Allahabad High Court
Raj Kumar vs State Of U.P. And 2 Others on 28 November, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:187185 Court No. - 5 A.F.R. Case :- WRIT - A No. - 17597 of 2024 Petitioner :- Raj Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Milind Sen Bauddha,Pranesh Kumar Mishra Counsel for Respondent :- Abhishek Srivastava,C.S.C. Hon'ble J.J. Munir,J.
1. This writ petition is directed against the order dated 12.10.2023, passed by the Managing Director, Uttar Pradesh Power Corporation Limited, Lucknow, punishing the petitioner with the award of a censure and withholding of three increments with cumulative effect. The order aforesaid has been made after departmental inquiry. Also under challenge is the charge-sheet dated 23.06.2022, on the foot of which the departmental inquiry has been held and the inquiry report dated 18.10.2022 submitted by the Inquiry Committee leading to the impugned order. The petitioner further claims a mandamus to the respondents, ordering them to pay his increments as well as arrears, worked out on that basis, together with interest, of which he has been deprived in consequence of the impugned order.
2. Shorn of unnecessary detail, the petitioner was initially appointed an Assistant Accountant through direct recruitment on 24.12.1992 in the service of the U.P. State Electricity Board, now the U.P. Power Corporation Limited. He has risen through the ranks to be promoted to the post of Accounts Officer, the position that he currently holds. He is scheduled to retire on 31.01.2025, upon attaining the age of superannuation. While the petitioner was posted as an Assistant Account Officer (R) with the Electricity Urban Distribution Division, NOIDA during the period December, 2009 to 08.10.2023, a charge-sheet dated 23.06.2022 was issued by the Inquiry Committee, laying the solitary charge that 55 receipt books issued to Smt. Neetu Chaudhary, Office Accountant-III, were not taken back and the revenue collected through these receipts was not deposited by her in the coffers of the Power Corporation. An irregularity in the entries of receipt books and receipt registers was also alleged against the petitioner. The petitioner replied to the charge-sheet vide his reply dated 08.09.2022, denying the sole charge. He sought exoneration. The petitioner was summoned for a personal hearing by the Inquiry Committee on 29.08.2022.
3. It is the petitioner's case that no witnesses were examined in support of the charges by the Establishment before the Inquiry Committee or evidence led to prove the solitary charge. The inquiry report was founded on the edifice of the charge-sheet, the petitioner's reply and the personal hearing afforded to him without the examination of witnesses for the Establishment. It is also pleaded that no date, time and place was scheduled by the Inquiry Committee when evidence for the Establishment would be heard in the petitioner's presence. The said facts are more or less asserted in paragraph Nos.15 and 16 of the writ petition.
4. This then being the short point apparently involved, if the inquiry was at all held according to the salutary procedure envisaged for the holding of a valid inquiry in a matter where a major penalty could be imposed, when the petition came up for admission on 12.11.2024, we passed the following order:
"The petitioner, after disciplinary proceedings, has been awarded the major punishment of withholding three increments with cumulative effect by the Managing Director, U.P. Power Corporation Limited, Lucknow.
The submission of the learned counsel for the petitioner is that the impugned order is vitiated because the inquiry on the foot of which it has been made, has violated salutary principles of fair procedure, inasmuch as no date, time and place was fixed. It is further submitted that no witnesses were examined in support of the establishment's case by the respondents. Averments in this regard have been made in paragraph nos. 15 and 16 of the writ petition.
Issue notice.
Notice on behalf of respondent nos. 2 and 3 is accepted by Mr. Abhishek Srivastava, Advocate and that on behalf of respondent no. 1 by Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel. Both the learned counsel for the respondents are granted two weeks time to file a counter affidavit.
Since a short point is involved, lay as fresh on 28.11.2024."
5. A counter affidavit has been filed on behalf of respondent Nos. 2 and 3 by Mr. Abhishek Srivastava, learned Counsel.
6. Learned Counsel for the petitioner files a rejoinder affidavit in Court today. It is taken on record. Let it be numbered by the Office.
7. Parties have exchanged affidavits.
8. Admit.
9. Heard Mr. Pranesh Kumar Mishra, learned Counsel for the petitioner, Mr. Abhishek Srivastava, learned Counsel appearing on behalf of respondent Nos. 2 and 3 and Ms. Monika Arya, learned Additional Chief Standing Counsel on behalf of the State.
10. In the counter affidavit, it is averred in paragraph Nos. 5. C. and H. thus:
"5. That the contents of Paragraph Nos. 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41 of the writ petition are not admitted as stated hence denied. In reply thereto it is submitted as follows:-
C. That vide letter dated 18.08.2022 an opportunity of hearing was given to the petitioner fixing date, time and place as 29.08.2022 at 12:00 p.m. for personal hearing in pursuance whereof the petitioner had appeared before the enquiry committee on 29.08.2022 and had submitted his affidavit along with his statement wherein he has stated that he does not wish to examine/ cross examine any witness in said regard and had also stated that his enquiry should be concluded on the basis of his return reply and he does not wish any further opportunity of hearing. A copy of the letter dated 18.08.2022 and copy of the minutes dated 29.08.2022 along with affidavit of the petitioner are being collectively annexed herewith and marked as Annexure-CA-1 & Annexure-CA-2 to this counter affidavit.
H. That from perusal of the record it is evident that no witness was proposed either in the charge sheet or any witness was named by the petitioner to examine during the departmental enquiry, therefore, no witness was examined by the Corporation to prove the charges during the course of departmental enquiry in the present case. Further to remove all these anomalies an Office Memorandum 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."
11. A reading of the aforesaid paragraphs discloses the respondents' stand, which shows an utterly flawed procedure followed by them in holding the departmental inquiry leading to the order impugned. It is well settled that in a departmental inquiry into a charge, which may result in the imposition of a major penalty, the Inquiry Committee or Officer must sit as an impartial Tribunal, requiring the Establishment to prove the charge or charges by evidence, both documentary and oral through a Presenting Officer. The Inquiry Committee must not presume the charges to be true and then require the delinquent to dispel them. They must start with a clean slate, obliging the Establishment to prove the misconduct by evidence aliunde. It is also imperative in the case where a major penalty may ensue that witnesses in support of the charges must be examined, who would prove documents and give other evidence, relevant to proof of the charge/ charges. When it is said that the Inquiry Committee or Officer are obliged to fix a date, time and place for holding the inquiry, what is meant is the fixing of a date, time and place, when the Establishment's evidence would be heard. After all, it is the Establishment's burden to prove the charges in the first instance. After they have led evidence, both documentary and oral, the Establishment's witnesses have to be offered to the delinquent to cross-examine them. If he cross-examines them, the record of the cross-examination is to be considered. If he does not, the testimony of the witnesses still has to be considered.
12. After the Establishment's evidence is over, the delinquent has to be called upon to lead evidence in his defence. That would again involve the production of documentary and oral evidence by the delinquent. The witnesses, if any, examined on behalf of the delinquent, would be available to the Establishment to cross-examine in the same way the Establishment's witnesses are available to the delinquent. In a case where the delinquent does not produce any evidence or does not join the inquiry at all, the Establishment is not relieved of their burden of producing evidence to prove the charges. It is not that by the delinquent's default in producing evidence in his defence, the Establishment's charges would stand proved. An ex parte inquiry nevertheless requires proof of charges by the Establishment.
13. Here, nothing of the kind has been done. The Inquiry Committee sat on 18.08.2022 and summoned the petitioner, saying a date, time and place had been fixed, when they heard him personally at 12:00 noon. It was not a personal hearing in the sense understood as a valid step in the inquiry. They virtually questioned or interrogated the petitioner to convince them that the charge carried in the charge-sheet was not true. They never fixed a date, time and place, where they convened themselves as an impartial Tribunal, requiring the Establishment to lead their evidence, both documentary and oral in proof of the charge. Therefore, indeed no date, time and place for holding the inquiry was fixed. In fact, no inquiry at all was held.
14. The question that there is a salutary principle, which requires, in the case of a major penalty, the minimum requirement of fixing a date, time and place for holding the inquiry, and further, requiring the Establishment to prove the charges through production of oral and documentary evidence before the Inquiry Committee by a Presenting Officer on their behalf is well-acknowledged, in view of the law laid down by the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772, Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570, State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236 and the Bench decisions of this Court in State of U.P. and another v. Kishori Lal and another, 2018 (9) ADJ 397 (DB) (LB), Smt. Karuna Jaiswal v. State of U.P., 2018 (9) ADJ 107 (DB) (LB) and State of U.P. v. Aditya Prasad Srivastava and another, 2017 (2) ADJ 554 (DB) (LB).
15. In addition to the aforesaid settled legal position, there is a recent endorsement of the salutary principle, above discussed, by the Supreme Court in Satyendra Singh v. State of U.P. and another, 2024 SCC OnLine SC 3325, where it has been remarked:
"12. Learned counsel for the State was ad idem to the submissions of the appellant's counsel that no witness whatsoever was examined during the course of the inquiry proceedings. On a minute appraisal of the Inquiry Report, it is evident that other than referring to the documents pursuant to the so-called irregular transactions constituting the basis of the inquiry, the Inquiry Officer failed to record the evidence of even a single witness in order to establish the charges against the appellant.
13. This Court in a catena of judgments has held that the recording of evidence in a disciplinary proceeding proposing charges of a major punishment is mandatory. Reference in this regard may be held to Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 and Nirmala J. Jhala v. State of Gujarat, (2013) 4 SCC 301.
14. In the case of Roop Singh Negi (supra), this Court held that mere production of documents is not enough, contents of documentary evidence have to be proved by examining witnesses. Relevant extract thereof reads as under:--
"14. 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.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
...
19. The judgment and decree passed against the respondent in Narinder Mohan Arya case [(2006) 4 SCC 713 : 2006 SCC (L&S) 840] had attained finality. In the said suit, the enquiry report in the disciplinary proceeding was considered, the same was held to have been based on no evidence. The appellant therein in the aforementioned situation filed a writ petition questioning the validity of the disciplinary proceeding, the same was dismissed. This Court held that when a crucial finding like forgery was arrived at on evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This Court emphasised that a finding can be arrived at by the enquiry officer if there is some evidence on record. ..."
(emphasis supplied)
15. Same view was reiterated in State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772 wherein, this Court held that even in an ex-parte inquiry, it is the duty of the Inquiry Officer to examine the evidence presented by the Department to find out whether the unrebutted evidence is sufficient to hold that the charges are proved. The relevant observations made in Saroj Kumar Sinha (supra) are as follows:--
"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.
....
33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet."
(emphasis supplied)
16. In the case of Nirmala J. Jhala (supra), this Court held that evidence recorded in a preliminary inquiry cannot be used for a regular inquiry as the delinquent is not associated with it and the opportunity to cross-examine persons examined in preliminary inquiry is not given. Relevant extract thereof reads as under:--
"42. A Constitution Bench of this Court in Amalendu Ghosh v. North Eastern Railway [AIR 1960 SC 992], held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held.
43. Similarly in Champaklal Chimanlal Shah v. Union of India [AIR 1964 SC 1854] a Constitution Bench of this Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution of India. Preliminary inquiry may be held ex parte, for it is merely for the satisfaction of the Government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry. But at that stage, he has no right to be heard as the inquiry is merely for the satisfaction of the Government as to whether a regular inquiry must be held. The Court further held as under : (AIR p. 1862, para 12) "12. ... There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the government servant is entitled to the protection of that article [, nor prior to that]."
44. In Narayan Dattatraya Ramteerthakhar v. State of Maharashtra [(1997) 1 SCC 299 : 1997 SCC (L&S) 152 : AIR 1997 SC 2148] this Court dealt with the issue and held as under:
"... a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. Once regular enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice of (sic) nor, remains of no consequence."
45. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice.
(emphasis supplied)
17. Thus, even in an ex-parte inquiry, it is sine qua non to record the evidence of the witnesses for proving the charges. Having tested the facts of the case at hand on the touchstone of the Rules of 1999, and the law as expounded by this Court in the cases of Roop Singh Negi and Nirmala J. Jhala, we are of the firm view that the inquiry proceedings conducted against the appellant pertaining to charges punishable with major penalty, were totally vitiated and non-est in the eyes of law since no oral evidence whatsoever was recorded by the department in support of the charges."
16. In the result, this petition succeeds and is allowed in part. The impugned order dated 12.10.2023 passed by the Managing Director, U.P. Power Corporation Limited, Lucknow is hereby quashed. The respondents will have liberty to proceed afresh on the basis of the same charge-sheet in the manner indicated in this judgment. It is made clear that in the event the respondents elect to pursue fresh proceedings, a penalty higher than that awarded by the impugned order, since quashed, shall not be inflicted in any event.
17. There shall be no order as to costs.
Order Date :- 28.11.2024 Anoop/ Vijay (J.J. Munir) Judge