# Sumant Kumar v. U.P.P.C.L, Lucknow & Ors

- **Citation:** (2024) 3 ILRA 643
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-04
- **Case number:** Writ A No. 14824 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumant-kumar-v-u-p-p-c-l-lucknow-ors-51723
- **Pages:** 12

## Headnote

Sri
Krishna
Agrawal,
Sri
Abhishek
Srivastava

Service Law - Disciplinary Proceedings -
Procedural Fairness - Petitioner, an Office
Assistant-II with Paschimanchal Vidyut Vitran
Nigam Limited, challenged his dismissal from
service for manipulating billing data, alleging
procedural
lapses
under
the
U.P.
Power
Corporation Limited Employees (Discipline and
Appeal) Regulations, 2020 - Held, the Inquiry
Officer failed to require the Establishment to
prove charges through oral evidence, relying
solely
on
documentary
evidence
without
examining witnesses - This violated the
mandatory requirement under Regulation 7 and
principles
of
natural
justice,
as
the
Establishment must prove charges by leading
oral and documentary evidence in the first
instance - Impugned orders dated 26.08.2020,
29.04.2021, and 13.04.2023 quashed. (Paras
16, 17, 18, 19, 20, 24, 26)

Service
Law
-
Burden
of
Proof
in
Disciplinary Inquiries - The petitioner denied
the charges and raised specific defenses,
requiring the Establishment to prove allegations
through evidence - Held, the Inquiry Officer's
failure to act as an impartial quasi-judicial
authority and the absence of oral evidence
rendered the inquiry flawed - As per St. of U.P.
Vs Saroj Kumar Sinha and Roop Singh Negi Vs
Punjab National Bank , the Establishment bears
the initial burden to prove charges, and
documents alone cannot be treated as proof
without formal evidence - The Corporation's
admission of procedural flaws via Office
Memorandum dated 14.08.2023 reinforced the
violation. (Paras 17, 18, 19, 24)

Service Law - ReinSt.ment and Fresh
Inquiry - The Court quashed the dismissal
orders due to procedural irregularities but
permitted the respondents to conduct a fresh
inquiry from the charge-sheet stage - Held, the
petitioner is entitled to reinSt.ment with current
salary, subject to the respondents' discretion to
place him under suspension pending a new
inquiry - Subsistence allowance must be paid if
suspended, and consequential benefits will
depend on the outcome of the fresh inquiry.
(Paras 26, 27)
Writ Petition Allowed in Part.

Orders Dated 26.08.2020, 29.04.2021, and
13.04.2023 Quashed - Petitioner ReinSt.d with
Conditions for Fresh Inquiry.

List of Cases Cited:

## Text

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3 All. Sumant Kumar Vs. U.P.P.C.L, Lucknow & Ors.
643

31. There shall be no order as to costs.
----------
(2024) 3 ILRA 643
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 14824 of 2023

Sumant Kumar ...Petitioner
Versus
U.P.P.C.L, Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manu Mishra

Counsel for the Respondents:
Sri
Krishna
Agrawal,
Sri
Abhishek
Srivastava

Service Law - Disciplinary Proceedings -
Procedural Fairness - Petitioner, an Office
Assistant-II with Paschimanchal Vidyut Vitran
Nigam Limited, challenged his dismissal from
service for manipulating billing data, alleging
procedural
lapses
under
the
U.P.
Power
Corporation Limited Employees (Discipline and
Appeal) Regulations, 2020 - Held, the Inquiry
Officer failed to require the Establishment to
prove charges through oral evidence, relying
solely
on
documentary
evidence
without
examining witnesses - This violated the
mandatory requirement under Regulation 7 and
principles
of
natural
justice,
as
the
Establishment must prove charges by leading
oral and documentary evidence in the first
instance - Impugned orders dated 26.08.2020,
29.04.2021, and 13.04.2023 quashed. (Paras
16, 17, 18, 19, 20, 24, 26)

Service
Law
-
Burden
of
Proof
in
Disciplinary Inquiries - The petitioner denied
the charges and raised specific defenses,
requiring the Establishment to prove allegations
through evidence - Held, the Inquiry Officer's
failure to act as an impartial quasi-judicial
authority and the absence of oral evidence
rendered the inquiry flawed - As per St. of U.P.
Vs Saroj Kumar Sinha and Roop Singh Negi Vs
Punjab National Bank , the Establishment bears
the initial burden to prove charges, and
documents alone cannot be treated as proof
without formal evidence - The Corporation's
admission of procedural flaws via Office
Memorandum dated 14.08.2023 reinforced the
violation. (Paras 17, 18, 19, 24)

Service Law - ReinSt.ment and Fresh
Inquiry - The Court quashed the dismissal
orders due to procedural irregularities but
permitted the respondents to conduct a fresh
inquiry from the charge-sheet stage - Held, the
petitioner is entitled to reinSt.ment with current
salary, subject to the respondents' discretion to
place him under suspension pending a new
inquiry - Subsistence allowance must be paid if
suspended, and consequential benefits will
depend on the outcome of the fresh inquiry.
(Paras 26, 27)
Writ Petition Allowed in Part.

Orders Dated 26.08.2020, 29.04.2021, and
13.04.2023 Quashed - Petitioner ReinSt.d with
Conditions for Fresh Inquiry.

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 Uttaranchal & ors. Vs Kharak Singh,
(2008) 8 SCC 236

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

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

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

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

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

9. Imperial Tobacco Co. Ltd. Vs Its Workmen,
AIR 1962 SC 1348
644 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Uma Shankar Vs Registrar, 1992 (65) FLR
674 (All)

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

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

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

14. Kaptan Singh Vs St. of U.P. & anr., Neutral
Citation No. 2023:AHC:147689-DB

15. Prem Narain Singh Vs St. of U.P. & anr.,
Neutral Citation No. 2023:AHC:152345

16. Pankaj Kumar Sharma Vs St. of U.P. & ors.,
Neutral Citation No. 2023:AHC:161234

17. Vinod Kumar Vs St. of U.P. & ors., Neutral
Citation No. 2023:AHC:165678

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

The petitioner, an Office Assistant-II
in the employ of the Paschimanchal Vidyut
Vitran Nigam Limited, is aggrieved by his
dismissal from service, after disciplinary
proceedings
taken
against
him
and
affirmation of that order in departmental
appeal and revision.

2. The petitioner was an Office
Assistant-II
in
the
Office
of
the
Superintending
Engineer,
Electricity
Distribution
Division,
Amroha,
Paschimanchal
Vidyut
Vitran
Nigam
Limited,
33/11,
K.V.
sub-station,
Collectorate, Joya Road, Amroha, District
Amroha. He was suspended from service
pending
inquiry
vide
order
dated
15.06.2018 passed by the Superintending
Engineer
aforesaid.
The
Managing
Director, Paschimanchal Vidyut Vitran
Nigam
Limited1
vide
order
dated
14.08.2018, appointed one V.K. Pandey as
the Inquiry Officer to hold a departmental
inquiry. The said order was served upon the
petitioner. The Inquiry Officer issued a
charge-sheet dated 24.08.2018 to the
petitioner, carrying seven charges.

3. The petitioner submitted his reply
to the charge-sheet dated 29.11.2018,
traversing the charges. It is the petitioner's
case that he was summoned by the Inquiry
Officer
for
a
personal
hearing
on
12.12.2018,
but
no
witnesses
were
produced or examined on behalf of the
Establishment to prove the charges, in
compliance with Rule 7 of the U.P.
Government
Servants
(Discipline
and
Appeal) Rules, 1999, nor any oral inquiry
held. An inquiry report dated 28.06.2019
was submitted by the Inquiry Officer to the
Managing Director of the Distribution
Corporation. A copy of the inquiry report
was served upon the petitioner along with a
letter dated 18.02.2020. It was served on
29.02.2020. The petitioner showed cause
by his reply dated 04.06.2020, disputing the
findings of the inquiry report. The
Superintending
Engineer,
Electricity
Distribution Division, Amroha, by his order
dated
14.08.2020,
passed
an
order,
adjudging a miscellaneous advance against
the petitioner to the tune of ₹36,67,357.32
on account of causing loss to the
Distribution Corporation. This sum of
money adjudged was directed to be
recovered from the petitioner, about which
he says he was not given opportunity.

4. Subsequently, the Disciplinary
Authority, as the petitioner says, without
considering the petitioner's reply in the
rightful perspective and without requiring
the charges to be proved, according to the
procedure prescribed by law, held the
petitioner guilty and dismissed him from
service vide order dated 26.08.2020. The
3 All. Sumant Kumar Vs. U.P.P.C.L, Lucknow & Ors.
645
Disciplinary
Authority
was
the
Superintending Engineer, Paschimanchal
Vidyut Vitran Nigam Limited, Electricity
Distribution Division, Amroha, respondent
No. 4 to the writ petition. He shall
hereinafter
be
referred
to
as
'the
Disciplinary Authority'.

5. Aggrieved by the order of
dismissal, the petitioner preferred an appeal
to the Chief Engineer of the Distribution
Corporation, respondent No. 3. He shall
hereinafter be referred to as 'the Appellate
Authority'. The appeal was preferred vide
memorandum of appeal as aforesaid, dated
22.12.2020,
and
amended
vide
memorandum
dated
06.04.2021.
The
Appellate Authority dismissed the appeal
by his order dated 29.04.2021 made in
exercise of powers under Section 11 of the
Uttar Pradesh Power Corporation Limited
Employees
(Discipline
and
Appeal)
Regulations, 20202.

6.

The
unsuccessful
petitioner
preferred a revision to the Chairman, Uttar
Pradesh Power Corporation Limited against
the order of the Disciplinary Authority and
the Appellate Authority dated 06.04.2021
and
29.04.2021,
respectively,
under
Regulation 13 of the Regulations of 2020.
The aforesaid revision was preferred vide
memorandum of revision dated 04.06.2021.
This revision was not decided by the
Chairman of the Corporation, despite lapse
of more than a year and a quarter.

7. The petitioner, aggrieved by the
inaction, instituted Writ - A No. 16731 of
2022, Sumant Kumar v. U.P. Power
Corporation Limited and others, seeking
a direction to the Chairman of the Uttar
Pradesh Power Corporation Limited3 to
decide his revision. This Court vide order
dated 14.11.2022 disposed of the aforesaid
writ petition with a direction to the
Revisional
Authority
to
decide
the
petitioner's revision and pass a reasoned
and speaking order, as expeditiously as
possible, and within a period of three
months from the date of a copy of that
order was produced before the Authority.

8. The Revisional Authority, in
compliance
with
the
order
dated
14.11.2022, passed in the writ petition last
mentioned,
proceeded
to
decide
the
petitioner's revision and rejected the same
by an order dated 13.04.2023, as the
petitioner says, without considering the
grounds or examining the issues raised in
the rightful perspective. It is the petitioner's
case pleaded in the writ petition, in
paragraph Nos. 9, 20, 33, 34 and 36 that the
Inquiry Officer, in holding the inquiry,
leading to the findings of guilt on all the
seven charges, did so without requiring the
Establishment to prove those charges by
producing evidence in support thereof in
the first instance, particularly oral evidence,
that is to say, witnesses.

9. A counter affidavit has been filed
on behalf of all the respondents by Mr.
Abhishek Srivastava, learned Counsel. In
paragraph No. 4 of the counter affidavit,
there is a wholesome denial of the
averments made in paragraph Nos. 11 to 47
of the writ petition in an omnibus fashion.
The same paragraph then proceeds to raise
specific pleas of denial or confession and
avoidance in the various sub-paragraphs of
Paragraph No. 4. Sub-paragraphs (vi) and
(vii) are of particular importance, as these
are directed at answering the allegation of
the petitioner about that procedural lapse of
a salutary procedure, where, according to
the petitioner, the Establishment was
required to produce evidence before the
Inquiry Officer in support of the charges,
646 INDIAN LAW REPORTS ALLAHABAD SERIES
particularly, oral evidence, that is to say,
witnesses, to prove these in the first
instance. Paragraph Nos. 4 (vi) and 4 (vii)
read:

vi. Further after giving due
opportunity of hearing to the petitioner and
on the basis of material evidence on record,
the enquiry committee has submitted his
report
and
during
the
course
of
departmental enquiry, the petitioner has not
disputed about the genuineness of any of
the documents provided to the petitioner
during the course of enquiry nor he had
shown
any
interest
in
asking
the
department to produce any witness for
examination/cross examination, therefore,
once the employee has duly participated in
the departmental enquiry and has admitted
the evidence on record, therefore, it cannot
be said that any prejudice is caused to him
in not examining any witness by the
department and if we go by the plain
reading of the Regulation 7 of the 2020
Regulation it only says, in Regulation 7(5)
that, along with the chargesheet the copy of
the documents and list of witnesses should
be
provided
to
the
employee
and
Regulation 7(7) provides that, in case the
employee refuses the charges, the enquiry
committee
should
call
the
proposed
witnesses to record their evidence whose
names are mentioned in the chargesheet
and in the present case, if names of no one
are mentioned in the chargesheet then the
enquiry committee cannot be said to have
committed any mistake in not examining
any witness. Further Regulation 7(8)
provides that, an enquiry committee can
ask any witness to appear before it and
provide any document and Regulation 7 (9)
says, the enquiry committee can ask any
question- to the witness to find out the true
facts, herefore, from the bare perusal of the
Regulations, 2020 cannot be said that the
enquiry committee has committed any
error, which has caused prejudice to the
petitioner, who has been given full
opportunity of oral hearing along with
option to examine any witness or dispute
the admissibility of any documents, and
once the employee has not disputed about
the genuineness and admissibility of the
documents, taking into consideration by the
enquiry committee, it cannot be said that
the enquiry was not proper.

vii. Further from perusal of the
record it is evident that no witness was
proposed either in the charge sheet or any
witness was named by the petitioner to
examine during the departmental enquiry,
therefore, no witness was examined by the
Corporation to prove the charges during the
course of departmental enquiry in the
present case. Further to remove all these
anomalies an Office Memorandum dated
14.8.2023 has been issued wherein it has
been directed to all the authorities of the
Corporation and the DISCOMS holding
enquiry that they should strictly adhere to
the provisions of Rule 7 of the Regulations
2020 and during the departmental enquiry
they must first examine the officers on
behalf of the Corporation to prove the
charges and only thereafter they should
provide opportunity to the employees to
either cross examine them or to produce
any witness on behalf of his defense.

10. Since the learned Counsel for the
petitioner has waived his right to file a
rejoinder affidavit, the petition was heard
and judgment reserved.

11. Heard Mr. Manu Mishra, learned
Counsel for the petitioner and Mr.
Abhishek Srivastava, learned Counsel
appearing for the respondents.

12. A perusal of the charge-sheet
shows that the charges run into technical
3 All. Sumant Kumar Vs. U.P.P.C.L, Lucknow & Ors.
647
details of billing various consumers by
altering their supply type, say, to Supply
Type 20 from Supply Type 22, and, on that
basis, recording the reading in the computer
system in the KWH system, instead of the
KVAH system, leading to a lesser bill for
the consumer. The allegations mentioned,
which are illustratively based on Charge
No. 1, are that, later on, the petitioner,
using his User ID "SUMANT" on
17.03.2016, changed the data fed in the
computer to the appropriate Supply Type
22 for a particular consumer, Sujit Gupta.
Still later, on 29.03.2016, the data was
again changed from Supply Type 22 to
Supply
Type
20.
Once
again,
on
30.06.2016, it was altered back to Supply
Type 22 from Supply Type 20. All this
while, bills were drawn for the consumer in
the KWH system, leading to a loss of
revenue to the Corporation. The charge
finally imputes that it appears that the
petitioner did not want the customer to be
billed in Supply Type 22 under the KVAH
system, and, at the same time, in the master
data, wanted it shown that he was being
billed in Supply Type 22 (KVAH system)
and
therefore,
the
petitioner, in
an
organised manner, repeatedly, just before
the bill was to be issued, ensured that the
supply type was changed to S.T. 20 and the
consumer billed under the KWH system,
but before the master data could be issued,
altered it back to Supply Type 22.

13. The first charge further goes on to
say that the petitioner ensured that for this
customer's present meter bearing No.
785615, the reading on 28.04.2018, was
entered as 4601 KWH, using his User ID
"SUMANT" and before this reading, the
average consumption was 920 per month,
but on 12.06.2018, the reading showed
10679 KWH. If the premises of the
customer were not inspected and this
reading taken, in the event of the meter
going faulty, the earlier readings fed into
the computer system would have to be
accepted. An imputation has been made on
the basis of these facts that the petitioner
deliberately entered short meter readings
for his own gain and to cause loss of
revenue to the Corporation. In support of
this charge, there is a printout of the
computer log and the system date-wise,
when the supply type was changed, using
the petitioner's user ID.

14. This Court must remark that the
charge itself is a big jumble up of money
transactions and reads
more like a
statement of imputation, regarding which,
one would expect a more concise charge
elsewhere. It is true that all that is required
about a valid charge in disciplinary
proceedings is that it must, in intelligible
and clear terms, convey to the delinquent
what the allegations against him are, but, at
the same time, in order that the charge be
intelligible, it ought to be concise, so as not
to make the understanding of its terms
hazy. If there are many particulars to the
charge, running into minute details, the
sound practice in departmental proceedings
is to draw up a concise charge, not carrying
all those details and supported by a separate
statement of imputations. The other six
charges described in the charge-sheet are
far more detailed and, for instance, the
second charge does not relate to just one
consumer. It relates to at least five of them.
It also runs into minute details and is,
again, about manipulating the data in the
computer to feed a negative reading
relating to consumers.

15. This Court has looked into one
charge not for the purpose of analysing it or
pronouncing upon it, but, to fathom, by
what kind of evidence, it would have to be
648 INDIAN LAW REPORTS ALLAHABAD SERIES
proved by the Establishment, given the fact
that the petitioner has denied all the charges
and come up with specific defences,
refuting them. It is not a case where the
petitioner has admitted any of the charges
or the documents as a true computer output
of what the petitioner fed into the
computer, while being in its charge. There
are rather defences, again, illustratively of
the kind noted below, pleaded by the
petitioner in his reply (translated into
English from Hindi) :

(1) It is true that User ID
"SUMANT" which was provided to me by
the Executive Engineer, Vidyut Vitran
Khand, Gajraula, was used in my routine
billing work, but for some contingent work,
the
Executive
Engineer,
Electricity
Distribution Division-I, Gajraula got my
User ID "SUMANT" provided to Sri
Munna Lal, Office Assistant-II/Senior
Contract Clerk for the purpose of doing the
left out ledgerisation work relating to
electricity connections. It is to be brought
to notice that the Chief Engineer of the
Corporation, Moradabad Region did an
inspection on 02.12.2017 in the evening
hours,
by
inspecting
the
Electricity
Distribution Division, Gajraula, during
which, he checked the private tubewell and
industrial/commercial connection contract
book. In that connection, the Chief
Engineer of the Corporation for the
Moradabad Region, by his letter No. 21381
मुअमु क्षेत्र/वा०/वनररक्षण विनाांक 05.12.2017 issued a
warning
about
non-ledgerisation
of
electricity
connections
to
Executive
Engineer. It was for the said reason that I
was required to provide my user ID to Sri
Munna Lal, Office Assistant-II, Contract
Clerk on the oral directions of the then
Executive Engineer, provided to him in the
interest of the Corporation and its work.

(2) The aforesaid ledgerisation
work was to be done by Sri Munna Lal,
Office Assistant-II, Contract Clerk, and for
that lapse, the petitioner cannot be held
guilty, because the Uttar Pradesh Power
Corporation Limited, by their letter No. 87
प्रसू - 01 पाकाली/2002-20-प्र०से०/2000 dated
25.02.2002 (Annexures 2, 3 and 4) defines
the duties and responsibilities of employees
and officers as per annexure, where the
chief responsibility about ledgerisation and
first bill issue rests with the Senior Contract
Clerk/Accountant
(Revenue)/Assistant
Engineer (Revenue)/Executive Engineer.

(3) On my counter, the billing for
consumers above 10 kilowatts was done,
which I was doing quite well, but on
account of billing agency making a
mistake, billing consumers of the rural
areas, according to the urban system in the
HCL
system,
some
consumers
were
affected. As a result, the revenues were also
being affected, due to which, the Executive
Engineer,
Sri
Gulshan
Goyal,
orally
directed that these consumers (rural areas)
be appropriately billed in the HCL system,
and for the purpose, the HCL system billing
company representative be provided the
user ID, so that the bill is rectified at the
earliest. Acting on the aforesaid orders of
the Executive Engineer, the HCL Billing
Company
Limited
representative
was
provided with my user ID, who rectified
the bills of these consumers, wherein, any
anomalies, if committed, are not my
responsibility, though the anomalies arising
in the bills of these consumers (upon
rectification) were corrected by me within
time, details whereof are furnished in
answer to the subsequent charges.

16. Now, in the face of this kind of a
defence, which is very detailed in answer to
each charge, it was incumbent, by salutary
principle for the Corporation, to have
established their charges before the Inquiry
Officer by leading evidence through a
3 All. Sumant Kumar Vs. U.P.P.C.L, Lucknow & Ors.
649
Presenting Officer, both documentary and
oral. It is a settled principle of salutary
procedure
concerning
departmental
proceedings, where there is likelihood of
imposition of a major penalty, which, in
this case, was actually imposed, that the
Establishment must prove the charges
before the Inquiry Officer by leading
evidence in the first instance. The Inquiry
Officer is not to identify himself with the
Establishment, even if an officer of the
same Establishment. He must act as an
impartial arbiter, distancing himself from
the Establishment for the purpose of
holding a departmental inquiry. It is the
burden of the Establishment to prove the
charges that they have brought against the
delinquent in the first instance, by leading
both documentary and oral evidence. It is
also an imperative by principles of salutary
procedure that oral evidence in support of
charges must be led by the Establishment.
It is after the evidence is led by the
Establishment that the employee is to be
given the opportunity to cross-examine
witnesses, who were produced on behalf of
the
Establishment
to
prove
various
documents, or for any other purpose. It is to
be emphasized that the documents annexed
to the charges are not to be treated by the
Inquiry Officer as proof of themselves.
These are required to be proved by the
Presenting Officer through evidence led on
behalf of the Establishment; else, these
documents are nothing but idle papers, on
the basis of which, no inference can be
drawn against an employee.

17. This Court notices the fact that in
paragraph No. 4 (vii) of the counter
affidavit, it has been admitted for a fact that
no
witness
was
examined
by
the
Corporation to prove the charges during the
course of departmental inquiry. It is also
admitted
that
to
remove
all
these
anomalies, an Office Memorandum dated
04.08.2023 has been issued, wherein, all
the
Distribution
Corporations
holding
inquiries have been directed to adhere
strictly to the provisions of Regulation 7 of
the Regulations of 2020. It is also pleaded
that sub-paragraph (vii) of paragraph No. 4
of the Memorandum dated 14.08.2023
directs that in the holding of such
departmental inquiries, the Corporations
must first examine officers on their own
behalf to prove the charges, and only
thereafter, they should provide opportunity
to the employees to either cross-examine
their witnesses or produce any witnesses in
their defence. The Corporation, in the
counter affidavit, virtually admit the
procedural flaw in this inquiry, where, the
Establishment/Corporation have not proved
the charges by leading oral evidence in
support of the same.

18. For the legal proposition, that it is
imperative in a departmental inquiry,
leading to the imposition of a major penalty
for the Establishment to examine witnesses
or lead oral evidence, reference may be
made to the case of State of U.P. and
others v. Saroj Kumar Sinha4 where it
has been held by 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
650 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

19. To like effect is the exposition of
the law in Roop Singh Negi5 where it has
been held :

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

20. The necessary steps and the
manner in which a departmental inquiry is
to be conducted, have been authoritatively
laid down in State of Uttaranchal and
others v. Kharak Singh6. In Khadak
Singh (supra) the following principles have
been culled out :

15. From the above decisions, the
following principles would emerge:

(i)
The
enquiries
must
be
conducted bona fide and care must be taken
to see that the enquiries do not become
empty formalities.

(ii) If an officer is a witness to
any of the incidents which is the subjectmatter of the enquiry or if the enquiry was
initiated on a report of an officer, then in all
fairness he should not be the enquiry
officer. If the said position becomes known
after the appointment of the enquiry officer,
during the enquiry, steps should be taken to
see that the task of holding an enquiry is
assigned to some other officer.

(iii)
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent charged and give an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
he wants to lead any evidence and asked to
give any explanation about the evidence led
against him.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply a
copy of the enquiry report and all
3 All. Sumant Kumar Vs. U.P.P.C.L, Lucknow & Ors.
651
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any.
(emphasis by Court)

21. The salutary principle, mandating
the employer to prove the charges by
examining witnesses was held to be
mandatory in all cases, where, a major
penalty was imposed, by a Division Bench
of this Court State of U.P. and another v.
Kishori Lal and another7. In Kishori Lal
(supra) it was observed by their Lordships
of the Division Bench :

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
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
652 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
3 All. Sumant Kumar Vs. U.P.P.C.L, Lucknow & Ors.
653
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.

22. To like effect is the holding in
three other Bench decisions of this Court,
that is to say, State of U.P. v. Aditya
Prasad Srivastava and another8, Smt.
Karuna Jaiswal v. State of U.P.9 and
Kaptan Singh v. State of U.P. and
another10.

23. I also had occasion to consider the
issue and opine to like effect in Prem
Narain Singh v. State of U.P. and
another11, Pankaj Kumar Sharma v.
State of U.P. and others12 and Vinod
Kumar v. State of U.P. and others13.

24. The principle is far too well
settled to brook doubt that as a part of
salutary procedure in holding departmental
proceedings, involving imposition of a
major penalty, no valid proceedings can be
taken without the Establishment proving
the charges by oral evidence in the first
instance, that is to say, by examining
witnesses, apart from leading documentary
evidence. Also, the Inquiry Officer cannot
function in the fashion of an ordinary
departmental functionary, but must convene
himself like a Inquiry Tribunal, detaching
himself from his routine employment. It is
then that the Establishment have to prove
the charges in the manner indicated before
him by their evidence in the first instance.
The only exception may be those cases,
where, the delinquent admits the charges or
admits certain documents expressly, either
by endorsement made on the face of the
documents or the admission being recorded
in the order-sheet of the day, duly signed by
the delinquent, apart from the other
functionaries holding the inquiry. There is
nothing of this kind here. Rather, the nature
of the charges, and more than that, the
nature of the defence, would show that the
Establishment bear all the burden to lead
evidence in the prescribed manner to
establish the charges in the first instance.

25. To all this, this Court may add the
remark that the seriousness or enormity of
the charge does not license the employer to
jump to conclusions. The more serious the
charge, the more serious the consequence
for the employee that are likely to ensue, in
the event of its proof, and, the more strict,
therefore, would be the requirement of
procedural fairness in the departmental
inquiry, where, the inquiry must proceed
according to salutary and settled principles
of holding a fair inquiry, which requires the
Establishment to discharge their burden in
the first instance, by leading evidence, with
due opportunity to the delinquent.

26. In the circumstances, the writ
petition stands allowed in part. The
impugned
orders
dated
26.08.2020,
29.04.2021 and 13.04.2023 passed by the
Disciplinary
Authority,
the
Appellate
Authority and the Revisional Authority,
respectively, are
hereby
quashed. A
mandamus is issued to the respondents to
reinstate the petitioner in service forthwith
and pay his current salary.

27. It will, however, be open to the
respondents to proceed afresh against the
654 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner from the stage of the chargesheet,
holding
inquiry
de
novo
in
accordance with law and the guidance in
this judgment. It will also be open to the
respondents, if they so think fit, to place the
petitioner
under
suspension
pending
inquiry, immediately after his reinstatement
and conclude the inquiry expeditiously. If
the respondents elect to place the petitioner
under suspension, they will pay the
petitioner subsistence allowance regularly,
and without fail. If the respondents elect to
undertake the inquiry proceedings afresh,
but
not
place
the
petitioner
under
suspension and assign him duties at
whatever station they desire, the petitioner
shall be paid his current salary with effect
from the date of his reinstatement. In either
event, the entitlement of the petitioner to
consequential benefits of arrears etc. shall
abide by the outcome of the disciplinary
proceedings and the orders made therein.

28. There shall be no order as to costs.
----------
(2024) 3 ILRA 654
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2024
BEFORE
THE HON'BLE MANJIVE SHUKLA, J.

Writ A No. 16068 of 2023

Kumari Nisha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Ashish Kumar (Nagvanshi)