# Vishal Sharma v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 297
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Writ A No. 15595 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-sharma-v-state-of-u-p-ors-50885
- **Pages:** 9

## Headnote

298 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service Law - UP Power Corporation
Employees
(Discipline
and
Appeal)
Regulations,
2020
-
Dismissal
-
Disciplinary
proceeding
-
Right
of
personal hearing and cross-examining the
witnesses - Alleged charges may lead to
major penalty - Documents annexed to
the charges were not admitted by the
charged-employee - Effect - Absence of
proof, how far vitiate proceeding - Held,
the members of the Inquiry Committee
cannot arrogate to themselves personal
knowledge
of
the
contents
of
the
documents. The documents have to be laid
before them in evidence, and wherever
necessary, proved by witness(s) - Inquiry
Committee cannot go about their exercise
like
an
administrative
fact
finding
committee gleaning through idle papers.
They have to have formal proceedings,
where the establishment have the first
burden to discharge by proving the
charges through evidence, both oral and
documentary. (Para 18 and 23)

Writ petition allowed. (E-1)

List of cases cited :-

## Text

2 All. Vishal Sharma Vs. State of U.P. & Ors.
297
find that even in this judgment, the Court has
come to the conclusion that at least there must
be some material in the suspension order to
show that the appointing authority has exercised
his independent discretion. It has further been
held in the judgement that merely because the
suspension order has been passed on the
dictates of the superior officers, it will itself not
make the suspension order invalid and it will
have to be seen as to whether appointing
authority has applied his mind or not. The fact
remains that even in the aforesaid judgement,
Co-ordinate
Bench
of
this
Court
has
categorically held that there must be reflection
in the suspension order regarding application of
mind by the appointing authority and exercise
of his discretion independent to the directions
issued by the higher officers.

24. So far as the suspension order dated
06.05.2023, which is impugned in the writ
petition is concerned, this Court is of the view
that the suspension order clearly reflects that
there is no application of mind by the
appointing authority while placing the services
of petitioner under suspension rather on the
contrary, the order reflects that the said order
has been passed in compliance of the directions
issued by the superior officers therefore,
suspension
order
does
not
fulfill
the
requirements of Regulation 4(1) of the
Regulations of 2020 as such, the impugned
order dated 06.05.2023 cannot sustain in the
eyes of law. So far as the arguments advanced
by the learned counsels appearing for the
respondents regarding charges levelled against
the petitioner and judgement and order dated
11.01.2016 passed in Writ-A No. 68494 of 2015
are concerned, since this Court is interfering
with the order of suspension only on the legal
ground and is not adjudicating the charges on
merits, the arguments advanced by the learned
counsels appearing for the respondents do not
carry any weight.

25. So far as the case of the respondents
that Co-ordinate Bench of this Court initially in
Writ-A No. 9917 of 2023 has passed the interim
order whereby suspension order has been stayed
but later on the same Bench in another matter in
Writ-A No. 12569 of 2023 has refused to grant
interim order and has passed final order
whereby direction has been issued to conclude
the disciplinary proceedings expeditiously is
concerned, this court finds that in both the
matters
issue
regarding
compliance
of
Regulation 4(1) of the Regulations of 2020 was
not raised and once the said issue was not
raised, there was no occasion for the Court to
decide the said issue.

26. In view of the aforesaid reasons, this
writ
petition
is
allowed.
Order
dated
06.05.2023, to the extent of suspension of
petitioner's services, is quashed. Respondents
are directed to reinstate the petitioner in service
and pay him salary as and when it becomes due.
Respondents are also expected to conclude the
disciplinary proceedings initiated against the
petitioner expeditiously.

27. Since this court has quashed the order
of suspension only on the ground that the said
order does not fulfill the requirements of
Regulation 4(1) of the Regulations of 2020
therefore, if there is requirement, it is always
open for the Appointing Authority to pass order
in accordance with the provisions of Regulation
4(1) of the Regulations of 2020.
----------
(2024) 2 ILRA 297
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 15595 of 2023

Vishal Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.K. Mishra

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava
298 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service Law - UP Power Corporation
Employees
(Discipline
and
Appeal)
Regulations,
2020
-
Dismissal
-
Disciplinary
proceeding
-
Right
of
personal hearing and cross-examining the
witnesses - Alleged charges may lead to
major penalty - Documents annexed to
the charges were not admitted by the
charged-employee - Effect - Absence of
proof, how far vitiate proceeding - Held,
the members of the Inquiry Committee
cannot arrogate to themselves personal
knowledge
of
the
contents
of
the
documents. The documents have to be laid
before them in evidence, and wherever
necessary, proved by witness(s) - Inquiry
Committee cannot go about their exercise
like
an
administrative
fact
finding
committee gleaning through idle papers.
They have to have formal proceedings,
where the establishment have the first
burden to discharge by proving the
charges through evidence, both oral and
documentary. (Para 18 and 23)

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

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

1. The petitioner was a Junior Engineer in
the service of the U.P. Power Corporation
Limited. He was earlier posted under the
Pashchimanchal Vidyut Vitran Nigam Ltd. at
the
Electricity
Distribution
Division-VIII,
NOIDA and then transferred to the Purvanchal
Vidyut Vitaran Nigam Limited, where he joined
on 16.03.2021.

2. After a preliminary inquiry, the
petitioner was charge-sheeted vide charge-sheet
dated 24.09.2021. Eight charges were framed
against him. The first charge relates to nonmaintenance of a register for temporary
connections from 01.07.2019 to 30.06.2021,
leading
to
non-monitoring
of
temporary
connections. It is also part of the charge that
upon checking of the records, most temporary
connections were found approved without
installing meters, the readings not taken and
bills not issued.

3. The second charge relates to the
temporary connection installed at the premises
of a certain Mohd. Sartaj, Khasra No.11, Neer
Peer
Shahberi,
Greater
NOIDA.
This
connection was sanctioned temporarily on
09.08.2019 for 2 kilowatts. The period
sanctioned was three months. The premises
were inspected in the month of August, 2021,
where the connection was found disconnected.
The office did not have any record of a
permanent disconnection or that of the
consumer being billed or dues of the
Corporation realized. The charge says that it
was the duty of the petitioner to get the meter
reading of the temporary connection recorded
regularly and bills issued to the consumer. It
was also his duty to realize dues from the
consumer.

4. The third charge is about the premises
of another consumer Banshi Lal Rawat. He was
sanctioned temporary connection for three
months with a sanctioned load of 2 kilowatts.
Upon the inspection of his premises, which was
a five storey incomplete structure, it was found
that the meter was installed on a 8.5 meters high
pole, where it was difficult to take down the
readings without the help of a ladder. The meter
when inspected, was found non-functional.
Prior to inspection, the consumer had given a
guess-worked reading, which rendered him
liable to pay Rs.9262/- only that he paid. The
2 All. Vishal Sharma Vs. State of U.P. & Ors.
299
charge goes that the petitioner deliberately got
the meter installed at such a high point in
connivance with the consumer, so that bills
could be raised on concocted readings.

5. The fourth charge relates to a certain
consumer, M/s. Noble Valley. This consumer
was sanctioned a 2 kilowatts connection on
03.05.2018. Upon inspection of his premises on
24.07.2021, the Executive Engineer found a
total of 95 residential premises, where 20
premises were drawing electricity without a
valid electricity connection, committing theft. A
First Information Report was lodged by the
Executive Engineer. The Chief Engineer
sanctioned a multi-point connection for the said
consumer, but prior to the sanction of the multipoint connection, M/s. Noble Valley was
drawing electricity on a temporary connection,
regarding which there is no record of billing or
arrears. The petitioner has been charged with
laxity in not reading the meter of the temporary
connection; not taking action against electricity
theft; not issuing bills and realizing these for the
aforesaid connection or ensuring that it was
converted to a permanent connection, causing
loss to the Corporation.

6. Charge No.5 relates to 59 temporary
connections, out of which only 10 temporary
connections were extended, whereas for the
balance 49, no menoranda extending the
connection were issued, no bills raised, or the
Corporation's dues realized. The petitioner was,
therefore, charged with laxity and not ensuring
disconnection after expiry of the temporary
connection's validity, leading to loss of revenue.

7. Charge No.6 is about the petitioner
sanctioning for construction work a less than 10
kilowatts connection temporarily, regarding
which there is no record of meter reading or
demand available with the Corporation's office.
The petitioner was charged with laxity in
supervision of temporary connections, ensuring
meter reading or realization of bills for these
temporary connections deliberately.

8. Charge No.7 is about a consumer by
the name Ajay Kumar, who had outstanding on
his connection for more than three months, but
there
is
no
record
available
with
the
Corporation about the steps taken to disconnect
his premises. It is charged that according to
Rules of the Corporation, for the outstandings
the consumer's premises ought to have been
disconnected. The petitioner has been charged
for not disconnecting the premises on account
of
the
outstandings,
not
realizing
the
Corporation's dues leading to financial loss and
neglect in the performance of his duties.

9. Charge No.8 relates to non-ensuring of
meter reading for temporary connections and
raising MRI Bills. It is charged that the
petitioner did not take meter readings or
checked these temporary connections. The
petitioner was charged with negligence in the
matter of ensuring reading of temporary
connections, raising MRI Bills and causing
financial loss to the Corporation by his
negligence in non-performance of duties.

10. Six documents were cited in evidence,
mentioned in the charge-sheet, one of which is a
copy of the Uttar Pradesh Government Servant's
Conduct Rules, 1956. The others relate to photo
copies of some temporary connection register,
copy of a preliminary inquiry report, letter by
an Executive Engineer dated 30.08.2019, about
non-taking down of readings of meters for the
temporary connections and a copy of the
provisional bill relating to Ajay Kumar for the
month of May, 2021. The petitioner, in response
to the said charge-sheet, submitted his reply
dated 04.04.2021, denying the charges with full
particulars. An inquiry report was submitted by
an
inquiry
committee,
comprising
two
members, dated 28.01.2022, who found all the
charges proved. The petitioner was provided a
copy of the inquiry report along with a letter
dated 11.02.2022 to show cause in the matter.
The petitioner submitted a detailed reply dated
28.02.2022, refuting the findings of the Inquiry
Committee.
300 INDIAN LAW REPORTS ALLAHABAD SERIES

11.

The
Chairman,
U.P.
Power
Corporation Limited by his order dated
11.07.2022 proceeded to dismiss the petitioner
from service and directed recovery of a sum of
Rs.23,17,508/-
from
him.
The
petitioner
appealed the said decision to the Board of
Directors of the U.P. Power Corporation
Limited vide his appeal dated 06.10.2022. The
Board by their order dated 26th July, 2023
proceeded to reject the petitioner's appeal and
affirmed the Disciplinary Authority.

12. Aggrieved, this writ petition has been
filed under Article 226 of the Constitution.

13. Heard Mr. R. K. Mishra, learned
Counsel for the petitioner and Mr. Abhishek
Srivastava, leaned Counsel appearing on behalf
of respondent Nos. 2 and 3.

14. It is argued by the learned Counsel for
the petitioner that the inquiry against him is
procedurally flawed in a manner that goes to the
root of the matter. It is asserted that the
respondents have not produced any witness on
behalf of the establishment to prove the charges
mentioned in the charge-sheet, which is an
imperative in any case, where imposition of a
major penalty is involved. According to the
petitioner, this is also a violation of the Uttar
Pradesh
Power
Corporation
Employees
(Discipline and Appeal) Regulations, 2020 (for
short, 'the Regulations'). It is argued that the
Inquiry Committee did not provide opportunity
of personal hearing to the petitioner or crossexamining witnesses, inasmuch as no witness
was examined. They did the inquiry merely as a
matter of formality, purporting to hear the
petitioner through video conferencing on
14.12.2021, when a date for the purpose was
fixed. It is averred that on the said date no video
conferencing could be held as the petitioner
could not be connected with the Inquiry
Committee. These averments find place in
Paragraph Nos.11, 13, 22 and 25 of the writ
petition.

15. In Paragraph No. 5(i) of the counter
affidavit, it is averred that the petitioner has not
disputed the genuineness of any document
provided to him during the course of inquiry,
nor had he shown any interest in asking the
Department to produce any witness for
examination/ cross-examination. It is averred
that once the employee has duly participated in
the inquiry and admitted the evidence on
record, it cannot be said that any prejudice has
been caused to him. In Paragraph No.5(v), it is
averred:

"(v). Further from perusal of the
record it is evident that no witness was
proposed either in the chargesheet 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
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."

16. What is, therefore, evident from the
stand taken in the counter affidavit is that the
respondents have not examined any witness on
behalf of the establishment to prove the
charges. A perusal of the inquiry report also
shows that the charges have been held proved,
merely by perusing the charge-sheet, the
petitioner's reply and the documents on record,
hearing
the
petitioner
through
video
conferencing on 14.12.2021. The petitioner says
that he was not heard at all, because the video
conferencing connection never got through.
There is no specific denial of the fact asserted in
Paragraph No.13 of the writ petition that though
a personal hearing through video conferencing
was arranged, but the video conference was not
2 All. Vishal Sharma Vs. State of U.P. & Ors.
301
connected/ provided. The said fact is, therefore,
admitted by non-traverse. In this connection,
Paragraph No.5 of the counter affidavit and its
sub-paragraphs are relevant.

17. The most important feature of the
matter is that the Inquiry Committee in dealing
with charges, that were apparently so serious,
that these could lead to the imposition of a
major penalty, and did lead to it, never took care
to ask the establishment to prove the charges. In
a domestic inquiry, the Inquiry Committee/
Tribunal cannot sit with a mind that identifies
themselves with the establishment. They have
to sit as impartial arbiters, where the
establishment have to prove the charges by
producing both documentary and oral evidence
through a Presenting Officer. It is after the
establishment have produced documents in
evidence through a Presenting Officer, that are
duly proved by the oral testimony of witnesses
that the delinquent employee can be called upon
to cross-examine the establishment's witnesses
and then produce his evidence in defence.

18. Here, the proceedings have gone in a
manner, where it is apparent that the Inquiry
Committee were not cognizant of the serious
business that they were about. They have
written their report after perusing the chargesheet, together with the documents annexed and
the petitioner's reply, treating the charges and
the documents in support as proof of
themselves. The petitioner as the delinquent
before the Inquiry Committee denied the
charges. There is nothing on record to show that
he admitted the documents annexed to the
charges, so as to dispense with proof thereof or
the establishment's burden to prove these
documents
discharged,
after
formally
introducing them to record before the Inquiry
Committee through a Presenting Officer and
proving them by relevant witnesses. The
members of the Inquiry Committee cannot
arrogate to themselves personal knowledge of
the contents of the documents. The documents
have to be laid before them in evidence, and
wherever necessary, proved by witness(s).
Nothing of the kind has been done in this case.
The law in this regard has been laid down by
the Supreme Court in State of Uttar Pradesh
and others v. Saroj Kumar Sinha, (2010) 2
SCC 772, where it has been held:

"27. A bare perusal of the aforesaid
sub-rule shows that when the respondent had
failed to submit the explanation to the chargesheet 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 chargesheet. Since the government servant is absent,
he would clearly lose the benefit of crossexamination of the witnesses. But nonetheless
in order to establish the charges the Department
is required to produce the necessary evidence
before the inquiry officer. This is so as to avoid
the charge that the inquiry officer has acted as a
prosecutor as well as a judge.

28. An inquiry officer acting in a
quasi-judicial authority is in the position of an
independent adjudicator. He is not supposed to
be
a
representative
of
the
department/disciplinary authority/Government.
His function is to examine the evidence
presented by the Department, even in the
absence of the delinquent official to see as to
whether the unrebutted evidence is sufficient to
hold that the charges are proved. In the present
case the aforesaid procedure has not been
observed. Since no oral evidence has been
examined the documents have not been proved,
and
could
not
have
been
taken
into
consideration to conclude that the charges have
been proved against the respondents."

19. Guidance in this regard is to be found
in the holding 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
302 INDIAN LAW REPORTS ALLAHABAD SERIES
enquiry officer performs a quasi-judicial
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. A Division Bench of this Court in
State of U.P. and another v. Kishori Lal and
another, 2018 (9) ADJ 397 (DB)(LB), dealing
with the same issue, held:

"14. Now oming 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 charge-sheet unless the
same are proved by the department before the
inquiry officer and only thereafter it is the turn
of delinquent employee to place his defence.
Holding oral enquiry is mandatory before
imposing a major penalty, as held by Apex
Court in State of U.P. and another v. T.P. Lal
Srivastava, 1997 (1) LLJ 831, as well as by a
Division Bench of this Court in Subhash
Chandra Sharma v. Managing Director and
another, 2000 (1) UPLBEC 541.''

15. In another case in Subhash
Chandra Gupta v. State of U.P., 2012(4) ADJ 4
(NOC), the Division Bench of this Court after
survey of law on this issue observed as under:

''It is well-settled that when the
statute provides to do a thing in a particular
manner that thing has to be done in that very
manner. We are of the considered opinion that
any punishment awarded on the basis of an
enquiry not conducted in accordance with the
enquiry rules meant for that very purposes is
unsustainable in the eye of law. We are further
of the view that the procedure prescribed under
the inquiry rules for imposing major penalty is
mandatory
in
nature
and
unless
those
procedures are followed, any out come inferred
thereon will be of no avail unless the charges
are so glaring and unrefutable which does not
require any proof. The view taken by us find
support from the judgement of the Apex Court
in State of U.P. and another v. T.P.Lal
Srivastava, 1997 (1) LLJ 831, as well as by a
Division Bench of this Court in Subash Chandra
Sharma v. Managing Director and another, 2000
(1) UPLBEC 541.''

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

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

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

17. Even if the employee refuses to
participate in the enquiry the employer 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:
2 All. Vishal Sharma Vs. State of U.P. & Ors.
303

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

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

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

20. From perusal of enquiry report it
is demonstrably proved that no oral evidence
has been led by the department. When a major
punishment is proposed to be passed the
department has to prove the charges against the
delinquent/employee
by
examining
the
witnesses and by documentary evidence. In the
present case no witness was examined by the
department neither any officer has been
examined to prove the documents on the basis
of which charges are levelled on the claimant in
the proceedings.

21.
It
is
trite
law
that
the
departmental proceedings are quasi judicial
proceedings. The Inquiry Officer functions as
quasi judicial officer. He is not merely a
representative of the department. He has to act
as an independent and impartial officer to find
out the truth. The major punishment awarded to
an employee visit serious civil consequences
and as such the departmental proceedings ought
to be in conformity with the principles of
natural justice.

22. Even if, an employee prefers not
to participate in enquiry the department has to
establish the charges against the employee by
adducing oral as well as documentary evidence.
In case charges warrant major punishment then
the oral evidence by producing the witnesses is
necessary."

21. The same principle has been reiterated
by a Division Bench of our Court in Smt.
Karuna Jaiswal v. State of U.P., 2018 (9) ADJ
107 (DB) (LB), where it is observed:

"15. The law in this regard is very
well-settled and does not need a reiteration,
however, we may refer to a judgment of
Hon'ble Supreme Court in the case of State of
Uttar Pradesh and others v. Saroj Kumar Sinha,
(2010) 2 SCC 772, wherein it has clearly been
held that Enquiry Officer acts as a quasi judicial
authority and his position is that of an
independent adjudicator and further that he
cannot act as a representative of the department
or disciplinary authority and further that he
cannot act as a prosecutor neither he should act
as a judge; his function is to examine the
evidence presented by the department and even
in the absence of the delinquent officer, has to
see as to whether the unrebutted evidence is
sufficient to bring home the charges.

16. Hon'ble Supreme Court has
further held in the said judgment of Saroj
Kumar Sinha (supra) that it is only in case when
the Government servant, despite notice, fails to
appear during the course of enquiry that
Enquiry Officer can proceed ex parte and even
in such circumstances it is incumbent upon the
Enquiry Officer to record the statement of
witness.

17. In the instant case, no oral
enquiry was held, neither the petitioner was
304 INDIAN LAW REPORTS ALLAHABAD SERIES
given any notice to participate in any oral
enquiry by fixing date, time and place for oral
enquiry. It is only that the Enquiry Officer after
noticing that despite sufficient time having been
given to the petitioner, she did not furnish her
reply to the charge-sheet, he proceeded to
submit ex parte report without conducting any
oral enquiry by fixing date, time and place for
such an oral enquiry. Accordingly, the Enquiry
Officer, in this case, has violated the aforesaid
principles, which clearly vitiates the enquiry
proceedings and any punishment order based on
such a vitiated enquiry, is clearly not
sustainable."

22. In State of U.P. v. Aditya Prasad
Srivastava and another, 2017 (2) ADJ 554
(DB)(LB), again a Bench decision of this Court,
it was held:

"14. Recently the entire law on the
subject has been reviewed and reiterated in
Chamoli District Co-operative Bank Ltd. v.
Raghunath Singh Rana and others, AIR 2016
SC 2510 and Court has culled out certain
principles as under:

''(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 subject-matter 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
connected materials relied on by the enquiry
officer to enable him to offer his views, if any.''

15. The principal of law emanates
from the above judgments is that initial burden
is on the department to prove the charges. In
case where inquiry is initiated with a view to
inflict major penalty, department must prove
charges by adducing evidence by holding oral
inquiry.

17.
It
is
trite
law
that
the
departmental proceedings are quasi judicial
proceedings. The Inquiry Officer functions as
quasi judicial officer. He is not merely a
representative of the department. He has to act
as an independent and impartial officer to find
out the truth. The major punishment awarded to
an employee visit serious civil consequences
and as such the departmental proceedings ought
to be in conformity with the principles of
natural justice. 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."

23. The law, therefore, is well settled for a
salutary principle that the Inquiry Committee
cannot go about their exercise like an
administrative fact finding committee gleaning
through idle papers. They have to have formal
proceedings, where the establishment have the
first burden to discharge by proving the charges
through evidence, both oral and documentary.
This Court, as already remarked, finds from a
perusal of the inquiry report that the Inquiry
Committee have hardly functioned as an
impartial arbiter. They have proceeded on the
assumption that the charges in the charge-sheet
read with the documents, are proof of
themselves and it is for the petitioner to dispel
the charge, which he has failed to do. These
kind of findings of the Inquiry Committee can
never be held to be valid, on the foot of which
orders of such serious consequence as dismissal
from service can lawfully be made. This Court
2 All. Vimlesh Lal Vs. State of U.P. & Ors.
305
may add that the more serious the charge, the
more formal, elaborate and strict the procedure
has to be to prove it. After all, this Court does
not reappraise evidence in a secondary review,
but is obliged to see that there is procedural
fairness in the conduct of the inquiry. A
fundamentally flawed procedure adopted by the
Inquiry Committee has to be undone and the
consequences of it abated.

24. In the circumstances, this writ petition
succeeds and is allowed. The impugned order
dated 11.07.2022 passed by the Chairman, U.P.
Power Corporation Limited, Lucknow and the
appellate order dated 26.07.2023 passed by the
Board of Directors, U.P. Power Corporation
Limited, Lucknow are hereby quashed. The
petitioner shall be reinstated in service
forthwith. After reinstatement, it will be open to
the respondents to proceed with the inquiry
afresh from the stage of issue of the chargesheet, bearing in mind the guidance in this
judgment. It will also be open to the
respondents looking to the nature of the
charges, upon the petitioner's reinstatement,
either to suspend him pending inquiry or assign
him duties. The inquiry, if initiated, will be
expedited. In the event, the petitioner is placed
under suspension, he will be paid his
subsistence allowance regularly, without asking
him to furnish a non-alternative engagement
certificate. In case he is not suspended and still
proceeded with, the petitioner would be paid his
current salary regularly from the date of this
judgment. So far as the question of arrears of
pay etc. is concerned, that will abide by the
final result of the disciplinary proceedings, if
resumed against the petitioner as per liberty
given. If, however, no disciplinary proceedings
are taken, the petitioner shall be entitled to 25%
of his emoluments with all other consequential
benefits.

25. There shall be no order as to costs.
----------
(2024) 2 ILRA 305
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 18562 of 2023

Vimlesh Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shailesh Pandey

Counsel for the Respondents:
C.S.C., Sri Brijesh Kumar, Sri Hausihla
Prasad
Mishra,
Sri
Jitendra
Narayan
Tripathi, Sri H.P. Singh

A. Service Law - UP Municipalities Act,
1916 - Section 34 - Promotion - Post of
Water Works Supervisor - Chairman of
Nagar Palika Parishad granted promotion
- However, District Magistrate set aside
promotion's order - Validity challenged -
Authority of District Magistrate, extent of
- Held, the District Magistrate's power is
traceable to S. 34(1-A) alone, which
authorizes him to prohibit the execution
of a resolution passed by a Municipality or
a Committee or an Officer etc., if he is of
opinion that the resolution or the order is
of a nature that may cause or tend to
cause danger to human life, health or
safety, or a riot or affray. That is the
limited authority of the District Magistrate
to interfere in the affairs of a Nagar Palika
or a Municipality - There is no other
power vested in the District Magistrate to
interfere with any decision made by the
Nagar Palika Board - Order passed by the
District Magistrate is absolutely without
jurisdiction and he could not have set
aside the promotion order made in the
petitioner's favour by the Chairman of the
Nagar Palika Parishad in the exercise of
his
power
to
appoint,
promote
etc.
employees of the Nagar Palika Parishad.
(Para 16 and 22)

Writ petition allowed. (E-1)

List of cases cited :-