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2024 DIGILAW 311 (ALL)

Rakesh Kumar Sharma v. U. P. Power Corporation Ltd.

2024-01-30

J.J.MUNIR

body2024
JUDGMENT : J.J. MUNIR, J. 1. Heard Mr. Manu Mishra, learned Counsel for the petitioner, Mr. Manish Goyal, learned Additional Advocate General assisted by Ms. Akanksha Sharma, learned Standing Counsel on behalf of respondent No. 6 and Mr. Abhishek Srivastava, learned Counsel appearing on behalf of respondent Nos. 1 and 2. 2. The petitioner, Rakesh Kumar Sharma, was an Office Assistant in the employ of the Uttar Pradesh Power Corporation Limited. Long ago, he had entered service of the late Uttar Pradesh State Electricity Board, now represented by the Uttar Pradesh Power Corporation Limited (for short, ‘the Corporation’) and the many other Distribution Corporations that have since come up as successors of the erstwhile Board. The petitioner was posted at the Electricity Distribution Division, Kasganj from 20.10.1994 to 31.08.2017, which falls under the administrative control of the Dakshinanchal Vidyut Vitran Nigam Limited, Agra (for short ‘the Distribution Corporation’) represented by its Managing Director, besides the overall control of the Corporation. 3. A First Information Report was lodged against the petitioner on 11.04.2018 by one Satya Dev, an Executive Engineer with the Electricity Distribution Division, Kasganj, giving rise to Case Crime No. 230 of 2018, under Section 7/13 (1)(e) of the Prevention of Corruption Act, 1988, Police Station Kasganj, District Kasganj. The FIR said no more than this that the information was being laid against the petitioner on the basis of a letter dated 27.03.2018 from the Additional Director General of Police (Vigilance), U.P. Power Corporation Limited, Lucknow and another letter dated 04.04.2018 from the Superintending Engineer, Electricity Distribution Division, Kasganj, directing the informant to lodge an FIR against the petitioner, then posted at the Electricity Distribution Division, Etah, for an offence of acquiring assets disproportionate to his known sources of income. A copy of the letters was annexed to the FIR, with the FIR not of itself disclosing any allegation constituting the offence. The written report, on the basis of which the check FIR was registered, virtually says nothing except to convey to the Police that the informant had been asked to get the FIR registered on the basis of letters that he had received from the Additional Director of Police and the Superintending Engineer, last mentioned. 4. It appears that a complaint was laid against the petitioner by one Ashok Kumar, alleging that the petitioner had amassed wealth beyond the known sources of his income. 4. It appears that a complaint was laid against the petitioner by one Ashok Kumar, alleging that the petitioner had amassed wealth beyond the known sources of his income. The complaint was addressed to the Vigilance Department of the U.P. Power Corporation and led to a preliminary inquiry report dated 05.04.2014, being submitted by the Vigilance Department to the official competent. The petitioner was never informed of this report or its contents. This was followed by a detailed inquiry report dated 29.08.2018, as the petitioner says, which was submitted to the Chairman of the Corporation. This report, according to the petitioner, said that the petitioner had amassed wealth disproportionate to his known sources of income during the period 20.05.1992 to 31.03.2010. The report said that during the relevant period of time, the petitioner’s income was Rs.21,69,055/- whereas he spent a sum of Rs.33,98,427/-. Apparently, the inquiry report submitted by the Vigilance Department to the Chairman opined that the petitioner had with him Rs.12,29,372/- during the relevant period of time in excess of his known sources of income. The excess was a percentage equivalent of 56.68. 5. Pending investigation into the FIR lodged against the petitioner, he was served with a charge-sheet dated 18.07.2019 issued by the Chief Engineer (HR-cum-Disciplinary Proceedings), Distribution Corporation, carrying a solitary charge relating to his income for the check period from 20.05.1992 to 31.03.2010, that was in excess of his known sources. The petitioner answered the charge-sheet vide his reply dated 25.09.2019 submitted to the Inquiry Committee through registered post. The petitioner says that the Inquiry Committee, making a short shrift of the matter and without following the procedure prescribed under the Uttar Pradesh Power Corporation Limited Employees (Discipline and Appeal) Regulations, 2020 (for short ‘the Regulations’) for the imposition of a major penalty under Regulation 7, submitted an inquiry report dated 26.07.2021. 6. It is the petitioner’s case that no oral inquiry was conducted nor any witness produced on behalf of the establishment to prove the charge before the Inquiry Committee. A fortiori, the petitioner had no opportunity to cross-examine witnesses, who were never produced by the establishment. 6. It is the petitioner’s case that no oral inquiry was conducted nor any witness produced on behalf of the establishment to prove the charge before the Inquiry Committee. A fortiori, the petitioner had no opportunity to cross-examine witnesses, who were never produced by the establishment. It is, particularly, pleaded that the Superintendent of Police (Vigilance), U.P. Power Corporation Limited, who was the author of the preliminary inquiry report and the one who had collected materials/ documents, on the foot of which the criminal prosecution as well as the departmental proceedings, subject matter of inquiry before the Departmental Inquiry Committee, was never produced as a witness by the establishment to prove the solitary charge. 7. On the basis of the inquiry report dated 26.07.2021, the petitioner was issued with a show cause notice dated 02.08.2021 under Regulation 9 of the Regulations asking him to put in his reply/ objections against the findings in the inquiry report. Upon receipt of the show cause notice, the petitioner requested a month’s time to file his reply/ objections to the findings of the Inquiry Committee. The petitioner’s application made for the purpose was sent by registered post on 16.08.2021. The Disciplinary Authority, however, without considering the petitioner’s request last mentioned proceeded to pass the impugned order of penalty. The Disciplinary Authority, who in this case is the Chief Engineer (HR-cum-Disciplinary Proceedings) of the Distribution Corporation, proceeded to punish the petitioner by an order dated 04. 09.2021, imposing the following punishments, to wit, a censure entry, secondly, withholding of five increments with cumulative effect, and, thirdly, posting on an insensitive position. 8. Aggrieved by the order of punishment, the petitioner preferred an appeal dated 18.10.2021 to the Appellate Authority, that is to say, the Managing Director of the Distribution Corporation under Regulation 11 of the Regulations. One of the grounds raised in the appeal was that Rule 7 of the Regulations had not been followed by the Inquiry Committee while holding the inquiry nor the Disciplinary Authority had gone into this issue. Faced with the non-decision of his appeal, the petitioner submitted a reminder dated 07.05.2022 addressed to the Disciplinary Authority, but in vain. 9. One of the grounds raised in the appeal was that Rule 7 of the Regulations had not been followed by the Inquiry Committee while holding the inquiry nor the Disciplinary Authority had gone into this issue. Faced with the non-decision of his appeal, the petitioner submitted a reminder dated 07.05.2022 addressed to the Disciplinary Authority, but in vain. 9. The petitioner says that it came as a surprise to him when more than a year and a half later from the date of the order passed by the Disciplinary Authority, punishing him as last mentioned, a show cause notice dated 10.03.2023 was served upon him under Regulation 13(c) of the Regulations by the Chairman of the Corporation, asking him to show cause against enhancement of the punishment awarded within 15 days. The petitioner challenged the show cause notice dated 10.03.2023 before this Court by means of Writ (A) No. 9330 of 2023, amongst others, on ground of the Chairman’s lack of jurisdiction to issue such a notice in the exercise of powers under Regulation 13(c) of the Regulations. Pending the said petition, the Chairman proceeded to pass the order impugned dated 07.06.2023, enhancing the petitioner’s penalty to one of dismissal from service. In consequence, Writ (A) No. 9330 of 2023 was dismissed as infructuous by this Court on 3rd of July, 2023. 10. The petitioner questioned the jurisdiction of the Chairman to act suo motu and enhance the penalty while submitting his reply to the show cause notice. The jurisdiction was questioned on ground that the petitioner was a Class-III employee, who was appointed to the erstwhile U.P. State Electricity Board and the service regulations applicable to him were the U.P. Electricity Board (Office of Chief Engineer and Subordinate Office) Regulations, 1970. Under the aforesaid Regulations of 1970, it was the Managing Director of the Distribution Corporation, who could exercise powers of the kind exercised by the Chairman in relation to a Class-III employee. The legality of the Chairman’s decision to issue a notice for enhancement was also challenged on the ground that the petitioner’s departmental appeal against the order of punishment passed by the Disciplinary Authority was pending before the Managing Director of the Distribution Corporation, and yet, the Chairman of the Corporation assumed jurisdiction suo motu, in the exercise of his revisional powers, to punish the petitioner, foreclosing the petitioner’s right to the decision of his pending appeal. 11. Apart from this, there are detailed defences raised on the merits of the charge to show on a balance of his sources of income during the relevant period of time that he could never be held guilty of possessing assets or spending money beyond his known sources of income. This Court is not minded much to go into the merits of the charge against the petitioner, which after all, in the first instance, has to be determined by the competent Authorities in the Distribution Corporation or the Corporation. 12. On 07.08.2023, when this matter came up for admission before this Court, this Court took note of the fact that the establishment had not examined any witness in support of their case, though the charge against the petitioner was serious, which could have led to the imposition of a major penalty. The Inquiry Committee had proceeded to record a finding of guilt in the absence of any witness or oral evidence being produced by the establishment. To add to it was the feature that the then Chairman of the Corporation, M. Devraj took suo motu cognizance of the matter in the exercise of his power under Regulation 13(c) of the Regulations, proceeded to issue a show-cause notice to the petitioner for enhancement of the penalty imposed by the Disciplinary Authority and enhanced it to one of dismissal from service. Prima facie, this appeared to be very exceptionable to the Court, because in a matter where the inquiry was held by the Committee in a slipshod manner without the establishment proving the charge in accordance with the salutary principles, which require witnesses to be examined by the establishment apart from leading documentary evidence, the Chairman acted suo motu to enhance the penalty. Noticing these features, this Court on 07.08.2023 passed the following order: “Let M. Devraj, former Chairman Uttar Pradesh Power Corporation Limited, Shakti Bhawan, 14-Ashok Marg, Lucknow be impleaded as a party respondent during the course of the day. M. Devraj, the then Chairman Uttar Pradesh Power Corporation Limited, Lucknow in an order passed by the Disciplinary Authority where-against an appeal was pending, intervened and exercised his revisional jurisdiction under Regulation 13 of the Uttar Pradesh Power Corporation Limited Employees (Discipline and Appeal) Regulations, 2020 and enhanced the punishment awarded to the petitioner to one of dismissal from service. M. Devraj, the then Chairman Uttar Pradesh Power Corporation Limited, Lucknow in an order passed by the Disciplinary Authority where-against an appeal was pending, intervened and exercised his revisional jurisdiction under Regulation 13 of the Uttar Pradesh Power Corporation Limited Employees (Discipline and Appeal) Regulations, 2020 and enhanced the punishment awarded to the petitioner to one of dismissal from service. It appears upon a reading of the inquiry report submitted in the matter that though the charges against the petitioner were very serious, and, if proved, would in all likelihood lead to the imposition of a major penalty, yet the establishment did not examine any witness or lead oral evidence to prove the charges. The Chairman, who passed the impugned order pending the appeal seeking to exercise his revisional orders prima facie seems to have scant knowledge of the law and apparently is not legally trained. He did not notice prima facie this flaw in proceedings of the inquiry, which goes to the root of the matter and proceeded to enhance the punishment after a show cause notice on the basis of an inquiry report where the establishment had to establish the charges by leading oral evidence. Let M. Devraj, former Chairman Uttar Pradesh Power Corporation Limited, wherever he is posted currently, explain the circumstances in which he failed to notice the aforesaid gaping flaw in the proceedings before the Inquiry Officer while passing the impugned order. Let the incumbent Chairman, Uttar Pradesh Power Corporation Limited, Shakti Bhawan, 14-Ashok Marg, Lucknow file his affidavit indicating his stand in the matter on or before 18.08.2023. The incumbent Chairman, Uttar Pradesh Power Corporation Limited, Shakti Bhawan, 14-Ashok Marg, Lucknow shall cause notice of this petition and the order made today to be served upon M. Devraj, former Chairman, Uttar Pradesh Power Corporation Limited, Shakti Bhawan, 14-Ashok Marg, Lucknow, wherever he is currently posted. Lay this petition as fresh on 18.08.2023. Let this order be communicated to M. Devraj, former Chairman Uttar Pradesh Power Corporation Limited through the Chairman, Uttar Pradesh Power Corporation Limited, Shakti Bhawan, 14-Ashok Marg, Lucknow and to the Chairman, Uttar Pradesh Power Corporation Limited, Shakti Bhawan, 14-Ashok Marg, Lucknow by the Registrar (Compliance) within 24 hours.” 13. Lay this petition as fresh on 18.08.2023. Let this order be communicated to M. Devraj, former Chairman Uttar Pradesh Power Corporation Limited through the Chairman, Uttar Pradesh Power Corporation Limited, Shakti Bhawan, 14-Ashok Marg, Lucknow and to the Chairman, Uttar Pradesh Power Corporation Limited, Shakti Bhawan, 14-Ashok Marg, Lucknow by the Registrar (Compliance) within 24 hours.” 13. By the orders passed on 07.08.2023, all that the Court wanted to know was what made the then Chairman of the Corporation, M. Devraj suddenly swoop into action and without waiting for the petitioner to avail his remedy of appeal before the competent Authority under the Regulations and without having the benefit of the Appellate Authority’s opinion, proceed to enhance the punishment suo motu to one of dismissal from service. This was, particularly, thought by the Court to be prima facie a very exceptionable course, because the entire proceedings of the inquiry were founded on a fundamentally flawed procedure, as already pointed out. Instead of availing the opportunity of explaining himself by filing a personal affidavit, M. Devraj, former Chairman of the Corporation, now posted elsewhere, took exception to the order dated 07.08.2023, considering the prima facie and very tentative remarks in that order an affront to his office. Therefore, instead of filing his personal affidavit, explaining his position about the fundamentally flawed procedure noticed by this Court on a tentative opinion, he preferred a special appeal to the Division Bench against the order dated 07.08.2023. The Division Bench by its judgment and order dated 17.08.2023 declined to interfere with the order dated 07.08.2023 and remarked as follows: “24. Once the learned single judge was seriously considering if the Revising Authority had exceeded his jurisdiction, it fell within his discretion to seek impleadment of the Revising Authority. Without forming any opinion as to that, since the matter is pending before the learned single judge, we only observe that the discretion exercised by the learned single judge does not call for interference, at this preliminary stage. What may follow, after the explanation called for is submitted, is not for us to foresee, at present. In so far as neither personal attendance has been enforced nor any harsh consequence has arisen, there is no serious injustice seen to have been caused to the Revising Authority. 27. What may follow, after the explanation called for is submitted, is not for us to foresee, at present. In so far as neither personal attendance has been enforced nor any harsh consequence has arisen, there is no serious injustice seen to have been caused to the Revising Authority. 27. Therefore, we find no good grounds to interfere in the discretion exercised by the learned single judge requiring the impleadment of the present respondent-appellant, in the facts noted by him. Yet, no issue has been decided and, in any case, no vital right has been adjudicated or altered, less so to the prejudice of the Revising Authority, before us. 28. Here it may be noted, even before this Court, it has not been urged, let alone admitted, that there was any inadvertent error committed by the respondent-petitioner, in appreciating the basic facts that had led to the major penalty being imposed by the Revising Authority upon a suo motu exercise of his jurisdiction, in a case where no oral evidence may have been led during the domestic enquiry proceedings. 29. Though, no conclusion is being drawn as to that, in face of the writ proceedings being pending before the learned single judge, and also since the current Chairman of the U.P. Power Corporation has expressed his desire to furnish his explanation, we observe, the interests of justice may be better served, if the present respondent-appellant were to comply with the impugned order, at this stage. 30. As to the prima facie observation made by the learned single judge, though the learned Additional Advocate General would contend that the observations are premature and too harsh and therefore, not warranted, it remains a fact that all observations made, and expressions used by the learned single judge are only tentative. Perhaps they only express the deep anguish that the Court may have felt at the plight of the original petitioner who may be prima facie perceived to have suffered such a harsh consequence of enhancement of a minor punishment to a major punishment that too at the hands of the highest departmental authority, in circumstances, that prima facie appeared to indicate, a fundamental flaw in the domestic enquiry proceeding i.e., the most severe punishment of dismissal being handed down in absence of the mandatory oral enquiry, that too in exercise of suo moto jurisdiction. 31. 31. In any case, all observations made by the learned single judge are purely tentative and not such as may have any lasting effect. Such observations made would have life till the proceedings are concluded and/or till the explanation of the Revising Authority is considered by the learned single judge. They are not and cannot be read as strictures passed by the learned single judge as may warrant any interference at this premature stage. Being ex-parte in the context of an explanation called, those are more to sensitize and make aware the Revising Authority, the consequence of the “fundamental flaw” if any. 32. We are also mindful of the fact that the learned single judge has called for an explanation to be furnished by the Revising Authority to ascertain what may have led to the exercise of that power. Neither any contempt proceeding has been drawn up nor the personal appearance of the Revising Authority has been enforced. Therefore, it remains perfectly open to it, if he so desires to make a clean breast of the situation before the learned single judge or to plead ignorance or even inability to furnish any reply on merits, as per his choice and legal advice. 33. While offering corrections, the Court always maintains the balance and proportionality required in that function – to remain within the four corners of the law, in dealing with an erring litigant or official. Thus, we have no hesitation to observe that in case the respondent-appellant were to furnish an honest explanation, whatever that be and howsoever unsustainable in law that may appear to be, the learned single judge would certainly consider the same according to the law and offer only that much correction, if required, as may be warranted, to serve the interests of justice and good administration. In the absence of any allegation of personal mala fide pleaded, it is premature to imagine any other consequence may arise. 34. The fact that the respondent-appellant may have been posted out and may no longer be able or required to go into the record of the case is not an issue that may detain us. For that purpose, the explanation appears to have been called from the Chairman of the UPPCL. As stated by Sri Abhishek Srivastav, that explanation is being furnished. 35. For that purpose, the explanation appears to have been called from the Chairman of the UPPCL. As stated by Sri Abhishek Srivastav, that explanation is being furnished. 35. Issue of jurisdictional error being involved, it further appears that the learned single judge may have felt necessary to ascertain the basic facts to consider offering only that much correction, if warranted as may be necessary so that those mistakes, if found true on record, may not recur. 36. In any event, at this stage no legal injury is seen to have been caused to the Revising Authority, upon an explanation being called, during a judicial proceeding. In so far as the explanation called cannot be described as extraneous to the “fundamental flaw” noted by the learned single judge, we leave every aspect of the matter to be considered by the learned single judge. The mere inconvenience that may have arisen to the Revising Authority may never be enough to maintain this appeal, at this stage. 37. So far as the decisions relied upon by the learned Additional Advocate General are concerned, no doubt the principles are well settled in our jurisprudence. In the first place, no strictures may be passed ex-parte. Second, no stricture may be offered more than that required by way of a correction or otherwise and, third no disparaging remarks or harsh language may be used, without prior notice. 38. The order of the learned single judge, though inconvenient and not to the personal like of the Revising Authority, it neither contains any final observation nor it is a stricture made nor does it contain any conclusion reached. What the learned single judge has pointed out are his own doubts that the order passed by the respondent-appellant appears to be wholly contrary to law and impermissible as per the rule of law. 39. However, the order may be worded, it may not persuade us to entertain the present appeal. In view of the facts noted above, we observe, the views expressed by the learned single judge are only a prima facie opinion that per se are not expressed in an intemperate language as may be seen to have caused any injury to the Revising Authority. 40. Accordingly, we decline to exercise our limited jurisdiction in this matter to entertain the present appeal, at this stage. 40. Accordingly, we decline to exercise our limited jurisdiction in this matter to entertain the present appeal, at this stage. At present, we leave it to the best judgment of the learned single judge to consider the explanation to be furnished by the respondent-appellant, on its own merits and to offer a measured correction, if required, as may be enough in the facts of the present case.” 14. On this issue, this Court is constrained to say that we never strictured M. Devraj, the former Chairman of the Corporation, which in any case could not have been done without due notice to him. Our order dated 07.08.2023 was one to bring to his notice what we thought tentatively were flaws in the order impugned going to the root of the matter and know from him what made him act in the manner he did. Instead of availing that opportunity, M. Devraj displayed hair trigger sensitivity and appealed to the Division Bench an order which was not of any moment. He has filed his personal affidavit after the Division Bench declined to interfere. 15. We may say at this stage that no party to a lis before this Court, whether private or official, ought to take umbrage to the orders of this Court, carrying remarks pointing out follies in their orders on a tentative basis to enable the party concerned to explain himself before judgment is passed. In the personal affidavit, that has been filed by M. Devraj, annexing a copy of the orders of the Division Bench, which he has quoted in extenso in his affidavit, there is a clear stance in Paragraph No. 7, which says that he regards our remarks in the order dated 07.08.2023 with offence, dubbing these as ‘ex-parte remarks against the deponent’. It would be of profit to quote Paragraph No. 7 of the personal affidavit filed by M. Devraj, which reads: “7. That the Hon’ble Court in the order dated 7.8.2023 has passed exparte remarks against the deponent, without even affording an opportunity of hearing to him and the deponent has had a consistently progressive and unblemished career spanning to 27 years, and therefore it is most respectfully prayed that the said remark may kindly be expunged by the Hon’ble Court.” 16. That the Hon’ble Court in the order dated 7.8.2023 has passed exparte remarks against the deponent, without even affording an opportunity of hearing to him and the deponent has had a consistently progressive and unblemished career spanning to 27 years, and therefore it is most respectfully prayed that the said remark may kindly be expunged by the Hon’ble Court.” 16. As a perusal of Paragraph No. 7 of the personal affidavit would show, the former Chairman of the Corporation still regards the remarks as strictures against him and prays that these be expunged. He has cited the credit of his progressive and unblemished career, spanning 27 years, to take umbrage to the remarks that he seeks to be expunged. Here, it may be again worthy of note that their Lordships of the Division Bench, while disposing of M. Devraj’s appeal from our order dated 07.08.2023, made it clear that the said order ‘.....though inconvenient and not to the personal like of the Revising Authority, it neither contains any final observation nor it is a stricture made nor does it contain any conclusion reached’. In view of the said remarks by their Lordships of the Division Bench, M. Devraj should have felt satisfied that there are no strictures passed by us against him. Still, we are constrained to remark that he did not rest content with the clarification made by the Division Bench that there are no strictures against him. Instead, in his personal affidavit vide Paragraph No. 7, he has asked us to expunge the strictures carried in the order dated 07.08.2023. Once, their Lordships of the Division Bench have said that there are no strictures in our order dated 07.08.2023, there is absolutely no occasion or necessity for us to expunge those remarks of non-blemish. Nevertheless, since M. Devraj has asserted that these still, to his understanding, are strictures, which must be expunged, this Court must clarify that those remarks are not at all strictures. 17. Why the remarks, which M. Devraj thinks are strictures, that ought to be expunged, are not so, we think ought to be clarified to place the record straight. The relevant remarks read: “The Chairman, who passed the impugned order pending the appeal seeking to exercise his revisional orders prima facie seems to have scant knowledge of the law and apparently is not legally trained. The relevant remarks read: “The Chairman, who passed the impugned order pending the appeal seeking to exercise his revisional orders prima facie seems to have scant knowledge of the law and apparently is not legally trained. He did not notice prima facie this flaw in proceedings of the inquiry, which goes to the root of the matter and proceeded to enhance the punishment after a show cause notice on the basis of an inquiry report where the establishment had to establish the charges by leading oral evidence. Let M. Devraj, former Chairman Uttar Pradesh Power Corporation Limited, wherever he is posted currently, explain the circumstances in which he failed to notice the aforesaid gaping flaw in the proceedings before the Inquiry Officer while passing the impugned order.” 18. For one, the remarks, above quoted, are all prefaced with the expression prima facie, which shows them to be tentative and intended to elicit the former Chairman’s response to the flaws noticed. If the former Chairman thinks that the remark that prima facie he seems ‘to have scant knowledge of law’ and apparently is ‘not legally trained’, are strictures, we think he is mistaken. It is a fact that the former Chairman of the Corporation is an administrative officer, who is not a trained lawyer. The distinction between one who is trained in the law and one who is not, and, therefore, called a ‘lay officer’, is well-known to the law. If the same remark, again tentative in nature, had been made by this Court in the context of a judicial officer, it might have been regarded as a stricture, albeit still in contemplation. It is never expected that an administrative officer would have knowledge of the law or at least a profound knowledge of it. Therefore, the remark in the context of an administrative officer like M. Devraj, is only a statement of fact with no blame attached. If an administrative office in passing an order discloses legal prowess, it would stand to his credit; if he does not, it would not stand to discredit his stature in any manner. Therefore, the remark in the context of an administrative officer like M. Devraj, is only a statement of fact with no blame attached. If an administrative office in passing an order discloses legal prowess, it would stand to his credit; if he does not, it would not stand to discredit his stature in any manner. At the same time, since the Chairman of the Corporation, like many other administrative officers, has been entrusted with functions of decision making and the decisions being those that have serious adverse civil consequence on rights of individuals, say employees in the establishment, the decisions have to conform to the basic and broad requirements of the law about procedural fairness etc. laid down by Courts. If a decision falls foul of the settled legal position, the Court has to correct it. 19. To lay this part of the matter at rest, it is clarified that since there are no strictures passed against M. Devraj vide order dated 07.08.2023, there is no occasion to expunge anything. 20. Now, turning to the merits of the order impugned. The first issue is if the Chairman of the Corporation should have suo motu invoked his revisional powers under Regulation 13(c) of the Regulations to enhance the penalty awarded by the Disciplinary Authority, where an appeal by the petitioner was pending before the Appellate Authority, that is to say, the Managing Director of the Distribution Corporation. The objection by the petitioner that pending his appeal before the Appellate Authority, the Revisional Authority, by interceding in the matter, has deprived him of his right of statutory appeal, has been answered by the Corporation in Paragraph No. 12 of the counter affidavit. The stand taken is that the petitioner had preferred an appeal dated 18.10.2021 to the Managing Director of the Distribution Corporation, which was before an incompetent forum. The petitioner was informed vide letter 18.02.2023 that as the punishment order dated 04.09.2021 was passed after due approval of the Managing Director of the Distribution Corporation, he should prefer an appeal to the Managing Director of the Corporation, instead. 21. The petitioner was informed vide letter 18.02.2023 that as the punishment order dated 04.09.2021 was passed after due approval of the Managing Director of the Distribution Corporation, he should prefer an appeal to the Managing Director of the Corporation, instead. 21. It is pointed out that by the letter dated 08.02.2023 issued by the Executive Engineer in the office of the Distribution Corporation, the petitioner was informed that his appeal was being rejected as the Appellate Authority was the Managing Director of the Corporation under Regulation 11(1) of the Regulations and not the Managing Director of the Distribution Corporation. The petitioner never availed this opportunity and preferred an appeal to the Managing Director of the Corporation. The case, therefore, on behalf of the Corporation, is that when the Chairman of the Corporation exercised his revisional powers under Regulation 13 of the Regulations, there was indeed no appeal pending at the petitioner’s instance. The petitioner has rebutted the Corporation’s case that his appeal was rejected by the Managing Director of the Distribution Corporation as he was not the competent Appellate Authority under the Regulations and an intimation dated 08.02.2023 sent to him on behalf of the Managing Director of the Corporation, pleading a specific case to the following effect, carried in Paragraph No. 17 of the rejoinder affidavit: “17..........It is further submitted that, the letter dated 08.02.2023 Annexed as C.A-3 and referred in the paragraph under reply was never served upon the petitioner before passage of impugned order dated 07.06.2023. It is pertinent to mention here that appeal again order dated 07.09.2021 was preferred by the petitioner by means of appeal dated 18.10.2021 before respondent no. 3 and thereafter, petitioner has moved a reminder dated 7.05.2022 before respondent no. 3 praying for expeditious disposal of his pending appeal, but neither any reply to be said request was made to the petitioner nor appeal dated 18.10.2021 was decided. Now, it is for the first time, respondent corporation is coming up with the plea, that the appeal dated 18.10.2021 was already turned down by means of letter dated 08.02.2023, addressed to the petitioner by Superintending Engineer (Disciplinary Proceeding), DVVNL, Agra, on the ground that since the original punishment order dated 04.09.2021 was passed on the approval of respondent no. 3, therefore, appeal has to be filed before next higher authority to be MD UPPCL, Lucknow. 3, therefore, appeal has to be filed before next higher authority to be MD UPPCL, Lucknow. As far as the aforesaid letter dated 08.02.2023 is concerned it is submitted that the appeal dated 18.10.2021 remained pending before respondent no. 3 for almost 17 months, but neither the same was decided nor any reason for keeping the same pending was ever communicate to the petitioner despite of reminder dated 07.05.2022 and just before a month of issuance of notice dated 10.03.2023 under regulation, 13(c) of regulation 2020 by respondent no. 2, the order dated 08.2.2023, vide letter No. 1762, is stated to be passed addressing the petitioner, which was never served upon the petitioner by any mode known to the law, nor any documentary evidence has been filed alongwith the order or with the counter affidavit to prove service of the same upon the petitioner, therefore, the order dated 08.02.2023 cannot be considered at this stage.......” 22. There is indeed nothing on record to show that the order dated 08.02.2023 was delivered to the petitioner or even dispatched to him. A perusal of the order dated 08.02.2023 shows that the order was sent to the petitioner’s office at Etah, where he was posted. If indeed, the order dated 08.02.2023 had been served upon the petitioner, there would be some kind of a record or acknowledgment evidencing service. There is none on record. In the face of a clear stand in Paragraph No. 17 of the affidavit that the order dated 08.02.2023 was never served upon the petitioner, it was for the Corporation to have come up with evidence to show that indeed it was served or at least dispatched at the correct address. That has not been done. It is, therefore, held that the order dated 08.02.2023 was never served upon the petitioner. 23. It has further been emphasized that the appeal to the Managing Director of the Distribution Corporation was preferred on 18.10.2021 and if the respondents’ case were accepted that they held the appeal to be not maintainable on 08.02.2023, it took them a time period of seventeen months to do so. During all this time, neither the appeal was decided nor the reason to keep the same pending, communicated to the petitioner despite a reminder dated 07.05.2022 sent by him. During all this time, neither the appeal was decided nor the reason to keep the same pending, communicated to the petitioner despite a reminder dated 07.05.2022 sent by him. The time period of seventeen months, that the Managing Director kept the appeal with him, would show that the respondents were negligent in dealing with the petitioner’s appeal. Departmental remedies of appeal, revision, review etc. are provided to bring quick redress for a wrong decision regarding an employee at the subordinate level. These remedies are not meant to be traps or warps where the determination of the employee’s rights may be held in limbo by inaction of the Authority concerned. If the stand of the Managing Director of the Distribution Corporation was that the appeal before him was not competent, because the order of the Disciplinary Authority had been passed with his concurrence, the fact should have been intimated to the petitioner within a few days; not even weeks. It is inexplicable and entirely unacceptable that a period of seventeen months elapsed between the petitioner preferring his appeal to the Managing Director of the Distribution Corporation and the disclosure of his stand in the letter dated 08.02.2023 addressed to the petitioner that he was not the competent Authority and the appeal before him not maintainable. In any case, this letter has already been held never to have been communicated to the petitioner. 24. Now, there is another angle to the matter. It is not the respondents’ case that the Managing Director of the Distribution Corporation was not the competent Appellate Authority under the Regulations. Certainly, the Managing Director of the Distribution Corporation was the competent Appellate Authority under Regulation 11 of the Regulations, and in the ordinary course of things, would be obliged to decide the petitioner’s appeal. There was a particular feature to the case and that was that the order of the Disciplinary Authority was passed with the concurrence of the Managing Director of the Distribution Corporation. This disabled him from functioning as the Appellate Authority under the Regulation 11. If this happened, as this Court assumes it did, the Managing Director of the Corporation was in utter error in passing the un-communicated order dated 08.02.2023, saying that given the circumstances, he was not the competent Appellate Authority and said so after lapse of a period of seventeen months, rejecting the petitioner’s appeal on that ground. 25. If this happened, as this Court assumes it did, the Managing Director of the Corporation was in utter error in passing the un-communicated order dated 08.02.2023, saying that given the circumstances, he was not the competent Appellate Authority and said so after lapse of a period of seventeen months, rejecting the petitioner’s appeal on that ground. 25. Why this course of action is prejudicial to the petitioner and what would have been the lawful course under the circumstances for the Managing Director of the Distribution Corporation to adopt, would presently be indicated. 26. Regulation 11 of the Regulations reads: 27. A perusal of Regulation 11(4) of the Regulations would show that an appeal to the competent Appellate Authority is to be preferred within ninety days of communication of the order appealed against. Any appeal received after the period of limitation would be rejected. There is no provision apparently for the condonation of delay in preferring an appeal under Regulation 11. The appeal in this case was preferred on 18.10.2021 within limitation against the order dated 04.09.2021 passed by the Disciplinary Authority to the Authority competent under the Regulations to entertain the petitioner’s appeal. By time, as the Corporation say in their counter affidavit, the Managing Director of the Distribution Corporation, the competent Appellate Authority, in the ordinary, came to reject the appeal on ground that his concurrence with the Disciplinary Authority in making the order impugned, rendered the appeal incompetent before him, seventeen months had gone by, and a fortiori the period of limitation expired for the petitioner. In these circumstances, the only lawful course to preserve the petitioner’s substantive right of appeal under the Regulations was that the Appellate Authority in the ordinary, the Managing Director of the Distribution Corporation, upon determining his incompetence, should have caused the petitioner’s appeal to be transmitted to the competent Appellate Authority under Regulation 11, as he says in his uncommunicated order dated 08.02.2023. The appeal should have been transmitted by the Managing Director of the Distribution Corporation to the Managing Director of the Corporation, or whosoever was the competent Authority, in view of the peculiar facts obtaining here, to exercise appellate powers under Regulation 11. In the considered opinion of this Court, the action of the Appellate Authority in passing an order rejecting the petitioner’s appeal on ground of the Authority being incompetent, in the facts here, was absolutely unlawful. 28. In the considered opinion of this Court, the action of the Appellate Authority in passing an order rejecting the petitioner’s appeal on ground of the Authority being incompetent, in the facts here, was absolutely unlawful. 28. The standards of procedural fairness in their interplay with the Regulations would demand the aforesaid course of action to be adopted, and not the one that the Managing Director of the Distribution Corporation did through his un-communicated order dated 08.02.2023. Hence, the un-communicated order dated 08.02.2023 is held to be one that is arbitrary and unfair as also discriminatory. It fails to pass muster of Article 14 of the Constitution, to the extent that it rejects the petitioner’s appeal, instead of transmitting it to the competent Appellate Authority. The order to that extent is held, for the said reason, illegal. 29. At this stage, Mr. Manish Goyal, learned Additional Advocate General and Mr. Abhishek Srivastava, learned Counsel in unison said that the order passed by the Chairman in revision was appealable to the next higher Authority in view of the provisions of Regulation 11 of the Regulations. Both the learned Additional Advocate General and Mr. Abhishek Srivastava called this Court’s attention to a Bench decision of this Court in Smt. Shaheen Badar vs. U.P. Power Corporation Limited and Others, 2022 AHC 138795, where it has been held: “3. On the other hand, learned counsel for the respondents submitted that in the case in hand a group of officers including certain senior officers were involved in disciplinary proceedings, hence the matter was examined by a senior officer as it could not be examined in piecemeal at different levels as the allegations were interconnected. He further submitted that as per Regulation-11 of the 2020 Regulations, if an order is passed by any authority, the same is appealable to the next higher authority. Applying that principle, the appellant had remedy of appeal before the Board of Directors and in fact before learned Single Judge, learned counsel for the petitioner submitted that he may be given time to file appeal as the limitation had expired during pendency of the writ petition. 4. Applying that principle, the appellant had remedy of appeal before the Board of Directors and in fact before learned Single Judge, learned counsel for the petitioner submitted that he may be given time to file appeal as the limitation had expired during pendency of the writ petition. 4. After hearing learned counsel for the parties, we do not find any merits in the present appeal as under the special circumstances, the disciplinary proceedings against a group of employee were held at higher level as certain senior officers were also involved and the punishment was inflicted by the Chairman by different orders. As per Regulation-11 of the Regulations against an order passed by a lower authority, the next higher authority is the appellate authority which in the case in hand is the Board of Directors. Hence, there is no error in the order passed by learned Single Judge relegating the appellant to avail of her alternative remedy.” 30. Now, the remedy of appeal in Smt. Shaheen Badar, was held to lie before the Board of Directors of the Corporation, because it was the Chairman of the Corporation, who had functioned as the Disciplinary Authority. The remedy of appeal under Regulation 11 is envisaged against the order of the Disciplinary Authority, whoever it might be; no remedy of appeal under Regulation 11 is contemplated against an order passed in revision. Here, the Chairman of the Corporation has not decided the matter, sitting as the Disciplinary Authority. He has decided it as the Revisional Authority, after depriving the petitioner of his right to avail the remedy of appeal before the Appellate Authority on account of the delay and the ill-advised course of action, adopted by the Managing Director of the Distribution Corporation, that we have already pointed out. The alternative remedy of appeal, therefore, suggested by the learned Additional Advocate General and Mr. Srivastava under Regulation 11 to the Corporation Board, is not available at all. 31. Turning to the merits of the matter, the thrust of the petitioner’s objection to the orders impugned is that the inquiry was held in breach of the salutary principles governing a disciplinary inquiry, which may lead to the imposition of a major penalty. Srivastava under Regulation 11 to the Corporation Board, is not available at all. 31. Turning to the merits of the matter, the thrust of the petitioner’s objection to the orders impugned is that the inquiry was held in breach of the salutary principles governing a disciplinary inquiry, which may lead to the imposition of a major penalty. This is so, according to the petitioner, because no oral inquiry was held in the sense that no witnesses were produced on behalf of the establishment to prove the charge against the petitioner with opportunity to him to cross-examine them. In Paragraph No. 9 of the writ petition, it is averred: “9. That it is worth mentioning here that no oral enquiry was conducted nor any prosecution witnesses was produced nor the petitioner was afforded opportunity any of the author of the cross-examine material/documents relied upon during the course of enquiry nor the authority, namely, Superintendent of Police (Vigilance), U.P. Power Corporation Ltd. Lucknow, who submitted preliminary enquiry report dated 29.08.2018, on the basis whereof, entire proceedings including the criminal proceedings was initiated against the petitioner, was not examined during the enquiry for proving the charge against the petitioner.” 32. In answering the case in Paragraph No. 9 of the writ petition, it is averred in Paragraph No. 7 of the counter affidavit, that answers Paragraph Nos. 8 and 9 of the writ petition, as follows: “7. That the contents of paragraphs 8 and 9 of the writ petition are false and incorrect hence denied and in reply thereto it is submitted that the enquiry committee along with the chargesheet had supplied the copy of the necessary documents to the petitioner and it was also mentioned in the chargesheet that at the time of filing of his reply, the employee can also inform the enquiry committee, in writing, providing the names of witnesses whom he wants to examine or cross examine and names of all those persons also whom he wants to produce for examination or cross examination and also give brief summary of evidence to be given by the employee in his defence. Further during the departmental enquiry the petitioner was also issued a letter by the enquiry committee on 2.12.2019, fixing the date, time and place, in response to which, the petitioner had appeared before the enquiry committee on 18.12.2019 and the petitioner had also participated in the enquiry on the said date. A copy of the letter dated 2.12.2019 and the minutes of the proceedings dated 18.12.2019 are being annexed herewith and marked as Annexure-CA-1 & CA-2 respectively to this counter affidavit. Further after giving due opportunity of hearing to the petitioner and 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 error, which has caused prejudice to the 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.” 33. Now, Paragraph No. 7 of the counter affidavit does not dispute it for a fact that the establishment never produced any witness to prove the charge. What they say is that Regulation 7 of the Regulations requires witnesses to be called, if they are mentioned in the charge-sheet; not otherwise. This stand of the respondents goes against the salutary principle, governing departmental inquiries, which may result in the imposition of a major penalty. It is the burden of the establishment to prove the charge/ charges in the first instance by producing evidence, both documentary and oral, before the Inquiry Officer through their Presenting Officer, in the same manner, as a case is proved before an independent Tribunal or Court by a party, who moves the process of law. The Inquiry Officer or Committee have to distance themselves from the establishment and act as impartial arbiters in the process. It is not that the Inquiry Officer or Committee, being officers of the establishment, can regard the charges proof of themselves and then expect the delinquent to dispel the same by leading evidence. It would always be the establishment’s burden to prove the charges, as already said, by leading evidence, documentary and also oral, before the Inquiry Officer through a Presenting Officer. This has admittedly not been done in this case at all. No witness of fact was examined, even so much as the Superintendent of Police (Vigilance), who submitted the inquiry report dated 29.08.2018 to conclude from material gathered that the petitioner had assets disproportionate to his known source of income during the check period. This has admittedly not been done in this case at all. No witness of fact was examined, even so much as the Superintendent of Police (Vigilance), who submitted the inquiry report dated 29.08.2018 to conclude from material gathered that the petitioner had assets disproportionate to his known source of income during the check period. This charge had to be proved by oral evidence of relevant witnesses, not just the Superintendent of Police (Vigilance), who would prove documents cited to show the possession of disproportionate assets by the petitioner. 34. It would be well to remember that more serious the charge and its consequences, the more strict the requirement to adhere to the standards of procedural fairness. It is perhaps for these reasons that in cases of disciplinary inquiries that may lead to the imposition of major penalties, that a salutary principle of law has been evolved, mandating proof of the charge by the establishment through production of oral evidence or witnesses apart from documents. The salutary principles regarding the holding of a disciplinary inquiry in matters, where a major penalty may be imposed, have been laid down by the Supreme Court in State of Uttar Pradesh and Others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 , where it is observed: “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. 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 un-rebutted 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.” 35. To the same effect, is the decision of the Supreme Court in Roop Singh Negi vs. Punjab National Bank and Others, (2009) 2 SCC 570 , where it has been held: “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.” 36. A Division Bench of this Court has dealt with the same issue in State of U.P. and Another vs. Kishori Lal and Another, 2018 (9) ADJ 397 (DB), where it has been 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 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 and Another, 2000 (1) UPLBEC 541 .” 15. In another case in Subhash Chandra Gupta vs. 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 un-refutable which does not require any proof. The view taken by us find support from the judgment of the Apex Court in State of U.P. and 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 and Another, 2000 (1) UPLBEC 541 .” 16. 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. 11. A Division Bench of this Court in Subash Chandra Sharma vs. 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 vs. U.P. Cooperative Spinning Mills and Others, 2001 (2) UPLBEC 1475 and Laturi Singh vs. 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. vs. Its Workmen, AIR 1962 SC 1348 , Uma Shankar vs. Registrar, 1992 (65) FLR 674 (All). 18. The Division Bench of this Court in the case of Mahesh Narain Gupta vs. 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. 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 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.” 37. The same principle has been reiterated by the Division Bench of our Court in Smt. Karuna Jaiswal vs. State of U.P. 2018 (9) ADJ 107 (DB), where it has been observed: “15. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.” 37. The same principle has been reiterated by the Division Bench of our Court in Smt. Karuna Jaiswal vs. State of U.P. 2018 (9) ADJ 107 (DB), where it has been 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 vs. 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.” 38. In State of U.P. vs. Aditya Prasad Srivastava and Another, 2017 (2) ADJ 554 (DB), 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.” 38. In State of U.P. vs. Aditya Prasad Srivastava and Another, 2017 (2) ADJ 554 (DB), 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. 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.” 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.” 39. The aforesaid salutary principle of the law, that holds field, does not seem to have informed the mind of any of the Authorities of the Corporation while passing the impugned order, including the Chairman. This principle has come to be laid down by the Courts, including the Supreme Court, over a period of time, extending over decades. It seems to this Court that the idea underlying the principle does not seem to be understood by administrative officers, untrained in the law. 40. This Court makes it clear that we do not mean to stricture anyone, but the constant breach of the salutary principle cannot be permitted to happen. During the period of time that this matter has been heard, in cases involving the Corporation or the various Distribution Corporations, this Court has noticed a complete go by to the requirement of producing oral evidence or witnesses in matters involving the imposition of a major penalty. Also, this Court has found, like the present case, that Inquiry Committees of the Corporation or the Distribution Corporations, even other Statutory Corporations, utterly fail to comprehend the principle about the burden of proof being on the establishment to prove the charge, in the first instance, by leading evidence. The Inquiry Committees/ the Inquiry Officer fail to distance themselves from the establishment and identify themselves with the establishment’s case, regarding the charge/ charges proof of themselves. The Inquiry Committees/ the Inquiry Officer fail to distance themselves from the establishment and identify themselves with the establishment’s case, regarding the charge/ charges proof of themselves. In many a case by oral hearing, what the Inquiry Officers/ Committees understand is that the delinquent is to be informed of the charges, which are regarded proof of themselves and then put to questioning in the fashion of an interrogator to persuade the Inquiry Committee or the Inquiry Officer that he is indeed not guilty of what is otherwise regarded as proved to begin with. The facts of this case also do not show a very different approach. It would be of profit to quote the findings of the Inquiry Committee, relative to the charge here, recorded in their report dated 26.07.2021. These read: “The writ petition is disposed of giving liberty to the petitioner to give all the additional facts materials to Superintendent and of Police (Vigilance) respondent-3, who shall consider the same and if the additional facts have any bearing then he shall modify the inquiry within a period of three months from the date of producing a certified copy of this order.” 41. A perusal of the findings of the Inquiry Committee would show that their opinion is based on nothing more than what the Additional Superintendent of Police, Babita Sahu has said in her report dated 29.08.2018 to the Additional Director General of Police (Vigilance) in the Corporation’s establishment. They have appraised the charge and understood it through the eyes of the Additional Superintendent of Police, banking on the documents she considered and the statements of witnesses she recorded. Another report, that has been taken into consideration, is the one by K.P. Yadav, Superintendent of Police (Vigilance) in the office of the Additional Director General of Police (Vigilance) of the Corporation. It is a report dated 29.08.2018. The Committee have understood and found the charge proved on the basis of this report as well the earlier one by the Additional Superintendent of Police. Everything about the charge has been understood by the Committee perusing these two reports by police officials. The Committee have particularly said that reading Memo No. ,lih¼oh½&dEi&41@2011¼9½ dated 09.04.2014 and Memo No. ,lih¼oh½&dEi&41@2011¼9½ dated 29.08.2018 together with the petitioner’s reply, oral statements and annexures, the FIR registered against the petitioner, their opinion follows. Everything about the charge has been understood by the Committee perusing these two reports by police officials. The Committee have particularly said that reading Memo No. ,lih¼oh½&dEi&41@2011¼9½ dated 09.04.2014 and Memo No. ,lih¼oh½&dEi&41@2011¼9½ dated 29.08.2018 together with the petitioner’s reply, oral statements and annexures, the FIR registered against the petitioner, their opinion follows. The opinion that follows is again based on the investigation done by the Police and what the Superintendent of Police (Vigilance) submitted in his report about the various features of the charge relating to disproportionate assets. 42. A perusal of the inquiry report leaves us in no manner of doubt that the Inquiry Committee for themselves did not require the establishment to lead any evidence before them, documentary or oral, which they themselves heard. They understood and held the charge proved based on the investigation done by the Police, reading the petitioner’s reply and the statements recorded by the Police. The Inquiry Committee, therefore, hardly held any inquiry to find the petitioner guilty, adopting the salutary principle of requiring the establishment to produce evidence before the Committee, both documentary and oral, to prove the charge in the first instance. 43. In this Court’s opinion, there has been a wholesome violation of procedural fairness in holding the inquiry that goes to the root of the matter and prejudices the petitioner, visiting him with adverse civil consequences. 44. In the result, this writ petition succeeds and is allowed. The impugned order dated 07.06.2023 passed by the Chairman of the Corporation and the order dated 04.09.2021 passed by the Chief Engineer (HR-cum-Disciplinary Proceedings), Distribution Corporation are hereby quashed. The petitioner shall be reinstated in service forthwith and paid his current salary. However, considering the gravity of the charge, it will be open to the respondents, if they so elect, not only to proceed with the inquiry afresh from the stage of the charge-sheet, holding it in the manner indicated in this judgment, but also to place the petitioner under suspension pending conclusion of the disciplinary proceedings. The entitlement of the petitioner to receive his emoluments for the period of time that he has remained out of service, would abide by the result of the disciplinary proceedings finally determined. If, however, the respondents do not elect to pursue disciplinary proceedings against the petitioner, 50% of his emoluments shall be payable for the period that he has remained out of service. If, however, the respondents do not elect to pursue disciplinary proceedings against the petitioner, 50% of his emoluments shall be payable for the period that he has remained out of service. It is further clarified that in the event the respondents also elect to place the petitioner under suspension pending conclusion of disciplinary proceedings, he would be entitled to the payment of subsistence allowance, which shall be regularly paid, without asking him to furnish a non-alternative engagement certificate. The disciplinary proceedings, if held afresh as per liberty granted, shall be concluded expeditiously, wherein the petitioner will cooperate. 45. Costs easy.