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2024 DIGILAW 2564 (ALL)

Anubhav Kumar v. U. P. Power Corporation Limited

2024-12-20

J.J.MUNIR

body2024
JUDGMENT : J.J. MUNIR, J. 1.This writ petition is directed against an order dated 26.11.2021 passed by the Managing Director, Dakshinanchal Vidyut Vitran Nigam Limited, Agra, punishing the petitioner with the withholding of two increments with cumulative effect and directing recovery of a sum of Rs.8,00,307 as miscellaneous advance, after holding disciplinary proceedings. The said order has been upheld in appeal by the Chairman, Uttar Pradesh Power Corporation Limited, Lucknow vide order dated 11.11.2024, dismissing the petitioner's appeal on the ground of delay. 2. The petitioner is an Executive Engineer in the employ of the Uttar Pradesh Power Corporation Limited, Lucknow [‘Corporation’] For the present, he is for short serving an an Executive Engineer since the 2 nd July, 2024 at the Electricity Urban Distribution Division, Daliganj, Lucknow Electricity Supply Administration, Trans Gomati, Lucknow. 3. The proceedings giving rise to the writ petition relate to the period of time when the petitioner was posted as the Executive Engineer at Mauranipur, District Jhansi under the immediate control of the Managing Director, Dakshinanchal Vidyut Vitran Nigam Limited, Agra. [‘Distribution Corporation’ for short]. He was served with a charge-sheet dated Nil along with a covering letter dated 23.07.2019 by the Inquiry Officer heading the Inquiry Committee. The charge-sheet carried four charges, to which, the petitioner submitted a reply dated 31.10.2019, denying the charges. 4. After receipt of the petitioner’s reply, it is the petitioner’s case that the Inquiry Committee proceeded against him contrary to the salutary principles governing inquiries, where a major penalty may be imposed, and submitted their report dated 06.11.2020 in violation of Regulation 7(7) of the Uttar Pradesh Power Corporation Limited Employees (Discipline and Appeal) Regulations, 2020 [‘Regulations of 2020’ for short] holding the charges proved. The petitioner asserts that no witness was produced in support of the charges during hearing before the Inquiry Committee. It is emphasized that it is incumbent upon the Establishment to prove the charges, in the first instance, by producing evidence, in particular, witnesses, in all cases where a major penalty may be imposed. It is the petitioner’s further case that no date, time and place for holding the inquiry was fixed by the Inquiry Committee. Relevant averments regarding the aforesaid lapses in adhering to salutary procedure as also deviation from rules in matters involving the imposition of a major penalty are there in paragraph Nos. 19 to 21 and 62 of the writ petition. Relevant averments regarding the aforesaid lapses in adhering to salutary procedure as also deviation from rules in matters involving the imposition of a major penalty are there in paragraph Nos. 19 to 21 and 62 of the writ petition. 5. The Inquiry Committee submitted their report dated 06.11.2020, holding the petitioner guilty, on the basis of which, a show-cause notice dated 29.12.2020 was issued to the petitioner. The petitioner submitted his reply to the show-cause on 20.02.2021. By the impugned order dated 26.11.2021, the Managing Director of the Distribution Corporation proceeded to hold the petitioner guilty, punishing him with the withholding of two increments with cumulative effect, besides ordering recovery of a sum of 8,00,307 on account of miscellaneous advance. The petitioner's departmental appeal to the Chairman of the Corporation was dismissed as time-barred vide order dated 11.11.2024 on ground that it was filed beyond the prescribed period of limitation, that is to say, 90 days. 6. Aggrieved, this petition has been instituted by the petitioner under Article 226 of the Constitution. 7. This Court, on 29.11.2024, issued a notice of motion in terms of the following order : By the impugned order passed by the Managing Director, Dakshinanchal Vidyut Vitran Nigam Limited, Agra the petitioner has been punished after disciplinary proceedings with recovery of a sum of Rs. 8,00,307/- and withholding of two increments with cumulative effect. The submission of learned Counsel for the petitioner is that no date, time and place of inquiry was fixed nor any witness examined in support of the charges. The relevant averments to the said effect finds place in paragraph nos.19 to 21 and 62 of the writ petition. Issue notice. Notice on behalf respondent nos. 1 and 2 is accepted by Mr. Abhishek Srivastava, learned Counsel and that on behalf of respondent nos. 3 and 4 by Mr. Pradeep Kumar Srinet, learned Counsel holding brief of Mr. K. K. Rao, learned Counsel. Both the learned Counsel are granted two weeks' time to file a counter affidavit. Since a short point is involved, lay as fresh on 13.12.2024 along with a report regarding status of pleadings. Let this order be communicated to the Chairman, U.P. Power Corporation Limited, Lucknow through the Chief Judicial Magistrate, Lucknow and to the Managing Director, Dakshinanchal Vidyut Vitran Nigam Limited, Agra through the Chief Judicial Magistrate, Agra by the Registrar (Compliance) by Monday next. 8. Let this order be communicated to the Chairman, U.P. Power Corporation Limited, Lucknow through the Chief Judicial Magistrate, Lucknow and to the Managing Director, Dakshinanchal Vidyut Vitran Nigam Limited, Agra through the Chief Judicial Magistrate, Agra by the Registrar (Compliance) by Monday next. 8. In answer to the show cause, respondent Nos. 3 and 4 have put in a counter affidavit. Learned Counsel for the petitioner waives his opportunity to file a rejoinder. 9. Parties have exchanged affidavits. 10. Admit. 11. Heard forthwith. 12. Heard Mr. Manu Mishra, learned Counsel for the petitioner, Mr. K.K. Rao, learned Counsel appearing on behalf of respondent Nos. 3 and 4, and Ms. Kritika Sinha, Advocate holding brief of Mr. Abhishek Srivastava, learned Counsel appearing on behalf of respondent Nos. 1 and 2. 13. This Court has keenly considered the submissions advanced by learned Counsel for the parties and perused the record. It is noticed that in paragraph Nos. 19, 20 and 21 of the writ petition, the specific case that the petitioner has pleaded is that no witness was produced by the Establishment in support of the charges, and, therefore, the inquiry report submitted in the matter, that has resulted in a major penalty, is in breach of salutary procedure. It is also urged that under Regulation 7(7) of the Regulations of 2020, it is imperative for the Establishment to produce evidence, both documentary and oral, to prove the charge(s). This has not, at all, been done. Paragraph Nos. 19, 20 and 21 have been answered in Paragraph Nos. 8 and 9 of the counter affidavit, where, it is admitted for a fact that witnesses were not examined in support of the charges by the Establishment before the Inquiry Committee. Also, in answer to the specific plea in Paragraph No. 62 of the writ petition that no date, time and place for holding the inquiry was fixed by the Inquiry Committee, the only answer to be found in Paragraph No. 18 of the counter affidavit, that answers Paragraph Nos. 57 to 68, including Paragraph No. 62, of the writ petition, is a bald denial, together with an evasive plea that due procedure for holding an inquiry was followed by the Inquiry Committee and proper opportunity given. The specific plea that no date, time and place was ever fixed for holding the inquiry by the Inquiry Committee has not been denied. The specific plea that no date, time and place was ever fixed for holding the inquiry by the Inquiry Committee has not been denied. Ex facie, the averment in Paragraph No. 62 of the writ petition is admitted for a fact by non-traverse. About the case of a failure to examine witnesses in support of the charges by the Establishment, there is a clear admission in Paragraph Nos. 8 and 9 of the counter affidavit. This then being the position, there is no quarrel on facts that the Establishment did not produce any witness in support of the charges and the Inquiry Committee, on whose report, the orders impugned have been passed, did not fix a date, time and place for holding the inquiry. 14. Now, it is too well settled to brook doubt that for a salutary principle, in disciplinary matters, where a major penalty may be imposed, a regular departmental inquiry has to be held. As per the procedure for holding a departmental inquiry, in a matter involving the possible imposition of a major penalty, it is imperative that the Inquiry Committee or Officer fixes a date, time and place for holding an inquiry, of which, both the Establishment and the delinquent must have notice. It is then also imperative that at the appointed date, time and venue, the Inquiry Committee or Officer must convene themselves/himself into an impartial tribunal, and require the Establishment, in the first instance, to produce evidence in support of the charges, both documentary and oral. The Inquiry Officer or Committee must not assume the charges to be proof of themselves, but start with a clean slate, assuming that the charges are but charges, with no credit or weight attached to them. The Inquiry Committee must call upon the Establishment through their Presenting Officer to produce, as already said, evidence, which must include witnesses in a matter involving the possible imposition of a major penalty. After the Establishment have produced their evidence, both documentary and oral, witnesses have to be offered to the delinquent for cross- examination. It is in the next stage of proceedings that the delinquent has a right to be called upon to lead evidence in his defence, which, again, can be both documentary and oral. If the charge-sheeted employee/delinquent produces witnesses, the Establishment is entitled to cross-examine them in like manner as the delinquent. It is in the next stage of proceedings that the delinquent has a right to be called upon to lead evidence in his defence, which, again, can be both documentary and oral. If the charge-sheeted employee/delinquent produces witnesses, the Establishment is entitled to cross-examine them in like manner as the delinquent. If the delinquent does not appear or does not lead evidence in his defence, that would not absolve the Establishment of their burden to prove the charges by evidence aliunde. Of course, if the delinquent does not appear, the inquiry may proceed ex-parte. If the delinquent does not lead any evidence, the inquiry would still proceed ex- parte in the sense that there would not be any evidence led on behalf of the charge-sheeted employee/delinquent. 15. Here, a perusal of the inquiry report would show that nothing of the kind has been done. The inquiry report is a three-column document. It reads more like some kind of a tabulation done in a project, a dissertation or comparative study, where, in the first column, the charges have been set forth as per their serial number, and in the second column, the delinquent’s defence urged in his reply. In the third column, relative to each charge, are the findings of the Inquiry Officer. The findings are ex facie cursory and have been recorded by flipping through the pages of the charge-sheet, the documents annexed to it and the petitioner’s reply. There is no evidence considered, nor any led. Papers annexed to the charge- sheet or the reply are idle scripts, that can be galvanized into life, once introduced properly through the mouth of the Presenting officer and proved by a witness, acquainted with the recorded transactions. The inquiry report here does not embody an inquiry in the sense it is understood in law. The kind of inquiry report, that is the basis for the respondents to pass the orders impugned, could best qualify for a preliminary inquiry, but certainly not a regular departmental inquiry, involving charges that could lead to the imposition of a major penalty. 16. The kind of inquiry report, that is the basis for the respondents to pass the orders impugned, could best qualify for a preliminary inquiry, but certainly not a regular departmental inquiry, involving charges that could lead to the imposition of a major penalty. 16. In this connection, reference may be made to the decisions of 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) . 17. The position of the law in this regard that has withstood the test of time has been recently endorsed by the Supreme Court in Satyendra Singh v. State of U.P. and another, 2024 SCC OnLine SC 3325 where it has been held : 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 . 18. In the result, this writ petition succeeds and stands allowed. The impugned order dated 26.11.2021 passed by the Managing Director, Dakshinanchal Vidyut Vitran Nigam Limited, Agra and the order of the Chairman, Uttar Pradesh Power Corporation Limited, Lucknow dated 11.11.2024 made in appeal are hereby quashed. 18. In the result, this writ petition succeeds and stands allowed. The impugned order dated 26.11.2021 passed by the Managing Director, Dakshinanchal Vidyut Vitran Nigam Limited, Agra and the order of the Chairman, Uttar Pradesh Power Corporation Limited, Lucknow dated 11.11.2024 made in appeal are hereby quashed. The respondents shall be at liberty to proceed against the petitioner afresh, if they so elect, on the basis of same charge-sheet, bearing in mind the guidance in this judgment. It is made clear that if fresh proceedings are elected to be pursued, the increments withheld by the dint of the impugned order shall not immediately be released or the sum of money recovered, refunded, both of which shall be paid subject to final outcome of the disciplinary proceedings. In the event, fresh proceedings are not taken, the increment shall immediately accrue and arrears on account of those increments shall become payable. The sum of money recovered in terms of the impugned order shall be refunded. 19. It is clarified that if fresh proceedings are taken, a punishment higher than that imposed by the impugned order shall not be awarded in any event. The disciplinary proceedings, if elected to be pursued, shall be concluded within a period of four months. 20. The Registrar (Compliance) is directed to communicate this order to the Managing Director, Dakshinanchal Vidyut Vitran Nigam Limited, Agra and the Chairman, Uttar Pradesh Power Corporation Limited, Lucknow.