U.P.S.E.B.And Another vs The U.P.Public Service Tribunal on 1 May, 2017

[Cites 44, Cited by 0]

Allahabad High Court

U.P.S.E.B.And Another vs The U.P.Public Service Tribunal on 1 May, 2017

1. This is an employer's writ petition who is aggrieved by judgment and order dated 04.10.1993 (as corrected on 07.02.1994) passed by State Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal") in Claim Petition No. 1524/II of 1976 (renumbered as 557/T of 1987) whereby it has allowed claim petition, set aside dismissal order dated 06.08.1976 and declared that Claimant-respondent-2, R.D. Srivastava, shall be entitled for all benefits.

2. Tribunal has further said that Claimant-respondent-2 shall be reinstated (if not attained age of superannuation) on the post held by him prior to dismissal.

3. Facts in brief giving rise to present dispute are, that, Claimant-respondent-2, R.D. Srivastava (hereinafter referred to as "Claimant") was appointed as Assistant Engineer in the erstwhile "Uttar Pradesh State Electricity Board" (hereinafter referred to as "UPSEB") in the pay scale of Rs. 250-850. Appointment order was issued by Secretary, UPSEB on behalf of UPSEB. Claimant was promoted as Executive Engineer in November, 1968 and posted at Hydel Division, Sitapur on 12.01.1971. Claimant was transferred as Executive Engineer, Store Inspection Circle, Lucknow where he took charge on 12.01.1972.

4. Vide order dated 23.12.1971, Chairman, UPSEB placed Claimant under suspension with immediate effect. A charge-sheet was served upon Claimant on 05.04.1972 by Superintending Engineer, on behalf of UPSEB, which contained seven charges which are summarized as under:-

"Charge No. 1:

That, while you were posted as Executive Engineer, Electricity Maintenance Division, Sitapur, you made purchase of materials to the extent of Rs. 47.78 lakhs during the period December, 1968 to November, 1969 as against your powers to make purchase of Rs. 10,000/- on your own and Rs. 50,000/- with the approval of the Superintending Engineer, per month.

You are, therefore, guilty of gross abuse of authority, of acting beyond your jurisdiction, of exceeding your powers as Executive Engineer and of making purchases with ulterior motives, in utter disregard of the financial rules and Board's orders regarding purchase of materials, thereby jeopardising the financial interests of and causing loss to the Board.

Charge No. 2:

That, while you were posted as Executive Engineer, Electricity Maintenance Division, Sitapur, you made purchases of materials in piecemeal on the basis of limited quotations from a few suppliers, instead of ceiling for open tenders and inquiries from the manufacturer.

You are, therefore, guilty of piecemeal purchases, with ulterior motives only to keep them within your powers, worth is 27.21 lakhs, of disregarding the rules, orders and instructions of the Board in this connection and of causing avoidable loss to the Board.

Charge No. 3:

That, while you were posted as Executive Engineer, Electricity Maintenance Division, Sitapur, you are placed orders worth is Rs. 0.47 lakhs for the supply of materials on the basis of orders placed by other Divisions without ascertaining the reasonableness of their rates and also placed repeat orders worth 0.95 lakhs in utter disregard of financial limitations and existing rate contracts of the Director of Industries. U.P. and rate contracts/running contracts of the Stores Procurement Circle of the Board, with the result that excess rates were allowed to the firms from whom the purchases were made and thereby caused a loss of Rs. 5.73 lakhs to the Board. In a number of cases the rate allowed was as much as 2 to 5 times more than the rate contract rates.

You are, therefore, guilty of making purchases at excessive rates from firms without availing the benefit of rate contracts, with the deliberate intent of securing personal financial gain, ignoring the existing rules and orders of and of causing considerable financial loss to the Board.

Charge No. 4:

That, while posted as Executive Engineer, Electricity Maintenance Division, Sitapur, you obtained supplies of stores through work orders n order to avoid the prescribed procedure of obtaining the requisite sanction of competent authority by keeping the value of individual orders within your own financial powers as Executive Engineer. Articles of Tools and plants to the value of Rs. 4.03 lakhs were also procured by you on Work Orders without higher orders and preparation of estimates.

You are, therefore, guilty of making purchase in utter disregard of your powers as Executive Engineer and of deliberate violation of financial rules and other orders and instructions regarding the purchases of materials, with the motive of personal financial gain.

Charge No. 5:

That while posted as Executive Engineer, Electricity Maintenance Division, Sitapur, you made purchase of materials in very large quantities without any proper planning and without making proper assessment of the actual requirement of the Division, with the result that most of these materials remained in excess of your actual requirements and materials to the tune of Rs. 4.78 lakhs had to be transferred to other Division, which also resulted in further avoidable expenditure on cartage.

You are, therefore, guilty of want only making unnecessary purchases with the ulterior motive of personal financial gain and of causing avoidable expenditure to the Board.

Charge No. 6:

That while you were posted as Executive Engineer, Electricity Maintenance Division, Sitapur, you made local purchases of materials in such large quantities that a good stock of the same amounting to as much as Rs. 13 lakhs was not likely to be utilized even during the next six months though, as divisional officer, you were authorized to make local purchases of emergent requirements only.

You are, therefore, guilty of deliberate misuse of your authority and of making excessive purchases with the ulterior motive of personal financial gain.

Charge No. 7:

That, while you were posted as Executive Engineer, Electricity Maintenance Division, Sitapur you purchases materials without inviting competitive tenders and from firms who were in reality one and the same but were acting under different fictitious names with the same Sales tax Register Nos. on all the letter pads they had nominally in the name of different firms.

You are, therefore, guilty of making purchases intentionally, knowingly and imprudently from one and the same firm, acting in different names, with a view to circumvent financial requirement and with the ulterior motive of personal financial gain, thereby causing loss to the Board."

5. Under every charge, documentary evidence relied to support such charge was not mentioned. Claimant requested for supply of documents referred in the charge-sheet and some additional documents, needed for his defence, vide letter dated 10.04.1972 (Annexure No. 28 to rejoinder affidavit). Certain other documents were demanded by Claimant were mentioned in the charge-sheet, under charge no. 3, vide letter dated 26.04.1972 (Annexure No. 29 to rejoinder affidavit). Vide letter dated 15.05.1972 (Annexure No. 30 to rejoinder affidavit), Inquiry Officer asked Claimant to contact four offices of UPSEB, mentioned therein, for required documents. From 27.07.1972 to 05.08.1972, Claimant inspected record at Hydel Division, Sitapur and Electricity Procurement Circle, Lucknow. Another letter dated 08.08.1972 (Annexure No. 35 to rejoinder affidavit) sent by Claimant requesting Chief Accounts Officer (hereinafter referred to as the "CAO") for inspection of few more documents. On 11.08.1972 (Annexure No. 34 to rejoinder affidavit), Claimant wrote a letter to Superintending Engineer, Electricity Stores Procurement Circle, Lucknow to show remaining documents, not shown earlier, during inspection dated 08.08.1972. Since Claimant had not submitted reply to charge-sheet, Inquiry Officer asked Claimant to submit reply to charge-sheet within a week, vide order dated 18.08.1972.

6. Ultimately, Claimant submitted reply to charge-sheet on 25.08.1972 stating that same is a tentative reply and since he has not been able to get all the documents, he reserve right to file further reply. He also requested for personal hearing from Inquiry Officer vide letter dated 13.09.1972 (Annexure No. 36 to rejoinder affidavit).

7. Inquiry Officer directed Chief Accounts Officer to allow inspection of documents demanded by Claimant. Inquiry Officer also fixed 26.09.1972 (Annexure No. 37 to rejoinder affidavit), on which date, inspection was requested to be allowed to Chief Accounts Officer. Another letter was also sent to Superintending Engineer to permit inspection of documents to Claimant on 25.09.1972. However, Accounts Officer vide letter dated 16.09.1972 (Annexure No. 38 to rejoinder affidavit) informed Claimant that his request for inspection of documents cannot be accepted since only those documents are to be allowed which are relied on and referred in charge-sheet. This fact was also informed by Accounts Officer to Superintending Engineer vide letter dated 25.09.1972 (Annexure No. 39 to rejoinder affidavit).

8. Inquiry Officer wrote a letter dated 07.10.1972 asking petitioner whether he intent to file any supplementary reply. Claimant vide letter dated 16.10.1972 informed Inquiry Officer that he has not been allowed inspection of documents and was not in a position to submit any supplementary reply. Vide letter dated 30.12.1972, Inquiry Officer fixed 08.01.1973, a date for personal hearing. Another date was fixed by Inquiry Officer on 25.01.1973 and third date on 19.02.1973 which was adjourned to 24.02.1973. On 24.02.1973, no proceedings took place and Inquiry Officer informed Claimant that he shall fix another date in respect whereof information would be given later on. Claimant sent letter dated 09.08.1973 as a supplementary reply intimating Inquiry Officer the points which he would elaborate at the time of personal hearing.

9. Erstwhile Inquiry Officer, Sri S.K. Mathur was changed and UPSEB vide letter dated 16.08.1973 appointed Sri M.Y. Quireshi, Superintending Engineer as new Inquiry Officer. Claimant requested new Inquiry Officer to fix a date for personal hearing but no such date could be fixed till 19.12.1973. Thereafter, vide letter dated 26.12.1973, Inquiry Officer informed Claimant that he has fixed 20.01.1974 for personal hearing. This letter was served upon Claimant on 14.01.1974, hence vide letter dated 15.01.1974, he requested for postponement of aforesaid date. Next date was fixed as 17.02.1974 when Claimant appeared before Inquiry Officer and was required to give his defence and explain charges levelled against him so as to disprove the same.

10. Inquiry Officer submitted report on 30.04.1974. Findings in brief are as under:-

"(a) Charge no. 1 proved to the extent of existing financial power for purchase of material.

(b) Charge no. 2, i.e., charge of making piecemeal purchase was found proved.

(c) Charge no. 3 held proved partly.

(d) Charge no. 4 was held proved.

(e) Charge no. 5 held proved.

(f) Charge no. 6 find not proved.

(g) Charge no. 7 find not proved."

11. Inquiry Officer also proposed punishment of "reduction in rank" for a period of one year, debar from holding of charge of a division for a period of three years, recover Rs. 16,788/- and no payment of full salary for the period of suspension except subsistence allowance already paid. Inquiry Officer, however, recommended for period of suspension, to be treated as period spent on duty for the purpose of sanction of annual increment and retiral benefits.

12. A show cause notice dated 15.10.1974 was issued to petitioner by Chairman, UPSEB proposing to impose punishment of dismissal showing his concurrence with the findings of Inquiry Officer. Claimant submitted reply on 30.09.1975, and supplementary replies on 21.10.1975 and 11.11.1975. Ultimately, order of punishment of dismissal was passed by Chairman, UPSEB on 06.08.1976.

13. Aforesaid order of dismissal was challenged by Claimant in Claim Petition No. 1524/II of 1976 (renumbered as 557/T/1987). The pleadings before Tribunal included written statement, rejoinder, amended claim petition, additional written statement and additional rejoinder.

14. During pendency of proceedings before Tribunal, petitioner also initiated criminal proceedings against Claimant. Claim Petition came up for hearing before Tribunal and vide judgment dated 04.10.1993 it was allowed and dismissal order dated 06.08.1976 was quashed. Tribunal held that Claimant is entitled for continuity in service and all consequential benefits. It is this judgment which has been challenged by employer-UPSEB in this writ petition.

15. We have heard Sri S.K. Kalia, Senior Advocate, Assisted by Amit Kumar Bhadauria, Advocate, learned counsel for petitioners, Sri Anoop Kumar, learned counsel for Claimant, at length, and perused record as well as relevant citations relied by respective parties.

16. The first ground which found favour with Tribunal is that order of dismissal has been passed by an authority subordinate in rank to Appointing Authority. Claimant pleaded that he was appointed by UPSEB since appointment letter was issued on behalf of UPSEB by Secretary while punishment order was passed by Chairman, UPSEB who cannot be said to be "Board". Applying parity with Article 311(1) of Constitution of India Tribunal held that order of dismissal passed by authority lower in rank than the authority who appointed Claimant would be bad. It held that Claimant was appointed by UPSEB though dismissed by Chairman. It is true that under Regulation 14 of UPSEB Services of Engineers Regulations, 1970 (hereinafter referred to as "Regulations, 1970), Competent Authority to suspend and take disciplinary action against Assistant Engineer and Executive Engineer is "Chairman" but said Regulation was framed in 1970 while Claimant was appointed in 1962, hence Regulations 1970 would not change "Competent Appointing Authority" vis-a-vis Claimant. Tribunal said that Regulations, 1970 are not retrospective and, therefore, dismissal by "Chairman" was illegal since he was subordinate in rank to the Board.

17. The second ground found favour with Tribunal is that copies of documents mentioned in charge-sheet were not supplied to Claimant despite repeated demand.

18. The third ground found favour with Tribunal is that charges held proved against Claimant included some allegations which were not stated and formed part of charges in the charge sheet, therefore, Claimant has been punished on a charge, not levelled in the charge-sheet.

19. The fourth ground relied by Tribunal is that certain documents which were not relied on or cited in charge-sheet but have been referred by Inquiry Officer in inquiry report and this vitiates entire proceedings since material not disclosed to Claimant has been relied on.

20. Sri S.K. Kalia, learned Senior Advocate, challenging order of Tribunal contended that Officers of UPSEB are not holder of a "Civil Post" and, therefore, Article 311 of the Constitution of India has no application. Protection guaranteed under Article 311(1) was not available to Claimant. Tribunal ignoring this fact has erred in law in holding that order of dismissal was bad having been passed by "Chairman" and not "Board" who actually appointed Claimant as Assistant Engineer in 1962. He submitted that under Regulations 1970 as applicable on the date of inquiry, an officer of Board could have been punished by an authority competent under Regulations 1970 to appoint him or to conduct departmental inquiry. Under Regulations, 1970, "Chairman" was Competent Appointing and Disciplinary Authority of Assistant Engineer and Executive Engineer. In absence of any provision providing otherwise, Chairman was competent to pass order of dismissal against an officer appointed as Assistant Engineer or Executive Engineer, irrespective of the fact that earlier he was appointed by Board.

21. Assailing Tribunal's finding that allegations which were not part of allegations contained in charge-sheet have been taken into consideration to punish Claimant, Sri Kalia placed before us entire charge-sheet and submitted that charges found proved are based on allegations contained in charge-sheet and otherwise findings of Tribunal, in this regard, are perverse. With regard to findings that documents demanded were not supplied, Sri Kalia submitted that inspection of documents was permitted. In any case, in absence of any pleading and finding recorded by Tribunal that any prejudice has been caused to Claimant on account of non-supply of any document, inquiry proceedings would not vitiate only for the reason of non-supply of documents. He further pointed out that documents which were inspected, need not be supplied. Lastly, he pointed out that even otherwise whatever documents were relied/mentioned in the charge-sheet, only those documents have been referred by Inquiry Officer to hold charges proved and these documents were already allowed to be inspected, therefore, findings of Tribunal holding inquiry vitiated on this ground for non-supply are untenable and liable to be set aside.

22. Learned counsel for Claimant on the contrary relied on the judgment of Tribunal and submitted that every aspect has been considered very carefully by Tribunal and in absence of anything to show that findings recorded by Tribunal are contrary to record or perverse this Court under Article 226 of Constitution of India may not interfere with the impugned judgment and writ petition deserves to be dismissed. It is also pointed out that entire proceedings have been conducted in utter disregard of natural justice and this is evident from record hence also it is a fit case in which this Court should not interfere particularly when Claimant has already retired almost two decades back. He pointed out that major penalty of dismissal has been imposed without holding any oral inquiry whatsoever in accordance with principles of natural justice and entire proceedings are vitiated in law.

23. In our view, following issues need be adjudicated in this writ petition:-

"(i) Whether order of punishment has been passed by Competent Authority or otherwise view taken by Tribunal is justified or incorrect?

(ii) Whether disciplinary inquiry was not conducted in accordance with Rules giving adequate opportunity of defence to Claimant?

(iii) Whether findings of Inquiry Officer travel beyond allegations contained in charge-sheet as held by Tribunal?"

24. Coming to the first question, we find from record and this is also not disputed by learned Senior Counsel appearing for petitioners that Claimant was appointed as Assistant Engineer and entered into a "service agreement" with UPSEB. This service agreement shows that "Board" appointed Engineer on the terms and conditions contained in that agreement. Clause (9) of "service agreement" which is on record at page 249 of paper book, talks of disciplinary matters and reads as under:-

"9(a) If the engineer is found guilty of any insubordination, intemperance or other misconduct or of any breach or non-performance of any of his duties or the provisions of this agreement or of any rules pertaining to the branch of the Board's service on which he may belong, he may be awarded the following punishments, namely-

(i) Censure.

(ii) Withholding of increments including stoppage at an efficiency bar.

(iii) Reduction to a lower post or time scale or to a lower stage in a time scale.

(iv) Recovery from the pay, pension or gratuity of the whole or part of any pecuniary loss caused to the Board by negligence or breath of orders.

(v) Suspension.

(vi) Removal from service, which does not disqualify from future employment.

(vii) Dismissal from service, which will result in disqualifying the engineer from future employment.

(b) The Board may prescribe a procedure for dealing with acts of misconduct and breaches of discipline, and appoint appropriate authorities to hold enquiries and impose punishments and also to hear appeals:

Provided that the procedure laid down in rules 55 and 55 A of the Civil Services (Classification, Control and Appeal) Rules, as amended by the State Government from time to time, shall be followed before any of the punishments mentioned below is imposed:

(i) Dismissal from service;

(ii) Removal from service;

(iii) Reduction in rank which includes reduction to a lower post or time scale, or to a lower stage in a time scale but excludes the reversion to a lower pot of a person who is officiating in a higher post."

(emphasis added)

25. Clause (20) of said agreement provides that Engineer will be bound to such general conditions of service and such rules and orders as laid down by "Board" so far as conditions of service rules and orders are not repugnant to any terms of agreement.

26. Aforesaid "service agreement", admittedly, was executed in furtherance of letter dated 06.01.1962 issued by UPSEB through its Secretary conveying to Claimant that he has been approved for appointment as temporary Assistant Engineer subject to medical fitness, character and antecedents verified. Petitioner's appointment, therefore, was made by UPSEB in 1962 and this fact is well accepted.

27. UPSEB is a statutory body constituted under Section 5 of Electricity Act, 1948 (hereinafter referred to "Act, 1948") and Section 79(c) thereof confers power upon UPSEB to frame regulations relating to recruitment, appointment and conditions of service of its employees and Engineers. In furtherance thereof, one such regulation, namely, Regulations 1970 were framed. It define "Appointing Authority" under Regulation 3(2), 'Board' under Section 3(5), 'Chairman' under Section 3(6) and "Executive Engineer" under Section 3(14) as under:-

"3...

(2) "Appointing Authority" means the authorities defined in Regulation 14.

(5) 'Board' means the U.P. State Electricity Board constituted under Section 5 of the Act.

(6) 'Chairman' means the Chairman of the U.P. State Electricity Board.

(14) "Executive Engineer" means the Executive Engineer who may e appointed by the Chairman; it includes other posts of equivalent status which may be included in the cadre." (emphasis added)

28. Regulation 14 detail "Appointing Authorities" of Members of Service and reads as under:-

14. Appointing Authorities.- The Appointing Authorities of the Members of Service shall be as follows:

Name of Post Appointing Authority

1. Assistant Engineer

2. Assistant Executive Engineer

3. Executive Engineer

4. E.E. (Selection Grade)

5. Superintending Engineer

6. All officers above the rank of S.E. Chairman Board

29. Thereafter, dealing with subject of disciplinary matters, UPSEB framed another set of Regulations exercising power under Section 79(c) of Act, 1948, i.e., UPSEB (Officers and Service) (Conditions of Service) Regulations, 1975 (hereinafter referred to as "Regulations, 1975").

30. The appointment of petitioner though commenced through a contract but since UPSEB has statutory power of framing Regulations and once such statutory Regulations are framed, subject matters governed by those Regulations would be regulated thereupon by the provisions of such Regulations will prevail over terms of contract, if any provision is otherwise.

31. In the present case, under Regulations, power of imposition of punishment of dismissal or removal was conferred upon "Chairman" who was declared "Appointing Authority" of Executive Engineer under Regulations 1970 read with Regulations 1975 and, therefore, "Chairman" was competent to terminate Claimant.

32. So far as protection under Article 311(1) of Constitution of India is concerned, we have no hesitation in holding that neither employment under UPSEB is an employment under Government of U.P. nor Engineers and other employees of UPSEB are holders of a "civil post" and, therefore, Article 311 of Constitution of India has no application in this regard.

33. Tribunal in applying principles of Article 311(1) of Constitution of India, in the case in hand, has clearly erred in law ignoring the fact that there was no pari materia provision under statutory Regulation s framed by UPSEB in exercise of powers under Section 79(c) which confer such a right upon its employees including Engineers, and, therefore, question-1 will have to be answered in favour of petitioners.

34. Applicability of Article 311(1) in respect of employees of State Bank of Patiala came to be considered in Satinder Singh Arora Vs. State Bank of Patiala and others 1992 Supp (2) SCC 224. Court held that employees of Bank do not belong to such category to which Article 311(1) applies. Relevant observations made in para 8 of judgment read as under:-

"8. Mr. Garg then submitted that the Regulation 67(g) read with Regulation 68(1)(ii) permits hostile discrimination, in that, while in the case of employees governed by Article 311(1) only the authority which had actually appointed the officer can terminate his service whereas under the Regulation any officer even lower than the one who initially appointed him could be designated as the appointing authority and once so designated he can visit the employee with an order of major punishment. We do not think that the submission is well founded. Article 311(1) governs those belonging to certain stated services to which employees - the petitioner does not belong. The petitioner clearly belongs to a different class whose terms and conditions of employment are governed by a different set of regulations. The petitioner is, therefore, governed by the Regulations and as the Regulations stood at the date of the passing of the impugned order the Managing Director was clearly competent to pass the impugned order of removal." (emphasis added)

35. Similar issue in the context of employees of State Bank of India came up for consideration in State Bank of India Vs. S. Vijaya Kumar (1990) 4 SCC 481 where Court held:-

"The right that an officer or employee of the State Bank of India cannot be dismissed from service by an authority lower than the appointing authority is a creation of statutory rules and regulations. So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of a State or who holds a Civil Post under the Union or a State. Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protection under Article 311(1) of the Constitution." (emphasis added)

36. In Rajasthan State Road Transport Corporation Ltd. and others Vs. Gurudas Singh (2004) 13 SCC 418, an argument was advanced that Rajasthan State Road Transport Corporation being an authority under Article 12, employees would be entitled for protection under Article 311 of Constitution of India. Repelling it, Court in paras 7-10, said:-

"7. A bare reading of the aforesaid provision in the Constitution shows that it is applicable only to a member of civil service or the Union or all-India service or civil service of a State or a person holding civil post under the Union or a State.

8. For the purpose of Article 12 the Corporation may be treated as an "authority" for the purpose of being subject to Part III of the Constitution.

9. In Som Prakash Rekhi Vs. Union of India this Court categorically observed that Bharat Petroleum Corporation Ltd. was a limb of Government, an agency of the State, a vicarious creature of the statute working on the wheels of the Acquisition Act. It was however held that the conclusion does not mean that for the purpose of Article 309 or otherwise, the aforesaid government company is a State and it was limited to Article 12 and Part III of the Constitution.

10. Judged in the light of the decisions of the two Constitution Bench decisions referred to above, the inevitable conclusion is that the respondent was not entitled to protection under Article 311 of the Constitution. Article 311 occurs in Part XIV of the Constitution which deals with "Services under the Union and the States" and more specifically in Chapter I of that part which deals with "Services". The head of the article reads "Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or State". The text of the article refers to members of civil services of the Union or State". The text of the article refers to members of civil services of the Union or an all-India service or a civil service or a civil post under the Union or a State. A Constitution Bench of this Court in S.L. Agarwal (Dr.) Vs. G.M. Hindustan Steel Ltd. considered as to who are the persons entitled to the protection of Article 311. In State of Assam Vs. Kanak Chandra Dutta also applicable tests were indicated by a Constitution Bench." (emphasis added)

37. In Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Ltd. Haldia and others (2005) 7 SCC 764 relying on Constitution Bench judgment in S.L. Agarwal (Dr.) Vs. G.M. Hindustan Steel Ltd. (1970) 1 SCC 177, Court held that "an employee of a Corporation cannot be said to have held a "civil post" and, therefore, not entitled to protection of Article 311. According to Court, Corporation could not be said to be a "Department of Government" and employees of such Corporation were not "employees under Union". Corporation has an independent existence and appellant was not entitled to invoke Article 311.

38. Thus, we answer Question-1 in favour of petitioners and otherwise findings of Tribunal are reversed.

39. Now coming to second question. This issue has to be considered in following sub-heads:-

"(i) Whether relied on or relevant defence documents were not supplied. If so, what is the effect?

(ii) Whether disciplinary inquiry in accordance with Regulations was conducted?"

40. Learned counsel for petitioners drew our attention to various documents relied/mentioned in the charge-sheet and those made available to Claimant for inspection and referred by Inquiry Officer in report to establish the charge. A brief gist thereof is as under:-

Charge No. Documents relied/mentioned in the charge-sheet Documents relied by Inquiry Officer to hold charge proved or unproved Documents supplied or inspection permitted

1. While posted as E.E., Electricity Maintenance Division Sitapur, you made purchases of material to the extent of Rs. 47.78 lacs during the period December 1968 to November 1969 as against power to make purchases of Rs. 1000 on own and Rs. 50000 with approval of S.E. Per month. Therefore guilty of Gross abuse of power authority, acting beyond jurisdiction, exceeding power with ulterior motive thereby jeopardising the financial interest of and causing loss to the Board.

1. Important audit observations of Accountant General U.P. for period 3/70 to 9/70

2. Inquiry Report of A.K. Gupta and K.S. Bhatnagar

3. List of local purchase

4. B.O. No. 6771 dated 30.09.1965

5. Copies of Work order

6. Measurement Book

7. Vouchers through which payments for material supplied were made

8. Stock Register

9. Para 179 & 184 of F.H.B. Vol VI

1. B.O. No. 6771 dated 30.09.1965 2. Measurement Book No. 230

3. Stock Book 4. Measurement Book No. 221 Respondent No. 2 by means of his letter dated 10.04.1972 and 26.04.1972 (Pg. 100 of CA) requested the I.O. to provide some documents mentioned in the Charge-sheet. In pursuance of the aforesaid letters the I.O. by means of his letter dated 15.05.1972 (Pg. 108 of CA) required the respondent no. 2 to intimate the date and time on which he wish to inspect the documents.

2. While posted at Sitapur you made purchase of material in piecemeal on the basis of limited quotations from a few suppliers instead of calling open tender. Therefore, guilt of making piecemeal purchase, with ulterior motives only to keep them within your powers, worth Rs. 27.21 lac by disregarding rules.

1. Important audit observation for the period of 3/70 to 9/70

2. Inquiry Report of A.K. Gupta and K.S. Bhatnagar

3. List of orders placed.

4. B.O. No. 6774 dated 30.09.1965

5. Measurement Book

6. Vouchers through which payments made.

7. Stock Register.

8. Para 179, 352, 360, 369, 370 of FHB Vol. VI.

1. Encl. 1- Work Orders prepared on the basis of Appendix 'C' of Inquiry Report.

2. Appendix 'C' of Inquiry Report of A.K. Gupta and K.S. Bhatnagar.

3. Encl. II - Statement showing position of some of items of stock material during the incumbency of respondent no. 2 under the signature of Sri C.L. Arania, E.E., Electricity Maintenance Division, Sitapur The respondent no. 2 inspected the documents mentioned in the charge-sheet and other documents demanded by him on 20.07.1972, 27.07.1972, 05.08.1972, 07.08.1972 and 10.08.1972 in concerned Officers.

41. With regard to inspection of documents, we find that Accounts Officer vide letter dated 16.09.1972 informed Claimant that his request for inspection of documents cannot be accepted since only those documents are to be allowed which were relied and referred in charge-sheet though Inquiry Officer did not find demand of those documents to be irrelevant and unnecessary for defence. When Inquiry Officer allowed all these documents, it was not open to any other official of UPSEB to take a decision whether a particular document can be allowed to be inspected or not, to Claimant in the context of departmental inquiry, and in this regard the only Competent Authority was, Inquiry Officer. Inquiry Officer had allowed request of Claimant and directed UPSEB and its authorities to provide inspection of all documents demanded by Claimant. Unfortunately Accounts Officer vide letter dated 16.09.1972 denied inspection and nothing has been placed on record to show that those documents denied by Accounts Officer vide letter dated 16.09.1972 (Annexure 13 to Rejoinder Affidavit) were made subsequently available for inspection or by supplying copies thereof to Claimant. This act on the part of Accounts Officer was patently without jurisdiction and illegal. It obstructed inquiry proceedings.

42. Even on 26.09.1972, Claimant requested Inquiry Officer to direct concerned authorities to allow inspection of relevant documents but despite thereof there is nothing on record to show that such inspection was allowed. Once Inquiry Officer was satisfied that documents have to be made available for inspection and directed authorities concerned to allow inspection, it was not open to any authority to tinker with this decision. The suggestion of Sri Kalia that before 26.09.1972, inspection of all relied on documents was allowed to Claimant is something which is not founded and substantiated by record and cannot be accepted.

43. The categoric denial of inspection of relevant documents by Accounts Officer as well as by Superintending Engineer is evident from Annexures No. 38 and 39 of Rejoinder Affidavit filed before Tribunal. Letter dated 26.09.1972 sent by Shri G.D. Agarwal, Accounts Officer informed Shri S.K. Mathur, Superintending Engineer that copies of only those documents which have been quoted as evidence in charge-sheet can be supplied and allowed to be examined in original and nothing else. The letter dated 26.09.1972 reads as under:-

"With reference to your letter No. 104-HOMC/M-C(A), dt. 13.09.1972 on the above noted subject, I am to inform you that Sri R.D. Srivastava, Executive Engineer under suspension has already been informed vide our letter No. 2602/CAO/SEB/IA(I)71 dated 16.09.1972 (copy enclosed) that copies of only those documents which have been quoted as evidence in the charge-sheet can be supplied to or allowed to be examined by him in original."

(emphasis added)

44. The complaint that documents were not allowed to be inspected was made by Claimant in his letter dated 16.10.1972 which reads as under:-

"With reference to your letter no. 122-H.O.M.C./M-1(A) dated Oct. 7, 1972 received by me on 14.10.1972, I have to say that in compliance to your instructions I attended the office of Superintending Engineer, Electricity Stores Procurement Circle, Lucknow and Chief Accounts Officer, U.P., SEB, Lucknow on 25.09.1972 and 26.09.1972 for inspection of documents mentioned in my letters no. 24/0-1 dt. 11.08.1972 and 21/0-1 dated 08.08.1972 addressed to them respectively.

These documents could not be inspected as these were not shown to me. An intimation to this effect has already been sent by me to you wvide my Regtd. letter no. 36/0-1, dated Oct. 3, 19972, and 34(1)/0-1 dated Oct. 3, 1972." (emphasis added)

45. Question with regard to non-supply of documents and its effect in disciplinary proceedings has been examined in detail in Kashinath Dikshita Vs. Union of India and Others, AIR 1986 SC 2118. Learned Senior Counsel appearing for petitioners placed reliance on judgment in Panchmahal Vadodara Gramin Bank and others Vs. D.M. Parmal (2011) 15 SCC 310 in support of his contention that unless it is shown that some prejudice has been caused by non-supply of documents or denial of inspection, mere factum of non-supply of documents or inspection if not allowed, will not vitiate disciplinary proceedings. In this regard, we find that documents which were not supplied to D.M. Parmal (supra) in the relied judgment were found to have no connection with charges/irregularities committed by D.M. Parmal (supra) and they were in relation to some other Officer, and were not part of charge-sheet, therefore, those documents were found to have no relevance to charges against D.M. Parmal (supra). This is evident from para 15 of judgment and relevant extract thereof reads as under:-

"Thus, the enquiry officer has taken a view, and we think it is a right view, that the documents to show the irregularities committed during the time of the previous Manager of the Bank L.K. Parmar had no relevance to the charges against D.M. Parmar." (emphasis added)

46. Aforesaid judgment does not help petitioners at all. In our view, Tribunal has rightly held that proceedings are vitiated for non-supply of relevant documents and even by denying inspection thereof. This vitiates departmental inquiry as it amounts to denial of adequate opportunity of defence to delinquent employee.

47. Now coming to question of non-holding of inquiry in accordance with procedure prescribed in law before imposing a major penalty of dismissal, we find and it is evident from record that Inquiry Officer held no oral inquiry whatsoever in which department would have proved charge and thereafter, Claimant would have adduced evidence in defence.

48. From pleadings before Tribunal, it is evident that earlier Inquiry Officer, Sri S.K. Mathur had not proceeded beyond the stage of service of charge-sheet and reply submitted by Claimant on 25.08.1972 and 09.03.1973. It is not in dispute that Claimant specifically requested for personal hearing. Vide order dated 16.08.1973, Shri M.Y. Quireshi was appointed new Inquiry Officer. The solitary date fixed for oral inquiry by Shri M.Y. Quireshi was 17.02.1974 on which Claimant appeared before Inquiry Officer and submitted letter dated 17.02.1974 which was treated by Inquiry Officer as record of hearing and thereafter, he submitted report dated 30.04.1974. Pleadings in this regard contained in paragraphs 7, 8 and 9 of claim petition are reproduced as under:-

"7. That the Inquiry Officer Sri S.K. Mathur could not proceed further with the inquiry with the result on 16.08.1973 Sri M.Y. Quraishi was appointed as Inquiry Officer in place of Sri S.K. Mathur.

8. That on 17.02.1974 the claimant appeared before Inquiry Officer for personal hearing on which date he submitted a letter dated 17.02.1974 which has been treated by the Inquiry Officer as the record of personal hearing.

9. That in all seven charges were levelled against the claimant and the Inquiry Officer gave his finding on 30.04.1974. Annexure 4 is a true copy of the report of the Inquiry Officer." (emphasis added)

49. In inquiry report also, it has been admitted by Inquiry Officer that beyond the stage of submission of reply and additional reply by Claimant, no further proceedings could be conducted by earlier Inquiry Officer, Sri S.K. Mathur. He was changed vide order dated 16.08.1973 and new Inquiry Officer, Shri M.Y. Quireshi, was appointed. Thereafter, with regard to oral inquiry, observations made by Inquiry Officer are of great importance and reproduced as under:-

"Unfortunately no further proceedings could be held by the then Enquiry Officer (Sri S.K. Mathur). It was in August, 1973 that the Board vide its letter No. 4471-GM/SES dated 16.08.1973 appointed the undersigned as Enquiry Officer in place of Sri S.K. Mathur.

Sri R.D. Srivastava vide his application dated 14.09.1973 requested me in my capacity as the Enquiry Officer to give him a date for personal hearing. Unfortunately due to disturbed conditions arising out of strikes, no action could be taken by the undersigned till December, 1973.

Sri R.D. Srivastava vide my letter no. 21256-EM&RECL/FF/RDS dated 28.12.1973 was intimated that the personal hearing will be given to him on 20.01.1974. This letter could, however, reach Sri R.D. Srivastava only on 14.01.1974. Sri R.D. Srivastava vide his letter No. Nil dated 15.01.1974 requested for the postponement of date of hearing proposed for 20.01.1974 on the grounds that original intimation dated 28.12.1979 was received by him only on 14.01.1974 and that the had only 5 days at his disposal which was not sufficient for the preparations of the same. Another date was, therefore, given to him vide my letter no. 1036-EM/ECL/PF/RDS dated 21.01.1974 advising Sri R.D. Srivastava to appear on 17.02.1974 for the personal hearing. Sri R.D. Srivastava availed this opportunity.

A copy of the record of the personal hearing of Sri R.D. Srivastava given on 17.02.1974 is enclosed as Annexure-5."

(emphasis added)

50. In order to prove charges-2, 4 and 5, Inquiry Officer has relied on inquiry report of Shri A.K. Gupta and Shri P.S. Bhatnagar. The contents of reports of these Officers have been relied in evidence against Claimant without confronting them and made them (the authors of reports) available for cross-examination. This procedure followed by Inquiry Officer cannot be said to be an inquiry conducted in accordance with principles of natural justice so as to afford an adequate opportunity of defence.

51. When a document is relied, unless its contents are verified or owned by its author and he is made available for cross-examination by delinquent employee, contents of such document cannot be treated to be true and proved so as to form an admissible evidence against delinquent employee in a disciplinary inquiry. We are fortified in taking this view by Apex Court's judgment in M/s Bareilly Electricity Supply Co. Ltd., Vs. The Workmen and others, AIR 1972 SC 330 where Court in para 14 of judgment has observed as under:

"But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the question that naturally arises is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance-sheet and profit and loss account of the Company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt." (para-14) (emphasis added)

52. Similar view has also been taken in Union of India Vs. Sardar Bahadur, 1972(4) SCC 618; Rajesh Prasad Mishra Vs. The Commissioner Jhansi Division, Jhansi and others, 2011(1) ADJ 135 and State of U.P. Vs. Aditya Prasad Srivastava and another (Service Bench No. 585 of 2011), decided on 17.01.2017.

53. Therefore, finding in respect of charges-2 and 4 relying on inquiry reports of Shri A.K. Gupta and Shri P.S. Bhatnagar, without examining them is patently illegal as it amounts to relying on inadmissible evidence even in a departmental inquiry.

54. Moreover, Inquiry Officer proceeds as if charges levelled against delinquent employee stood self-same proved and onus lie upon Claimant to disprove charges and that is how Inquiry Officer did not find any justification to ask UPSEB to adduce evidence to prove charges and only sought a defence letter from Claimant, directly, and thereafter, closed so-called oral inquiry. This procedure is patently in utter violation of principles of natural justice and cannot justify imposition of major penalty of dismissal upon an employee. Law is now well settled that a major penalty of dismissal or removal cannot be imposed unless a departmental inquiry including oral inquiry is conducted to give adequate opportunity of defence to delinquent employee.

55. In Meenglas Tea Estate v. The workmen., AIR 1963 SC 1719, Court observed "It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted.

56. In State of U.P. v. C. S. Sharma, AIR 1968 SC 158, Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence.

57. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66), Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd. v. Their Workmen, (1963) II LLJ. 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ. 78 (SC).

58. In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, Court set aside a dismissal order which was passed without giving employee an opportunity of cross-examination.

59. This Court in Subhas Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541, said:-

"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."

60. The above judgment was followed by a Division Bench in Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills and others (supra). Court held thus:

"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of this Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16-8-2000."

61. In State of Uttar Pradesh v. Saroj Kumar Sinha reported (2010) 2 SCC 772, Court held that :-

"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.

When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

62. Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570, as under:-

"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The 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."

63. One of us (Justice Sudhir Agarwal) in Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others reported 2010 (1) UPLBEC 216 observed as under, after a detailed analysis:

"Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, 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. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541."

64. In another case, in Subhash Chandra Gupta v. State of U.P., 2012 (1) UPLBEC 166, a 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. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.

A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. 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 Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 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 Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."

65. Even if the employee refuses to participate in enquiry, the employer cannot straightaway dismiss him, but he must hold an 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).

66. A Division Bench of this Court in 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 exparte 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."

67. Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Co-operative Bank Ltd. Vs. 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."

(emphasis added)

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

69. From perusal of enquiry report it is demonstrably proved that no oral evidence has been led by UPSEB. When a major punishment is proposed to be passed, department has to prove the charges against delinquent/employee by examining witnesses and adducing documentary evidence. In the present case no witness was examined by UPSEB. Neither any officer has been examined to prove the documents in the proceedings nor anyone was produced for cross examination by Claimant.

70. It is trite law that the departmental proceedings are quasi judicial proceedings. Inquiry Officer functions as quasi judicial officer. He is not merely a representative of department. He has to act as an independent and impartial officer to find out the truth. A major punishment awarded to an employee visits serious civil consequences and as such departmental proceedings ought to be in strict conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry, department has to establish charges against employee by adducing oral as well as documentary evidence. In case charges warrant major punishment, then oral evidence by producing witnesses is necessary unless it can be shown that charges are proved by uncontroverted documents.

71. We may hasten to add that the above mentioned law is subject to certain exceptions. When facts are admitted or no real prejudice has been caused to employee or no other conclusion is possible, in such situation, order may not be vitiated. Reference may be made to some of the authorities in K.L. Tripathi v. State Bank of India reported AIR 1984 SC 273; State Bank of Patiala v. S.K. Sharma reported AIR 1996 SC 1669; and Biecco Lawrie Ltd. v. West Bengal reported (2009) 10 SCC 32.

72. Learned counsel for petitioners contended that this issue has not been considered by Tribunal but we find that this issue is already evident from record and part of pleadings raising issue of denial of adequate opportunity of defence. This matter is already pending for more than 18 years since writ petition was filed in 1994 and if we go from the date when claim petition was filed, it is more than 40 years since then. We do not find that an issue which is evident and apparent from record cannot be examined by this Court at this stage. No other document is necessary and all material and pleadings are on record and available before this Court. Therefore, in the facts and circumstances, particularly since the matter is more than 40 years old, we have examined this aspect also in the light of material available on record and have adjudicated the same.

73. We answer question-2 in favour of Claimant and against petitioners and confirm findings of Tribunal that departmental inquiry conducted against Claimant are vitiated in law being in violation of principles of natural justice.

74. Now coming to third question. In this regard, Tribunal has found that allegations of ulterior motive was not a part of various charges levelled against Claimant and, therefore, inquiry report has travelled beyond allegations contained in charge-sheet. This finding is clearly perverse inasmuch as we have already quoted charges and even in respect of charge-1, allegation of ulterior motive is there.

75. We, therefore, do not go into much detail on this aspect and have no hesitation in holding that view taken by Tribunal on this ground is contrary to record and cannot be sustained. This question is, therefore, answered in favour of petitioners.

76. No other point has been argued.

77. In view of our findings on question-2 that departmental inquiry has not been conducted legally and fairly, and adequate opportunity of defence was not afforded to Claimant, therefore, entire inquiry including punishment order is vitiated in law, we have no option but to confirm order of Tribunal insofar as it has set aside order of punishment and allowed claim petition.

78. In normal circumstances, when punishment order is set aside on the ground of denial of adequate opportunity, employer would have a liberty to proceed against a delinquent employee from the stage, opportunity was denied to delinquent employee but looking to entire facts and circumstances of this case and also considering the fact that this matter is more than 40 years old and applicant-respondent-1 has also attained age of superannuation and has retired more than 20 years back. In our view, a decent quietus be given to the matter by not permitting petitioners to initiate any further proceedings in the matter and on the contrary we proceed to modify direction of Tribunal with regard to consequential benefits and provide that for the period from the date of order of punishment till the date of retirement, arrears of salary shall not be payable to Claimant-Respondent except 25% thereof but for all other purposes, Claimant-Respondent shall be deemed to be in continuous service with all other benefits etc. for all other purposes including retiral benefits.

79. In the result, writ petition is partly allowed. Judgment of Tribunal stands modified in the manner as aforesaid.

Order Date :- 1.5.2017 Shubham

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