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2023 DIGILAW 2894 (ALL)

Gajendra Singh v. U. P. Power Corporation Limited

2023-12-22

J.J.MUNIR

body2023
JUDGMENT : 1. The petitioner is a Junior Engineer in the service of the U.P. Power Corporation Limited, Lucknow. The petitioner was served with a charge-sheet on 25.06.2019 issued by an inquiry committee constituted by the U.P. Power Corporation carrying three charges for the period of time that he was posted as a Junior Engineer with the Electricity Urban Distribution Division, Farrukhabad. The charges against the petitioner, carried in the charge-sheet, read: 2. The petitioner submitted his reply dated 25.06.2019 to the charge-sheet, submitting amongst others that the estimate for construction of the then proposed feeder for the Dr. Ram Manohar Lohia Hospital, Farrukhabad was sanctioned in 2008-09, but the expenses were deposited with the respondent Corporation in 2014. Work commenced during the period when Rakesh Kumar was posted as the Junior Engineer. He never informed the petitioner nor handed over details of the materials issued earlier. The charges were specifically denied with defences in answer to each. 3. The Inquiry Committee proceeded to hold inquiry in utter breach of the salutary principles where no witness was produced or examined on behalf of the establishment to prove the charges. The Inquiry Committee submitted their report dated 20.06.2020, a copy whereof was served upon the petitioner along with a show cause notice dated 16.09.2020, asking the petitioner to submit his reply in answer to the findings of the inquiry report within three weeks. The petitioner submitted his reply to the show cause on 01.12.2020. 4. It is the petitioner's case that without considering the petitioner's reply, the Disciplinary Authority/ Chairman, U.P. Power Corporation Limited, Lucknow vide order dated 03.03.2021 punished the petitioner with award of a censure entry and withholding two increments with cumulative effect. Dissatisfied with the order of punishment, the petitioner carried an appeal to the Board of Directors of the U.P. Power Corporation Limited, Lucknow vide memo of appeal dated 24.07.2021. The Appellate Authority, by their order impugned dated 27.12.2021, dismissed the petitioner's appeal and affirmed the order passed by the Disciplinary Authority. 5. The petitioner has now approached this Court aggrieved by the two orders impugned by means of the present writ petition. 6. Heard Mr. Manu Mishra, learned Counsel for the petitioner in support of the petition and Mr. Ujjwal Srivastava, Advocate holding brief of Mr. Abhishek Srivastava, learned Counsel for the respondents. 7. 5. The petitioner has now approached this Court aggrieved by the two orders impugned by means of the present writ petition. 6. Heard Mr. Manu Mishra, learned Counsel for the petitioner in support of the petition and Mr. Ujjwal Srivastava, Advocate holding brief of Mr. Abhishek Srivastava, learned Counsel for the respondents. 7. A perusal of the inquiry report shows that the Inquiry Committee proceeded in the fashion of an investigator or at best an Inquiry Committee or officer entrusted with holding a preliminary inquiry. The Inquiry Committee's report does not show that any formal proceedings of inquiry were convened, as required to be done at the stage when an inquiry into charges that may lead to the imposition of a major penalty is mandated by salutary principles. The Inquiry Committee, comprising two officers of the Corporation, looked into the charge-sheet together with the annexed documents themselves and the petitioner's reply. They decided upon the worth of the charges by perusing the charge-sheet, the reply and the documents annexed by parties. It is not even remotely discernible from a perusal of the inquiry report that the Inquiry Committee convened themselves as a formal Inquiry Tribunal, requiring the establishment to prove the charges through a Presenting Officer, acting on their behalf to lead evidence both documentary and oral. It is a salutary requirement of the law that in all cases involving charges that can lead to the imposition of a major penalty, it is the establishment's burden in the first instance to lead evidence, particularly, oral, that is by production of witnesses, to prove the charges. The documents filed along with the charge-sheet are but idle papers, which can be galvanized into evidence once introduced by the Presenting Officer and proved by oral testimony of witnesses, who depose for the establishment. The witnesses can then be cross- examined by the delinquent. It is after the establishment have led evidence to prove the charges that the delinquent can be called upon by the Inquiry Committee to produce his evidence, both documentary and oral, in the same fashion. In Paragraph No.14 of the writ petition, it is averred that no witness was produced or examined by the establishment to prove the charges nor oral inquiry conducted. In Paragraph No.14 of the writ petition, it is averred that no witness was produced or examined by the establishment to prove the charges nor oral inquiry conducted. The averments in Paragraph No.14 of the writ petition together with a host of other paragraphs, all jumbled up, have been answered in the counter affidavit vide Paragraph No. 3. v., vii. and vii., where it is averred: “V. Further, in the chargesheet the copy of the documents which had been relied upon by the Corporation in support of the charges were also provided to the petitioner and in the chargesheet it was also mentioned that the petitioner can file his written reply within 15 days along with all relevant evidences on which he wants to rely in his defence and it was also mentioned that in his written reply he should also provide names of the persons whom he wants to produce as witnesses for examination/cross examination along with names and address of all those witnesses and should also bring details of the points on which he wants to examine/cross examine. vii. There after the Enquiry Committee after going through the entire materials evidence on record, reply given by the petitioner and examining his statement, a detail enquiry report was submitted on 20.6.2020 wherein all the charges leveled against the petitioner were found to be proved. viii. vii. There after the Enquiry Committee after going through the entire materials evidence on record, reply given by the petitioner and examining his statement, a detail enquiry report was submitted on 20.6.2020 wherein all the charges leveled against the petitioner were found to be proved. viii. Further after giving due opportunity of hearing to the petitioner and on the on the basis of material evidence on record, the enquiry committee has submitted his report and during the course of departmental enquiry, the petitioner has not disputed about the genuineness of any of the documents provided to the petitioner during the course of enquiry nor he had shown any interest in asking the department to produce any witness for examination/cross examination, therefore, once the employee has duly participated in the departmental enquiry and has admitted the evidence on record, therefore, it cannot be said that any prejudice is caused to him in not examining any witness by the department and if we go by the plain reading of the Regulation 7 of the 2020 Regulation it only says, in Regulation 7(5) that, along with the chargesheet the copy of the documents and list of witnesses should be provided to the employee and Regulation 7(7) provides that, in case the employee refuses the charges, the enquiry committee should call the proposed witnesses to record their evidence whose names are mentioned in the chargesheet and in the present case, if names of no one are mentioned in the chargesheet then the enquiry committee cannot be said to have committed any mistake in not examining any witness. Further Regulation 7(8) provides that, an enquiry committee can ask any witness to appear before it and provide any document and Regulation 7 (9) says, the enquiry committee can ask any question to the witness to find out the true facts, therefore, from the bare perusal of the Regulations, 2020 it cannot be said that the enquiry committee has committed any the which has caused prejudice to petitioner, who has been given full opportunity of oral hearing along with option to examine any witness or dispute the admissibility of any documents, and once the employee has not disputed about the genuineness and admissibility of the documents, taking into consideration by the enquiry committee, it cannot be said that the enquiry was not proper.” (emphasis by Court) 8. A perusal of the respondents' stand in the counter affidavit does not dispute the fact that no witness was examined before the Inquiry Committee. Rather, it is said that since no names of witnesses were mentioned in the charge-sheet, the Inquiry Committee committed no mistake in not requiring the establishment to call witnesses to prove the charges. The principle about proof of the establishment's case in an inquiry, the manner in which the inquiry has to proceed and what evidence has to be produced by the establishment to prove the charges, has already been indicated hereinabove. The stand taken by the respondents in the counter affidavit falls foul of the aforesaid salutary requirements. For the principle that it is imperative for the establishment to examine witnesses in support of the charges, where there is the likelihood of imposition of a major penalty, there is ample and consistent authority. 9. 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 charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination 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. 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.” (emphasis by Court) 10. 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 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.” 11. 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 coming to the question, what is the effect of non-holding of domestic/oral inquiry, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the 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. 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. Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case. 11. A Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma v. U.P. Cooperative Spinning Mills and others, 2001 (2) UPLBEC 1475 and Laturi Singh v. U.P.Public Service Tribunal and others, Writ Petition No. 12939 of 2001, decided on 6.5.2005.'' 17. Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348 , Uma Shankar v. Registrar, 1992 (65) FLR 674 (All). 18. The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570, had also occasion to deal with the same issue. It held: ''At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that hose documents are sufficient enough to prove the charges. In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in ex parte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. 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.” 12. The same principle has been reiterated by the 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. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.” 12. The same principle has been reiterated by the 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 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.” 13. 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. 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.” 13. 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. 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.” 14. This Court, as already held, that the inquiry proceedings in this case do not conform to the fundamentals of a fair procedure. Rather, this Court is minded to think that the inquiry in this case is hardly an inquiry, because it was never convened on the formal pattern of an Inquiry Tribunal, where the members of the Committee have to sit as an impartial arbiter, before whom the establishment have to prove their case by leading evidence both documentary and oral. In this case, the respondents have admitted that they have not examined any witnesses. The findings have been recorded by the Inquiry Committee gleaning through the charge-sheet and the petitioner's reply, besides documents on record, that do not speak for themselves. No one has explained those documents or led them in the form of documentary evidence before the Inquiry Committee on behalf of the establishment. No witness also has been examined to introduce, explain and prove those documents. There is nothing on record to suggest that the petitioner has either admitted the charges, or any of the documents, indicating his complicity on one or more charges. 15. In the circumstances, the inquiry leading to the impugned orders, is procedurally flawed and prejudices the petitioner's rights going to the root of the matter. The impugned orders passed on the basis of such an inquiry cannot be sustained. 16. In the result, this writ petition succeeds and is allowed. The impugned order dated 03.03.2021 passed by the Chairman, U.P. Power Corporation Limited, Lucknow and the appellate order dated 27.12.2021 passed by the Board of Directors, U.P. Power Corporation Limited, Lucknow are hereby quashed. The impugned orders passed on the basis of such an inquiry cannot be sustained. 16. In the result, this writ petition succeeds and is allowed. The impugned order dated 03.03.2021 passed by the Chairman, U.P. Power Corporation Limited, Lucknow and the appellate order dated 27.12.2021 passed by the Board of Directors, U.P. Power Corporation Limited, Lucknow are hereby quashed. It will be open to the respondents to proceed with the inquiry afresh, if they so elect, from the stage of issue of the charge-sheet and pass fresh orders in accordance with law, after holding a proper inquiry de novo, following the guidance in this judgment. 17. There shall be no order as to costs.