# Smt. Neetu Chaudhary v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 37
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-11
- **Case number:** Writ A No. 16420 of 2024
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-neetu-chaudhary-v-state-of-u-p-ors-51016
- **Pages:** 7

## Headnote

Law
-
Constitution
of
India,1950-Disciplinary
proceedingsNatural
justice-Procedural
Flaws
in
Inquiry-Dismissal
quashed-The
court
quashed the dismissal of the petitioner,
who was an office Assistant -III in UPPCL,
due to procedural irregularities in the
disciplinary inquiry-The inquiry committee
failed to follow principles of natural
justice
and
procedural
requirements
(absence of witness examination and
cross-examination opportunities and lack
of evidence to prove charges beyond
presumptions)
under
the
UPPCL
Employees(Discipline
and
Appeal)
Regulations 2020-The court emphasized
that in disciplinary inquiries leading to
major penalties charges must be proven
with documentary and oral evidence-The
burden of proof lies on the establishment,
and procedural safeguards cannot be
waived-Thus, the dismissal and appellate
orders were set aside-The petitioner was
ordered to be reinstated with liberty to
the respondents to conduct a fresh inquiry
while
ensuring
adherence
to
proper
disciplinary procedures.(Para 1 to 18)

The writ petition is allowed. (E-6)

List of Cases cited:
38 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

11 All. Smt. Neetu Chaudhary Vs. State of U.P. & Ors.
37
such official is retired, the amount of the
interest shall be recovered from his/her post
retiral benefits/pension after furnishing
him/her opportunity.

iii) It will be open to the State
Government to initiate proceedings against
such
official
for
taking
action
for
misconduct in terms of the Rules, 1995, if
he is in service.

50. In view of the above,
respondents are directed to pay the simple
interest at the rate of 9% from the one
month after the death of petitioners father
till the date of actual payment to them and
further to pay the GPF within a month ,if it
has already not been paid, along with the
interest at the rate of 9% as held above."

7.
The
aforesaid
judgment
was
followed
by
this
Court
in
Sanjay
Upadhyay and 5 others Vs State of U.P.
and 3 others (Writ-A No. 459 of 2019).

8. In the wake of preceding discussion
and the authorities in point this Court finds
that the respondents are liable to pay
interest to the petitioner for the delayed
payment for pension and other terminal
dues of the deceased employee. The
interest amount is fixed at 8 percent per
annum (considering the rate of interest).
The
interest
shall
be
payable
from
18.08.2005 till 23.12.2019. The interest
shall be calculated and released in favour of
the petitioner within a period of three
months from the date of receipt of a
certified copy of this order. In case the
amount is not released within the aforesaid
period the concerned official shall be held
liable for the delayed payment of interest
after expiry of three months.

9. The writ petition is allowed.
----------
(2024) 11 ILRA 37
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2024

BEFORE

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

Writ A No. 16420 of 2024

Smt. Neetu Chaudhary ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
R.K. Mishra

Counsel for the Respondents:
Abhishek Srivastava, C.S.C.

A.
Service
Law
-
Constitution
of
India,1950-Disciplinary
proceedingsNatural
justice-Procedural
Flaws
in
Inquiry-Dismissal
quashed-The
court
quashed the dismissal of the petitioner,
who was an office Assistant -III in UPPCL,
due to procedural irregularities in the
disciplinary inquiry-The inquiry committee
failed to follow principles of natural
justice
and
procedural
requirements
(absence of witness examination and
cross-examination opportunities and lack
of evidence to prove charges beyond
presumptions)
under
the
UPPCL
Employees(Discipline
and
Appeal)
Regulations 2020-The court emphasized
that in disciplinary inquiries leading to
major penalties charges must be proven
with documentary and oral evidence-The
burden of proof lies on the establishment,
and procedural safeguards cannot be
waived-Thus, the dismissal and appellate
orders were set aside-The petitioner was
ordered to be reinstated with liberty to
the respondents to conduct a fresh inquiry
while
ensuring
adherence
to
proper
disciplinary procedures.(Para 1 to 18)

The writ petition is allowed. (E-6)

List of Cases cited:
38 INDIAN LAW REPORTS ALLAHABAD SERIES
1. St. of U.P. & ors. Vs Saroj Kr. Sinha (2010) 2
SCC 772

2. Roop Singh Negi Vs PNB & ors. (2009) 2 SCC
570

3. St. of Uttaranchal & ors. Vs Kharak
Singh(2008) 8 SCC 236

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

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

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

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

1. This writ petition is directed against
an order of the Managing Director, U.P.
Power Corporation Limited, Lucknow (for
short,
'the
Corporation')
dated
12th
October, 2023 dismissing the petitioner
from service and directing recovery of a
sum of Rs. 37,94,105/- from the him on
account of loss caused to the Corporation.
Also, under challenge is an appellate order
dated 29.08.2024 passed by the Chairman
of
the
Corporation
dismissing
the
petitioner's
departmental
appeal
and
affirming the order of first instance passed
by the Managing Director.

2. Shorn of unnecessary details, the
petitioner was an Office Assistant-III in the
Office
of
the
Executive
Engineer
Electricity Urban Distribution Division-I,
Noida. The petitioner's case is that she was
given financial duties within three months
of
joining
service
contrary
to
the
Corporation's Circular dated 05.03.1994
which provides for assignment of financial
duties to employees after they have put in
at least ten years of service. The petitioner
was given charge of capital accounts and
also mediclaims besides G.P.F. She was
also given duties of revenue collection
from consumers. The petitioner was asked
by the Executive Engineer to return her
receipt books, which she indicated in her
reply to have already been deposited. Her
salary for the month of June, 2016 was
stopped
but
later
on
released
on
15.10.2016. The petitioner's reply was
sought, apparently regarding some shortfall
in deposit of monies collected. By a letter
dated 17.07.2017, the Executive Engineer
Electricity Urban Distribution-I, Noida
directed the petitioner to deposit a sum of
Rs. 37 lacs which she had allegedly
collected but not deposited. The petitioner
says that there is no evidence by even as
much as a hint indicating that the petitioner
had not deposited what she had collected.
The demand was based on a presumption.
The petitioner submitted a detailed reply in
the matter on 19.07.2017 clearly showing
that
the
inference
was
founded
on
presumptions. It is the petitioner's case that
without considering her reply, she was
placed under suspension pending inquiry
by the Superintending Engineer vide order
dated 18.09.2017. She was attached to the
Office
of
the
Executive
Engineer,
Electricity Urban Distribution, VI Noida.
She was later on attached to the Office of
the Chief Engineer by an order of the
Executive Engineer dated 28.10.2017.

3.
The
grievance
also
is
that
subsistence allowance was not regularly
paid to the petitioner during the period of
her suspension. She was also reported to
the Police vide Case Crime No.1090 of
2017, under Sections 420, 409 I.P.C.,
Police Station Sector 24 Noida, District
Gautam Budh Nagar. She was arrested and
later on enlarged on bail by this Court vide
order dated 03.12.2019 passed in Criminal
Misc. Bail Application No. 38507 of 2018.
11 All. Smt. Neetu Chaudhary Vs. State of U.P. & Ors.
39
The petitioner was served with a charge
sheet dated 15.10.2020 carrying a charge to
the effect that she had failed to deposit the
sum of Rs.37,94,015/- in the Corporation's
account that she had collected. Another
charge that the charge sheet carried was
about non maintenance of documents. The
petitioner sought copies of the documents
relied upon in the charge sheet that were
not provided to her, as her case goes, but
she was in the end permitted to inspect the
original records in the Office of the
Managing Director of the Corporation vide
letter dated 15.12.2021. The petitioner
submitted her reply, answering the charges
on 10.05.2022 before the Inquiry Officer,
denying the charges and putting forward
her defence.

4. It is the petitioner's case that while
the inquiry, on the basis of the first charge
sheet,
was
in
progress
before
the
Paschimanchal
Vidyut
Vitran
Nigam
Limited, whereunder the petitioner was
immediately serving, another charge sheet
dated 03.08.2022 was served upon the
petitioner by the Chief Engineer, Inquiry
Committee of the Corporation on the
selfsame charges as carried in the earlier
charge sheet. The petitioner says that she
sought time to answer the second charge
sheet, praying a month for the purpose by a
letter dated 13.9.2022. She was granted
seven days time. The petitioner claims that
she sought copies of the evidence, or in the
alternate, inspection of documents vide her
letter dated 04.11.2022. The case is that
without giving her opportunity, the Inquiry
Committee submitted their report, holding
the petitioner guilty. Amongst other things,
it is pleaded in paragraph nos. 20, 27, 28,
30 and 31 of the writ petition that no date,
time and place of holding the inquiry was
fixed and no witnesses produced by the
Establishment in support of the charges.

5. When this petition came up for
admission on 22.10.2024, we passed the
following order:

"A short point is involved in this
writ petition, which is directed against an
order of dismissal from service. The point
is that no date, time and venue of inquiry
was fixed by the Inquiry Officer/Inquiry
Committee and that no witnesses were
examined by the Establishment in support
of the charges.

Issue notice.

Notice on behalf of respondents
Nos. 2 and 3, by Mr. Abhishek Srivastava,
learned Counsel. He is granted two weeks'
time to file a counter affidavit. Ms. Amrita
Singh, learned Additional Chief Standing
Counsel, accepts notice on behalf of
respondent No. 1. She will have the same
period of time to file a return, if the first
respondent desires to put in one.

Since a short point is involved, let
this petition come up again on 11.11.2024.

To be taken up as fresh, along with
a report regarding status of pleadings.

It is, however, clarified that
respondents Nos. 2 and 3, in filing their
affidavits, will particularly answer paragraphs
Nos. 20, 30 and 31 of the writ petition.

The Registrar (Compliance) is
directed to communicate this order to the
Managing
Director,
U.P.
Power
Corporation Limited, Lucknow and the
Chairman,
U.P.
Power
Corporation
Limited, Lucknow, both through the
learned Chief Judicial Magistrate,
Lucknow within 24 hours next."

6. Two counter affidavits have been
filed
by
Mr.
Abhishek
Srivastava,
Advocate, one on behalf of respondent no.
3 and the other on behalf of respondent no.
2. Both are taken on record. Let these be
numbered by the office.
40 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Learned counsel for the petitioner
waives his right to file a rejoinder.

8. Admit.

9. Heard forthwith.

10. Heard Mr. R.K. Mishra, learned
counsel for the petitioner and Mr. Abhishek
Srivastava, learned counsel appearing on
behalf of respondent nos. 2 and 3 and Mr.
S.C. Upadhyay, learned Standing Counsel
appearing on behalf of the State.

11. The counter affidavit filed by the
Chairman of the Corporation, though
asserts that on 18.08.2022 an opportunity
of hearing was given to the petitioner fixing
the date, time and place on 29.08.2022 at
12 noon for a personal hearing, we do not
think that the inquiry was at all held
according
to
the
salutary
principles
governing the holding of inquiries where a
major penalty may be imposed. When it is
said that date, time and place for holding
the inquiry ought be intimated to the
delinquent, what is meant is that a date,
time and place should be scheduled where
evidence on behalf of the Establishment
would be heard by the Inquiry Officer.
Likewise, in answer to the averments that
no witnesses were examined on behalf of
the Establishment, all that is said is that
Regulation 7(5) of the Uttar Pradesh Power
Corporation
Limited
Employees
(Discipline and Appeal) Regulation 2020
(for short, 'the Regulations 2020') requires
that along with charge sheet, a copy of the
documents and list of witnesses should be
provided to the employee, and Regulation
7(7) further provides that in case, the
employee denies the charges, the Inquiry
Committee should call the proposed
witnesses to record their evidence. It is then
said that if names of no witnesses are cited
in the charge sheet, the Inquiry Committee
cannot be said to have committed a mistake
in not examining the Establishment's
witnesses.

12. We are afraid that the stand taken
by the respondents on this score also is
utterly flawed. It is by now well settled that
salutary principles governing the holding of
a departmental inquiry into charges that
may lead to imposition of a major penalty,
postulate that the Inquiry Officer or
Committee
must
convene
themselves
formally into an impartial tribunal. Even if
they are employees of the Establishment,
they must distance themselves from that
role and sit as an impartial arbitrator. The
Inquiry Committee or the Inquiry Officer
must require the Establishment to prove the
charges by evidence, produced through a
presenting officer, which should include
both documentary and oral evidence. It is
imperative in major penalty cases that
witnesses on behalf of the Establishment,
who
prove
the
charges,
should
be
examined. The witnesses produced by the
Establishment would prove the documents
produced on behalf of the Establishment,
and further, testify to other facts that may
not be forthcoming by the mute words that
the documents carry. Also, it has to be
borne in mind that the charges are not true
because these come on the credit of a
charge sheet put in by the Establishment.
Rather, the Inquiry Committee should
consider the charges with a clean slate and
require the Establishment to prove them in
the first instance, by producing evidence,
both oral and documentary, as already said.
It
is
after
the
witnesses
for
the
Establishment have been examined and
offered
to
the
delinquent
for
cross
examination that the burden of the
Establishment may be said to be over. It is
after this stage that the delinquent may be
11 All. Smt. Neetu Chaudhary Vs. State of U.P. & Ors.
41
called upon to establish his defence, again
following the same procedure of producing
both documentary and oral evidence. Of
course,
witnesses
produced
by
the
delinquent would also be available for
cross examination to the Establishment. It
is of seminal importance that if the
delinquent does not produce any evidence,
it is not that the Inquiry Officer must, by
that default, accept the Establishment's
case proved. The burden still remains on
the Establishment to prove the charges by
evidence aliunde of the kind and in the
manner
that
we
have
indicated
hereinabove. Apart from it, the day when
the Establishment is called upon to lead
their evidence, the Inquiry Officer or
Committee must fix a date, time and place
for that purpose. It is in this sense that the
requirement of fixing a date, time and place
for holding the inquiry is understood. It is
not in the sense in which the respondents
have construed it.

13. What the respondents have done,
as would appear from the order sheet, is
that on 29.08.2022 they heard the petitioner
personally without hearing any evidence
for the Establishment. This shows that they
presumed the charges to be proved. Upon
the petitioner complaining that she had not
received a copy of the charge sheet, they
ensured provision of one to her, directing
her to submit a reply within the time
specified.
They
further
recorded
a
statement of the employee to the effect that
she did not desire a personal hearing and all
that she says in her reply to the charge
sheet, the inquiry may be concluded on that
basis. It is further recorded that the Inquiry
Committee asked the petitioner, if she
wants to produce any witness or cross
examine anyone; she declined. An affidavit
to the same effect in a printed proforma
was secured from the petitioner and is
annexed to the return. A xerox copy of the
affidavit which is on record shows that it
hardly conforms to the requirements of an
affidavit at all. It does not appear to carry a
valid statement made on oath nor does it
carry the details of the deponent as required
in an affidavit. It also lacks a verification
clause. Most importantly, it does not show
that the affidavit has been sworn before a
notary public empowered by law to certify
the deposition.

14. All this apart, the order sheet
betrays singular lack of understanding by
the respondents of the essentials of a valid
inquiry into a charge, likely to lead to the
imposition of a major penalty. It does not
intimate if 29.08.2022 was the date fixed
for hearing evidence on behalf of the
Establishment
that
was
the
first
requirement which the respondents were
obliged to undertake. Rather, the Inquiry
Committee heard the petitioner in the first
instance, instead of the Establishment being
required to produce evidence in support of
the charges. The assertions that the remark
in the order sheet that the petitioner said
that she did not want to examine the
witnesses, is besides the point. In the order
of things it was imperative to require the
Establishment to prove the charge by
producing their witnesses and of course,
leading documentary evidence that was not
at all done. The remark that the petitioner
said that she did not wish to cross examine
witnesses, is again besides the point
because no witnesses for Establishment
was ever examined, whom she could cross
examine.

15. A reading of the order sheet shows
that the entire Establishment, in particular,
the
Inquiry
Committee,
were
utterly
ignorant of the essentials of the salutary
procedure to hold an inquiry into charges of
42 INDIAN LAW REPORTS ALLAHABAD SERIES
this kind and consequence. The petitioner,
who
is
apparently
a
compassionate
appointee and may not be well-versed with
the
requirements
of
procedure
in
departmental proceedings, seems to have
gullibly signed, what the respondents call
an affidavit in a printed proforma and said
that she did not want to cross examine,
what the Inquiry Committee recorded in the
order sheet. Sadly none of the proceedings,
taken in a matter of this enormity where the
likelihood of a major penalty loomed large
over the petitioner's head, comply with the
salutary requirements of holding a valid
inquiry as pointed out hereinabove. Also,
the inquiry is not in accordance with the
Rule 7 of the Regulation 2020 framed by
the Corporation themselves.

16. The question that there is a
salutary principle which requires, in the
case of a major penalty, the fixation of a
date, time and place for holding the inquiry,
and further, requiring the Establishment to
prove the charges through production of
oral and documentary evidence before the
Inquiry Committee by a presenting officer
on their behalf, is well acknowledged in
view of the law laid down by the Supreme
Court in State of Uttar Pradesh and
others v. Saroj Kumar Sinha, (2010) 2
SCC 772, Roop Singh Negi v. Punjab
National Bank and others, (2009) 2 SCC
570, State of Uttaranchal and others v.
Kharak Singh, (2008) 8 SCC 236 and the
Bench decisions of this Court in State of
U.P. and another v. Kishori Lal and
another, 2018 (9) ADJ 397 (DB) (LB),
Smt. Karuna Jaiswal v. State of U.P.,
2018 (9) ADJ 107 (DB) (LB) and State of
U.P. v. Aditya Prasad Srivastava and
another, 2017 (2) ADJ 554 (DB) (LB).

17. In view of what we have said
above, the inquiry being flawed, the orders
passed by the Disciplinary Authority as
well as the Appellate Authority cannot be
sustained. The orders would have to be
quashed with liberty to the respondents to
proceed
afresh.
Of
course,
in
the
interregnum, the petitioner would have to
be reinstated in service subject to terms that
we have indicated hereinafter.

18. The writ petition is allowed. The
impugned order dated 12.10.2023 passed
by the Managing Director, U.P. Power
Corporation Limited, Lucknow as well as
the order dated 29.08.2024 passed by the
Chairman,
U.P.
Power
Corporation
Limited, Lucknow are hereby quashed.
The
respondents
shall
reinstate
the
petitioner in service but it would be open to
the respondents to proceed afresh against
her on the basis of the charge sheet, on the
foot of which the impugned order was
passed.

19. It is made clear that if the
respondents elect to proceed afresh against
the petitioner, it will be open to them to
place the petitioner under suspension. In
the event, the respondents elect to pursue
fresh proceedings, the petitioner shall be
entitled
to
her
current
salary
but
emoluments for the period during which
she has remained out of service, shall abide
by the final result of the disciplinary
proceedings. In the event further that the
respondents
also
elect
to
place
the
petitioner
under
suspension
pending
inquiry, the petitioner shall be entitled to
subsistence allowance from the date of that
order which shall be paid regularly without
asking her to furnish a non alternative
engagement certificate. In either case, if
disciplinary proceedings are pursued afresh
by the respondents, the same shall be
expedited and concluded early wherein the
petitioner will cooperate.
11 All. Saurabh Srivastava Vs. State of U.P. & Ors.
43

20. Costs easy.
----------
(2024) 11 ILRA 43
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A No. 17117 of 2024

Saurabh Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rahul Mishra, Saroj Kumar Yadav, Vikram
Bahadur Singh

Counsel for the Respondents:
C.S.C., Hare Ram

A. Service Law - Transfer Policy - Principle
of "Last Come First Go" - Classification of
Teachers on Basis of Length of Service -
Constitution of India, Art. 14 - Test of
Reasonable Classification under Article 14
- U.P. Basic Education (Teachers) Service
Rules,
1981
-
U.P.
Basic
Education
Teachers Service Regulations, 1981 -
Right to Education Act, 2009 - U.P. Right
of Children to Free and Compulsory
Education Rules, 2011 - Clauses 3, 7, 8, &
9
of
the
Government
Order
dated
26.06.2024 issued by the Basic Education
was challenged. Clause 3 provided that
surplus teachers as per the bench mark of
the pupil-teacher ratio are to be shifted to
schools where such bench mark remains
unfulfilled. Clause 7 provides that transfer
of teachers would be under the principle
of "last come first go" whereby the junior
most teacher would be shifted out first.
Clauses were challenged on the ground
that it would entail frequent transfers of
junior teachers while maintaining senior
teachers in the same school for years
together. Held: Impugned clauses of the
G.O. do not indicate any reasoning as to
why the aforesaid principle is required to
be followed for transfer/adjustment of
teachers. By introducing such a concept, a
classification has been made pertaining to
those teachers who have been posted in a
particular school longer than others who
have been posted there subsequently. If
the aforesaid procedure prescribed under
the impugned clauses is kept intact, it
would entail frequent transfer of junior
teachers while keeping intact the posting
of senior teachers for all times to come
since a teacher after transfer and joining
in another district would ipso facto remain
a junior. No intelligible differentia has
been indicated either in the Government
Order, the circular or even in the counter
affidavit . Procedure for "last in first out"
also does not appear to have any rational
nexus with the object sought to be
achieved by the Act of 2009 and the Rules
framed
thereunder.
Court
found
the
classification to be discriminatory and
failing
the
test
of
reasonable
classification. (Para 57, 58, 59)

B. Civil Law - Service Law - U.P. Basic
Education (Teachers) Service Rules, 1981
- Clauses 3, of the G.O. dated 26.06.2024
- Inclusion of Shiksha Mitra in Parity with
Assistant Teachers Impermissible under
Service
Rules
-
Clause
3
of
the
Government Order, which provides for
transfer or adjustment by considering the
number of Shiksha Mitra employed in a
particular school, for determination of
Pupil-Teacher Ratio is contrary to the
Service Rules of 1981. Qualifications
required for appointment as an Assistant
Teacher are not applicable to Shiksha
Mitras, and therefore, the Government
Order clearly erred in equating the two.
Inclusion of Shiksha Mitra in parity with
Assistant Teachers is impermissible, as
executive orders can only supplement
statutory provisions but cannot supplant
or override them. Evidently, unequals
have been treated as equals. (61, 62, 63)

Dismissed. (E-5)

List of Cases cited: