee, without issuing any notice,
conveying the date, time and venue of
inquiry to the petitioner to participate,
without perusing the relevant records or
giving the petitioner an opportunity of
hearing, submitted an inquiry report dated
12.03.2019, holding charges nos. 1, 2, 3, 4,
5, 8 and 12 proved, charges nos. 9, 10, and
11 partly proved and charge no. 7, not
proved. A copy of the inquiry report is also
on record.

4.

The
Executive
Engineer(Administration-2),
Dakshinanchal
Vidyut
Vitran
Nigam
11 All. Rajesh Kumar Saraswat Vs. The Director, Board of U.P. Power Corp. Ltd. & Ors.
889
Limited, Agra issued a notice dated
13.08.2020 to the petitioner, asking him to
submit his response to the inquiry report.
The petitioner, in response to the notice
dated 13.08.2020, submitted a reply dated
29.09.2020. He mentioned in his reply that
the inquiry was not properly held in
accordance with law, and without any
cogent evidence, documentary or oral, the
charges were held proved in manifest error
of law.

5.

The
Disciplinary
Authority,
according
to
the
petitioner,
without
application of mind, passed the order
impugned, dismissing him from service
vide order dated 07.12.2021. The Authority
further directed recovery of a sum of Rs.
72,13,237/- from the petitioner, after
adjusting the sum of money, already
recovered.

6. The petitioner filed an appeal dated
07.01.2022 to the Board of Directors of the
Corporation, raising cogent grounds. Since
the petitioner was facing recovery pursuant
to the order of the Disciplinary Authority,
he instituted Writ-A No. 5220 of 2022
before this Court. This Court, vide order
dated 05.05.2022, disposed of the said writ
petition, directing that the competent
Authority shall examine the petitioner's
case in appeal/representation preferred
against the order of dismissal within a
period of two months from the date of
submission of a certified copy of the order.
It was further directed that in the
meanwhile, until decision is taken by the
Board of Directors, no recovery shall be
made pursuant to the impugned order
passed by the Disciplinary Authority. The
Board of Directors, sitting as the Appellate
Authority vide order dated 17.09.2022,
dismissed the petitioner's appeal, affirming
the Disciplinary Authority.

7 . Aggrieved, the petitioner has
instituted the present writ petition under
Article 226 of the Constitution.

8. Heard, Mr. Adarsh Singh, learned
counsel for the petitioner, Mr. Ujjawal
Srivastava, Advocate holding brief of Mr.
Abhishek Srivastava, learned counsel for
respondent nos. 1, 2 and 3, Mr. Manu
Ghildyal, learned counsel for respondent
no.4 and Ms. Monika Arya, learned
Additional Chief Standing Counsel on
behalf of respondent no. 5.

9. It must be remarked here that this
writ petition has been heard on a solitary
affidavit filed on the respondents' side,
which is a personal affidavit of respondent
no.
2,
the
Chairman,
U.P.
Power
Corporation
Limited,
Lucknow.
This
course of action has been taken in view of
the stand of the parties before this Court
recorded in the order dated 23.08.2023,
which reads:

"Statement is made on behalf of
respondent nos. 1,2 and 3, that no further
affidavit is required to be filed. Ms. Monika
Arya, learned Additional Chief Standing
counsel appears on behalf of respondent
no.5. Mr. Manu Ghildyal, learned counsel
appearing on behalf of respondent no.4,
states that he does not propose to file a
counter affidavit. Learned counsel for the
petitioner states that personal affidavit may
be treated as a counter affidavit to which he
does not intend to file a rejoinder."

10. The personal affidavit of
respondent no.2 was filed in response to an
order dated 11.08.2023, the material part
whereof reads:

"Mr.
Abhishek
Srivastava,
Advocate shall file an affidavit within a
890 INDIAN LAW REPORTS ALLAHABAD SERIES
week on behalf of the Chairman, U.P.
Power Corporation Limited, Lucknow
clearly indicating whether at the inquiry,
the Inquiry Officer fixed a date, time and
venue, with notice thereof to the petitioner,
and further, if the employers-respondents
examined any witnesses (oral evidence), in
support
of
the
charges
against
the
petitioner. There is an assertion that neither
date, time and place of inquiry was fixed by
the Inquiry Officer nor witnesses examined
by the establishment."

11. This issue was inquired into by
the Court because the petitioner has averred
in paragraph no. 15 of the writ petition that
no date, time and place of the inquiry was
fixed, enabling him to participate in the
oral inquiry. Though, in the writ petition, it
is not said in words very specific but the
fact that the Establishment did not produce
any witness in support of the charges or
lead oral evidence to prove them, is
precisely what the petitioner wishes to
canvass. It was, therefore, imperative for
the Court to inquire of the respondents, if
they examined any witness in support of
the charges against the petitioner. Of
course, it was also inquired if any date,
time and place of the inquiry was fixed.
The personal affidavit that has been filed is
not a para-wise reply to the contents of the
writ petition but substantially answers the
petitioner's case. In paragraph nos. 8, 9 and
11 of the personal affidavit, it has been
averred:

"8. That during the departmental
enquiry the petitioner was also issued a
letter by the enquiry committee on
11.01.2018, directing him to appear before
the enquiry committee, fixing the date and
time, in response to which, the petitioner
appeared before the enquiry committee on
30.01.2018 and participated in the enquiry.
A copy of the letter dated 11.01.2018 and
the minutes of the proceedings dated
30.01.2018 are being annexed herewith and
marked
as
Annexure-CA-2
&
CA-3
respectively to this personal affidavit.

9.
That
after
giving
due
opportunity of hearing to the petitioner and
on the basis of material evidence on record,
the enquiry committee submitted its report.
During the course of departmental enquiry,
the petitioner had not shown any interest in
asking the department to produce any
witness for examination/cross examination.
Therefore, once the petitioner has duly
participated in the departmental enquiry
and enquiry committee has given him all
the necessary opportunities in his defence,
it can not be said that any prejudice is
caused to him in not examining any witness
by the department.

11. That 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 be
examined during the departmental enquiry.
Therefore, no witness was examined by the
Corporation to prove the charges during the
course vastava of departmental enquiry in
the present case. Further to remove all
these anomalies, an Office Memorandum
has been issued on 14.8.2023 wherein
directions have been issued to all the
authorities of the Corporation/discoms
enquiry that they should strictly adhere to
the
provisions
of
Rule-7
of
the
Regulations-2020."

(emphasis by Court)

12. The petitioner's case that no date,
time and place of inquiry was fixed is,
therefore, not established, particularly, in
view of the fact the petitioner did appear
11 All. Rajesh Kumar Saraswat Vs. The Director, Board of U.P. Power Corp. Ltd. & Ors.
891
before the Inquiry Committee, which seems
to have held a single sitting on 30.01.2018.
The proceedings of the inquiry with
reference to the minutes, and the impact of
the affidavit filed by the petitioner before
the Committee, also dated 30.01.2018, will
be adverted to a little later in this judgment.
What is not denied, therefore, reading
across paragraph no. 9 and 11 of the
personal affidavit filed by respondent no. 2
is the fact that indeed the Establishment in
order to prove its charges did not produce
witnesses,
or
documentary
evidence
through a presenting officer before the
Inquiry Committee. The sole sitting of the
Inquiry held on 30.01.2018, or at least the
session, where the petitioner appeared, the
recorded minutes thereof read:

क्रटप्पर्ी एवं आदेश

केस सं० - 26

30.01.2018

पत्रावली व्यक्रिर्त सुनवाई िेतु प्रस्तुत ि ई।

आरोपी श्री राजेश कुर्ार सारस्वत, त० कायािलय
सिायक तृतीय क्रवद्युत क्रवतरर् खण्ड- चतुथि, सादाबाद , िाथरस ने
आज क्रदनांक 30.01.18 को अपने बचाव र्ें " सक्रर्क्रत" के
सर्क्ष व्यक्रिर्त रूप से उपक्रस्थत ि ये। अनुपूरक आरोप पत्र का
अक्रभकथन एवं साक्ष्य प्रस्तुत करना चािता ि ुँ। इस आधार पर
आरोपी सेवक ने 15 क्रदन का सर्य र्ांर्ा क्रजसे सक्रर्क्रत ने स्वीकार
कर क्रलया। इस प्रकार आज की कायिवािी पूर्ि की जाती िै।

ि० अप०

ि० अप०

ि० अप०

30.01.18
 30.01.18

 30.01.18

(Rajesh Kumar Saraswat)
O.A IIIrd (Suspended)

ि० अप०

13. A reading of the minutes of the
inquiry shows that during the proceedings,
the Committee went by the assumption that
the charges numbering twelve were all
proof of themselves and that during
personal
hearing
on
30.01.2018, the
petitioner, who requested time to file a
reply to the supplementary charge-sheet
and produce evidence in his defence, was
granted fifteen days' time to do so,
adjourning proceedings of the inquiry. On
the other hand, an affidavit has been taken
on record on 30.01.2018 on a printed
proforma with blanks filled up. The printed
proforma, which the petitioner has signed
also seems to be the product of a very
objectionable
practice.
The
so-called
affidavit, which does not even show the
expression of an oath or the verification of
its contents, is a printed proforma with
blanks to be filled up.

14. A reading of the said affidavit on
the printed proforma seems to show that
Inquiry Committees of the Corporation are
employing
this
proforma
to
extract
statements from a charged employee,
opting to give up his defence. The reason is
that the printed script and not the blanks
say it without option that the employee has
inspected all the records and that the
charged employee, apart from his written
statement, has nothing else to say in his
defence. It is also scripted in printed form
that the charged employee does not wish to
examine or cross-examine any witness. The
last is a printed acknowledgment that the
Inquiry Committee has given him full
opportunity of hearing.

15. This proforma affidavit annexed
as Annexure No. 3 to the personal affidavit,
filed by the Chairman of the Corporation,
leaves this Court with no option but to
believe that the Inquiry Committees of the
892 INDIAN LAW REPORTS ALLAHABAD SERIES
Corporation, not just in this case but
generally, since it is a printed proforma, are
proceeding with departmental inquiries
hardly
as
impartial
arbiters
with
commitment to enquire and discover the
truth of the charges. This printed proforma
shows
the
outlook
of
the
Inquiry
Committee almost to trick the employee
into giving up his defence on charges that
may lead to grave civil consequences for
him. It also shows that the Inquiry
Committee is minded to think its business
of inquiring into the charges, more a matter
of formality to endorse the Establishment's
case, than a duty to act as an impartial
arbiter, where the Establishment bears the
burden of proving the charges in the first
instance by leading evidence.

16. This Court has no hesitation in
condemning
the
practice
of
asking
employees to sign a printed proforma of an
affidavit, where the only option is to say
that they do not want to produce any
evidence in their defence, examine or
cross-examine witnesses. The blanks in the
affidavit are only about the particulars of
the
charge-sheet,
the
name
of
the
employee, etc.; everything else is prescripted. There is already a passing remark
by this Court about the validity of the kind
of document that is dubbed as an affidavit
by the Corporation, and apparently, in
general use in their eastablishment. The
document, to say the least, is not at all an
affidavit, notwithstanding its authentication
by a notary public. The reason is that an
affidavit to qualify as such must clearly
carry a solemn affirmation or an oath in the
name of God, which the document does not
show. In addition, there has to be a
verification by the deponent of the contents
based
on
personal
knowledge
or
information received or whatever is the
source, but there is no such clause in the
proforma document so essential to an
affidavit.

17. The approach of the Inquiry
Committee apparent from the contents of
the proforma affidavit dated 30.01.2018
and the minutes of the inquiry dated
30.01.2018 is one not conforming to the
basic standards of fairness in holding a
domestic inquiry, in accordance with the
settled procedure. The minutes dated
30.01.2018 show that the petitioner was
called upon to produce his defence,
regarding which he sought opportunity.
However, there is nothing on record to
show that the Establishment discharged its
burden through the agency of a Presenting
Officer to produce documentary as well as
oral evidence on its behalf before the
Inquiry Committee, in support of the
charges. In a domestic inquiry, it is
imperative
that
the
Inquiry
Committee/Officer
should
act
as
an
impartial arbiter, and not an agent of the
Employer in order that the inquiry may
qualify as valid in law. It is the duty of the
Establishment/Employer to examine before
the Inquiry Committee/Officer evidence,
documentary, and particularly, oral, where
the charges are so serious that, if proved,
may lead to the imposition of a major
penalty. This is a salutary principle which
has come to be accepted by preponderant
judicial opinion. Nothing of the kind has
been done and the Inquiry Committee
seems to have proceeded on an assumption
that the charges are proof of themselves
and
it
is
for
the
charged
employee/petitioner to offer evidence to
establish that he is not guilty.

18. The procedure well settled would
require the Establishment, as already said,
to examine the witnesses in support of the
charges and it is then that the petitioner
11 All. Rajesh Kumar Saraswat Vs. The Director, Board of U.P. Power Corp. Ltd. & Ors.
893
would have the option to cross-examine
them. After evidence on behalf of the
Establishment has been led, the burden
would shift to the petitioner or the
employee to produce evidence in his
defence, including witnesses. Even if the
petitioner, or for that matter, any charged
employee does not produce any witness in
his defence, that would not absolve the
Establishment of their burden of proving
the charges, by producing documentary as
well as oral evidence in support thereof, at
the
hearing
before
the
Inquiry
Committee/Officer. Nothing of the kind has
been done in the present case rendering
entire inquiry proceedings and the resultant
report flawed.

19.

The
issue
here
fell
for
consideration before the Supreme Court in
State of U.P. and others vs. Saroj Kumar
Sinha1, where it has been held:

"27. A bare perusal of the
aforesaid sub-rule shows that when the
respondent had failed to submit the
explanation to the charge-sheet it was
incumbent upon the inquiry officer to fix a
date for his appearance in the inquiry. It is
only in a case when the government servant
despite notice of the date fixed failed to
appear that the inquiry officer can proceed
with the inquiry ex parte. Even in such
circumstances it is incumbent on the
inquiry officer to record the statement of
witnesses mentioned in the charge-sheet.
Since the government servant is absent, he
would clearly lose the benefit of crossexamination
of
the
witnesses.
But
nonetheless in order to establish the
charges the Department is required to
produce the necessary evidence before the
inquiry officer. This is so as to avoid the
charge that the inquiry officer has acted as
a prosecutor as well as a judge.

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."

20. In Roop Singh Negi vs. Punjab
National Bank and others2, it was
observed by their Lordships of the Supreme
Court:

"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."
894 INDIAN LAW REPORTS ALLAHABAD SERIES

21. A Division Bench of this Court in
State of U.P. and another vs. Kishori Lal
and another3 had occasion to consider the
issue about the procedure by which an
inquiry is to be held in matters involving
the imposition of a major penalty and
observed:

"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.

X X X X

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 any case, approach of the
Enquiry Officer that as no reply has been
submitted, the charge will have to be
automatically proved can be approved. This
will be erroneous. It has been repeatedly
said that disciplinary authority has a right
to proceed against delinquent employee in
ex parte manner but some evidence will
have to be collected and justification to
sustain the charges will have to be stated in
detail. The approach of the enquiry officer
of automatic prove of charges on account
of
non
filing
of
reply
is
clearly
misconceived and erroneous. This is
against the principle of natural justice, fair
play, fair hearing and, thus, enquiry officer
has to be cautioned in this respect.''

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

(Emphasis by Court)
11 All. Rajesh Kumar Saraswat Vs. The Director, Board of U.P. Power Corp. Ltd. & Ors.
895

22. The issue again came up before a
Division Bench of this Court in Smt.
Karuna Jaiswal vs. State of U.P.4, 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
the
enquiry
proceedings
and
any
punishment order based on such a vitiated
enquiry, is clearly not sustainable."

23. I also had the occasion to consider
this issue in Ashish Kumar Tiwari vs.
State of U.P. and others5 as well as
Ranveer Singh vs. Union of India and
others6, besides Prem Narain Singh vs.
State of U.P. and another7. The substance
of the principle followed in all these
decisions is that in cases involving the
imposition of a major penalty, no valid
inquiry
can
be
held,
unless
the
Establishment
proves
charges
by
examining
evidence,
particularly,
witnesses.

24. The Court must observe here that
the charges in this case, that are twelve in
number, are about loss of cash belonging to
the Corporation to robbery just outside the
Bank and some discrepancy, in the sum of
money shown looted in the FIR and the
cash shown on papers to be in transit to the
Bank. There are other charges apart from
the robbery as well, such as the one relating
to
embezzlement
of
Rs.
8,75,875/-
collected through sixty-two receipts, but
not shown in the books of accounts. All
these charges by their very nature would
require to be established by oral evidence
on behalf of the Establishment, that is
totally wanting. The charges being grave do
not mean that the employee can be
punished surreptitiously in breach of the
established
procedure
to
hold
a
departmental inquiry. In fact, the more
serious the charge and its consequences, the
more strict adherence to the procedure
prescribed ought to be.
896 INDIAN LAW REPORTS ALLAHABAD SERIES

25. In view of what this Court has
found above, we are of the considered
opinion that the impugned orders dated
07.12.2021 passed by the Chairman of the
Corporation and the order dated 17.09.2022
passed by the Board of Directors of the said
Corporation cannot be sustained.

26. In the result, this petition succeeds
and is allowed. The impugned order dated
07.12.2021 passed by the Chairman, U.P.
Power Corporation, Lucknow and the order
dated 17.09.2022 passed by the Board of
Directors of the Corporation are hereby
quashed. A mandamus is issued to
reinstate
the
petitioner
in
service
forthwith. The petitioner shall be entitled
to salary from the date of this judgment. It
will, however, be open to the respondents
to proceed afresh against the petitioner
from the stage the charge-sheet was issued
to him and conclude the disciplinary
proceedings expeditiously, wherein the
petitioner will cooperate. If the respondents
elect to take fresh proceedings, the
petitioner shall not be entitled to any
backwages,
until
conclusion
of
all
disciplinary proceedings against him and
final orders being made. In the event, fresh
proceedings are taken and the petitioner is
finally
reinstated
in
service,
the
respondents will decide upon the issue of
backwages to be paid to the petitioner for
the period that he has remained out of
service. But in that event, the petitioner
would
be
entitled
to
seniority
and
continuity in service. It is also made clear
that upon reinstatement in terms of this
judgment, it would be open to the
respondents, either to take work from the
petitioner, or not assign him duties during
pendency of the disciplinary proceedings,
the
further
course
of
action
being
dependent upon the outcome of the
proceedings, as indicated above. The
petitioner upon reinstatement in service,
whether he is assigned work or not, would
be entitled to his salary from the date of
this judgment. It is also made clear that it
will be open to the respondents, if they
choose
to
initiate
fresh
disciplinary
proceedings, to place the petitioner under
suspension pending inquiry, and in that
event, the petitioner would be entitled to
subsistence allowance alone, which shall be
paid regularly and promptly.

27. There shall be no order as to costs.

28. Let a copy of this order be
communicated to the Chairman, U.P.
Power Corporation Limited, Lucknow by
the Registrar (Compliance)
----------
(2023) 11 ILRA 896
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.10.2023 &
12.10.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-A No. 36716 of 1998

Balram Yadav ...Petitioner
Versus
D.J., Maharajganj & Anr. ...Respondents

Counsel for the Petitioner:
Sri Mahendra Pratap, Akhileshwari Dubey,
Sri M.K. Dubey, Sri P.K. Upadhyay, Sri S.M.
Yadav, Sri V.K. Dubey

Counsel for the Respondents:
C.S.C., Ms. Pooja Agarwal, Sri Samir
Sharma

A. Service Law - Right to equality - UP
Regularization
of
Daily
Wages
Appointments on Group D Posts Rules,
2001- R. 4 - Regularization - Identical