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2024 DIGILAW 758 (ALL)

Ashok Kumar Gautam v. State of U. P.

2024-03-11

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. This writ petition has been instituted challenging the order dated 14.6.2021 passed by the Managing Director, Kanpur Electric Supply Company Limited, 14/71, Civil Lines, KESA House, Kanpur holding the petitioner guilty after disciplinary proceedings and awarding him the punishment of withholding two increments with cumulative effect, besides recovery of a sum of Rs. 2,09,138.40/-. Also under challenge is the appellate order dated 5.4.2023 passed by the Chairman, Uttar Pradesh Power Corporation Limited, Lucknow passed on the petitioner's departmental appeal whereby the Chairman has rejected the appeal and enhanced the penalty awarded to withholding of three increments with cumulative effect and maintaining the recovery ordered by the Disciplinary Authority. 2. The facts giving rise to this petition are that the petitioner was appointed as an Assistant Engineer in the employ of the Uttar Pradesh Power Corporation in the year 1999. He was promoted to the post of Executive Engineer on 8.6.2008 and posted with the Electricity Distribution Division, Vikas Nagar, Kanpur Electricity Supply Company Limited, Kanpur Nagar (for short, 'the KESCo'). He worked on the said post up to 6.9.2014. On the 6th of September, 2014, the petitioner was transferred from Vikas Nagar to Sarvodaya Nagar. He joined his station of transfer where he commenced performing his duties. 3. According to the petitioner, on 19.8.2014, one Smt. Vimla Devi applied for a new service connection. She made an application for the purpose. The petitioner inspected her premises on 26.8.2014 and issued a certificate dated the 26th August, 2014, certifying the distance between the nearest pole and her premises to be 210 meters. After the premises had been inspected, the prospective consumer was informed by the petitioner about the distance charges to be borne and endorsed a remark on the application to the effect that the consumer is satisfied about the distance charges. The applicant/consumer deposited a sum of Rs. 61,200/- on 3.9.2014 under the head of miscellaneous fee chargeable for extra cable. 4. On the 15th of September, 2014, the Assistant Engineer, Ekdhar Charan submitted a report asking the petitioner for approval in regard to the connection last mentioned. The petitioner signed his approval about the receipt of Rs. 20,925/- on account of security money, meter charges, service line charges, system loading charges et cetera. 5. 4. On the 15th of September, 2014, the Assistant Engineer, Ekdhar Charan submitted a report asking the petitioner for approval in regard to the connection last mentioned. The petitioner signed his approval about the receipt of Rs. 20,925/- on account of security money, meter charges, service line charges, system loading charges et cetera. 5. The petitioner was relieved of his duties at the Electricity Distribution Division, Vikas Nagar, as already said, for the next posting at Sarvodaya Nagar. 6. A random inspection of the consumer's premises was done on 7.11.2014 by a team comprising the Superintending Engineer, the Executive Engineer, the Assistant Engineer and the Junior Engineer. The inspection team submitted a report saying that variable cost for 170 meters of cable had been deposited while the distance of the premises from the electrified area was found to be 600 meters. It was also remarked that without erecting a new line, the connection had been sanctioned and installed. Therefore, the service connection was temporarily disconnected. 7. The Superintending Engineer-IV, vide letter dated 11.11.2014, asked the Assistant Engineer, Ekdhar Charan to show-cause why charges for 170 meters of cable alone had been secured when the distance between the premises and the nearest pole was more than 800 meters. 8. It is the petitioner's case that the estimate for the new service connection was drawn up by the Executive Engineer (Distribution), R.K. Soni, the Assistant Engineer (Distribution), Ajay Kumar and the Junior Engineer (Distribution), Shailendra Dwivedi which was passed by the Superintending Engineer, Circle-4th, (D-4) on 17.11.2014. It appears to be incorrectly mentioned as 17.11.2017 in paragraph No. 12 of the writ petition. 9. On 19.11.2014, Arvind Kishore, Superintending Engineer-IV, KESCo, made a complaint to the Managing Director saying that Ekdhar Charan, the Assistant Engineer, without complying with the required procedure, had sanctioned a connection to Smt. Vimla. 10. On the 28th of September, 2017, R.K. Soni, Superintending Engineer (Commercial)/Enquiry Officer issued a charge-sheet to the petitioner and sought his reply. The petitioner submitted his reply to the charges through his written statement dated 29.10.2017. 11. It is the petitioner's case that without considering the petitioner's reply, the Inquiry Officer, the Superintending Engineer (Commercial) submitted inquiry report to the Managing Director, KESCo, the Disciplinary Authority. The petitioner submitted his reply to the charges through his written statement dated 29.10.2017. 11. It is the petitioner's case that without considering the petitioner's reply, the Inquiry Officer, the Superintending Engineer (Commercial) submitted inquiry report to the Managing Director, KESCo, the Disciplinary Authority. A detailed inquiry report was submitted on 8.5.2020 holding the petitioner guilty and submitted a further inquiry report signed by himself and the other member on the Inquiry Committee, the Senior Accounts Officer, holding the petitioner guilty and recording that a total loss of Rs. 5,87,314/- had been occasioned to the KESCo, in the matter of sanction of service connection to Smt. Vimla Devi. The responsibility for the loss was apportioned by the Inquiry Committee. 12. We would allude to the inquiry report dated 8.5.2020, on the foot of which the Managing Director of the KESCo and the Chairman of the Uttar Pradesh Power Corporation Limited (for short, 'the Corporation') have proceeded to punish the petitioner, later in this judgment. 13. Based on the inquiry report, the petitioner was served with a show-cause by the Chief Engineer, KESCo dated 11.5.2021. The petitioner denied the case against him with all technical details and facts consistent with his innocence and submitted his reply dated 11.5.2021. 14. The Managing Director, KESCo, according to the petitioner, without application of mind, passed the impugned order dated 14.6.2021 awarding a major penalty to the petitioner in terms that directing two annual increments be withheld with cumulative effect, besides the recovery of a sum of Rs. 2,61,422/. 15. The petitioner appealed to the Chairman of the Corporation against the order punishing him. The Chairman, not only dismissed the petitioner's appeal vide order dated 5.4.2023, but enhanced the penalty by ordering the withholding of three increments with cumulative effect, instead of the two, ordered by the Disciplinary Authority, the Chairman, KESCo. The order for recovery of a sum of Rs. 2,61,422/-, on account of loss caused to the Corporation, was maintained by the Appellate Authority. 16. Aggrieved, the petitioner has instituted the present petition under Article 226 of the Constitution. 17. A counter-affidavit has been filed on behalf of respondent Nos. 2 and 3 on 19.11.2023. 18. Heard Dr. Suman Kumar Yadav, learned Counsel for the petitioner, Mr. Abhishek Srivastava, learned Counsel appearing on behalf of the Corporation-respondent No. 2, Ms. Usha Kiran, learned Counsel appearing for KESCo-respondent No. 3 and Mr. 17. A counter-affidavit has been filed on behalf of respondent Nos. 2 and 3 on 19.11.2023. 18. Heard Dr. Suman Kumar Yadav, learned Counsel for the petitioner, Mr. Abhishek Srivastava, learned Counsel appearing on behalf of the Corporation-respondent No. 2, Ms. Usha Kiran, learned Counsel appearing for KESCo-respondent No. 3 and Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel appearing on behalf of the State. 19. It is argued by the learned Counsel for the petitioner that the Inquiry Committee, who submitted the report, have hardly considered the petitioner's reply and submitted a sketchy and unintelligible report, on the foot of which the petitioner could not be held guilty by the Disciplinary Authority or in appeal. 20. It is, particularly, argued on the strength of the amended pleas in paragraph Nos. 35A, 35B and 35C of the writ petition that the Establishment have not produced any witnesses to prove the charges carried in the charge-sheet against the petitioner, in violation of Regulation 7 of the U.P. Power Corporation Limited Servants (Discipline and Appeal) Regulations, 2020 ('the Regulations', for short). 21. It is urged that it is imperative for the Establishment, as a matter of salutary principles governing a disciplinary inquiry leading to the imposition of a major penalty that, in the first instance, the charges are proved by the Establishment producing evidence before the Inquiry Committee/Officer. The evidence is to be produced through a presenting officer who must produce both documentary and oral evidence, particularly witnesses. The witnesses produced must be exposed to cross-examination by the delinquent. After the Establishment have produced their evidence and the delinquent has cross-examined the Establishment witnesses, the delinquent must be given opportunity to produce evidence in his defence which would comprise both documentary and oral evidence. The witnesses on behalf of the defence can also be likewise cross-examined. 22. The submission of the learned Counsel for the petitioner, Dr. Suman Kumar Yadav is that all this procedure has been given a go by and the Inquiry Committee have returned, whatever findings they have, by merely going through papers on record without any evidence being led or the charges being proved. 23. Mr. Abhishek Srivastava and Ms. 22. The submission of the learned Counsel for the petitioner, Dr. Suman Kumar Yadav is that all this procedure has been given a go by and the Inquiry Committee have returned, whatever findings they have, by merely going through papers on record without any evidence being led or the charges being proved. 23. Mr. Abhishek Srivastava and Ms. Usha Kiran, learned Counsel appearing for the respondents, have strongly opposed the aforesaid submissions saying that there is no illegality vitiating inquiry, where the petitioner has been given a fair opportunity both before the inquiry and post inquiry, in terms of a show-cause notice, prior to a decision about the petitioner's guilt by the Disciplinary Authority. In addition, the petitioner has also availed his remedy of departmental appeal where the Appellate Authority, considering the gravity of his misconduct, has enhanced the penalty of withholding of two increments to three with cumulative effects. The findings of the Authorities below are unassailable in the submission of the learned Counsel appearing for the KESCo, the Corporation as well as the state. 24. Upon hearing learned Counsel for parties, this Court finds that a perusal of the inquiry report dated 8.5.2020 ex facie shows it to be the handiwork of untrained men and novices who do not have even a faint idea about the salutary procedure of conducting an inquiry and writing an inquiry report dealing with the charges, the delinquent's defence, evidence on both the sides and the conclusions. 25. A perusal of the inquiry report shows that the Inquiry Committee has not only jumped to conclusions but virtually started with them. For one, this Court was handicapped by the fact that a copy of the charge-sheet was not placed on record by either party. But, that would not have mattered much if the inquiry report had been written by a hand or a Committee, reasonably experienced, in holding departmental inquiries and writing reports. The inquiry report does not set out the charge against the petitioner or the statement of imputations. It starts off with conclusions as if the charge is well known to the reader of the report and so also the petitioner's defence. 26. The inquiry report does not set out the charge against the petitioner or the statement of imputations. It starts off with conclusions as if the charge is well known to the reader of the report and so also the petitioner's defence. 26. There is a haphazard reference to some technical reports and conclusions drawn to the effect that the petitioner, by sanctioning the electricity connection after estimating the distance between the consumer's premises and the point where the source of power was located, has committed a lapse by not getting the estimate for the entire cost of the installation prepared. These are abrupt conclusions recorded, on what basis is not discernible from the inquiry report. There is no consideration of any documentary evidence or, more particularly evidence, that is to say, the testimony of witnesses which in this case we think was never recorded. The report at best may qualify for an investigative venture, like one that may be expected at the time of a preliminary inquiry, before a decision to initiate disciplinary proceedings is taken. A report of this kind cannot qualify for an inquiry report sans reference to the charge/charges, the petitioner's defence, the evidence led at least on behalf of the Establishment and then the Inquiry Committee's conclusions with reference to the evidence on record. The inquiry report is a piece of waste paper. The relevant part of the enquiry report for all that it says, records: 27. The report also seems to suggest that the Inquiry Committee was tasked with finding out the loss that was occasioned to the Corporation by the petitioner and the other functionaries held in fault. The inquiry report does not even suggest that a charge was at all drawn up and set out in the charge-sheet on the basis of which the petitioner could be judged guilty or exonerated. Apart from other things, the entire tenor of words carried in the inquiry report are so informal that we think that this kind of a report should never have been the foundation of any disciplinary action, much less the award of a major penalty. Apart from other things, the entire tenor of words carried in the inquiry report are so informal that we think that this kind of a report should never have been the foundation of any disciplinary action, much less the award of a major penalty. If the Disciplinary Authority or the Appellate Authority had bestowed some informed consideration to this report, the only course of action for them was to remit the matter to the Inquiry Committee for a fresh inquiry to be done in accordance with the salutary procedure to hold a departmental inquiry and followed by an inquiry report adhering to the minimum and essential standards of a valid report in a disciplinary matter. 28. In paragraph No. 8(iv) of the counter-affidavit, filed on behalf of respondent Nos. 2 and 3, it is not disputed for a fact that no witnesses were examined by the Establishment in support of the charges. Rather, the respondents have attempted to justify their action in holding this kind of a slipshod inquiry by saying that witnesses are required to be examined under Regulation 7(7) of the Regulations, if their names are cited in the charge-sheet. Since, in this case, no witnesses have been cited, there was no requirement of examining any witness at all. We are afraid that this is not the law governing the salutary procedure to hold a valid departmental inquiry in matters which may entail the imposition of a major penalty. 29. According to the principles well-settled for holding a departmental inquiry, it must be understood by the respondents, and more particularly, by the Inquiry Committee, that is charged with the responsibility of inquiring into the charges, that the charges laid by the Establishment against the employee cannot be taken to be proof of themselves. It is the burden of the Establishment to prove the charges, and like any other judicial proceeding, though a departmental inquiry is certainly not that, the Inquiry Committee/Officer must be mindful of the fact that the proceedings against the delinquent commence before the Inquiry Committee/Officer with a clean slate for the delinquent. It is for the Establishment to prove the charges by leading evidence, both documentary and oral. 30. In case of inquiry into charges, involving the imposition of a major penalty, it is imperative by salutary principle that witnesses, to prove the Establishment's case, must be examined. It is for the Establishment to prove the charges by leading evidence, both documentary and oral. 30. In case of inquiry into charges, involving the imposition of a major penalty, it is imperative by salutary principle that witnesses, to prove the Establishment's case, must be examined. The Inquiry Committee or its Members, or if there be an Inquiry Officer sole, even if otherwise an officer of the same Establishment, must distance himself from the master he serves. He must sit as an impartial Arbiter or Tribunal to inquire into the charges. It is then the burden, as already said, of the Establishment to prove the charges through a Presenting Officer. The proceedings have to be not as formal as a trial in a Court of law or a Judicial Tribunal, but also not so informal that the event passes through like any other business of the day in the Establishment's office. The rest of the procedure that must be followed before the Inquiry Committee or the officer has been alluded to hereinabove and need not be repeated. 31. The salutary principle about the Establishment's burden to prove the charges by producing documentary as well as oral evidence, particularly examining witnesses, in a case where the proceedings may entail the imposition of a major penalty, has been the subject of considerable judicial attention in the past. Some of the leading Authorities on the point need notice for a more complete guidance of the respondents in this matter and for the future. In this connection, reference may be made to Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 , where it was observed by the Supreme Court: ''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. 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.'' 32. Likewise, in Smt. Karuna Jaiswal v. State of U.P, 2018(9) ADJ 107 (DB) (LB), it has been held by a Division Bench of this Court sitting at Lucknow: ''15. The law in this regard is very well-settled and does not need a reiteration, however, we may refer to a judgment of Hon'ble Supreme Court in the case of State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772 , wherein it has clearly been held that Enquiry Officer acts as a quasi judicial authority and his position is that of an independent adjudicator and further that he cannot act as a representative of the department or disciplinary authority and further that he cannot act as a prosecutor neither he should act as a judge; his function is to examine the evidence presented by the department and even in the absence of the delinquent officer, has to see as to whether the unrebutted evidence is sufficient to bring home the charges. 16. Hon'ble Supreme Court has further held in the said judgment of Saroj Kumar Sinha (supra) that it is only in case when the Government servant, despite notice, fails to appear during the course of enquiry that Enquiry Officer can proceed ex parte and even in such circumstances it is incumbent upon the Enquiry Officer to record the statement of witness. 17. In the instant case, no oral enquiry was held, neither the petitioner was given any notice to participate in any oral enquiry by fixing date, time and place for oral enquiry. It is only that the Enquiry Officer after noticing that despite sufficient time having been given to the petitioner, she did not furnish her reply to the charge-sheet, he proceeded to submit ex parte report without conducting any oral enquiry by fixing date, time and place for such an oral enquiry. 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.'' 33. In State of U.P. and another v. Kishori Lal and another, 2018(9) ADJ 397 (DB) (LB), again a Bench decision of this Court, the necessity of holding an oral inquiry was emphasized in the following words; ''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. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. and another v. T.P. Lal Srivastava, 1997 (1) LLJ 831 , as well as by a Division Bench of this Court in Subhash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 .'' 15. In another case in Subhash Chandra Gupta v. State of U.P., 2012(4) ADJ 4 (NOC), the Division Bench of this Court after survey of law on this issue observed as under: ''It is well-settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the Apex Court in State of U.P. and another v. T.P.Lal Srivastava, 1997 (1) LLJ 831 , as well as by a Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 .'' 16. A Division Bench decision of this Court in the case of Salahuddin Ansari v. State of U.P. and others, 2008(3) ESC 1667, held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under: ''10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case. 11. A Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma v. U.P.Cooperative Spinning Mills and others, 2001 (2) UPLBEC 1475 and Laturi Singh v. U.P.Public Service Tribunal and others, Writ Petition No. 12939 of 2001, decided on 6.5.2005.'' 17. Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348 , Uma Shankar v. Registrar, 1992 (65) FLR 674 (All). 18. The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570, had also occasion to deal with the same issue. Ltd. v. Its Workmen, AIR 1962 SC 1348 , Uma Shankar v. Registrar, 1992 (65) FLR 674 (All). 18. The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570, had also occasion to deal with the same issue. It held: ''At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that hose documents are sufficient enough to prove the charges. In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in ex parte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. 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. 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.'' 34. In the opinion of this Court, therefore, for whatever has been said, all proceedings beyond the charge-sheet, if a properly done charge-sheet was issued to the petitioner, stand vitiated. In the event, a proper charge-sheet was not issued to the petitioner, the proceedings go foul by one more step and oblige the respondents to issue a fresh and properly done charge-sheet as well. This part is left to the respondents' wisdom and risk. 35. In the result, this petition succeeds and is allowed. The impugned order dated 14.6.2021 passed by the Managing Director, Kanpur Electric Supply Company Limited and the Appellate order dated 5.4.2023 passed by the Chairman of the Corporation are hereby quashed. The inquiry report dated 8.5.2020 is also quashed. 36. It will be open to the respondents to proceed afresh with the inquiry, either by issuing a fresh charge-sheet or if they are convinced that a valid charge-sheet has been issued, on the basis of the same charge-sheet and pass a fresh order in accordance with law, bearing in mind the guidance in this judgment. If the respondents elect to pursue fresh proceedings against the petitioner, a penalty higher than the one quashed by this judgment shall not be imposed. 37. There shall be no order as to costs. 38. Let this judgment be communicated to the Chairman, Uttar Pradesh Power Corporation Limited, Lucknow and the Managing Director, Kanpur Electric Supply Company Limited, 14/71, Civil Lines, KESA House, Kanpur by the Registrar (Compliance).