# Ravi Shankar Dwivedi v. Union of India & Ors

- **Citation:** (2024) 1 ILRA 601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-09
- **Case number:** Writ-A No. 7342 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravi-shankar-dwivedi-v-union-of-india-ors-51379
- **Pages:** 12

## Headnote

A. Service Law - Disciplinary Proceedings
-
Principles
of
Natural
Justice
-
Requirement of Oral Evidence - Petitioner, a
bank employee, charged with embezzlement of
funds from two customers' accounts - Inquiry
Officer held charge proved based solely on
documentary evidence without examining any
witnesses - Disciplinary Authority imposed
compulsory retirement - Held, in disciplinary
proceedings involving major penalties, the
department must prove charges through oral
evidence by examining relevant witnesses,
particularly the complainants, to establish
unauthorized transactions - Failure to examine
witnesses, especially account holders alleging
forged signatures, constitutes a fundamental
602 INDIAN LAW REPORTS ALLAHABAD SERIES
procedural lapse vitiating the inquiry - Inquiry
Officer's findings based on unproven documents
and absence of oral evidence deemed perverse.
(Paras 15, 16, 17)

B.
Service
Law
-
Disciplinary
Proceedings - Role of Inquiry Officer -
Quasi-Judicial Function - Inquiry Officer
must act as an independent and impartial
adjudicator, not as a representative of the
department - Charges cannot be deemed
proved automatically due to non-participation
of the delinquent or absence of a reply -
Department bears the initial burden to prove
charges
through
oral
and
documentary
evidence - Failure to adduce oral evidence in
a case warranting major penalty violates
principles of natural justice. (Paras 16, 17, 21)

C. Service Law - Appellate Authority -
Duty to Address Grounds of Appeal -
Petitioner challenged Disciplinary Authority's
claim of guilt admission and lack of oral
evidence in appeal - Appellate Authority failed
to address these grounds - Held, nonconsideration of material contentions, including
the
absence
of
witnesses
and
disputed
confession,
renders
the
appellate
order
unsustainable. (Para 20)

D. Writ Jurisdiction - Alternative Remedy
- Pure Question of Law - Respondent-Bank
argued petitioner, as award staff, should seek
remedy under Industrial Disputes Act, 1947 -
Held, where a pure question of law arises, such
as
procedural
fairness
in
disciplinary
proceedings, writ jurisdiction can be exercised
despite
alternative
remedies
-
Plea
of
alternative remedy rejected as petition was
already admitted and involved legal issues.
(Paras 11, 12, 13)

Writ Petition Allowed in Part - Impugned
Orders Quashed - Matter Remanded for
Fresh Inquiry.

List of Cases cited:

## Text

1 All. Ravi Shankar Dwivedi Vs. Union of India & Ors.
601

15. The aforesaid view was followed
by Hon'ble the Supreme Court in Union of
India and others v. Chaman Rana10.

16. Subsequently, a Constitution
Benchy of Hon'ble the Supreme Court in
Senior
Divisional
Manager,
Life
Insurance Corporation v. Shree Lal
Meena11, considering the principle of delay
and laches, opined as under:-

"36. We may also find that the
appellant remained silent for years together
and that this Court, taking a particular view
subsequently, in Sheel Kumar Jain v. New
India
Assurance
Company
Limited,
(2011)12 SCC 197 would not entitle stale
claims to be raised on this behalf, like that
of the appellant. In fact the appellant slept
over the matter for almost a little over two
years even after the pronouncemtn of the
judgment.

37. Thus, the endeavour of the
appellant, to approach this Copurt seeking
the relief, as prayed for, is clearly a
misadventure, which is liable to be
rejected, and the appeal is dismissed."

17. Recently, in Bharat Coking Coal
Ltd. And othyers v. Shyam Kishore
Singh12, the issue regarding the delay and
laches, was considered by Hon'ble the
Supreme Court and a petition filed
belatedly, seeking change in the date of
birth in the service record, was dismissed.

18. Reference can also be made to the
Division Bench judgments of the Jammu
and Kashmir High Court in State of
J&K and others v. S. Bhupinder Singh13
and in Farooq Ahmad v. State of J&K
and others14.

19. Keeping in view the authoritative
enunciation of law, as referred to above, the
present Special Appeal challenging the
judgment and order passed by the learned
Single Judge dated July 07, 2021 whereby
the writ petition seeking a direction to the
respondents to consider and decide the
appeal dated December 30, 1995 filed by
her late husband, who was dismissed from
service way back in the year 1990, was
dismissed on the ground of delay and
laches, deserves to be dismissed.

20. Ordered accordingly.
----------
(2024) 1 ILRA 601
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2024

BEFORE

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

Writ-A No. 7342 of 2022

Ravi Shankar Dwivedi ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mohd. Samiuzzaman Khan, Sonamati Kumari

Counsel for the Respondents:
A.S.G.I., Sri Sanjai Singh,Sri Jayesh Pathak

A. Service Law - Disciplinary Proceedings
-
Principles
of
Natural
Justice
-
Requirement of Oral Evidence - Petitioner, a
bank employee, charged with embezzlement of
funds from two customers' accounts - Inquiry
Officer held charge proved based solely on
documentary evidence without examining any
witnesses - Disciplinary Authority imposed
compulsory retirement - Held, in disciplinary
proceedings involving major penalties, the
department must prove charges through oral
evidence by examining relevant witnesses,
particularly the complainants, to establish
unauthorized transactions - Failure to examine
witnesses, especially account holders alleging
forged signatures, constitutes a fundamental
602 INDIAN LAW REPORTS ALLAHABAD SERIES
procedural lapse vitiating the inquiry - Inquiry
Officer's findings based on unproven documents
and absence of oral evidence deemed perverse.
(Paras 15, 16, 17)

B.
Service
Law
-
Disciplinary
Proceedings - Role of Inquiry Officer -
Quasi-Judicial Function - Inquiry Officer
must act as an independent and impartial
adjudicator, not as a representative of the
department - Charges cannot be deemed
proved automatically due to non-participation
of the delinquent or absence of a reply -
Department bears the initial burden to prove
charges
through
oral
and
documentary
evidence - Failure to adduce oral evidence in
a case warranting major penalty violates
principles of natural justice. (Paras 16, 17, 21)

C. Service Law - Appellate Authority -
Duty to Address Grounds of Appeal -
Petitioner challenged Disciplinary Authority's
claim of guilt admission and lack of oral
evidence in appeal - Appellate Authority failed
to address these grounds - Held, nonconsideration of material contentions, including
the
absence
of
witnesses
and
disputed
confession,
renders
the
appellate
order
unsustainable. (Para 20)

D. Writ Jurisdiction - Alternative Remedy
- Pure Question of Law - Respondent-Bank
argued petitioner, as award staff, should seek
remedy under Industrial Disputes Act, 1947 -
Held, where a pure question of law arises, such
as
procedural
fairness
in
disciplinary
proceedings, writ jurisdiction can be exercised
despite
alternative
remedies
-
Plea
of
alternative remedy rejected as petition was
already admitted and involved legal issues.
(Paras 11, 12, 13)

Writ Petition Allowed in Part - Impugned
Orders Quashed - Matter Remanded for
Fresh Inquiry.

List of Cases cited:

1. A.P. Foods Vs S. Samuel & ors., (2006) 5 SCC
469

2. Dr. Bal Krishna Agarwal Vs St. of U.P. & ors.,
(1995) 1 SCC 614
3. Godrej Sara Lee Ltd. Vs Excise and Taxation
Officer-cum-Assessing Authority & ors., (2023) 3
SCC 157

4. St. of U.P. & ors. Vs Saroj Kumar Sinha,
(2010) 2 SCC 772

5. St. of U.P. & anr.Vs Kishori Lal & anr., 2010
(2) AWC 1628

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

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

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

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

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

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

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

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

14. Vinod Kumar Vs St. of U.P. & ors.,
unreported (Allahabad High Court)

15. Jai Prakash Vs Gen. Manager, Zonal Office &
ors., unreported (Allahabad High Court)

16. Ramesh Chandra Vs Punjab National Bank &
ors., unreported (Allahabad High Court)

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

The petitioner, Ravi Shanker Dwivedi,
was a Single Window Operator-A, a
member of the clerical staff employed with
the Punjab National Bank, Gorakhpur. He
was posted at the Urdu Bazar Branch of the
Punjab National Bank, Gorakhpur. He was
1 All. Ravi Shankar Dwivedi Vs. Union of India & Ors.
603
suspended
pending
inquiry
into
the
allegations of embezzlement of funds
relating to two customers, to wit, Munni
Devi, who was the holder of Account No.
0184000100257189
and
Om
Prakash
Verma,
holder
of
Account
No.
0184000100200844. A charge-sheet was
issued to the petitioner, carrying a solitary
charge, that reads to the following effect :

CHARGE : 1- At BO : Urdu Bazar two
customers Smt. Munni Devi A/c No. 0184000
100257189 and Shri Om Prakash Verma A/c
No.
0184000100200844
complained
of
unauthorised debts in their SF accounts it was
revealed
that
you
have
committed
unauthorised transactions/ withdrawals in the
SF accounts of these two customers on
different dates and embezzlement amount of
Rs. 3.65 lacs as under thereby jeopardizing the
interest of the bank.

Account No. 0184000100257189 of
Smt. Munni Devi :

Sr.
No.
Date
Amount Transaction
Id
User Id
1.
15.01.2019
20000
M863401
301223
RSD
2.
19.01.2019
20000
M627356
301223
RSD
3.
21.01.2019
20000
M785502
301223
RSD
4.
28.01.2019
20000
M848282
301223
RSD
5.
02.02.2019
20000
M683629
301223
RSD
6.
06.02.2019
10000
M652561
301223
RSD
7.
12.02.2019
20000
M715059
301223
RSD
8.
16.02.2019
20000
M447804
301223
RSD

Total
150000

Account No. 0184000100200844 of
Shri Om Prakash Verma:

Sr.
No.
Date
Amount Transaction
Id
User Id
1.
02.02.2019 20000
M160010
301223R
SD
2.
02.02.2019 20000
M680609
301223R
SD
3.
04.02.2019 20000
M823578
301223R
SD
4.
04.02.2019 20000
M1014365
301223R
SD
5.
06.02.2019 20000
M617645
301223R
SD
6.
11.02.2019 20000
M980932
301223R
SD
7.
12.02.2019 20000
M321542
301223R
SD
8.
12.02.2019 20000
M869709
301223R
SD
9.
16.02.2019 20000
M116541
301223R
SD
10.
16.02.2019 20000
M533862
301223R
SD
11.
16.02.2019 15000
M689347
301223R
SD

Total
215000

The matter has been reported as
Fraud to RBI.

Due to your above acts, Bank's
interest & reputation has been jeopardised.

The aforesaid acts of yours are
prejudicial to the interest of bank and
constiture Gross Misconduct as per clause
(j) of Paragraph 5 of Bipartite Settlement
dated 10/04/2002 as amended from time to
time.

2. A reply to the charge-sheet was
submitted by the petitioner on 14.02.2021,
604 INDIAN LAW REPORTS ALLAHABAD SERIES
denying the charge and pleading his
detailed defence. The Inquiry Officer
submitted his report dated 10.05.2021,
holding the charge proved. The petitioner
was served with a show-cause notice dated
01.06.2021
by
the
Deputy
General
Manager, Punjab National Bank, Circle
Office,
Gorakhpur,
acting
as
the
Disciplinary Authority. The show-cause
notice is detailed and after referring to the
solitary charge and the gist of findings, the
Inquiry Officer proposed to impose upon
the petitioner the penalty of compulsory
retirement with superannuation benefits i.e.
pension
and/or
Provident
Fund
and
Gratuity, without disqualification from
future employment.

3. In answer to the show-cause notice,
the petitioner showed cause by his reply
dated
09.06.2021.
The
Disciplinary
Authority, by an order passed on the same
day i.e. 09.06.2021, proceeded to punish
the petitioner with compulsory retirement,
granting superannuation benefits with no
disqualification from future employment.

4. Aggrieved by the order passed by
the Disciplinary Authority, the petitioner
preferred an appeal to the Appellate
Authority, the General Manager/Zonal
Manager, Punjab National Bank, Zonal
Office, Lucknow vide his appeal dated
06.07.2021. The Appellate Authority, by his
order dated 30.12.2021, dismissed the
appeal,
affirming
the
Disciplinary
Authority.

5. Disillusioned by the infliction of
penalty, the petitioner has preferred this
writ petition under Article 226 of the
Constitution.

6. Heard Mr. Mohd. Samiuzzaman
Khan, learned Counsel for the petitioner
and Mr. Jayesh Pathak, Advocate holding
brief of Mr. Sanjai Singh, learned Counsel
appearing on behalf of the respondentBank.

7. The thrust of Mr. Khan's
submissions is that the impugned orders
have been passed on the foot of an inquiry
report, where the Establishment did not
prove the charge against the petitioner in
the manner imperative in a case involving
the infliction of major penalty. Elaborating
his submission, it is pointed by Mr. Khan
that during the inquiry, though there was a
Presenting
Officer
and
a
Defence
Representative to represent the petitioner,
the Establishment did not produce a single
witness in support of the solitary charge.
All that was produced was documentary
evidence, with no witness to prove those
documents on behalf of the Establishment.
Learned
Counsel
for
the
petitioner
emphasizes that the charge here was about
embezzlement of a sum of ₹1,50,000 from
the account of Munni Devi and a sum of
₹2,15,000 from the account of Om Prakash
Verma. The charge was based on a
complaint made by these customers that
there were illegal withdrawals from their
bank account. The respondent-Bank have
held the charge proved by saying that the
withdrawals
were
made
through
withdrawal forms, where the signatures on
the withdrawal forms did not match with
the specimen. It was, therefore, imperative
for the Bank, in a case like the present one,
to examine the two complainants as
witnesses before the charge could be
proved against the petitioner.

8. It is next submitted that there is
some kind of a confession by the petitioner,
going by the fact that the sum of money
allegedly embezzled was got credited to the
two aggrieved account holders' account by
1 All. Ravi Shankar Dwivedi Vs. Union of India & Ors.
605
the petitioner's mother, paying it out of her
own bank account. The submission is that
while payment of the embezzled money to
the
complainant(s)
made
in
certain
circumstances may be understood as
admission,
it
is
equally
true
that
considering the sum of money involved, a
delinquent or a relative acting on his behalf
might think that it would serve as a
reprieve from the consequences of a wrong
never done, which, otherwise, might bring
severe punishment for no good reason. It is
particularly argued by the learned Counsel
for the petitioner that the remark in the
Disciplinary Authority's order to the effect
that the petitioner, in the personal hearing
before him, had accepted his guilt/charge,
is absolutely incorrect and was specifically
challenged by the petitioner through a
ground raised in the memorandum of
appeal to the Appellate Authority. It is
pointed out that the Appellate Authority, in
the order impugned, has not at all
considered the said ground or other
relevant grounds, including the one that no
witness was examined on behalf of the
Establishment before the Inquiry Officer to
prove the charges. It is urged that
conclusions drawn by the Authorities are
perverse, based on irrelevant evidence,
apart from the fact that in proceedings
before the Inquiry Officer, the charge has
not been proved by examining witnesses,
imperative in a case where a major penalty
is likely to be imposed upon the delinquent.

9. Mr. Jayesh Pathak, Advocate
holding brief of Mr. Sanjai Singh, learned
Counsel for the Bank, on the other hand,
has supported the impugned orders. He has
emphasized that the Disciplinary Authority
has awarded the punishment of compulsory
retirement, after considering the entire
evidence on record and it is not for this
Court to sit in appeal over the Disciplinary
Authority's
wisdom, or
that
of
the
Appellate Authority. It is particularly
emphasized that what can be challenged
before this Court is the decision-making
process and not the correctness of the
decision. Learned Counsel has placed
reliance upon the decision of the Supreme
Court in A.P. Foods v. S. Samuel and
others1 to submit that the petitioner, being
a member of the award staff, this Court
ought not to entertain his writ petition and
relegate him instead, to his alternative
remedy under the Industrial Disputes Act,
19472. He has drawn the attention of this
Court to an unreported decision of our
Court in Ramesh Chandra v. Punjab
National Bank and others3, where the
petitioner, who had challenged his order of
dismissal from service after departmental
proceedings, was relegated to the forum
constituted
under
the Act
of
1947,
following the decision of the Supreme
Court in A.P. Foods (supra).

10. Further reliance has been placed
by the learned Counsel for the Bank upon
the Bench decision of this Court in Jai
Prakash v. Gen. Manager, Zonal Office
and others4 to submit that the scope of
judicial review is very limited, and, as said
earlier, confined to ensuring due provision
of opportunity and procedural fairness;
nothing more. It is also urged on the foot of
the Authority of the Bench decision last
mentioned
that
discipline
in
an
organisation, particularly, a Bank, is
dependent upon all officers acting and
operating within the ambit of their
authority.

11. This Court has considered the
submissions made on behalf of learned
Counsel for the parties. So far as the
preliminary objection raised on behalf of
the respondent-Bank is concerned that the
606 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, being a member of the award
staff, should invoke his remedies under the
Act of 1947, we do not find tenable for
more than one reason. The foremost is that
this petition was entertained by this Court
on 16.05.2022, when no objection of this
kind was raised. Now that the parties have
exchanged affidavits and the matter ready
for hearing on merits, a plea of alternative
remedy, in our opinion, ought not to be
entertained. The other is that primarily, the
petitioner has raised a pure question of law
whether the inquiry to find him guilty was
procedurally fair in that, that no evidence
was examined to prove the solitary charge
against him, which ought to have been
done, going by the salutary procedure
governing an inquiry, where the result is
likely to be the imposition of a major
penalty. If the question primarily to be
examined is purely legal, relegation to an
alternative remedy under the Statute may
not be tenable. After all, the principle of
alternative remedy is a rule of convenience;
not ouster. Where a pure question of law is
involved, the Supreme Court has leaned in
favour of entertaining a writ petition and
deciding it on merits in Dr. Bal Krishna
Agarwal v. State of U.P. and others5. In
Dr. Bal Krishna Agarwal (supra) it was
observed :

10. Having regard to the aforesaid
facts and circumstances, we are of the view
that the High Court was not right in
dismissing the writ petition of the appellant
on the ground of availability of an
alternative remedy under Section 68 of the
Act especially when the writ petition that
was filed in 1988 had already been
admitted and was pending in the High
Court for the past more than five years.
Since the question that is raised involves a
pure question of law and even if the matter
is referred to the Chancellor under Section
68 of the Act it is bound to be agitated in
the court by the party aggrieved by the
order of the Chancellor, we are of the view
that this was not a case where the High
Court should have non-suited the appellant
on the ground of availability of an
alternative remedy. We, therefore, propose
to go into the merits of the question
regarding inter se seniority of the appellant
and Respondents 4 and 5. We may, in this
context, mention that Respondent 4 has
already retired in January 1994.

(emphasis by Court)

12. A very recent exposition of the
principle is to be found in Godrej Sara
Lee Ltd. v. Excise and Taxation Officercum-Assessing Authority and others6
where it has been held :

8. That apart, we may also
usefully refer to the decisions of this Court
reported in (1977) 2 SCC 724 (State of
Uttar Pradesh v. Indian Hume Pipe Co.
Ltd.) and (2000) 10 SCC 482 (Union of
India v. State of Haryana). What appears on
a plain reading of the former decision is
that whether a certain item falls within an
entry in a sales tax statute, raises a pure
question of law and if investigation into
facts is unnecessary, the high court could
entertain a writ petition in its discretion
even though the alternative remedy was not
availed
of;
and,
unless
exercise
of
discretion is shown to be unreasonable or
perverse, this Court would not interfere. In
the latter decision, this Court found the
issue raised by the appellant to be pristinely
legal requiring determination by the high
court without putting the appellant through
the mill of statutory appeals in the
hierarchy. What follows from the said
decisions is that where the controversy is a
purely legal one and it does not involve
disputed questions of fact but only
1 All. Ravi Shankar Dwivedi Vs. Union of India & Ors.
607
questions of law, then it should be decided
by the high court instead of dismissing the
writ petition on the ground of an
alternative remedy being available.

(emphasis by Court)

13. In view of the nature of
controversy here, apart from the fact that
parties have exchanged pleadings, this
Court is not inclined to entertain the
respondents'
objection
regarding
the
availability of an alternative remedy to the
petitioner. We reject the objection.

14. This Court has looked into the
inquiry report and finds that though the
Presenting Officer has produced a number
of documents, marked as 'management
exhibits' in support of the charges, not a
single witness has been examined on behalf
of the Bank to prove the charge vis-à-vis
either of the two complainant-account
holders. The findings recorded by the
Inquiry Officer read :

Assessment
of
Evidence
and
Findings:

a. In both the cases, it is eviden that
unauthorized transactions were made and
upon
receiving
the
complaint
the
embezzled amount got recovered and
finally letter of satisfaction of obtained
since the embezzled amount.

b. All the signatures which were told
to be obtained by the customer itself are not
on the specified place.

C. Though PO was not able to proof
that any of the signature available on the
record
were
forged
but
on
three
withdrawals difference of signatures is
clearly visible.

d. In both the cases embezzled
amounts were was settled through the
account of charge sheeted employee's
mother.

In view of the above I hold charge "I"
as PROVED.

15. There is no cavil between parties
on the issue that the Management never
endeavoured to prove their case by
examining even a solitary witness in
support of the charge. The charge is about
unauthorized withdrawal of money from
the account of the two customers. All that
was led by way of tomes in evidence are
documents endeavouring to show that on
the
particular
withdrawal
forms,
the
signatures of the customers, the two
account holders, Munni Devi and Om
Prakash Verma, did not tally. A charge of
this kind has, in any case, to be proved by
production of relevant witnesses, quite
apart from the salutary principle that in
every case, where there is a likelihood of
imposition of a major penalty, witness(es)
must be examined by the Establishment to
prove the charge(s). Here, it is all the more
necessary, given the nature of the charge. It
would be imperative for the Bank to
examine the two account holders, who said
that there was an unauthorized withdrawal
from their account. If produced in evidence
and shown the withdrawal forms, where
unauthorized signatures were alleged, they
would either affirm the fact of their
signatures being not there, or deny it. If
they deny it, it would be open to the
petitioner to cross-examine them and then
lead his own evidence. It is, perhaps, on
account of absence of the two witnesses on
behalf of the Establishment that the Inquiry
Officer has recorded a finding, holding the
charge proved, based on the complaint
about
the
unauthorized
transaction,
followed by credit of the complainant's
accounts with unauthorized sums of money
by the petitioner's mother. The Inquiry
Officer, however, returned a finding that
the Establishment could not prove that the
608 INDIAN LAW REPORTS ALLAHABAD SERIES
signatures on the withdrawal forms were
forged. Still, he has said that it is visible
that there was a difference in signatures on
three of the withdrawal forms. This kind of
a finding is open to be termed as perverse,
looking to the way the Inquiry Officer has
guessworked through idle papers, in the
absence of the two customers in the witness
box, whose signatures, the Management
say, were forged on the withdrawal forms.
This Court is constrained to hold that there
is a fundamental procedural lapse in not
examining
the
two
complainants
as
witnesses at the inquiry vitiating the
proceedings, oral evidence in matters
involving the imposition of a major penalty
being a salutary imperative.

16. The question whether the mere
fact of the petitioner depositing through his
mother in the account of the account
holders (complainants) would amount to a
confession, may be an issue best left open
to be determined by the Bank, after an
inquiry is undertaken in accordance with
law, where oral evidence of the two
witnesses and any other witness, whom the
Bank wish to examine, is led. The principle
that it is necessary to examine witnesses in
an inquiry, where the likelihood is the
imposition of a major penalty, in the event
the charge is proved, is a principle too well
settled to brook doubt. In this connection,
reference may be made to the holding in
State of U.P. and others v. Saroj Kumar
Sinha7 where it was observed by their
Lordships of the Supreme Court :

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.

17. Also of much relevance is the
Bench decision of this Court in State of
U.P. and another v. Kishori Lal and
another8, where it has been held :

13. Similar view was taken in
Roop Singh Negi v. Punjab National Bank,
(2009) 2 SCC 570 :

'Indisputably,
a
departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
1 All. Ravi Shankar Dwivedi Vs. Union of India & Ors.
609
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.''

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 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
610 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.

18. I have subscribed to the same
principle in Vinod Kumar v. State of U.P.
and others9.

19. This Court particularly noticed in
this case that a plea was raised in the
grounds of appeal before the Appellate
1 All. Ravi Shankar Dwivedi Vs. Union of India & Ors.
611
Authority vide paragraph No. 9 of the
memorandum of appeal, which reads :

9. Sir, no witness has been
produced by the prosecution. Even the
customers as mentioned under para 3, were
not called on before the enquiry. Sir, mere
production of the document is not enough,
contents of documentary evidence has to be
proved. Under the law of evidence it is
necessary that contents of documents are
required to be proved either by primary or
by secondary evidence, and at the most,
admission of documents may amount to
admission of contents, but not its truth. Sir,
by not producing witness this very
important guideline has not been adhered
to. Hon'ble Disciplinary Authority also did
not consider this important aspect of the
case.

20. This plea was not at all dealt with
by the Appellate Authority, while deciding
the appeal. May be, the Appellate Authority
was not at all trained to understand the
significance of the principle that witnesses
have to be examined in disciplinary
proceedings involving the likelihood of a
major penalty being awarded. This Court
must also remark that the observation in the
order
of
the
Disciplinary
Authority
impugned to the effect that in the personal
hearing,
the
petitioner
accepted
his
guilt/charge, as contained in the chargesheet dated 06.02.2021, appears to be
absolutely without basis. This remark of the
Disciplinary Authority was also challenged
in appeal by raising a specific ground in
paragraph No. 18, saying that it is against
the facts on record. It is averred by the
petitioner that to the best of his knowledge
and belief, he never accepted any kind of
wrongdoing.
One
could
raise
the
presumption of regularity in official actions
and discard the petitioner's case on this
ground alone, but this is a case where the
Disciplinary Authority has purported to act
on almost a confession by the petitioner.
Therefore, fairness of procedure would
require that the petitioner's statement in this
regard,
if
he
appeared
before
the
Disciplinary Authority on 09.06.2021,
ought to have been recorded in writing and
got duly signed by him, after explaining
him the consequences thereof. It would
certainly not be open to the Disciplinary
Authority to act on any kind of an
admission or confession said to be made by
the petitioner in a case where he has all
along denied the charges right from the
stage of his reply to the charge-sheet,
proceedings of the inquiry and his reply to
the show-cause notice, all of which disclose
his stand in writing. The appellate order
hardly deals with these very material
contentions raised by the petitioner, and on
that ground alone, the orders impugned
cannot be sustained. All these material
contentions, that have not been dealt with
by the Appellate Authority, have been
indicated hereinabove.

21. It goes without saying that the
respondents would have liberty to proceed
from the stage of the charge-sheet afresh
and pass fresh orders, holding inquiry, if
they so elect, bearing in mind the guidance
in this judgment. It is also clarified that
upon the matter being remanded, in
adherence to another salutary principle, it
would not be open to the respondents to
impose, if they so find and hold, a
punishment higher than the one now
inflicted and proposed to be quashed by
this Court.

22. In the result, this writ petition
succeeds and stands allowed in part. The
impugned orders dated 09.06.2021 passed
by the Deputy General Manager, Circle
612 INDIAN LAW REPORTS ALLAHABAD SERIES
Office, Punjab National Bank, Gorakhpur
and the order dated 30.12.2021 passed by
the Zonal Manager, Human Resource
Development,
Zonal
Office,
Punjab
National Bank, Lucknow are hereby
quashed. The petitioner shall be reinstated
in service forthwith and paid his current
salary regularly, month by month. It will be
open to the respondents to proceed afresh
against the petitioner from the stage of the
charge-sheet, bearing in mind the guidance
in this judgment. If the respondents elect to
proceed afresh, the petitioner shall not be
entitled to arrears of salary for the period
that he has remained out of employment,
and the question of arrears shall then abide
by the result of fresh proceedings. If,
however, no proceedings are taken, the
petitioner shall be entitled to 50% of the
arrears of his salary and all other
emoluments. In either case, if no fresh
proceedings are pursued, or these are
pursued and the petitioner reinstated,
without a terminal punishment, he would
be entitled to all other benefits of continuity
and seniority. The respondents, in the event
of taking fresh proceedings, if they find the
petitioner guilty again, shall not impose a
punishment higher than that imposed by the
orders impugned and quashed by this
Court.

23. There shall be no order as to costs.
----------
(2024) 1 ILRA 612
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.01.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 7791 of 2023

Mahesh Chandra Agarwal ...Petitioner
Versus
Rent Tribunal, A.D.J. & Ors. ...Respondents

Counsel for the Petitioner:
Nandini Verma, Aparjita Bansal

Counsel for the Respondents:
C.S.C., Shresh Agarwal

A. Tenancy Law - UP Regulation of Urban
Premises Tenancy Act, 2021- Sections
21(2) (m) & 35 - Eviction suit - Ground of
arrear of rent as well as of personal need
was taken - Tenant-petitioner alleged no
service of notice upon him - Rent
authority passed eviction order only after
considering the aspect of personal need -
Validity challenged - Service of prior
notice - Necessity - Held, S. 21 would
indicate that 12 grounds have been
specified for moving an application for
eviction against the tenant. Only grounds
(b), (d) and (g) provide for service of
notice prior to moving an application for
eviction - There is no requirement of
service of prior notice where eviction was
sought on the ground of personal need as
provided in clause (m) of section 21(2) of
the Act of 2021, and hence it is not
necessary
to
go
into
the
issue
of
sufficiency of notice. (Para 16 and 19)

B. Tenancy law - UP Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - UP Regulation of Urban
Premises Tenancy Act, 2021 - Act of 1972
is replaced by Act of 2021 - Substantial
difference in the procedure - Under the
Act of 2021 an obligation is cast upon the
landlord and the tenant to enter into
agreement in writing and inform the rent
authority within two months of the said
agreement either jointly or separately
provided that the tenancy is for a period
of 12 months or more. (Para 11)

Writ petition dismissed. (E-1)

(Delivered by Hon'ble Alok Mathur, J.)

1. The petitioner being aggrieved by
the order dated 29/08/2023 passed by the
Additional District and Sessions Judge