# Vinod Kumar v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-A No. 10552 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-v-state-of-u-p-ors-49376
- **Pages:** 12

## Headnote

A. Service Law - Disciplinary Proceedings
- Jurisdiction of Disciplinary Authority -
Delegation of Powers: The petitioner, an
Assistant Engineer, challenged the order dated
22.06.2023 passed by the Managing Director,
Purvanchal
Vidyut
Vitran
Nigam
Limited,
reducing his rank to Junior Engineer as a
disciplinary penalty. The petitioner contended
that the Managing Director lacked jurisdiction,
as the appointing authority (Managing Director,
Uttar Pradesh Power Corporation Limited) had
not delegated disciplinary powers under the
Uttar
Pradesh
Power
Corporation
Limited
Personnel (Discipline and Appeal) Regulations,

## Text

_Characters 0–39,967 of 42,053. This is a partial read: ask again with offset=39967 for what follows._

578 INDIAN LAW REPORTS ALLAHABAD SERIES
scheme of the Act, oral examination may be
allowed only as an exception. If a party
wants to cross examine, he has to disclose
the necessary facts in his application as to
why the cross examination is necessary.
Unless it is established that the veracity of
facts as stated in the affidavit is necessary
to be tested by cross examination, the cross
examination
cannot
be
allowed
in
proceedings underSection 21of the Act. The
party moving the application must give
reasons as to which particular part of the
affidavit is incorrect and under what
circumstances and for what reasons such
cross examination is necessary in the
context of the facts and circumstances of
the case."

24. It has been submitted on behalf of
the petitioner that only to test the claim of
the landlord that the premises are required
for bonfide purposes, the petitioner wanted
to cross-examine the landlord and his
witnesses. In case the petitioner wanted to
contest the said facts, or wanted to bring on
record some material which may indicate
that the requirement of the petitioner was
not bonfide or that there was alternate
accommodation available, the same could
very well have been done by bringing on
record the evidence available with the
petitioner. No such material was placed by
him before the prescribed authority and
even if the arguments of the petitioner are
to be believed that the adjacent shop was
vacant, still the requirement of the landlord
was much more than merely the small shop
in which the petitioner was a tenant, for
him to start a furniture business for which
admittedly a large space is required. This
court does not find any valid reason for
interfering in the order of the prescribed
authority rejecting the application for cross
examination of the witnesses. The law in
this regard as stated above is also clear, and
cross-examination can be allowed only as
an exception rather than the rule as the
proceedings before the prescribed authority
are summary in nature. No satisfactory
reason could be disclosed from which it
could be gathered that cross-examination
was necessary in the facts of the present
case and consequently the arguments in this
regard are also rejected.

25. In light of the above discussion,
this Court does not find merit in the writ
petition, accordingly the same is dismissed.

26.

As
regards
compensation
considering the second proviso of Section
21(1) of the Act of 1972 and also that the
tenant has been in tenancy of the premises
for over three decades, this Court is of the
opinion that ends of justice would be met in
case the landlord / respondent is directed to
pay Rs.25,000/- as compensation to the
petitioner.
----------
(2023) 11 ILRA 578
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

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

Writ-A No. 10552 of 2023

Vinod Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Advocate), Sri Kauntey Singh

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava, Sri Adarsh
Bhushan, Sri Suyash Agarwal, Sri Ujjawal
Srivastava
11 All. Vinod Kumar Vs. State of U.P. & Ors.
579
A. Service Law - Disciplinary Proceedings
- Jurisdiction of Disciplinary Authority -
Delegation of Powers: The petitioner, an
Assistant Engineer, challenged the order dated
22.06.2023 passed by the Managing Director,
Purvanchal
Vidyut
Vitran
Nigam
Limited,
reducing his rank to Junior Engineer as a
disciplinary penalty. The petitioner contended
that the Managing Director lacked jurisdiction,
as the appointing authority (Managing Director,
Uttar Pradesh Power Corporation Limited) had
not delegated disciplinary powers under the
Uttar
Pradesh
Power
Corporation
Limited
Personnel (Discipline and Appeal) Regulations,
2020. Held, the office memo dated 08.08.2018,
delegating disciplinary powers to the Managing
Director
of
the
Distribution
Corporation,
remained valid under Regulation 16(2)(a) of the
2020 Regulations, as it was not cancelled or
revoked. The plea of lack of jurisdiction was
rejected.

B. Service Law - Disciplinary Proceedings
- Conduct of Inquiry - Requirement of
Oral Evidence: The petitioner alleged that the
inquiry was flawed as no oral evidence was led
by the establishment to prove the charge of
negligence in preventing electricity theft. The
Inquiry Committee relied solely on the chargesheet, the petitioner's reply, and a brief hearing
without
examining
witnesses.
Held,
in
disciplinary proceedings involving a major
penalty, the establishment must prove charges
by leading both documentary and oral evidence,
irrespective of the employee's participation. The
inquiry report, lacking evidence or reasoned
findings, was manifestly illegal. The impugned
order and inquiry report were quashed for noncompliance with principles of natural justice and
established judicial precedents.
C. Service Law - Disciplinary Proceedings
- Consequences of Illegal Inquiry: The
Court quashed the impugned order dated
22.06.2023 and directed the respondents to
reinSt. the petitioner as an Assistant Engineer
with emoluments from the date of judgment.
The respondents were granted liberty to
proceed afresh from the stage of the chargesheet, strictly in accordance with law. The
petitioner's entitlement to emoluments for the
period between the impugned order and the
judgment was to be determined based on any
fresh proceedings, if initiated.
Case Law Discussed:

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

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

3. Kaptan Singh Vs St. of U.P., (1994) SCC
Online All 300

4. Ranveer Singh Vs U.O.I., unreported

5. Prem Narain Singh Vs St. of U.P., unreported

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

This writ petition is directed against
the order dated 22.06.2023 passed by the
Managing Director, Purvanchal Vidyut
Vitran Nigam Limited, Varanasi, reducing
the petitioner in rank to the post of a Junior
Engineer from an Assistant Engineer, as a
measure
of
penalty,
after
holding
disciplinary proceedings.

2. The facts giving rise to this petition
are
that
the
Uttar
Pradesh
Power
Corporation Limited1 is a government
company under the administrative and
financial control of the State Government.
The Purvanchal Vidyut Vitran Nigam
Limited2 is a subsidiary company of the
Power
Corporation
incorporated
to
discharge the functions of electricity supply
and
distribution
to
consumers.
The
petitioner was appointed as a Junior
Engineer (Electrical) vide appointment
order dated 05.11.2007 in the employ of the
Power Corporation. He has rendered
continuous
service
since
then.
The
petitioner was promoted to the post of an
Assistant
Engineer
vide
order
dated
16.02.2018. During the period of his
service, the petitioner has been posted at
different stations and was last posted from
07.12.2021 at the Electricity Distribution
580 INDIAN LAW REPORTS ALLAHABAD SERIES
Sub-Division-I, Phulpur, Azamgarh, falling
under Electricity Distribution Division-IV,
Azamgarh. According to the petitioner, he
was posted from March, 2018 to December,
2021 at the Electricity Distribution SubDivision-I, Atraulia, Azamgarh. While
posted
there,
the
petitioner
received
confidential information on 18.02.2020 and
19.02.2020 on the basis of a reconnaissance
done on the premises of a certain M/s. S.
Milan Agro Industries, Village Saraiya
Nebuadeeh, Post Usraith, Police Station
Atraulia, District Azamgarh to the effect
that an electricity transformer was found
near the rice mill aforesaid, leading to a
strong suspicion of electricity theft. On the
basis of information aforesaid, that was
conveyed to the higher authorities, an
enforcement team was constituted by the
Chief Engineer, Azamgarh, with the
petitioner as a member of the team, to
conduct an enforcement raid on the
premises of M/s. S. Milan Agro Industries.
In the night intervening 19/20.02.2020, the
premises of the rice mill was raided,
leading to detection of theft of electricity. A
checking
report
No.
139
dated
19/20.02.2020 was drawn up.

3. In consequence of the above raid,
two first information reports were lodged at
Police
Station - Anti Power Theft,
Azamgarh, to wit, Crime No. 294 of 2020
under Section 135 of the Electricity Act,
2003
lodged
by
the
petitioner
on
20.02.2020 and Crime No. 562 of 2020,
under Section 136 of the Act last
mentioned, lodged on 21.03.2020.

4. A provisional assessment order was
passed
by
the
Executive
Engineer,
Electricity Distribution Division-VI on
20.02.2020,
levying
a
penalty
of
₹2,33,65,028/- against one Sanjay Rai alias
Guddu. After issue of the provisional
assessment order, the Executive Engineer,
by a letter dated 18.01.2021, made certain
inquiries from the petitioner and the
Secretary, Krishi Utpadan Mandi Samiti.
The petitioner submitted a reply dated
19.01.2021.

5. The provisional assessment order
was challenged by the consumer before this
Court, where directions were issued, in
consequence
of
which,
the
District
Magistrate, Azamgarh, vide memorandum
dated 22.08.2022, returned the recovery
certificate unrealized. Subsequently, a fresh
recovery certificate was issued against the
partners of M/s. S. Milan Agro Industries,
to wit, Smt. Madhuri Rai and Smt.
Kanchan Rai dated 08.06.2023, directing
recovery of a sum of ₹80,21,904/-.

6. On the basis of these facts,
disciplinary proceedings were instituted
against the petitioner and a charge-sheeet
dated 27.04.2020 issued against him,
carrying a charge to the effect that the
petitioner did not make requisite inspection
or take timely steps for removing the 400
KVA transformer, on account of which,
theft
of
electricity
took
place. The
petitioner submitted a reply to the chargesheet dated 03.09.2020.

7. Post submission of the chargesheet, it is the petitioner's case that no steps
were taken in the inquiry. After the lapse of
more than a year, a notice dated 13.12.2021
was issued to the petitioner by the Chief
Engineer
(Distribution)/Convener,
Temporary
Enquiry
Committee-VI,
requiring the petitioner to be present in his
office on 04.01.2022 for a personal hearing.
In compliance, the petitioner appeared
before the said Inquiry Committee on
04.01.2022, and reiterated the stand in his
reply to the charge-sheet. It is the
11 All. Vinod Kumar Vs. State of U.P. & Ors.
581
petitioner's
case
that
the
Inquiry
Committee held no inquiry, in the sense
that no evidence of any kind was led during
the course of proceedings. No testimony or
evidence was recorded for proving any of
the
documents
relied
upon
by
the
establishment. The further case of the
petitioner is that without conducting any
inquiry, the Committee proceeded to submit
a report dated 27/28.01.2022, holding the
petitioner
guilty
of
negligence
in
discharging his supervisory duties. A copy
of the inquiry report was made available to
the petitioner along with a show-cause
notice dated 22.07.2022 issued by the
Director
(Personnel
Management
and
Distribution)
of
the
Distribution
Corporation. The petitioner was required to
file objections to the inquiry report within a
period of 15 days. The petitioner submitted
his
objections
before
the
Director
(Personnel Management and Distribution)
of the Distribution Corporation in the
month of July, 2022. The Managing
Director, Distribution Corporation, passed
the impugned order dated 22.06.2023,
imposing the penalty of reduction in rank.

8. Aggrieved, the petitioner has
instituted this writ petition under Article
226 of the Constitution.

9. It is the petitioner's case that he is
an employee of the Power Corporation, and
the
Managing
Director
of
the
said
Corporation is the appointing authority. The
power
exercisable
by
the
Managing
Director, Power Corporation to inflict a
major penalty has not been delegated to the
Managing Director of the Distribution
Corporation. There is no decision of the
Board
of
Directors
of
the
Power
Corporation resolving to delegate the said
powers to the Director of the Distribution
Corporation or even an order of delegation
passed by the Managing Director of the
Power
Corporation,
delegating
that
authority. It is also pleaded that under the
Rules that make for the service conditions,
the appointing authority functions as the
disciplinary authority. The petitioner says
that he has not been appointed by the
Managing Director of the Distribution
Corporation, and, consequently, the said
officer had no jurisdiction to pass the
impugned order. It is also the petitioner's
case that departmental proceedings can be
initiated on the basis of a departmental
charge-sheet issued or approved by the
competent authority. Here, the charge-sheet
has been issued by the Managing Director
of the Distribution Corporation, who is not
the petitioner's appointing authority. The
proceedings, therefore, taken on the basis
of
a
charge-sheet
issued
without
jurisdiction are all ultra vires.

10. It is next pleaded that no major
penalty can be inflicted without holding an
oral inquiry, fixing a date, time and place
for the purpose. It is averred in paragraph
No. 41 that the Inquiry Committee did not
record any oral evidence. No evidence was
led by the employers to establish the
charges against the petitioner. It is
specifically urged that the inquiry report
does not conform to the requirements of a
valid report.

11. In the counter affidavit, in answer
to the plea that the Managing Director of
the Distribution Corporation is not the
petitioner's appointing authority and a
fortiori the disciplinary authority, in the
absence of delegation of power by the
Power Corporation, it is averred in
paragraph No. 11 of the counter affidavit
that vide an office memo dated 08.08.2018
issued pursuant to the resolution of the
Board
of
Directors
of
the
Power
582 INDIAN LAW REPORTS ALLAHABAD SERIES
Corporation,
disciplinary
and
administrative powers vested in the Power
Corporation
stand
delegated
to
the
Managing Director of the Distribution
Corporation, except the power to impose
the penalty of dismissal. A copy of the
memo dated 08.08.2018 issued by order of
the Board of Directors of the Power
Corporation is annexed as Annexure C.A.-1
to the counter affidavit.

12. In answer to the plea that before
the Inquiry Committee, the establishment
did not examine any witness or recorded
oral testimony fixing a date, time and place
for the inquiry, though imperative in the
case of imposition of a major penalty, it is
pleaded in paragraph No. 13 of the counter
affidavit, after entering a plea of denial to
the averments in paragraph Nos. 38 and 41
of the writ petition, amongst others, that an
opportunity for oral inquiry has been
provided vide order dated 30.12.2021 in
response whereto, the petitioner appeared
before
the
Inquiry
Committee
on
04.01.2022 and participated in the oral
inquiry.

13. In the rejoinder affidavit, it is
stated that in view of the Uttar Pradesh
Power Corporation Limited Personnel
(Discipline and Appeal) Regulations, 20203
being there to govern the service conditions
of the petitioner, the office order dated
08.08.2018, that was issued at a time when
the Uttar Pradesh Government Servants
(Discipline and Appeal) Rules, 19994
applied to the Power Corporation, stands
nullified. It is also averred that there does
not exist any order of delegation in exercise
of powers under the Rules of 2020,
delegating the disciplinary jurisdiction of
the Power Corporation to the Managing
Director of the Distribution Corporation.
The order dated 08.08.2018 is of no effect
and cannot be relied upon to support the
impugned order.

14. Heard Mr. Siddharth Khare,
learned Counsel for the petitioner, Mr.
Adarsh
Bhushan,
learned
Counsel
appearing on behalf of respondent Nos. 3,
4, 5 and 6, Mr. Ujjawal Srivastava,
Advocate holding brief of Mr. Abhishek
Srivastava, learned Counsel for respondent
No. 2 and Mr. Yashwant Singh, learned
Standing Counsel appearing on behalf of
respondent No. 1.

15. It is submitted by Mr. Siddharth
Khare, learned Counsel for the petitioner
that the impugned order is without
jurisdiction, because the office memo dated
08.08.2018, by which, the disciplinary
jurisdiction
otherwise
vesting
in
the
Managing
Director
of
the
Power
Corporation was delegated to the Managing
Director of the Distribution Corporation,
stands nullified, in view of the supervening
enforcement of the Rules of 2020. He next
submits that the penalty imposed in this
case being one of reversion, is a major
penalty. The principle is salutary,
according to Mr. Khare, that in any
disciplinary proceedings, where the
charges are such that a major penalty
may be imposed, it is imperative for
the
establishment
to
examine
witnesses in support of the charges.
The Inquiry Officer has to conduct
formal
proceedings,
where
the
establishment have to discharge their
burden
by
leading
oral
and
documentary evidence. It is thereafter
that that the burden shifts upon the
delinquent/employee. In this case, it is
emphasized
that
the
Inquiry
Committee did not undertake any
inquiry. They perused the papers and
heard the petitioner; nothing else.
11 All. Vinod Kumar Vs. State of U.P. & Ors.
583

16. Learned Counsel appearing for the
respondents have supported the impugned
order and say that there is no issue of
jurisdiction involved as the Regulations of
2020, on their own terms, would show.
About the necessity to hold an oral inquiry,
it is said that the petitioner was given an
opportunity to appear before the Inquiry
Committee and was heard by them, which
constitutes
compliance
with
the
requirement to hold an oral inquiry. There
is no need to examine witnesses in support
of the charge.

17. This Court has carefully heard the
submissions advanced by learned Counsel
for parties and perused the record.

18. So far as the question of
jurisdiction is concerned, it is evident, from
a perusal of the office memo dated
08.08.2018, that the powers of the Power
Corporation to take disciplinary action
against their officers employed with a
Distribution Corporation, including the
imposition
of
penalties,
have
been
delegated to the Managing Directors of the
respective
Distribution
Corporations,
except the power to dismiss from service. It
is also true that the order dated 08.08.2018,
which, in fact, is a formal order giving
effect to the resolution of the Board of
Directors of the Power Corporation, was
issued at a time before the enforcement of
the Regulations of 2020. Regulation 6
provides that the appointing authority shall
be the disciplinary authority in case of a
person whose service conditions are
governed by the Regulations of 2020, and
further that it is such authority which can
impose any of the penalties envisaged
under Regulation 3.

19. The second proviso envisages a
delegation by the appointing authority of
powers to impose penalties, other than the
power to dismiss from service. Now,
certainly, the Regulations of 2020 introduce
a new regime governing conditions of
service and the Regulations being statutory
in character, that is to say, being regulations
framed in exercise of powers under the
Companies Act, 2013 and Articles 47 and
48
of
the
Power
Corporation's
memorandum of association, would, in
usual course, efface the office memo dated
08.08.2018 delegating powers by the Power
Corporation to take disciplinary action
upon the Managing Director of the
Distribution Corporation. But, a perusal of
the 'Rescisison and Savings' clause under
the Regulations of 2020 shows that vide
Regulation 16(2)(a), it is provided that any
order under the Rules of 1999, delegating
powers by an authority to impose any of
the penalties envisaged under Regulation 3
or to suspend from service, would be
deemed to have been issued under the
Regulation of 2020, and such order issued
under the Rules of 1999 would remain in
force, until cancelled or revoked. There is
no material placed on record by the
petitioner
to
show
that
the
office
memorandum dated 08.08.2018, delegating
powers of the Power Corporation to
exercise disciplinary authority and impose
all punishments upon its employees serving
with the Distribution Corporations, upon
the Managing Directors of the Distribution
Corporations,
has
been
cancelled
or
revoked by an order subsequent to the
enforcement of the Regulations of 2020.

20. In the opinion of this Court,
therefore,
the
office
memo
dated
08.08.2018 continues to remain in force
and invests the Managing Director of the
Power Corporation with jurisdiction to pass
the impugned order, the introduction of the
Regulations of 2020, notwithstanding. The
584 INDIAN LAW REPORTS ALLAHABAD SERIES
contention of the learned Counsel for the
petitioner, therefore, that the impugned
order has been passed without jurisdiction,
cannot be accepted.

21. Now, considering the other
submission that proceedings before the
Inquiry Committee fall foul of the
fundamental principle regarding holding of
disciplinary proceedings, inasmuch as no
witness was examined by the establishment
in support of the charge, this Court must
remark that the contention appears to be
well-founded.

22. We have carefully perused the inquiry
report dated 28.01.2022, which can be
divided into three parts. In the first part, the
background of the charge laid against the
petitioner, the charge itself, the manner of
submission of the charge-sheet and the fact
of a reply to it being submitted, have been
enumerated. In the second part, the
petitioner's reply has been set out verbatim.
In addition, it is recorded by the Inquiry
Committee that vide their memorandum
dated 30.12.2011, the petitioner was given
an oral hearing on 04.01.2022 in the Office
of
the
Chief
Engineer/Convener,
Temporary Enquiry Committee-VIII. In
compliance with the aforesaid opportunity,
the petitioner appeared on 04.01.2022
before the Committee, where he disclosed
his defence to the Committee. He presented
an affidavit to the Committee, saying that
he had been given ample opportunity to
defend, and apart from his written
statement,
he
did
not
want
to
examine/cross-examine witnesses.

23. In the third part, which is the
concluding part of inquiry report, there is
manifest
a
sudden
arrival
at
their
conclusions by the Inquiry Committee,
indeed very cryptically. There is nothing
indicated by the Inquiry Committee to
show what evidence they have considered
and by what process of reasoning they have
arrived at those conclusions. This Court is
of opinion that the laconic approach of the
Inquiry Committee in arriving at their
conclusions can be best understood by
quoting the third or the concluding
paragraph of the inquiry report, which
reads :

अस्थायी जााँच सदमदत-र्ष्ठम् का अदिमत

उपरोक्त प्रकरर् पर अस्थायी जााँच सनमनि-र्ष्ठम् द्वारा परीक्षर्
एवं व्यनक्तगि सुिवाई के उपरान्ि अनभमि निम्िनिनखि है :-

1. आरोपी उपखण्ड अनिकारी द्वारा अपिे बचाव में यह
कहा गया नक उिके पास 05 उपकेंद्र है, नजिपर कुि 21 पोर्क
(िगभग 524 सनकदट नकिोमीटर) एवं िगभग 1300 पररविदक
स्थानपि है।

2. आरोपी उपखण्ड अनिकारी द्वारा अपिे बचाव में यह
कहा गया नक वहााँ स्थानपि 400 के0वी0ए0 के पररविदक (नजसके
द्वारा चोरी की जा रही थी) की कोई सूचिा ि िो नकसी अवर
अनभयन्िा द्वारा और ि ही वहााँ नियोनजि संनविाकनमदयों द्वारा िी
गयी।
3. आरोपी उपखण्ड अनिकारी द्वारा अपिे बचाव में यह कहा गया
नक वह स्वयं इस रेड टीम में शानमि थे िथा छोरी की इस घटिा में
िजद की गयी प्राथनमकी के वािी है।

आरोपी उपखण्ड अनिकारी के उपरोक्त कथि उिके नवरूद्ध
िगाये गये नवभागीय पयदवेक्षर् में िापरवाही, नशनथििा एवं
उिासीििा के आरोप से उन्हें मुक्त िहीं करिा।

अतः अस्र्ायी जाुँच सशिशत-षष्ठि् इस प्रकिण पि
आिोशपत
श्री
शवनोद
कुिाि,
उपखण्ड
अशधकािी
(2017465) उपखण्ड अशधकािी- अतिौशिया अन्तगथत
शवद्युत शवतिण खण्ड-पषष्ठि्, आजिगढ़ को उनके क्षेत्रान्तगथत
िध्यि क्षिता के शवतिण परिवतथकों का अनुश्रवण सिुशचत
रूप से न किने एविं नवभागीय पयदवेक्षर् में िापरवाही, नशनथििा
एवं उिासीििा बरििे के दृनष्टगि िोर्ी पािी है।

उपरोक्त प्रकरर् पर अस्थायी जााँच सनमनि-र्ष्ठम् द्वारा कृि
कायदवाही की जााँच आख्या सािर प्रेनर्ि ।

24. The findings recorded by the
Inquiry Committee, to say the least, are
11 All. Vinod Kumar Vs. State of U.P. & Ors.
585
outrageous.
In
the
conclusion,
after
noticing the three points of defence raised
by the petitioner to the charge of being
remiss and negligent in the discharge of his
duties, all that the Inquiry Committee say is
that the charged Sub-Divisional Officer's
aforesaid statement (to be understood as
points
of
defence)
cannot
serve
to
exonerate the petitioner of the charge of
being negligent and remiss in the discharge
of his duties. Thereafter, it is formally held
that the Temporary Inquiry Committee-VIII
finds the charged officer, Vinod Kumar,
Sub-Divisional Officer, Atraulia guilty in
not appropriately monitoring the medium
capacity transformers in his circle, leading
to the charge of being negligent and remiss
in the discharge of his duties proved. There
is not a word said by way of reason or
reference to any evidence recorded by the
Inquiry
Committee.
The
Inquiry
Committee's findings are, therefore, no
more than an ipse dixit of the two members
constituting it. Even if the issue of the
establishment not examining any witness in
support of the charge is kept aside for a
moment, an inquiry report of this kind,
which is the foundation of order of
reversion ultimately made, cannot be
sustained as also the order founded upon it.

25. A perusal of the impugned order
dated 22.06.2023 passed by the Managing
Director of the Corporation betrays the
same mechanical approach that the Inquiry
Officer's report shows. In the first
paragraph, there is a narration of facts
leading to the charge being laid against the
petitioner, the particulars how the chargesheet was served, and when and how the
reply was submitted.

26. In the next part, there is a detailed
reference to the petitioner's reply, setting it
out verbatim, which is nothing more than a
reproduction of the contents of the
petitioner's reply.

27. The conclusions of the Inquiry
Committee have been reproduced in the
third part. There is then a reference how the
proceedings went beyond receipt of the
inquiry report, asking the petitioner to show
cause through objection to the Inquiry
Report, which, again, have all been
reproduced verbatim.

28. In the fourth part, there is a
reference to the opinion of the office
submitted in the matter, where issues
relating to recovery and the legal opinion
received by the Corporation from their
learned Counsel, have all been reproduced,
also verbatim.

29. In the concluding part, there is
just a reference to the circumstance that
theft of electricity was detected, leading to
a loss of revenue, but, for what period of
time it was committed, is not known. After
the said remark, the petitioner was held
responsible
for
negligence
in
the
performance of his duties and the charge of
being negligent and remiss in that regard,
held proved. Nothing more, in substance,
has been said.

30. There is no evidence considered
as such that may show that the petitioner
was, indeed, negligent. For a fact, there is
no consideration of evidence to the effect
that there was occasion for the petitioner to
have discovered the existence of the
transformer, employing which, the theft
was committed, which he did not do. Prima
facie, the petitioner, as soon as he received
information, reported the matter to the
higher authorities, organized a raid, held
the offender and abated the theft. This
Court does not mean to say, in the least,
586 INDIAN LAW REPORTS ALLAHABAD SERIES
either that the charge against the petitioner
is not well-founded, or that it is established.
This is so because for one, there is hardly
any evidence offered by the establishment
to support the charge, and, for a second,
there is no consideration of evidence, direct
or circumstantial, to establish it.

31. In the considered opinion of the
Court, the Inquiry Report as well as the
impugned order are manifestly illegal in the
sense that these do not proceed to hold the
petitioner guilty on any evidence or
material worth the name.

32. The other part of the submission,
which Mr. Siddharth Khare canvasses, is, in
fact that, that has given rise to the infirmity
hereinabove noticed. It is, indeed, a
salutary principle of law that in the case of
charges in a domestic inquiry that are
serious enough to merit the imposition of a
major
penalty,
if
proved,
the
establishment/employer must prove by
leading
evidence
in
support,
both
documentary and oral. The inquiry has to
be a formal affair, with the Inquiry Officer
or the Committee sitting as impartial
arbiters, and not as representatives of the
department. The establishment or the
department must be represented by a
Presenting Officer, who ought to present
evidence on behalf of the establishment to
prove the charges, including oral evidence
by examining witnesses. This burden has to
be
discharged
by
the
establishment/employers irrespective of the
fact whether the employee stays ex-parte or
he appears and does not elect to lead
evidence in his defence, or even, crossexamine witnesses that the establishment
would
examine.
Merely
because
an
employee does not choose to lead evidence
in support of his case or cross-examine the
establishment's witnesses, does not absolve
the establishment of their burden to prove
the charges by leading evidence, again,
both documentary and oral.

33. Here, the respondents have
thought that since the petitioner has taken a
stand that he does not wish to produce
evidence in his defence, examine or crossexamine witnesses, the Inquiry Committee
and on that basis, the disciplinary authority
could proceed to hold the charge proved
merely by looking into the charge-sheet and
the petitioner's reply, besides a few
circumstances, sans any evidence offered
by the establishment. This approach, this
Court must say, is utterly flawed. The
findings of the Inquiry Committee hardly
qualify for a valid inquiry report regarding
a charge, on the basis of which, a major
penalty can be imposed. Reference in this
regard may be made to the decision of the
Supreme Court in Roop Singh Negi v.
Punjab National Bank and others5 where
it was 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.
11 All. Vinod Kumar Vs. State of U.P. & Ors.
587

34. In State of U.P. and others v.
Saroj Kumar Sinha6 it was, again, 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
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 quasijudicial 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.

35. The issue about the necessity for
the employer to discharge their burden
before the Inquiry Officer by leading
documentary as well as oral evidence arose
for consideration before a Division Bench
of this Court in Kaptan Singh v. State of
U.P.7. In Kaptan Singh (supra) it was held
:

9. We are unable to accept the
contention of the learned Additional Chief
Standing Counsel. Even if the delinquent
employee does not request for personal
hearing the burden of proving the charges
normally being upon the department, the
enquiry officer was under obligation to fix
a date for such enquiry, with information to
the delinquent and to conduct enquiry
wherein he was required to examine
documentary as well as oral evidence, if
any, in support of the charges. Even if the
delinquent employee did not participate in
the enquiry, the enquiry officer was duty
bound to discharge his obligation as an
enquiry officer of ascertaining the truth in
respect of the charges levelled against him,
on the basis of evidence, as to whether the
same are proved against him or not.
10. Even if the delinquent does not demand
personal hearing or does not give the names
of witnesses with brief synopsis of points
on which he wishes to examine or crossexamine the witnesses, the Inquiry Officer
is not absolved from fixing a date of
enquiry, with intimation to the delinquent
and if he does not appear on the date fixed
to either adjourn the enquiry to some other
date or to proceed ex parte, as he deems fit.
In either eventuality, he is required to hold
inquiry, if delinquent is present, in his
presence, if he is absent, ex parte. If oral
evidence is referred in the charge-sheet,
same is required to be recorded/examined,
if not, even then the documentary evidence
is required to be examined in the light of
588 INDIAN LAW REPORTS ALLAHABAD SERIES
the charges for ascertaining the truth in
respect thereof. The delinquent is also
entitled to be intimated the date for oral
enquiry, wherein the Inquiry Officer should
confront the delinquent with the charges
and the evidence in support thereof, put
relevant queries to him, elicit and record
his replies/response in respect thereof. Such
oral enquiry is necessary as it gives an
opportunity, to the delinquent to explain his
conduct and to the Inquiry Officer to have a
better perspective of the controversy, as, it
is not always possible to discern the truth
from written replies and documents which
may not necessarily convey the complete
truth. Even where the delinquent does not
dispute the veracity of the documentary
evidence, oral enquiry is necessary as he
may still have an explanation to offer.

11. ....

12. ....

13. The reference to ''documentary
evidence'' in Rule 7(iii) and (v) clearly
indicates that the same have to be
examined, as aforesaid, on the date to be
fixed for enquiry, whether in the presence
of the delinquent or in absentia (ex parte).
This requirement though not express is
implicit in the aforesaid rules, as is the
requirement of holding an oral enquiry,as it
is a sine qua non for providing reasonable
opportunity to defend and is part of the
principles of natural justice under Article
311 and 14 of the Constitution. Reference
may be made in this regard to the
judgments of the Apex Court in State of
Uttar Pradesh and others v. Saroj Kumar
Sinha, (2010) 2 SCC 772, Roop Singh Negi
v. Punjab National Bank, (2009) 2 SCC
570, State of U.P. v. T.P. Lal Srivastava,
(1996) 10 SCC 702, and The Imperial
Tobacco Company of India Ltd. v. Its
Workmen, AIR 1962 SC 1348, and the
judgements of this Court in R.K. Singh v.
Director/Appointing
Authority,
Govind
Ballabh Pant Social Science Institute,
Jhunsi, Allahabad and another, (2001) 2
UPLBEC 1282 and Subhash Chandra
Sharma v. U.P. Co-operative Spinning
Mills and others, (2001) 2 UPLBEC 1475.
The aforesaid requirement of law has not
been followed in the instant case.

36. I had occasion to consider the
question in Ranveer Singh v. Union of
India and others8 and Prem Narain Singh
v. State of U.P. another9 where the same
principle was followed to hold that it is
imperative for the establishment to lead
evidence, particularly oral evidence, to
prove the charges before the Inquiry
Officer in a case where the charge is likely
to lead to the imposition of a major penalty.
The employer or the establishment cannot
capitalize upon the employee's failure to
examine evidence in his defence or
presume the charge proved by its own
terms, and by reference to a few
circumstances here and there.

37. This Court, therefore, is of
opinion that the impugned order and the
inquiry report are manifestly illegal and
deserve to be quashed. Of course, the
respondents would have opportunity to
proceed afresh in the matter from the stage
of charge-sheet, in accordance with law.

38. In the result, this writ petition succeeds
and shall stand allowed. The impugned
order dated 22.06.2023 passed by the
Managing Director, Purvanchal Vidyut
Vitran Nigam Limited, Varanasi is hereby
quashed. A mandamus is issued to the
respondents to permit the petitioner to
continue on his post as an Assistant
Engineer and pay him emoluments attached
to the said post from the date of this
judgment. It shall, however, be open to the
respondents to proceed afresh against the
11 All. Dinesh Chand Sharma Vs. State of U.P. & Ors.
589
petitioner from the stage of the chargesheet, strictly in accordance with law and
the guidance in this judgment. It shall also
be open to the respondents to pass fresh
orders, again in accordance with law. The
entitlement of the petitioner to receive his
emoluments attached to the post of an
Assistant Engineer for the period between
the date of the impugned order and this
judgment shall be decided, subject to event
in proceedings, if elected to be taken
afresh. In the event, the respondents do not
propose to take fresh proceedings, the
petitioner would be entitled to all his
emoluments attached to the post of
Assistant Engineer between the date of the
order impugned and this judgment.

40. There shall be no order as to costs.
----------
(2023) 11 ILRA 589
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

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

Writ-A No. 10601 of 2023

Dinesh Chand Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sujeet Kumar Rai, Sri Anil Kumar Rai

Counsel for the Respondents:
C.S.C., Sri Brij Raj Verma, Sri Rajesh Kumar
Tiwari

Service Law - Disciplinary Proceedings -
Natural Justice - Dismissal Order - U.P.
Primary Agricultural Cooperative Credit
Societies
Regulations,
2020
-
Requirement of Fair Enquiry - Burden of
Proof on Employer - Ex Parte Proceedings
The petitioner, a peon promoted to accountant
in Kisan Sewa Sahkari Samiti Ltd., challenged
his dismissal from service vide order dated
18.05.2023, issued by the Committee of
Management, alleging violation of natural justice
and procedural irregularities.