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2024 DIGILAW 858 (ALL)

Manohar Singh v. State of U. P.

2024-03-19

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. 1. Manohar Singh, the petitioner was a Technician Grade-II, working with the Dakshinanchal Vidyut Vitran Nigam Limited and posted in the establishment of the Executive Engineer, Electricity Distribution Division-VI, Dakshinanchal Vidyut Vitran Nigam Limited, Aligarh. He was initially appointed on 30.7.1999 as a Coolie with the Electricity Distribution Division, Dakshinanchal Vidyut Vitran Nigam Limited, Aligarh, after following the procedure prescribed. In the year 2010, Manohar Singh was promoted to the position of a Technician Grade-II/Cashier in accordance with rules. He says that he has been working with devotion and sincerity, appreciated by his superiors. For the present, he was posted as Technician Grade-II/Cashier at the 33/11 KV Electricity Substation, Akarabad, Aligarh. His service record, until the event subject-matter of this petition, is said to be unblemished. 2. Manohar Singh says that while posted at the Electricity Distribution Division-VI, Aligarh, on the 8th of March, 2010, he suffered from some heart ailment and took his treatment at the Metro Hospital and Heart Institute, New Delhi. He underwent a surgery. Once fit, he joined his duties. Much later, on 10.1.2018, when he was transferred to the Electricity Distribution Division-VI, Aligarh, he suffered another setback to his health. On the 12th of January, 2018, he had a brain haemorrhage that led to paralysis in the right side of his body. He was again admitted to the care of the Metro Hospital and Multi-Speciality Wing, Sector 11, NOIDA. He is confined to bed eversince. 3. The petitioner was transferred once more to the Electricity Distribution Division, 33/11 KV Substation, Akarabad, Aligarh in the month of January, 2020. He says that there, a certain cashier, Dhanesh Singh Yadav, an Assistant Accountant Ram Prakash, besides a Junior Engineer and an Executive Engineer, in collusion with each other, made an ID of the petitioner's for revenue collection. After suffering paralysis, the petitioner is unable to move anywhere. This gave opportunity to Dhanesh Singh, Ram Prakash, the Junior Engineer and the Executive Engineer to collect revenues under the one-time settlement scheme, utilising the petitioner's ID. Later on, they came up with allegations of embezzlement against the petitioner, on the basis of which, the Executive Engineer passed an order of suspension pending inquiry against him on 18.5.2021. 4. This gave opportunity to Dhanesh Singh, Ram Prakash, the Junior Engineer and the Executive Engineer to collect revenues under the one-time settlement scheme, utilising the petitioner's ID. Later on, they came up with allegations of embezzlement against the petitioner, on the basis of which, the Executive Engineer passed an order of suspension pending inquiry against him on 18.5.2021. 4. It is the petitioner's case that during this period of time, on the same allegations as those subject-matter of the contemplated departmental inquiry, at that stage, a First Information Report was also lodged against him on 23.5.2021. The petitioner says that he is bedridden since the year 2018 till the date he instituted this petition. He cannot speak, move or take care of his daily routine. He has not discharged his duties since the year 2018. It is this non-ambulatory condition of the petitioner, which has given opportunity to Dhanesh Yadav, the Cashier, the Assistant Accountant Ram Prakash, the Junior Engineer and the Executive Engineer to perpetrate embezzlement of revenue collections belonging to the Dakshinanchal Vidyut Vitran Nigam Limited (for short, 'the Distribution Corporation'). There is some reference to the police case, regarding which investigation seems to have been carried on while the petitioner lay in a vegetative state, as he says, but that is not of much relevance for the purpose of the present writ petition. 5. The petitioner challenged his suspension from service by means of Writ-A No. 15568 of 2021, which was disposed of with a direction to the Disciplinary Authority, the Executive Engineer, Electricity Distribution Division-VI of the Distribution Corporation to conclude the pending disciplinary proceedings against the petitioner within a period of three months from the date of production of a certified copy of this Court's order. The petitioner was served with a charge-sheet, to which he submitted a reply. 6. It is the petitioner's case that without considering his reply or affording him any opportunity of hearing, the Disciplinary Authority, to wit, the Managing Director of the Distribution Corporation, passed an order dated 27.4.2022, dismissing the petitioner from service and further ordering recovery of a sum of 50,44,673/-. The petitioner appealed the order to the Chairman of the Uttar Pradesh Power Corporation Limited, Lucknow (for short, 'the Corporation'). The departmental appeal was not decided, forcing the petitioner to move this Court again through Writ-A No. 11303 of 2022. The petitioner appealed the order to the Chairman of the Uttar Pradesh Power Corporation Limited, Lucknow (for short, 'the Corporation'). The departmental appeal was not decided, forcing the petitioner to move this Court again through Writ-A No. 11303 of 2022. This Court vide order dated 3.8.2022, directed the appeal to be decided within a period of two months of the date of production of a certified copy of this Court's order. The petitioner's appeal was dismissed by the Appellate Authority vide order dated 16.5.2023. 7. Aggrieved, this writ petition has been instituted. 8. A counter-affidavit has been filed on behalf of respondent No. 4 and another on the behalf respondent No. 2, that is to say, the Executive Engineer, Electricity Distribution Division-VI, Dakshinanchal Vidyut Vitran Nigam Limited, Aligarh and the Corporation. A further counter-affidavit on behalf of respondent No. 4 dated 17.10.2023 was filed in answer to the amended pleas in the writ petition. A supplementary counter-affidavit was filed on behalf of respondent No. 2 on 15.10.2023. The petitioner filed a rejoinder-affidavit. This petition was admitted to hearing on 18.10.2023 and heard forthwith. Judgment was reserved. 9. Heard Mr. Niyaz Ahmad Khan, learned Senior Advocate assisted by Mr. Abhishek Singh, learned Counsel for the petitioner, Mr. Abhishek Srivastava, learned Counsel for respondent No. 2, Mr. Manu Ghildyal, learned Counsel for respondent Nos. 3 and 4 and Ms. Amrita Singh, learned Additional Chief Standing Counsel on behalf of respondent No. 1. 10. The petitioner has raised two points in support of his petition. The first is that during the departmental inquiry, no witness was examined on behalf of the establishment to prove the charges, though the matter involved the imposition of a major penalty. It is the burden of the establishment, according to the learned Counsel for the petitioner, to prove the charges by their own evidence aliunde. They cannot rely on the lacunae in the employee's defence to hold the charges proved. The learned Senior Advocate for the petitioner has extensively argued that in any departmental inquiry, where a major penalty is likely to be imposed, if the charges are proved, it is the bounden duty of the Inquiry Officer to convene himself as an Inquiry Tribunal, an impartial arbiter, distanced from the employers' establishment. The charges then have to be proved by the establishment by leading evidence, both documentary and oral in the first instance. The charges then have to be proved by the establishment by leading evidence, both documentary and oral in the first instance. The examination of witnesses is essential in case where a major penalty is involved. After the employers have led their evidence through a Presenting Officer, it is the delinquent's right to cross-examine the establishment's witnesses. After this stage is over, the delinquent/employee is to be given opportunity to produce evidence in his defence, both documentary and oral. It is submitted that nothing of this kind has been done and the Inquiry Officer has submitted a report, treating the charges to be proof of themselves. 11. The other submission, that has been made with much emphasis, is that since the year 2018, the petitioner, who had suffered a brain haemorrhage, is paralysed. In that condition, apart from the fact that the charge against him of embezzling funds of the Distribution Corporation, seems incredible, the petitioner was utterly unable to defend himself. It is pointed out that the respondents did refer the petitioner for his medical examination by a panel of doctors, that may include a Neurologist and submit a report regarding his medical condition. A reference was made by the Chief Medical Officer, Aligarh at the instance of the respondents, to the Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow (for short, 'the SGPGI'). It is pointed out that there is on record a letter dated 1.4.2023, addressed to the Chief Medical Officer, Aligarh by the Medical Superintendent, SGPGI, saying that the institute constitutes Medical Board for its own employees only, and also does so for others, on orders of Courts, declining the respondents' request. It is pointed out further by the learned Senior Advocate for the petitioner that nothing was done thereafter by the respondents to ascertain the petitioner's medical condition, whereas he was, during the course of inquiry, lying bedridden, unable to move or even sign. 12. Attention of this Court is also drawn by the learned Senior Advocate to an application dated 1.9.2022 moved by the petitioner under his thumb impression, because he could not sign. It is signed by his wife, saying that he has suffered a brain stroke and paralysis. He is lying in a vegetative state. This application seems to have been moved while the petitioner's appeal was pending. It is signed by his wife, saying that he has suffered a brain stroke and paralysis. He is lying in a vegetative state. This application seems to have been moved while the petitioner's appeal was pending. A copy of this application is on record as Annexure 7 to the writ petition. There is also on record a slew of medical treatment papers from the Metro Hospital and Heart Institute, New Delhi, which show that the petitioner was in a seriously impaired condition of health. The submission, on the foot of these facts, is that the entire disciplinary proceedings, that were undertaken while the petitioner was bedridden, constitute gross violation of the principles of natural justice, so much so that the inquiry against the petitioner or the orders of punishment made, must be held bad on this count alone. 13. Mr. Manu Ghildyal and Mr. Abhishek Srivastava appearing on behalf of the respondents have refuted the petitioner's submission and said that the charges against him are very serious, involving embezzlement of huge funds of the Distribution Corporation. It is argued by them that the inquiry proceedings were held in accordance with rules, giving full opportunity to the petitioner. They submit that this is a case where the petitioner is not entitled to invoke this Court's equitable jurisdiction under Article 226 of the Constitution. 14. We have carefully considered the submissions advanced on behalf of both parties and perused the record. There is a categorical averment in paragraph No. 14 of the writ petition that the petitioner, on account of suffering a brain stroke, is bedridden since the year 2018. He cannot speak, move or carry on his daily routine. It is this disability of the petitioner's that has led four of the employees, including the Executive Engineer, to perpetrate a fraud misusing his ID. As remarked earlier, we are not concerned with the petitioner's defence on this score. However, the fact that the petitioner is bedridden since the year 2018, asserted in paragraph No. 14 of the writ petition, has been denied rather unsatisfactorily in paragraphs Nos. As remarked earlier, we are not concerned with the petitioner's defence on this score. However, the fact that the petitioner is bedridden since the year 2018, asserted in paragraph No. 14 of the writ petition, has been denied rather unsatisfactorily in paragraphs Nos. 13 and 14 of the counter-affidavit filed on behalf of respondent No. 4, where it is said that the petitioner was given a medical fitness certificate and he signed the attendance register, which would show that it is misleading to say that the petitioner is unable to move anywhere or carry on his daily routine. This denial is far from satisfactory. The letter of reference by the Chief Medical Officer, Aligarh at the instance of the respondents to constitute a Medical Board in order to undertake a medical examination of the petitioner, addressed to the SGPGI, Lucknow shows that, may be later in the day, the respondents did harbour doubts, regarding the petitioner's health and medical condition, which they wanted ascertained. 15. The kind of medical condition, that the petitioner has described in paragraph No. 14 of the writ petition, did not require a Medical Board to broadly ascertain the truth of it. If a man, facing disciplinary proceedings, says that he is bedridden, non-ambulatory and almost in a vegetative state, it is incumbent upon the Inquiry Officer to go over to the place, wherever the delinquent is, and see for himself the physical condition that the employee is in. It is true that the Inquiry Officer, not being a doctor, cannot evaluate the delinquent's medical condition or his claimed ailment, but he can certainly ascertain from a look at the person, if indeed he is in an utterly paralysed state, almost vegetative, as the petitioner claims. He may straightaway seek medical assistance to ascertain the fact if the delinquent is truly paralysed and non-ambulatory. 16. Here, the Inquiry Officer and the respondents have been utterly insensitive to this issue. They have failed to discharge their obligation to ascertain, in the face of repeat information and applications made on behalf of the petitioner, that he was non-ambulatory, to ascertain the fact physically, by visiting the delinquent. They have also not taken any steps to ascertain the veracity of the petitioner's claim that he was in a paralysed state, unable to move. They have also not taken any steps to ascertain the veracity of the petitioner's claim that he was in a paralysed state, unable to move. The condition described by the petitioner is one which did not require a Medical Board from an institution like the SGPGI, Lucknow or the AIIMS, New Delhi to ascertain its truth. The Chief Medical Officer could have been detailed to the task or asked to constitute a Medical Board, who could have medically evaluated the petitioner. This is quite apart from the Inquiry Officer's own obligation in the face of such allegations to find out if the delinquent, that is to say, the petitioner here, was indeed a paralysed man. If he was indeed apparently a paralysed man, who could not move at all, the inquiry that the Inquiry Officer conducted or the orders that the Disciplinary and the Appellate Authorities have passed, would all be nullity. 17. This is quite apart from the issue about the merits of the petitioner's defence, founded on his allegation of being paralysed since the year 2018, which would if proved, may be a complete answer to the charges against him. That aspect of the matter, this Court is not inclined to go into. But, so far as the issue that neither the Inquiry Officer nor the establishment took the slightest pain to ascertain if indeed the man they were proceeding against in a departmental inquiry was paralysed, utterly unable to defend himself, is concerned, must be answered for the petitioner. We think that it was incumbent upon the respondents, including the Inquiry Officer, to inquire into the fact, before commencing disciplinary proceedings, if indeed on the date they commenced inquiry and concluded or passed subsequent orders, the petitioner was a paralysed man, non-ambulatory and unable to do anything for himself. There is no evidence to show, except an inchoate effort on the respondents' part to ascertain the state of the petitioner's health, which too came at a very late stage after the inquiry was over. For the respondents' failure to ascertain the petitioner's state of health, on the day they issued a charge-sheet to him and thereafter when the inquiry was scheduled or held, we think the proceedings of the inquiry and the resultant orders must be held bad. 18. For the respondents' failure to ascertain the petitioner's state of health, on the day they issued a charge-sheet to him and thereafter when the inquiry was scheduled or held, we think the proceedings of the inquiry and the resultant orders must be held bad. 18. In this regard, though not on facts as drastic as those alleged here, about the delinquent's medical condition, and on a different point, about the validity of the charge regarding unauthorized absence, where the employee claimed to have suffered a paralytic attack, it was held by this Court in Syed Amirul Haq v. State of U.P. and others, 2016(2) ADJ 107 (LB): “13. In the instant case, on perusal of the averments made in the counter-affidavit, it comes out that no reason has been indicated as to why the medical certificate issued by the doctor was not accepted by the authorities. There is no whisper as to how the authorities came to the conclusion that the medical certificates were fabricated one. The Inquiry Officer/Disciplinary Authority had neither summoned the doctor nor otherwise made an efforts to verify the genuineness of the medical certificate. Thus the Inquiry Officer/disciplinary authority has violated the principle of natural justice. A perusal of relevant record reveals that it is the definite stand of the petitioner before the Inquiry Officer to summon the three doctors who had treated him to prove the factum of his illness and the genuineness of the medical certificates submitted by him but the Inquiry Officer did not summon the aforesaid witnesses causing serious prejudice to the petitioner. No documents have been brought on record on the basis of which genuineness of the Medical Certificates produced by the petitioner were doubted by the Inquiry Officer and believed by other authorities. Without summoning and examining the Doctor, the conclusion of the authorities that the Medical certificates are not genuine documents, is wholly erroneous and unjustified. No finding could have been recorded by the Inquiry Officer with regard to certificates or the factum of illness of the petitioner without summoning the doctors, and denial by them with regard to illness and treatment given to the petitioner by them. No finding could have been recorded by the Inquiry Officer with regard to certificates or the factum of illness of the petitioner without summoning the doctors, and denial by them with regard to illness and treatment given to the petitioner by them. As regard the finding recorded by the Inquiry Officer that the petitioner did not inform the authorities of his illness, the record which have been produced by the respondents, shows that there are various applications and medical certificates available on the record submitted by the petitioner with regard to grant of leave and extension of leave. The different doctors like, In-charge Medical Officer, State Unani Hospital, Musafirkhana, Sultanpur and Medical Officer GHMC and Hospital, Ghazipur had diagnosed the petitioner as a patient of paralysis on right side of the body. Apart from above, the petitioner had attacked the impugned orders on the ground of various defects in the disciplinary proceedings.” 19. Now, the decision in Syed Amirul Haq (supra) takes the medical disability on account of the paralytic attacks, two in number, suffered by the employee in that case as a defence that had to be examined seriously to the charge of unauthorized absence from duty, which may also be one of the aspects here to be examined. But, the more important part is that the principle is acknowledged that if an employee, facing disciplinary proceedings, says that he is bedridden or non-ambulatory with a serious medical condition, it is the duty of the establishment to ascertain his condition through their own resources, including doctors of their own or summoning the doctor, who had certified the ailment, to verify the genuineness of the employee's medical condition. Quite apart from the fact, if the medical condition of the petitioner claimed, upon due inquiry into its veracity and resultant affirmation, which is one of the possibilities, may lead to his exculpation on the charge, which is the Inquiry Officer's province, it would certainly vitiate the inquiry on grounds of violation of principles of natural justice. 20. Quite apart from the fact, if the medical condition of the petitioner claimed, upon due inquiry into its veracity and resultant affirmation, which is one of the possibilities, may lead to his exculpation on the charge, which is the Inquiry Officer's province, it would certainly vitiate the inquiry on grounds of violation of principles of natural justice. 20. To like effect is the holding in a Bench decision of the Patna High Court in Anil Kumar @ Anil Kumar Lakada v. State of Bihar and others, 2022 (1) BLJ 558 , where it was observed: “14........However, when at the appellate and memorial stage, the appellant had specifically raised issues, both on facts as well as in law and had also enclosed supporting documents, especially with regard to his illness, giving doctors' certificates, in the considered opinion of the Court, the same were required to be looked into as the purpose of giving a person a chance to file an appeal/memorial is that there is no miscarriage of justice and if there has been any omission at the previous stage, the superior authorities are able to correct such mistake. The State being a model employer and the purpose and the spirit of law being that no injustice should be caused to anyone, required, at the very least, consideration of the issues raised by the appellant, both factual as well as legal. In the present case, the issue that there was no Presenting Officer appointed and the appellant, in his Memo of Appeal, giving specific details of the circular of the Director General of Police, by which all departmental proceedings had been negated only on the ground that there was no Presenting Officer appointed by the Department, has not been dealt with. Furthermore, the issue that the certificates given by the doctors, just because they were not from an authorized hospital, is, in our opinion, a non-est ground, for every doctor who has got a licence to practice, being registered with the Medical Council of India, is supposed to be, in law, competent as a professional to give such certificate with regard to the medical condition of a person. Thus, the onus was on the authorities to negate those reports on grounds of them being, for instance, collusive or forged and fabricated. This has, admittedly, not been done......” 21. Thus, the onus was on the authorities to negate those reports on grounds of them being, for instance, collusive or forged and fabricated. This has, admittedly, not been done......” 21. The other issue, if the inquiry is otherwise valid because the establishment did not produce any evidence in a formally convened inquiry, must now be considered. It is a salutary principle that in any departmental inquiry, where there is likelihood of the imposition of a major penalty, it is imperative for the Inquiry Officer to convene a formal inquiry, where he acts as an impartial arbiter. It is the establishment's burden to prove the charges against the delinquent in the first instance by producing before the Inquiry Officer evidence, both documentary and oral. It is also imperative to examine witnesses, if the penalty is likely to be a major one. The charges cannot be held proved because the employee has not defended himself or proved his defence. The Inquiry Officer cannot assume the charges to be true, because they figure in the charge-sheet. The Inquiry Officer also cannot hold the charges proved by perusing the charge-sheet and the delinquent's reply together with papers supplied by the establishment in support of the charge-sheet. It is for the establishment to prove the charges by producing evidence. Once evidence is produced before the Inquiry Officer on behalf of the establishment, which would include witnesses, the delinquent is entitled to cross-examine witnesses. After the establishment have led all their evidence, the delinquent must be called upon to produce evidence in his defence. For his failure to produce evidence, the charges cannot be held proved. These must be held proved by the establishment's evidence, may be by standards of preponderant probability. 22. Here, this Court does not find that any formal inquiry was convened or the establishment led evidence to prove the charges. Admittedly, no witnesses were examined. That witnesses were not examined, is a fact admitted in the counter-affidavit dated 17.10.2023, filed on behalf of respondent No. 4, in answer to the amended pleas. In paragraph No. 5 of this affidavit, it is averred: “5. Admittedly, no witnesses were examined. That witnesses were not examined, is a fact admitted in the counter-affidavit dated 17.10.2023, filed on behalf of respondent No. 4, in answer to the amended pleas. In paragraph No. 5 of this affidavit, it is averred: “5. That, however, from perusal of the record it is evident that no witness was proposed either in the charge-sheet or any witness was named by the petitioner to examine during the departmental enquiry, therefore, no witness was examined to prove the charges during the course of departmental enquiry in the present case. Further to remove all these anomalies an Office Memorandum dated 14.8.23 has been issued by the Corporation wherein it has been directed to all the authorities of the Corporation and the discoms that they should strictly adhere to the provisions of Rule 7 of the Regulations 2020 and during the departmental enquiry they must first examine the officers on behalf of the Corporation to prove the charges and only thereafter they should provide opportunity to the employees to either cross-examine them or to produce any witness on behalf of his defense.” 23. The said averment shows that the respondents have admitted their lapse in not examining witnesses and for the future rectified course as well. That would not redeem the respondents of the flaw that has crept into the impugned proceedings against the petitioner, vitiating them beyond the charge-sheet. The principles that in a case involving the imposition of a major penalty, it is imperative for the employer to produce evidence in support of the charges before the Inquiry Officer, which must include oral evidence, to wit, witnesses, are salutary and well established. In this regard, reference may be made to the decisions of the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772 , Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 , State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236 and the Bench decisions of this Court in State of U.P. and another v. Kishori Lal and another, 2018 (9) ADJ 397 (DB)(LB), Smt. Karuna Jaiswal v. State of U.P. 2018 (9) ADJ 107 (DB)(LB) and State of U.P. v. Aditya Prasad Srivastava and another, 2017 (2) ADJ 554 (DB)(LB). 24. 24. This case is rather unusual and does present some difficulty for the respondents, but these facts would not lead this Court to dither about what must be done and what must follow. 25. In the result, this petition succeeds and is allowed. The impugned order dated 16.5.2023 passed by the Chairman of the Corporation and the order dated 27.4.2022 passed by the Managing Director of the Distribution Corporation are hereby quashed. The respondents would, of course, be at liberty to proceed against the petitioner afresh from the stage of issue of the charge-sheet against him, strictly in the manner indicated in this judgment and the law. But, before going ahead with the proceedings of inquiry against the petitioner, the respondents will immediately get a Medical Board constituted by the Chief Medical Officer of the district, wherever the petitioner is currently staying. The members of the Medical Board shall proceed to the petitioner's residence and ascertain his medical condition, particularly, if he is paralysed, non-ambulatory and unable to communicate. If that be his medical condition, fresh proceedings of inquiry will not be taken against him, until the petitioner is in a medically certified fit condition to understand the consequences of the charges against him and face the inquiry. If, however, the petitioner is found medically fit, the Medical Board will examine all his certificates and medical history, and inquiry proceedings, if elected to be pursued, would be resumed as above directed, taking into account the opinion about his medical condition during the relevant period of time. In the event the respondents do not elect to resume fresh proceedings against the petitioner, or his subsisting medical condition does not permit the resumption of such proceedings, in either case the consequences of quashing of the orders impugned shall follow. It is clarified that if the petitioner be irredeemably indisposed, he would be dealt with according to the relevant service rules as to medical leave, medically incurred disability by employees, as the case may be. 26. There shall be no order as to costs.