# Rakesh Kumar Sharma v. U.P. Power Corporation Ltd., Luckow & Ors

- **Citation:** (2024) 3 ILRA 604
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-30
- **Case number:** Writ A No. 12847 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-sharma-v-u-p-power-corporation-ltd-luckow-ors-51712
- **Pages:** 24

## Headnote

Service Law - Disciplinary Proceedings -
Procedural Fairness - Petitioner, an Office
Assistant
with
U.P.
Power
Corporation,
challenged his dismissal from service for
possessing disproportionate assets, alleging
violation of procedural fairness under the U.P.
Power
Corporation
Limited
Employees
(Discipline and Appeal) Regulations, 2020 -
Held, the Inquiry Committee failed to conduct
an oral inquiry or produce witnesses to prove
the charge, relying solely on police investigation
reports without independent evidence - This
violated
the
salutary
principle
that
the
establishment must prove charges through oral
3 All. Rakesh Kumar Sharma Vs. U.P. Power Corporation Ltd., Luckow & Ors.
605
and documentary evidence in quasi-judicial
proceedings,
rendering
the
inquiry
fundamentally
flawed
-
Orders
dated
04.09.2021 and 07.06.2023 quashed. (Paras 6,
31, 33, 34, 41, 42, 43, 44)

Service Law - Revisional Jurisdiction -
Interference with Pending Appeal - The
Chairman of the Corporation enhanced the
petitioner's
penalty
to
dismissal
under
Regulation 13(c) while his appeal against the
Disciplinary Authority's order was pending
before the Managing Director of the Distribution
Corporation - Held, the Managing Director's
failure to decide the appeal for 17 months or
transmit it to the competent Appellate Authority
(Managing Director of the Corporation) upon
determining his own incompetence was arbitrary
and
violated
procedural
fairness
-
The
Chairman's
exercise
of
revisional
powers,
foreclosing the petitioner's statutory right to
appeal, was unlawful - Uncommunicated order
dated 08.02.2023 rejecting the appeal held
arbitrary and discriminatory under Article 14.
(Paras 9, 10, 20, 21, 22, 23, 27, 28)

Service Law - Burden of Proof in Disciplinary
Inquiries - The Inquiry Committee's reliance on
police
reports
without
requiring
the
establishment to produce oral or documentary
evidence before them breached the principle
that the burden lies on the establishment to
prove charges in disciplinary proceedings -
Held, the Inquiry Committee acted as a
representative of the establishment rather than
an impartial quasi-judicial authority, failing to
adhere to principles of natural justice as laid
down in St. of U.P. Vs Saroj Kumar Sinha and
Roop Singh Negi Vs Punjab National Bank -
Disciplinary proceedings vitiated for lack of
independent evidence and procedural fairness.
(Paras 33, 34, 35, 41, 42)

Writ Petition Allowed .

Orders Dated 04.09.2021 and 07.06.2023
Quashed - Petitioner ReinSt.d with Conditions
for Fresh Inquiry.

List of Cases Cited:

## Text

_Characters 0–39,995 of 85,278. This is a partial read: ask again with offset=39995 for what follows._

604 INDIAN LAW REPORTS ALLAHABAD SERIES
would apply prospectively from the date of
its enforcement and that is the date of its
publication.
The
Commissioner
is
absolutely wrong in thinking that the
Government's
circular
clarifying
the
position of the law about how Article 468
of the Civil service Regulations would
work to reckon the fraction of less than
three months for the purpose of qualifying
service, is prospective in nature. The said
circular does not bring about any change,
as already remarked.

17. This Court, particularly, notices
that it is not at all the Commissioner's stand
or that of the Deputy Director, Local Fund
and Audit Department, Varanasi that Article
468 of Civil Service Regulations does not
apply
to
the
Nagar
Panchayat
Establishment. Rather, the Commissioner
says that it does apply in view of the
circular
dated
18.04.2016,
but
prospectively. That position of the law, we
have
already
held
to
be
utterly
misunderstood by the Commissioner. The
result would be that in accordance with
Article 468 of the Civil Service Regulation,
the petitioner's husband's period of service
which is just short by a month and 23 days
of 10 years, would have to be reckoned as a
completed one half year because it is more
than three months, short of a half year. It
would, therefore, have to be reckoned as 10
years. Once it is held that the petitioner has
completed 10 years of service, the
Commissioner is obliged to consider the
petitioner's case for grant of family pension
in accordance with Note (1) appended to
the unamended Regulation 7(1) of the
Regulations of 1984.

18. In the result, this petition
succeeds and is allowed. A mandamus is
issued to the Divisional Commissioner of
Varanasi, ordering him to consider the
petitioner's case for sanction of family
pension in accordance with Note(1) to
Regulation 7(1) of the Regulations of 1984
(unamended) within a month of the receipt
of a copy of this judgment in accordance
with law and the guidance here.

19. There shall be no order as to costs.

20. Let this order be communicated to
the
Commissioner,
Varanasi
Division,
Varanasi by the Registrar (Compliance).
----------
(2024) 3 ILRA 604
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.01.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 12847 of 2023

Rakesh Kumar Sharma ...Petitioner
Versus
U.P. Power Corporation Ltd., Luckow &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Manu Mishra

Counsel for the Respondents:
Sri K.K. Rao, Sri Abhishek Srivastava, Sri
Abhishek Srivastava, Ms. Akanksha Sharma
(S.C.), Sri Manish Goyal (A.A.G.)

Service Law - Disciplinary Proceedings -
Procedural Fairness - Petitioner, an Office
Assistant
with
U.P.
Power
Corporation,
challenged his dismissal from service for
possessing disproportionate assets, alleging
violation of procedural fairness under the U.P.
Power
Corporation
Limited
Employees
(Discipline and Appeal) Regulations, 2020 -
Held, the Inquiry Committee failed to conduct
an oral inquiry or produce witnesses to prove
the charge, relying solely on police investigation
reports without independent evidence - This
violated
the
salutary
principle
that
the
establishment must prove charges through oral
3 All. Rakesh Kumar Sharma Vs. U.P. Power Corporation Ltd., Luckow & Ors.
605
and documentary evidence in quasi-judicial
proceedings,
rendering
the
inquiry
fundamentally
flawed
-
Orders
dated
04.09.2021 and 07.06.2023 quashed. (Paras 6,
31, 33, 34, 41, 42, 43, 44)

Service Law - Revisional Jurisdiction -
Interference with Pending Appeal - The
Chairman of the Corporation enhanced the
petitioner's
penalty
to
dismissal
under
Regulation 13(c) while his appeal against the
Disciplinary Authority's order was pending
before the Managing Director of the Distribution
Corporation - Held, the Managing Director's
failure to decide the appeal for 17 months or
transmit it to the competent Appellate Authority
(Managing Director of the Corporation) upon
determining his own incompetence was arbitrary
and
violated
procedural
fairness
-
The
Chairman's
exercise
of
revisional
powers,
foreclosing the petitioner's statutory right to
appeal, was unlawful - Uncommunicated order
dated 08.02.2023 rejecting the appeal held
arbitrary and discriminatory under Article 14.
(Paras 9, 10, 20, 21, 22, 23, 27, 28)

Service Law - Burden of Proof in Disciplinary
Inquiries - The Inquiry Committee's reliance on
police
reports
without
requiring
the
establishment to produce oral or documentary
evidence before them breached the principle
that the burden lies on the establishment to
prove charges in disciplinary proceedings -
Held, the Inquiry Committee acted as a
representative of the establishment rather than
an impartial quasi-judicial authority, failing to
adhere to principles of natural justice as laid
down in St. of U.P. Vs Saroj Kumar Sinha and
Roop Singh Negi Vs Punjab National Bank -
Disciplinary proceedings vitiated for lack of
independent evidence and procedural fairness.
(Paras 33, 34, 35, 41, 42)

Writ Petition Allowed .

Orders Dated 04.09.2021 and 07.06.2023
Quashed - Petitioner ReinSt.d with Conditions
for Fresh Inquiry.

List of Cases Cited:
1. St. of Uttar Pradesh & ors. Vs Saroj Kumar
Sinha, (2010) 2 SCC 772
2. Roop Singh Negi Vs Punjab National Bank &
ors., (2009) 2 SCC 570

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

4. Smt. Karuna Jaiswal Vs St. of U.P., 2018 (9)
ADJ 107 (DB)

5. St. of U.P. Vs Aditya Prasad Srivastava & anr.,
2017 (2) ADJ 554 (DB)

6. Chamoli District Co-operative Bank Ltd. Vs
Raghunath Singh Rana & ors., AIR 2016 SC
2510

7. Smt. Shaheen Badar Vs U.P. Power
Corporation Limited & ors., Neutral Citation No.
2022:AHC:138795-DB

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

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

10. Subhash Chandra Gupta Vs St. of U.P., 2012
(4) ADJ 4 (NOC)

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

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

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

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

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

1. Heard Mr. Manu Mishra, learned
Counsel for the petitioner, Mr. Manish
Goyal,
learned
Additional
Advocate
General assisted by Ms. Akanksha Sharma,
learned Standing Counsel on behalf of
respondent
No.6
and
Mr.
Abhishek
Srivastava, learned Counsel appearing on
behalf of respondent Nos.1 and 2.
606 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The petitioner, Rakesh Kumar
Sharma, was an Office Assistant in the
employ of the Uttar Pradesh Power
Corporation Limited. Long ago, he had
entered service of the late Uttar Pradesh
State Electricity Board, now represented by
the Uttar Pradesh Power Corporation
Limited (for short, 'the Corporation') and
the many other Distribution Corporations
that have since come up as successors of
the erstwhile Board. The petitioner was
posted at the Electricity Distribution
Division, Kasganj from 20.10.1994 to
31.08.2017,
which
falls
under
the
administrative control of the Dakshinanchal
Vidyut Vitran Nigam Limited, Agra (for
short,
'the
Distribution
Corporation'),
represented by its Managing Director,
besides
the
overall
control
of
the
Corporation.

3. A First Information Report was
lodged against the petitioner on 11.04.2018
by one Satya Dev, an Executive Engineer
with the Electricity Distribution Division,
Kasganj, giving rise to Case Crime No.230
of 2018, under Section 7/13 (1)(e) of the
Prevention of Corruption Act, 1988, Police
Station Kasganj, District Kasganj. The FIR
said no more than this that the information
was being laid against the petitioner on the
basis of a letter dated 27.03.2018 from the
Additional Director General of Police
(Vigilance),
U.P.
Power
Corporation
Limited, Lucknow and another letter dated
04.04.2018
from
the
Superintending
Engineer, Electricity Distribution Division,
Kasganj, directing the informant to lodge
an FIR against the petitioner, then posted at
the Electricity Distribution Division, Etah,
for
an
offence
of
acquiring
assets
disproportionate to his known sources of
income. A copy of the letters was annexed
to the FIR, with the FIR not of itself
disclosing any allegation constituting the
offence. The written report, on the basis of
which the check FIR was registered,
virtually says nothing except to convey to
the Police that the informant had been
asked to get the FIR registered on the basis
of letters that he had received from the
Additional Director of Police and the
Superintending Engineer, last mentioned.

4. It appears that a complaint was laid
against the petitioner by one Ashok Kumar,
alleging that the petitioner had amassed
wealth beyond the known sources of his
income. The complaint was addressed to
the Vigilance Department of the U.P. Power
Corporation and led to a preliminary
inquiry report dated 05.04.2014, being
submitted by the Vigilance Department to
the official competent. The petitioner was
never informed of this report or its
contents. This was followed by a detailed
inquiry report dated 29.08.2018, as the
petitioner says, which was submitted to the
Chairman of the Corporation. This report,
according to the petitioner, said that the
petitioner
had
amassed
wealth
disproportionate to his known sources of
income during the period 20.05.1992 to
31.03.2010. The report said that during the
relevant period of time, the petitioner's
income was Rs.21,69,055/- whereas he
spent a sum of Rs.33,98,427/-. Apparently,
the inquiry report submitted by the
Vigilance Department to the Chairman
opined that the petitioner had with him
Rs.12,29,372/- during the relevant period
of time in excess of his known sources of
income. The excess was a percentage
equivalent of 56.68.

5. Pending investigation into the FIR
lodged against the petitioner, he was served
with a charge-sheet dated 18.07.2019
issued by the Chief Engineer (HR-cumDisciplinary
Proceedings),
Distribution
3 All. Rakesh Kumar Sharma Vs. U.P. Power Corporation Ltd., Luckow & Ors.
607
Corporation, carrying a solitary charge
relating to his income for the check period
from 20.05.1992 to 31.03.2010, that was in
excess of his known sources. The petitioner
answered the charge-sheet vide his reply
dated 25.09.2019 submitted to the Inquiry
Committee through registered post. The
petitioner says that the Inquiry Committee,
making a short shrift of the matter and
without following the procedure prescribed
under the Uttar Pradesh Power Corporation
Limited
Employees
(Discipline
and
Appeal) Regulations, 2020 (for short, 'the
Regulations') for the imposition of a major
penalty under Regulation 7, submitted an
inquiry report dated 26.07.2021.

6. It is the petitioner's case that no
oral inquiry was conducted nor any witness
produced on behalf of the establishment to
prove the charge before the Inquiry
Committee. A fortiori, the petitioner had no
opportunity to cross-examine witnesses,
who
were
never
produced
by
the
establishment. It is, particularly, pleaded
that
the
Superintendent
of
Police
(Vigilance),
U.P.
Power
Corporation
Limited, who was the author of the
preliminary inquiry report and the one who
had collected materials/ documents, on the
foot of which the criminal prosecution as
well as the departmental proceedings,
subject matter of inquiry before the
Departmental Inquiry Committee, was
never produced as a witness by the
establishment to prove the solitary charge.

7. On the basis of the inquiry report
dated 26.07.2021, the petitioner was issued
with a show cause notice dated 02.08.2021
under Regulation 9 of the Regulations
asking him to put in his reply/ objections
against the findings in the inquiry report.
Upon receipt of the show cause notice, the
petitioner requested a month's time to file
his reply/ objections to the findings of the
Inquiry
Committee.
The
petitioner's
application made for the purpose was sent
by registered post on 16.08.2021. The
Disciplinary Authority, however, without
considering the petitioner's request last
mentioned proceeded to pass the impugned
order
of
penalty.
The
Disciplinary
Authority, who in this case is the Chief
Engineer
(HR-cum-Disciplinary
Proceedings)
of
the
Distribution
Corporation, proceeded to punish the
petitioner by an order dated 04.09.2021,
imposing the following punishments, to
wit, a censure entry, secondly, withholding
of five increments with cumulative effect,
and, thirdly, posting on an insensitive
position.

8. Aggrieved by the order of
punishment, the petitioner preferred an
appeal dated 18.10.2021 to the Appellate
Authority, that is to say, the Managing
Director of the Distribution Corporation
under Regulation 11 of the Regulations.
One of the grounds raised in the appeal was
that Rule 7 of the Regulations had not been
followed by the Inquiry Committee while
holding the inquiry nor the Disciplinary
Authority had gone into this issue. Faced
with the non-decision of his appeal, the
petitioner submitted a reminder dated
07.05.2022 addressed to the Disciplinary
Authority, but in vain.

9. The petitioner says that it came as a
surprise to him when more than a year and
a half later from the date of the order
passed by the Disciplinary Authority,
punishing him as last mentioned, a show
cause notice dated 10.03.2023 was served
upon him under Regulation 13(c) of the
Regulations by the Chairman of the
Corporation, asking him to show cause
against enhancement of the punishment
608 INDIAN LAW REPORTS ALLAHABAD SERIES
awarded within 15 days. The petitioner
challenged the show cause notice dated
10.03.2023 before this Court by means of
Writ-A No.9330 of 2023, amongst others,
on ground of the Chairman's lack of
jurisdiction to issue such a notice in the
exercise of powers under Regulation 13(c)
of the Regulations. Pending the said
petition, the Chairman proceeded to pass
the order impugned dated 07.06.2023,
enhancing the petitioner's penalty to one of
dismissal from service. In consequence,
Writ-A No.9330 of 2023 was dismissed as
infructuous by this Court on 3rd of July,
2023.

10. The petitioner questioned the
jurisdiction of the Chairman to act
 and enhance the penalty while submitting
his reply to the show cause notice. The
jurisdiction was questioned on ground that
the petitioner was a Class-III employee,
who was appointed to the erstwhile U.P.
State Electricity Board and the service
regulations applicable to him were the U.P.
Electricity Board (Office of Chief Engineer
and Subordinate Office) Regulations, 1970.
Under the aforesaid Regulations of 1970, it
was
the
Managing
Director
of
the
Distribution
Corporation,
who
could
exercise powers of the kind exercised by
the Chairman in relation to a Class-III
employee. The legality of the Chairman's
decision to issue a notice for enhancement
was also challenged on the ground that the
petitioner's departmental appeal against the
order of punishment passed by the
Disciplinary Authority was pending before
the Managing Director of the Distribution
Corporation, and yet, the Chairman of the
Corporation assumed jurisdiction , in the
exercise of his revisional powers, to punish
the petitioner, foreclosing the petitioner's
right to the decision of his pending appeal.

11. Apart from this, there are
detailed defences raised on the merits of the
charge to show on a balance of his sources
of income during the relevant period of
time that he could never be held guilty of
possessing assets or spending money
beyond his known sources of income. This
Court is not minded much to go into the
merits of the charge against the petitioner,
which after all, in the first instance, has to
be determined by the competent Authorities
in the Distribution Corporation or the
Corporation.

12. On 07.08.2023, when this matter
came up for admission before this Court,
this Court took note of the fact that the
establishment had not examined any
witness in support of their case, though the
charge against the petitioner was serious,
which could have led to the imposition of a
major penalty. The Inquiry Committee had
proceeded to record a finding of guilt in the
absence of any witness or oral evidence
being produced by the establishment. To
add to it was the feature that the then
Chairman of the Corporation, M. Devraj
took cognizance of the matter in the
exercise of his power under Regulation
13(c) of the Regulations, proceeded to issue
a show cause notice to the petitioner for
enhancement of the penalty imposed by the
Disciplinary Authority and enhanced it to
one of dismissal from service. Prima facie,
this appeared to be very exceptionable to
the Court, because in a matter where the
inquiry was held by the Committee in a
slipshod manner without the establishment
proving the charge in accordance with the
salutary principles, which require witnesses
to be examined by the establishment apart
from leading documentary evidence, the
Chairman acted to enhance the penalty.
Noticing these features, this Court on
07.08.2023 passed the following order:

"Let
M.
Devraj,
former
Chairman
Uttar
Pradesh
Power
3 All. Rakesh Kumar Sharma Vs. U.P. Power Corporation Ltd., Luckow & Ors.
609
Corporation Limited, Shakti Bhawan, 14Ashok Marg, Lucknow be impleaded as a
party respondent during the course of the
day.

M. Devraj, the then Chairman
Uttar Pradesh Power Corporation Limited,
Lucknow in an order passed by the
Disciplinary Authority whereagainst an
appeal was pending, intervened and
exercised his revisional jurisdiction under
Regulation 13 of the Uttar Pradesh Power
Corporation Limited Employees (Discipline
and
Appeal)
Regulations,
2020
and
enhanced the punishment awarded to the
petitioner to one of dismissal from service.
It appears upon a reading of the inquiry
report submitted in the matter that though
the charges against the petitioner were very
serious, and, if proved, would in all
likelihood lead to the imposition of a major
penalty, yet the establishment did not
examine any witness or lead oral evidence
to prove the charges.

The Chairman, who passed the
impugned order pending the appeal seeking
to exercise his revisional orders prima facie
seems to have scant knowledge of the law
and apparently is not legally trained. He
did not notice prima facie this flaw in
proceedings of the inquiry, which goes to
the root of the matter and proceeded to
enhance the punishment after a show cause
notice on the basis of an inquiry report
where the establishment had to establish
the charges by leading oral evidence.

Let M. Devraj, former Chairman
Uttar Pradesh Power Corporation Limited,
wherever he is posted currently, explain the
circumstances in which he failed to notice
the
aforesaid
gaping
flaw
in
the
proceedings before the Inquiry Officer
while passing the impugned order.

Let the incumbent Chairman,
Uttar Pradesh Power Corporation Limited,
Shakti Bhawan, 14-Ashok Marg, Lucknow
file his affidavit indicating his stand in the
matter on or before 18.08.2023.

The incumbent Chairman, Uttar
Pradesh
Power
Corporation
Limited,
Shakti Bhawan, 14-Ashok Marg, Lucknow
shall cause notice of this petition and the
order made today to be served upon M.
Devraj, former Chairman, Uttar Pradesh
Power
Corporation
Limited,
Shakti
Bhawan,
14-Ashok
Marg,
Lucknow,
wherever he is currently posted.

Lay this petition as fresh on
18.08.2023.

Let this order be communicated
to M. Devraj, former Chairman Uttar
Pradesh
Power
Corporation
Limited
through the Chairman, Uttar Pradesh
Power
Corporation
Limited,
Shakti
Bhawan, 14-Ashok Marg, Lucknow and to
the Chairman, Uttar Pradesh Power
Corporation Limited, Shakti Bhawan, 14Ashok Marg, Lucknow by the Registrar
(Compliance) within 24 hours."

13. By the orders passed on
07.08.2023, all that the Court wanted to
know was what made the then Chairman of
the Corporation, M. Devraj suddenly
swoop into action and without waiting for
the petitioner to avail his remedy of appeal
before the competent Authority under the
Regulations and without having the benefit
of the Appellate Authority's opinion,
proceed to enhance the punishment to one
of dismissal from service. This was,
particularly, thought by the Court to be
prima facie a very exceptionable course,
because the entire proceedings of the
inquiry were founded on a fundamentally
flawed procedure, as already pointed out.
Instead of availing the opportunity of
explaining himself by filing a personal
affidavit, M. Devraj, former Chairman of
the Corporation, now posted elsewhere,
took
exception
to
the
order
dated
610 INDIAN LAW REPORTS ALLAHABAD SERIES
07.08.2023, considering the prima facie
and very tentative remarks in that order an
affront to his office. Therefore, instead of
filing his personal affidavit, explaining his
position about the fundamentally flawed
procedure noticed by this Court on a
tentative opinion, he preferred a special
appeal to the Division Bench against the
order dated 07.08.2023. The Division
Bench by its judgment and order dated
17.08.2023 declined to interfere with the
order dated 07.08.2023 and remarked as
follows:

"24. Once the learned single
judge was seriously considering if the
Revising Authority had exceeded his
jurisdiction, it fell within his discretion to
seek impleadment of the Revising Authority.
Without forming any opinion as to that,
since the matter is pending before the
learned single judge, we only observe that
the discretion exercised by the learned
single judge does not call for interference,
at this preliminary stage. What may follow,
after
the
explanation
called
for
is
submitted, is not for us to foresee, at
present. In so far as neither personal
attendance has been enforced nor any
harsh consequence has arisen, there is no
serious injustice seen to have been caused
to the Revising Authority.

27. Therefore, we find no good
grounds to interfere in the discretion
exercised by the learned single judge
requiring the impleadment of the present
respondent-appellant, in the facts noted by
him. Yet, no issue has been decided and, in
any case, no vital right has been
adjudicated or altered, less so to the
prejudice of the Revising Authority, before
us.

28. Here it may be noted, even
before this Court, it has not been urged, let
alone admitted, that there was any
inadvertent
error
committed
by
the
respondent-petitioner, in appreciating the
basic facts that had led to the major
penalty being imposed by the Revising
Authority upon a exercise of his
jurisdiction, in a case where no oral
evidence may have been led during the
domestic enquiry proceedings.

29. Though, no conclusion is
being drawn as to that, in face of the writ
proceedings being pending before the
learned single judge, and also since the
current Chairman of the U.P. Power
Corporation has expressed his desire to
furnish his explanation, we observe, the
interests of justice may be better served, if
the present respondentappellant were to
comply with the impugned order, at this
stage.

30. As to the prima facie
observation made by the learned single
judge, though the learned Additional
Advocate General would contend that the
observations are premature and too harsh
and therefore, not warranted, it remains a
fact that all observations made, and
expressions used by the learned single
judge are only tentative. Perhaps they only
express the deep anguish that the Court
may have felt at the plight of the original
petitioner who may be prima facie
perceived to have suffered such a harsh
consequence of enhancement of a minor
punishment to a major punishment that too
at the hands of the highest departmental
authority, in circumstances, that prima
facie appeared to indicate, a fundamental
flaw in the domestic enquiry proceeding
i.e., the most severe punishment of
dismissal being handed down in absence of
the mandatory oral enquiry, that too in
exercise of suo moto jurisdiction.

31. In any case, all observations
made by the learned single judge are purely
tentative and not such as may have any
3 All. Rakesh Kumar Sharma Vs. U.P. Power Corporation Ltd., Luckow & Ors.
611
lasting effect. Such observations made
would have life till the proceedings are
concluded and/or till the explanation of the
Revising Authority is considered by the
learned single judge. They are not and
cannot be read as strictures passed by the
learned single judge as may warrant any
interference at this premature stage. Being
ex parte in the context of an explanation
called, those are more to sensitize and
make aware the Revising Authority, the
consequence of the "fundamental flaw" if
any.

32. We are also mindful of the
fact that the learned single judge has called
for an explanation to be furnished by the
Revising Authority to ascertain what may
have led to the exercise of that power.
Neither any contempt proceeding has been
drawn up nor the personal appearance of
the Revising Authority has been enforced.
Therefore, it remains perfectly open to it, if
he so desires to make a clean breast of the
situation before the learned single judge or
to plead ignorance or even inability to
furnish any reply on merits, as per his
choice and legal advice.

33. While offering corrections,
the Court always maintains the balance
and
proportionality
required
in
that
function - to remain within the four corners
of the law, in dealing with an erring litigant
or official. Thus, we have no hesitation to
observe that in case the respondentappellant were to furnish an honest
explanation,
whatever
that
be
and
howsoever unsustainable in law that may
appear to be, the learned single judge
would
certainly
consider
the
same
according to the law and offer only that
much correction, if required, as may be
warranted, to serve the interests of justice
and good administration. In the absence of
any allegation of personal mala fide
pleaded, it is premature to imagine any
other consequence may arise.

34. The fact that the respondentappellant may have been posted out and
may no longer be able or required to go
into the record of the case is not an issue
that may detain us. For that purpose, the
explanation appears to have been called
from the Chairman of the UPPCL. As
stated by Sri Abhishek Srivastav, that
explanation is being furnished.

35. Issue of jurisdictional error
being involved, it further appears that the
learned single judge may have felt
necessary to ascertain the basic facts to
consider
offering
only
that
much
correction, if warranted as may be
necessary so that those mistakes, if found
true on record, may not recur.

36. In any event, at this stage no
legal injury is seen to have been caused to
the Revising Authority, upon an explanation
being called, during a judicial proceeding.
In so far as the explanation called cannot
be
described
as
extraneous
to
the
"fundamental flaw" noted by the learned
single judge, we leave every aspect of the
matter to be considered by the learned
single judge. The mere inconvenience that
may have arisen to the Revising Authority
may never be enough to maintain this
appeal, at this stage.

37. So far as the decisions relied
upon by the learned Additional Advocate
General are concerned, no doubt the
principles
are
well
settled
in
our
jurisprudence. In the first place, no
strictures may be passed ex parte. Second,
no stricture may be offered more than that
required by way of a correction or
otherwise
and,
third no
disparaging
remarks or harsh language may be used,
without prior notice.

38. The order of the learned
single judge, though inconvenient and not
612 INDIAN LAW REPORTS ALLAHABAD SERIES
to the personal like of the Revising
Authority, it neither contains any final
observation nor it is a stricture made nor
does it contain any conclusion reached.
What the learned single judge has pointed
out are his own doubts that the order
passed
by
the
respondent-appellant
appears to be wholly contrary to law and
impermissible as per the rule of law.

39. However, the order may be
worded, it may not persuade us to entertain
the present appeal. In view of the facts
noted above, we observe, the views
expressed by the learned single judge are
only a prima facie opinion that per se are
not expressed in an intemperate language
as may be seen to have caused any injury to
the Revising Authority.

40. Accordingly, we decline to
exercise our limited jurisdiction in this
matter to entertain the present appeal, at
this stage. At present, we leave it to the best
judgment of the learned single judge to
consider the explanation to be furnished by
the respondent-appellant, on its own merits
and to offer a measured correction, if
required, as may be enough in the facts of
the present case."

14. On this issue, this Court is
constrained to say that we never strictured
M. Devraj, the former Chairman of the
Corporation, which in any case could not
have been done without due notice to him.
Our order dated 07.08.2023 was one to
bring to his notice what we thought
tentatively were flaws in the order
impugned going to the root of the matter
and know from him what made him act in
the manner he did. Instead of availing that
opportunity, M. Devraj displayed hair
trigger sensitivity and appealed to the
Division Bench an order which was not of
any moment. He has filed his personal
affidavit after the Division Bench declined
to interfere.

15. We may say at this stage that no
party to a lis before this Court, whether
private or official, ought to take umbrage to
the orders of this Court, carrying remarks
pointing out follies in their orders on a
tentative
basis
to
enable
the
party
concerned
to
explain himself before
judgment is passed. In the personal
affidavit, that has been filed by M. Devraj,
annexing a copy of the orders of the
Division Bench, which he has quoted in
extenso in his affidavit, there is a clear
stance in Paragraph No.7, which says that
he regards our remarks in the order dated
07.08.2023 with offence, dubbing these as
'ex parte remarks against the deponent'. It
would be of profit to quote Paragraph No.7
of the personal affidavit filed by M. Devraj,
which reads:

"7. That the Hon'ble Court in the
order dated 7.8.2023 has passed exparte
remarks against the deponent, without even
affording an opportunity of hearing to him
and the deponent has had a consistently
progressive
and
unblemished
career
spanning to 27 years, and therefore it is
most respectfully prayed that the said
remark may kindly be expunged by the
Hon'ble Court."

16. As a perusal of Paragraph No.7 of
the personal affidavit would show, the
former Chairman of the Corporation still
regards the remarks as strictures against
him and prays that these be expunged. He
has cited the credit of his progressive and
unblemished career, spanning 27 years, to
take umbrage to the remarks that he seeks
to be expunged. Here, it may be again
worthy of note that their Lordships of the
Division Bench, while disposing of M.
Devraj's appeal from our order dated
07.08.2023, made it clear that the said
order, '..... though inconvenient and not to
3 All. Rakesh Kumar Sharma Vs. U.P. Power Corporation Ltd., Luckow & Ors.
613
the personal like of the Revising Authority,
it neither contains any final observation
nor it is a stricture made nor does it
contain any conclusion reached'. In view of
the said remarks by their Lordships of the
Division Bench, M. Devraj should have felt
satisfied that there are no strictures passed
by us against him. Still, we are constrained
to remark that he did not rest content with
the clarification made by the Division
Bench that there are no strictures against
him. Instead, in his personal affidavit vide
Paragraph No.7, he has asked us to
expunge the strictures carried in the order
dated 07.08.2023. Once, their Lordships of
the Division Bench have said that there are
no strictures in our order dated 07.08.2023,
there is absolutely no occasion or necessity
for us to expunge those remarks of nonblemish. Nevertheless, since M. Devraj has
asserted
that
these
still,
to
his
understanding, are strictures, which must
be expunged, this Court must clarify that
those remarks are not at all strictures.

17. Why the remarks, which M.
Devraj thinks are strictures, that ought to be
expunged, are not so, we think ought to be
clarified to place the record straight. The
relevant remarks read:

"The Chairman, who passed the
impugned order pending the appeal seeking
to exercise his revisional orders prima facie
seems to have scant knowledge of the law
and apparently is not legally trained. He
did not notice prima facie this flaw in
proceedings of the inquiry, which goes to
the root of the matter and proceeded to
enhance the punishment after a show cause
notice on the basis of an inquiry report
where the establishment had to establish
the charges by leading oral evidence.

Let M. Devraj, former Chairman
Uttar Pradesh Power Corporation Limited,
wherever he is posted currently, explain the
circumstances in which he failed to notice
the
aforesaid
gaping
flaw
in
the
proceedings before the Inquiry Officer
while passing the impugned order."

18. For one, the remarks, above
quoted, are all prefaced with the expression
prima facie, which shows them to be
tentative and intended to elicit the former
Chairman's response to the flaws noticed. If
the former Chairman thinks that the remark
that prima facie he seems 'to have scant
knowledge of law' and apparently is 'not
legally trained', are strictures, we think he
is mistaken. It is a fact that the former
Chairman of the Corporation is an
administrative officer, who is not a trained
lawyer. The distinction between one who is
trained in the law and one who is not, and,
therefore, called a 'lay officer', is wellknown to the law. If the same remark, again
tentative in nature, had been made by this
Court in the context of a judicial officer, it
might have been regarded as a stricture,
albeit still in contemplation. It is never
expected that an administrative officer
would have knowledge of the law or at
least
a
profound
knowledge
of
it.
Therefore, the remark in the context of an
administrative officer like M. Devraj, is
only a statement of fact with no blame
attached. If an administrative office in
passing an order discloses legal prowess, it
would stand to his credit; if he does not, it
would not stand to discredit his stature in
any manner. At the same time, since the
Chairman of the Corporation, like many
other administrative officers, has been
entrusted with functions of decision making
and the decisions being those that have
serious adverse civil consequence on rights
of individuals, say employees in the
establishment,
the
decisions
have
to
conform
to
the
basic
and
broad
614 INDIAN LAW REPORTS ALLAHABAD SERIES
requirements of the law about procedural
fairness etc. laid down by Courts. If a
decision falls foul of the settled legal
position, the Court has to correct it.

19. To lay this part of the matter at
rest, it is clarified that since there are no
strictures passed against M. Devraj vide
order dated 07.08.2023, there is no
occasion to expunge anything.

20. Now, turning to the merits of the
order impugned. The first issue is if the
Chairman of the Corporation should have
invoked his revisional powers under
Regulation 13(c) of the Regulations to
enhance the penalty awarded by the
Disciplinary Authority, where an appeal by
the petitioner was pending before the
Appellate Authority, that is to say, the
Managing Director of the Distribution
Corporation.
The
objection
by
the
petitioner that pending his appeal before
the Appellate Authority, the Revisional
Authority, by interceding in the matter, has
deprived him of his right of statutory
appeal,
has
been
answered
by
the
Corporation in Paragraph No.12 of the
counter affidavit. The stand taken is that the
petitioner had preferred an appeal dated
18.10.2021 to the Managing Director of the
Distribution Corporation, which was before
an incompetent forum. The petitioner was
informed vide letter 18.02.2023 that as the
punishment order dated 04.09.2021 was
passed after due approval of the Managing
Director of the Distribution Corporation, he
should prefer an appeal to the Managing
Director of the Corporation, instead.

21. It is pointed out that by the letter
dated 08.02.2023 issued by the Executive
Engineer in the office of the Distribution
Corporation, the petitioner was informed
that his appeal was being rejected as the
Appellate Authority was the Managing
Director
of
the
Corporation
under
Regulation 11(1) of the Regulations and not
the Managing Director of the Distribution
Corporation. The petitioner never availed
this opportunity and preferred an appeal to
the Managing Director of the Corporation.
The case, therefore, on behalf of the
Corporation, is that when the Chairman of
the Corporation exercised his revisional
powers under Regulation 13 of the
Regulations, there was indeed no appeal
pending at the petitioner's instance. The
petitioner has rebutted the Corporation's
case that his appeal was rejected by the
Managing Director of the Distribution
Corporation as he was not the competent
Appellate Authority under the Regulations
and an intimation dated 08.02.2023 sent to
him on behalf of the Managing Director of
the Corporation,pleading a specific case to
the following effect, carried in Paragraph
No.17 of the rejoinder affidavit:

"17. .......... It is further submitted
that, the letter dated 08.02.2023 Annexed as
C.A-3 and referred in the paragraph under
reply was never served upon the petitioner
before passage of impugned order dated
07.06.2023.

It is pertinent to mention here that
appeal again order dated 07.09.2021 was
preferred by the petitioner by means of
appeal dated 18.10.2021 before respondent
no.3 and thereafter, petitioner has moved a
reminder
dated
7.05.2022
before
respondent no.3 praying for expeditious
disposal of his pending appeal, but neither
any reply to be said request was made to
the petitioner nor appeal dated 18.10.2021
was decided.

Now, it is for the first time,
respondent corporation is coming up with
the plea, that the appeal dated 18.10.2021
was already turned down by means of letter
3 All. Rakesh Kumar Sharma Vs. U.P. Power Corporation Ltd., Luckow & Ors.
615
dated
08.02.2023,
addressed
to
the
petitioner by Superintending Engineer
(Disciplinary Proceeding), DVVNL, Agra,
on the ground that since the original
punishment order dated 04.09.2021 was
passed on the approval of respondent no.3,
therefore, appeal has to be filed before next
higher authority to be MD UPPCL,
Lucknow.

As far as the aforesaid letter dated
08.02.2023 is concerned it is submitted that
the appeal dated 18.10.2021 remained
pending before respondent no.3 for almost
17 months, but neither the same was
decided nor any reason for keeping the
same pending was ever communicate to the
petitioner
despite
of
reminder
dated
07.05.2022 and just before a month of
issuance of notice dated 10.03.2023 under
regulation, 13(c) of regulation 2020 by
respondent no.2, the order dated 08.2.2023,
vide letter No.1762, is stated to be passed
addressing the petitioner, which was never
served upon the petitioner by any mode
known to the law, nor any documentary
evidence has been filed alongwith the order
or with the counter affidavit to prove
service of the same upon the petitioner,
therefore, the order dated 08.02.2023
cannot be considered at this stage. ....."

22. There is indeed nothing on record
to show that the order dated 08.02.2023
was delivered to the petitioner or even
dispatched to him. A perusal of the order
dated 08.02.2023 shows that the order was
sent to the petitioner's office at Etah, where
he was posted. If indeed, the order dated
08.02.2023 had been served upon the
petitioner, there would be some kind of a
record or acknowledgment evidencing
service.