# Snehlata v. Registrar & Commissioner, Cooperative U.P. Lko & Ors

- **Citation:** (2023) 11 ILRA 879
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-A No. 13188 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/snehlata-v-registrar-commissioner-cooperative-u-p-lko-ors-49431
- **Pages:** 9

## Headnote

Law
-
Termination
-
Disciplinary Proceeding against bank's
employee - Charge of payment made in
dormant account contrary to norms -
Neither date, time and place of enquiry
was fixed and intimated to the charged
employee nor evidence, particularly oral
evidence, was produced on behalf of the
establishment - Effect - Burden of proof,
on whom lie - Held, the employers have,
of course, the burden to prove the charges
by producing evidence - The enquiry
report is classically one that falls foul of
the principles, requiring the establishment
to lead evidence before the Inquiry Officer
through a presenting officer, treating the
Inquiry Officer as an impartial arbiter. It
also falls foul of the principles that the
establishment has to establish the charge,
may be by preponderant probability, even
if the employee does not offer defence or
produce evidence. (Para 24, 25 and 26)
List of Cases cited:

## Text

11 All. Snehlata Vs. Registrar & Commissioner, Cooperative U.P. Lko & Ors.
879
being appointed as an Officiating/Incharge
Principal of the institution in question thus,
this Court is not addressing upon the issue
with regard to the disqualification so
attached in view of the relationship norm as
per
the
clauses
in
the
scheme
of
administration.

44. Accordingly, this Court is of the
firm opinion that the order of the District
Inspector of Schools, Ghazipur impugned
dated 6.6.2023 cannot be sustained and is
liable to be set aside and is set aside.

45. Resultantly, the writ petition
stands allowed.
----------
(2023) 11 ILRA 879
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

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

Writ-A No. 13188 of 2023

Snehlata ...Petitioner
Versus
Registrar & Commissioner, Cooperative
U.P. Lko & Ors. ...Respondents

Counsel for the Petitioner:
Sri Uday Pratap Singh

Counsel for the Respondents:
C.S.C., Sri Devendra Pratap Singh, Sri
Satyam Singh

A.
Service
Law
-
Termination
-
Disciplinary Proceeding against bank's
employee - Charge of payment made in
dormant account contrary to norms -
Neither date, time and place of enquiry
was fixed and intimated to the charged
employee nor evidence, particularly oral
evidence, was produced on behalf of the
establishment - Effect - Burden of proof,
on whom lie - Held, the employers have,
of course, the burden to prove the charges
by producing evidence - The enquiry
report is classically one that falls foul of
the principles, requiring the establishment
to lead evidence before the Inquiry Officer
through a presenting officer, treating the
Inquiry Officer as an impartial arbiter. It
also falls foul of the principles that the
establishment has to establish the charge,
may be by preponderant probability, even
if the employee does not offer defence or
produce evidence. (Para 24, 25 and 26)
List of Cases cited:
1. Roop Singh Negi Vs P.N.B. & ors. ; (2009) 2
SCC 570
2. State of U.P. & anr. Vs Kishori Lal & anr.;
2018 (9) ADJ 397 (DB) (LB)
3. Dukh Haran Prasad Vs St. of U.P. & ors. ;
2015 (3) ADJ 677
4. St. of Uttaranchal & ors. Vs Kharak Singh;
(2008) 8 SCC 236

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

1. This writ petition is directed
against an order dated 17.06.2021 passed
by the Secretary/ Chief Executive Officer,
Zila Sahkari Bank Limited, Ghazipur,
dismissing the petitioner from service and
the order dated 13.06.2022 passed by the
Commissioner and Registrar, Cooperative,
U.P., Lucknow, rejecting the petitioner's
representation against the said order.

2. The petitioner's husband was a
Branch Manager at the District Cooperative
Bank, Ghazipur. He died in harness on
17.09.2007. After his death, the petitioner
applied for compassionate appointment and
the Bank aforesaid, who are arrayed as
respondent Nos.2 and 3 to this petition,
considered the petitioner's case, finding her
fit to be appointed. Orders in this regard
were passed on 26.04.2008 by respondent
880 INDIAN LAW REPORTS ALLAHABAD SERIES
No.2. The petitioner, acting on the order of
appointment, joined on 29.04.2008. She
was posted at the Head Office of the
District Cooperative Bank, Ghazipur. Later
on, the petitioner was transferred and
posted as a Clerk/ Cashier in the Jangipur
Branch of the District Cooperative Bank in
the month of January, 2012.

3. According to the petitioner,
misfortune befell her, when she was placed
under suspension, pending enquiry vide an
order dated 21.06.2018. Alongside the
petitioner, the Branch Manager of the
Bank, Ashok Kumar Singh was also placed
under suspension. The basis of the
disciplinary
proceedings
against
the
petitioner was a preliminary enquiry report
dated 12.06.2018. It was submitted by a
Section Officer (Audit) to the Secretary/
Chief
Executive
Officer,
District
Cooperative Bank Ltd. The report had
opined that the petitioner, in collusion with
the Branch Manager, had made certain
payments in dormant accounts worth
Rs.5,49,934/- contrary to norms of the
Reserve Bank of India. It was also found
that further payment of a sum of
Rs.1,24,028/- in eight accounts, which were
dead accounts, had also been made, besides
settlement of an overdraft of Rs.5000/- in a
dormant account.

4. In consequence of whatever was
found in the preliminary inquiry or the
impressions formed on its basis, the
petitioner was served with a charge-sheet
dated 22.11.2018, laying three charges
against her, to wit:

"आरोप संख्या 1-

जांच के दौरान पाया र्या क्रक क्रवक्रभन्न खातो पर
क्रवर्त वषो र्े र्ृतक दजि क्रकया र्या िै, जब क्रक आप द्वारा खाते र्े
र्ृतक दजि िोने के बावजूद जान-बूझकर बैंक की साख को प्रभाक्रवत
करते ि ए एक सोची सर्झी साक्रजश के तित रू 1,35,028.00
का भुर्तान कर र्वन / अपिरर् क्रकया र्या, क्रजसके आरोप से
आपको आरोक्रपत क्रकया जाता िै। क्रजसका क्रववरर् संलग्न सूची के
िर्ांक 3, 6, 10, 26, 31, 44, 48, 49 एंव 68 पर
अंक्रकत िै।

आरोप संख्या-2 -

जांच के दौरान पाया र्या क्रक आप द्वारा खातो र्े
पयािप्त अवशेष निी रिने पर भी बैंक्रकंर् क्रनयर्ो की अविेलना करते
ि ए रू० 23,000.00 का भुर्तान कर र्बन / अपिरर् क्रकया
र्या िै, क्रजसके कारर् खातो र्े ओवर ड्राफ्ट (अक्रधक्रवकषि) की
क्रस्थक्रत उत्पन्न ि ई। जो आपके स्वेच्छाचाररता का पररचायक िै। अतः
आपको इस अरोप से आरोक्रपत क्रकया जाता िै। क्रजसका क्रववरर्
संलग्न सूची के िर्ांक सं0 38, 46, 75, 142, 145, 162,
एवं 204 पर अंक्रकत िै ।

आरोप संख्या - 3-

जांच के दौरान पाया र्या क्रक आप द्वारा
अपररचाक्रलत खातो से क्रबना के0 वाई0 सी0 नाम्सि पूर्ि कराये
अक्रनयक्रर्त ढंर् से रू0 1127316.00 का भुर्तान क्रकया र्या
जो बैक्रकंर् क्रनयर्ो के क्रवपरीत िै। इस प्रकार के भुर्तान करके आप
द्वारा र्बन / अपिरर् एवं क्रवत्तीय अक्रनयक्रर्तता की र्यी िै, क्रजसके
आरोप से आपको आरोक्रपत क्रकया जाता िै। क्रजसका क्रववरर् संलग्न
सूची के उपरोि (आरोप सं0 1 एवं आरोप सं0 2 र्ें अंक्रकत)
िर्ांक के अक्रतररि िै।"

5. The petitioner submitted a reply to
the charge-sheet on 14.01.2019 and in the
opening part said that despite the letters
dated 04.12.2018 and 08.01.2019, she was
not supplied the proof of charges, which
have been laid against her. It was pleaded
that the payment of Rs.1,35,028/- had been
done on the directions of the Branch
Manager, who was authorised to check the
signatures on the withdrawal form and tally
these with the photographs. She was not
authorised to tally the signatures and
photographs of the account holders. It was
also said that in the ledger account, there
was no entry or note that the account holder
11 All. Snehlata Vs. Registrar & Commissioner, Cooperative U.P. Lko & Ors.
881
is dead. As regards Charge No.2, the
petitioner said in brief that the overdraft in
the seven accounts had been made as the
earlier withdrawal forms were not entered/
posted in the ledger account. Therefore, it
was not clear whether there was sufficient
balance in the account or not and the
petitioner proceeded to make payments.

6. Answering Charge No.3, it has
been said by the petitioner that carrying out
the KYC exercise in accordance with
norms was the duty for the Branch
Manager, who failed to carry it out. It was
not remotely the petitioner's duty to verify
the KYC relating to the account holder
before making payments. The petitioner,
accordingly, said that she deserved to be
exonerated.

7. It is the petitioner's case that after
she had submitted a reply, the Secretary/
Chief Executive Officer, Ghazipur issued a
show cause notice dated 12.04.2019,
without a copy of the enquiry report, saying
that the Inquiry Officer had considered the
petitioner's
reply
dated
14.01.2019,
examined the documents and found all the
charges against the petitioner to be proved.
Therefore, the petitioner was asked to
submit a reply within fifteen days, stating
why her services may not be terminated.
The petitioner submitted a reply to the
show cause notice dated 12.04.2019,
denying all the charges, and further said
that the Inquiry Officer had held the
enquiry ex parte without affording the
petitioner any opportunity to defend
herself.

8. The petitioner was then served with
a further notice dated 28.02.2020, saying
that her reply to the show cause notice had
not been found satisfactory and it was
proved that she had embezzled funds of the
Bank and committed gross financial
irregularities causing loss. The petitioner,
therefore, was required to show cause why
she should not be dismissed from the
Bank's service. Fifteen days were granted
to further show cause.

9. To this added notice, the petitioner
submitted a
reply
dated
12.03.2020,
categorically saying that no enquiry had
been held by the Inquiry Officer. It was
said in this reply that the Inquiry Officer
had not fixed a date, time and place of
enquiry and no witnesses were examined
nor the petitioner allowed to cross-examine
witnesses. It was also said that the
petitioner was not afforded opportunity to
produce witnesses and, therefore, the
enquiry proceedings were vitiated.

10. The petitioner was then served
with a notice dated 17.08.2020 directing
the petitioner to deposit a sum of
Rs.6,60,436/- within fifteen days in view of
a
proposal
of
the
Committee
of
Management
to
that
effect
dated
11.06.2020. The petitioner has asserted that
no
proposal
by
the
Committee
of
Management was provided to her. She
demanded a copy of the proposal dated
11.06.2020 passed by the Committee of
Management, but it was never supplied.
The petitioner, who is a widowed woman,
serving on a compassionate tenure, was
advised that she would be reinstated if she
deposited Rs.6,60,436/-. The petitioner,
therefore, encashed her entire savings and
deposited these in the bank's account on
11.09.2020. Thereafter, there was a lull for
a long period of time.

11. The petitioner addressed a memo
to
the
Chief
Executive
Officer
on
22.01.2021 followed by another one on
21.06.2021, with the prayer that she is
882 INDIAN LAW REPORTS ALLAHABAD SERIES
under suspension for more than three years,
but no decision had been taken as yet. It
was also stated that the petitioner had not
been paid subsistence allowance for sixteen
months and she was unable to maintain her
small children, taking care of their studies.
It was also said that her husband passed
away during the Covid-19 pandemic. The
lockdown imposed had caused great
difficulties
for
the
petitioner.
The
petitioner, therefore, prayed that her
subsistence allowance be released.

12. The respondents resolved to
terminate the petitioner's services. They
sent a proposal to the Institutional Service
Board in accordance with Regulation 87 of
the Uttar Pradesh Cooperative Societies
Employees Service Regulations, 1975 (for
short,
'the
Regulations
of
1975').
Subsequently, the petitioner was served
with the dismissal order dated 17.06.2021.

13. It is averred in paragraph No.17 of
the writ petition that while going through
the order, the petitioner came to know that
a resolution to dismiss the petitioner from
service had been passed by the Committee
of Management of the Bank on 01.03.2019,
and there was no mention of the resolution
of the Committee of Management dated
11.06.2020, referred to in the notice dated
17.08.2020, requiring the petitioner to
deposit a sum of Rs.6,60,436/-. It is also
averred that the petitioner, thinking that she
would
be
reinstated,
deposited
Rs.6,60,436/-, after encashing all her
savings. There is no mention in the
impugned order about the resolution of
11.06.2020 or the sum of money deposited
by the petitioner.

14. The petitioner preferred an appeal
before the Commissioner and Registrar,
Cooperative Societies U.P. on 20.04.2022
under Section 128 of the Uttar Pradesh
Cooperative Societies Act, 1965 (for short,
'the Act of 1965'), challenging the order of
dismissal dated 13.06.2022. The said
appeal, described by the Commissioner and
Registrar,
Cooperatives,
as
a
representation, was held not maintainable
against the order of dismissal under Section
128 of the Act of 1965. It was, accordingly,
dismissed as not maintainable.

15. Aggrieved, the present writ
petition has been instituted.

16. A counter affidavit has been filed
on behalf of respondent Nos.2 and 3 in
compliance
with
the
order
dated
10.08.2023 on 23.08.2023. On the said
date, the learned Counsel for the petitioner
made a statement at the Bar that he did not
wish to file a rejoinder.

17. Mr. Satyam Singh, learned
Counsel appearing on behalf of respondent
No.4 also made a statement that he does not
intend
to
file
a
counter
affidavit.
Accordingly, on 23.08.2023, the petition
was
admitted
and
heard
forthwith.
Judgement was reserved.

18. Heard Mr. Uday Pratap Singh,
learned Counsel for the petitioner, Mr. D.P.
Singh, learned Counsel on behalf of
respondent Nos.2 and 3, Mr. Satyam Singh,
learned Counsel on behalf of respondent
No.4 and Mr. Dinesh Kumar Singh, learned
Additional Chief Standing Counsel on
behalf of the State.

19. This Court has keenly considered
the submissions advanced by the learned
Counsel for both sides.

20. In paragraph No.20 of the writ
petition, it is averred that the Inquiry
11 All. Snehlata Vs. Registrar & Commissioner, Cooperative U.P. Lko & Ors.
883
Officer
did
not
conduct
a
regular
departmental enquiry as per rules. No date,
time or place was fixed by the Inquiry
Officer with intimation to the petitioner to
participate in the enquiry. No oral or
documentary evidence was led to prove the
charges carried in the charge-sheet. It is
averred that once no witnesses were
examined on behalf of the establishment,
there was no occasion for the petitioner to
have
examined
or
cross-examined
witnesses or led evidence in support of her
case. It is, therefore, said that the enquiry
conducted against the petitioner is a mere
formality and an eyewash. It is asserted that
no departmental enquiry worth the name
was ever conducted by the Inquiry Officer.

21. This Court finds in this case that
the fact that the Inquiry Officer had not
fixed a date, time and place of enquiry and
no
witness
was
examined
by
the
establishment in support of the charge, was
mentioned by the petitioner in her reply to
the show cause notice filed before the
Disciplinary Authority on 12.03.2020.
There is an averment to that effect in
paragraph No.13 of the writ petition. A
perusal of the reply to the show cause
notice, annexed as Annexure No.9 to the
writ petition, shows that there is a specific
assertion there that no date, time and place
of enquiry was fixed, though it does not say
that no witnesses were examined. It is
nevertheless said that evidence was not
produced in her presence, so as to enable
her to cross-examine, which may mean
almost the same thing.

22. In the counter affidavit filed on
behalf of respondent No.3, the assertion in
paragraph No.20 of the writ petition to the
effect that no date, time and place of
enquiry was fixed and no oral or
documentary evidence was led to prove the
charges, has not been denied. This is
evident from a perusal of paragraph No.21
of the counter affidavit, where though the
contents of paragraph No.20 of the writ
petition are denied, all that is offered by
way of comment in denial is that the
Inquiry Officer submitted the enquiry
report after considering the petitioner's
reply to the charge-sheet and going through
the relevant record. The said assertion
clearly admits it for a fact that no date, time
and place of enquiry was scheduled or
intimated to the petitioner. It is also a
plenary admission of the fact that at the
enquiry, there was no presenting officer
appointed to lead evidence on behalf of the
establishment, and in any case, no
witnesses were examined on behalf of the
establishment to prove the charges before
the Inquiry Officer.

23.

In
case
of
departmental
proceedings, where the enquiry may lead to
the imposition of a major penalty, salutary
principles laid down by Courts, require that
the date, time and place of enquiry be
intimated to the charged employee. It is
also imperative in such matters that
witnesses be produced and not just
documents sifted through by the Inquiry
Officer to reach his findings. An enquiry in
disciplinary
proceedings,
where
the
consequences for the employee may be the
imposition of a major penalty, particularly,
obliges the Inquiry Officer to function as an
impartial arbiter with a considerable degree
of formality. He is to distance himself from
the employer, even if he is an officer in
their establishment for the purpose of
holding the enquiry. For the employers, it is
imperative that they must lead evidence in
support of the charges first, particularly,
oral evidence apart from documentary
evidence. This would apply even if the
delinquent/ employee does not appear and
884 INDIAN LAW REPORTS ALLAHABAD SERIES
the enquiry proceedings go ex parte. Where
the employee does appear even if he / she
does not produce his / her own evidence, he
/ she has a right to cross-examine the
employers' witnesses.

24. What then must be the manner of
holding an enquiry for the employer in a
case where the charges are so serious that
the employee may suffer a major penalty?
To our understanding the Inquiry Officer
on the day he holds an enquiry, cannot do
so without a schedule, in the course of his
duties as an official in the employer's
establishment. He must set time apart for
the enquiry and observe the formality of
being in session as an impartial arbiter,
different from his daily routine. Obviously,
once he does that, he would certainly
intimate the employee of the date, time and
place, which are imperatives of a valid
enquiry. The enquiry cannot, therefore, be a
routine or a slipshod proceeding done by
the officer in the midst of his routine work
in the employer's establishment. In short,
the Inquiry Officer must convene a proper
Inquiry Tribunal. The employers have, of
course, the burden to prove the charges by
producing evidence, which would include
oral evidence.

25. In this case, it is admitted that
neither date, time nor place of enquiry was
fixed and intimated to the petitioner nor
evidence produced on behalf of the
establishment, particularly, witnesses/ oral
evidence.

26. A perusal of the enquiry report
shows that the Inquiry Officer has written
out the charge, the petitioner's reply and
then
proceeded
to
record
findings,
considering the petitioner's reply with
reference to the documents involved, on the
basis of which the charge-sheet has been
issued. There have indeed been no
proceedings of the enquiry convened,
where
evidence
on
behalf
of
the
establishment, documentary as well as oral,
would be led by the presenting officer with
opportunity to the petitioner to crossexamine witnesses on behalf of the
establishment. The enquiry report is
classically one that falls foul of the
principles, requiring the establishment to
lead evidence before the Inquiry Officer
through a presenting officer, treating the
Inquiry Officer as an impartial arbiter. It
also falls foul of the principles that the
establishment has to establish the charge,
may be by preponderant probability, even if
the employee does not offer defence or
produce evidence. The enquiry report here
is no more than an opinion written on a
reading of mere papers by the Inquiry
Officer, with no evidence heard in the
matter. Reference in this connection may
be made to the decision of the Supreme
Court in Roop Singh Negi v. Punjab
National Bank and others, (2009) 2 SCC
570, where it has been observed:

"14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon taking into consideration the materials
brought on record by the parties. The
purported
evidence
collected
during
investigation by the investigating officer
against all the accused by itself could not
be treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove
the
said
documents.
The
management witnesses merely tendered the
documents and did not prove the contents
thereof. Reliance, inter alia, was placed by
11 All. Snehlata Vs. Registrar & Commissioner, Cooperative U.P. Lko & Ors.
885
the enquiry officer on the FIR which could
not have been treated as evidence."

27. The question fell for consideration
before a Division Bench of this Court in
State of U.P. and another v. Kishori Lal
and another, 2018 (9) ADJ 397 (DB)
(LB), where it was held:

"14. Now coming to the question,
what is the effect of non-holding of
domestic/oral inquiry, in a case where the
inquiry officer is appointed, oral inquiry is
mandatory. The charges are not deemed to
be proved suo motu merely on account of
levelling them by means of the chargesheet unless the same are proved by the
department before the inquiry officer and
only thereafter it is the turn of delinquent
employee to place his defence. Holding
oral enquiry is mandatory before imposing
a major penalty, as held by Apex Court in
State of U.P. and another v. T.P.Lal
Srivastava, 1997 (1) LLJ 831, as well as by
a Division Bench of this Court in Subhash
Chandra Sharma v. Managing Director and
another, 2000 (1) UPLBEC 541.

16. A Division Bench decision of
this Court in the case of Salahuddin Ansari
v. State of U.P. and others, 2008(3) ESC
1667, held that non holding of oral inquiry
is a serious flaw which can vitiate the order
of disciplinary proceeding including the
order of punishment has observed as under:

"10....... Non holding of oral
inquiry in such a case, is a serious matter
and goes to the root of the case.

11.A Division Bench of this
Court in Subash Chandra Sharma v.
Managing Director and another, 2000 (1)
UPLBEC 541, considering the question as
to whether holding of an oral inquiry is
necessary or not, held that if no oral inquiry
is held, it amounts to denial of principles of
natural justice to the delinquent employee.
The aforesaid view was reiterated in
Subash
Chandra
Sharma
v.
U.P.Cooperative Spinning Mills and others,
2001 (2) UPLBEC 1475 and Laturi Singh
v. U.P.Public Service Tribunal and others,
Writ Petition No. 12939 of 2001, decided
on 6.5.2005."

17. Even if the employee refuses
to participate in the enquiry the employer
cannot straightaway dismiss him, but he
must hold and ex parte enquiry where
evidence must be led vide Imperial
Tobacco Co. Ltd. v. Its Workmen, AIR
1962 SC 1348, Uma Shankar v. Registrar,
1992 (65) FLR 674 (All).

18. The Division Bench of this
Court in the case of Mahesh Narain Gupta
v. State of U.P. and others, (2011) 2 ILR
570, had also occasion to deal with the
same issue. It held:

"At this stage, we are to observe
that in the disciplinary proceedings against
a delinquent, the department is just like a
plaintiff and initial burden lies on the
department to prove the charges which can
certainly be proved only by collecting some
oral evidence or documentary evidence, in
presence and notice charged employee.
Even if the department is to rely its own
record/document
which
are
already
available, then also the enquiry officer by
looking into them and by assigning his own
reason after analysis, will have to record a
finding that hose documents are sufficient
enough to prove the charges.

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

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

(emphasis by Court)

28. The issue under consideration
here engaged the attention of this Court in
Dukh Haran Prasad v. State of U.P. and
others, 2015 (3) ADJ 677. In Dukh
Haran Prasad (supra), it was observed:

"16. It is not disputed by the
learned
Standing
Counsel
that
the
imposition of the penalty of stoppage of
three increments with cumulative effect
upon the petitioners was a major penalty. If
that be the admitted position, the procedure
prescribed under Rule 7 was to be
mandatorily
followed.
It
has
been
repeatedly held by this Court that in the
case of imposition of a major penalty, a
failure to hold an oral inquiry is fatal. If
there be any need to refer to authority for
this proposition, one may only note the
judgment rendered by a Division Bench of
this Court in the case of Sharad Kumar
Varma v. State of U.P. and others; 2006
(110) FLR 630."

29. Of particular relevance in the
context is the guidance of the Supreme
Court in State of Uttaranchal and others
v. Kharak Singh, (2008) 8 SCC 236,
where it is observed:

"17. On the other hand, one Mr
P.C. Lohani, Dy. Divisional Forest Officer,
Nandhaur acting as an enquiry officer after
putting certain questions and securing
answers submitted a report on 16-11-1985.
No witnesses were examined. Apparently
there was not even a presenting officer. A
perusal of the report shows that the enquiry
officer himself inspected the areas in the
forest and after taking note of certain
alleged deficiencies secured some answers
from the delinquent by putting some
questions. It is clear that the enquiry officer
himself has acted as the investigator,
prosecutor and judge. Such a procedure is
opposed to principles of natural justice and
has been frowned upon by this Court."

30. In the conspectus of the law above
noticed and what we have found on facts
and law, the impugned orders dated
17.06.2021 13.06.2022 and the enquiry
report
dated
08.02.2019,
cannot
be
sustained.

31. This Court makes it clear that we
have not expressed our opinion on the
merits
of
the
charges,
and
if
the
respondents elect to proceed afresh in
accordance with law, they will be free to
reach
a
just
and
fair
conclusion,
conforming to the law after adhering to the
procedure laid down for the holding of
domestic enquiries in matters involving the
imposition
of
a
major
penalty.
11 All. Rajesh Kumar Saraswat Vs. The Director, Board of U.P. Power Corp. Ltd. & Ors.
887

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

BEFORE

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

Writ-A No. 13315 of 2023

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

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

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

A. Service Law - Dismissal - Disciplinary
enquiry - Incident of robbery occurred
causing huge loss to the Bank - Inquiry
Committee proceeded on an assumption
that the charges are proof of themselves
and it is for the charged employee to offer
evidence to establish that he is not guilty
- Permissibility - Held, even if any
charged employee does not produce any
witness in his defence, that would not
absolve the Establishment of their burden
of proving the charges, by producing
documentary as well as oral evidence in
support thereof, at the hearing before the
Inquiry Committee/Officer - The charges
being grave do not mean that the
employee can be punished surreptitiously
in breach of the established procedure to
hold a departmental inquiry. (Para 17, 18
and 24)
Writ petition allowed. (E-1)
List of Cases cited:
1. St. of U.P. & ors. Vs Saroj Kumar Sinha;
(2010) 2 SCC 772
2. Roop Singh Negi Vs Punjab National Bank &
ors. ; (2009) 2 SCC 570
3. St. of U.P. & anr. Vs Kishori Lal & anr.; 2018
(9) ADJ 397(DB)(LB)
4. Smt. Karuna Jaiswal Vs St. of U.P.; 2018 (9)
ADJ 107(DB)(LB)
5. Ashish Kumar Tiwari Vs St. of U.P. & ors. ;
2021 (1) ADJ 420
6. Ranveer Singh Vs U.O.I. & ors. ; 2021 (5)
ADJ 136
7. Prem Narain Singh Vs St. of U.P. & anr.; 2023
(2) ADJ 580

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