Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 939 (ALL)

Rahul Singh v. State of U. P.

2024-04-01

J.J.MUNIR

body2024
JUDGMENT : HON'BLE J.J. MUNIR, J. This writ petition is directed against an order dated 16.11.2022 passed by the Chairman, Uttar Pradesh Power Corporation Limited, Lucknow[‘the Corporation’ for short], punishing the petitioner, an Executive Engineer, with a censure and withholding of two increments with cumulative effect. Also under challenge is an appellate order dated 26.07.2023 passed by the Board of Directors of the Corporation, rejecting the petitioner’s departmental appeal against the punishment awarded by the Chairman of the Corporation. 2. The succinct facts giving rise to this petition are that the petitioner was selected by the Uttar Pradesh Electricity Service Commission and appointed a Sub-Divisional Officer on 23.05.2012 in the employ of the Corporation. The petitioner was promoted to the post of an Executive Engineer in due course. He is currently posted in the District of Varanasi. The petitioner was earlier posted at Prayagraj during the years 2020-21. At the time he was posted at Prayagraj, an order dated 24.07.2021 was issued by the Managing Director of the Purvanchal Vidyut Vitran Nigam Limited, Varanasi, [‘the Distribution Corporation’ for short], directing the petitioner, who then held charge as the Executive Engineer, Electricity Stores Division, Prayagraj, to physically verify the work being done under the Asian Development Bank Project in fifteen villages of District Pratapgarh by the Works Contractor, described in a word of recent coinage as the “Executing Agency”. The works contractor in this case was M/s. Larsen & Toubro, Chennai. The direction, as aforesaid, was issued by the Managing Director of the Corporation at the instance of the Chairman of the Corporation, as the order would show to its face. It would also appear from the letter dated 14.04.2021 that the work contracted out to M/s. Larsen & Toubro was a changeover in the specified villages from Low-tension Bare Conductors, to something described as “L.T.A.B.”. In compliance with the order of 24.07.2021, the petitioner says that he visited sites on 27.07.2021. While the petitioner was away to do inspection of work sites, as directed, on 27.07.2021, in his absence, the Divisional Accountant, one Jai Prakash, is said to have abused an assistant, Ashutosh Kumar, in the office of the Executive Engineer, Electricity Stores Division, Prayagraj, then under the petitioner’s charge. The matter appears to have been taken up by the Workers’ Union and a preliminary inquiry was ordered in the matter. 3. The matter appears to have been taken up by the Workers’ Union and a preliminary inquiry was ordered in the matter. 3. The petitioner, upon coming to know what had happened in his absence on 27.07.2021, issued a notice to the Divisional Accountant, Jai Prakash, besides four other employees in the Establishment, to report to him on the happenings of the day and facts relating to the incident. The incident was also reported to the Chief Engineer and the Superintending Engineer, who called a report from the petitioner in the matter. The Superintending Engineer addressed a memo dated 30.07.2021 to the petitioner, mentioning a report of the incident by the Union concerned and saying that the petitioner ought to inquire into the matter, so that it may not lead to eruption of an industrial dispute. The petitioner, by a separate order, was appointed the Inquiry Officer to hold a preliminary inquiry in the matter. This order was passed on 9th August, 2021 by the Superintending Engineer, Electricity Stores Division, Prayagraj. 4. The petitioner submitted a report about the details of the incident to the Chief Engineer on 18.08.2021. The petitioner says that on 06.10.2021, another incident happened in the office, of which the petitioner was in-charge, which came to notice through a video clip sent by the Superintending Engineer to the petitioner. The incident was about a event organized in the office, where liquor was partaken. A report regarding this incident too was directed to be submitted by the petitioner. 5. Immediately upon receipt of this information, the petitioner identified the employees responsible for the violation as one Santosh Shukla, an Office Assistant and Jai Prakash, the Divisional Accountant. The petitioner submitted his report in the matter to the Superintending Engineer. In the report submitted by the petitioner, it is indicated that he had warned the employees concerned, but no disciplinary action could be taken by him, inasmuch as jurisdiction, according to Departmental Circular/Instructions dated 08.08.2018 in this regard, vested in the Managing Director or the Chief Engineer. There is a reference made by the petitioner to a Circular dated 02.01.2019, which empowers the Chief Engineer to award minor punishment, perhaps to certain classes of employees. There is a reference made by the petitioner to a Circular dated 02.01.2019, which empowers the Chief Engineer to award minor punishment, perhaps to certain classes of employees. It is, therefore, the petitioner’s case that his responsibility in the matter was to post the authorities with whatever had transpired and it does not lie within his jurisdiction to take any further action against any employee, exercising disciplinary powers. 6. The petitioner was served with a charge-sheet dated 14.09.2022, carrying two charges. The first charge is about the incident dated 27.07.2021 in the office of the Executive Engineer, Electricity Stores Division, Prayagraj and the other about the incident dated 06.10.2021, both related to misconduct by employees posted in the office. The substance of the first charge is that the petitioner was directed by the Chief Engineer, vide his order dated 30.07.2021, to hold a preliminary inquiry in the matter and submit a report, but the petitioner, by his report dated 18.08.2021, submitted to the Chief Engineer, not only reported on the incident dated 30.07.2021, the happening of which he affirmed, but instead of making recommendations for strict disciplinary action to be taken against the two employees, closed the matter himself by administering them a severe warning. The charge further says that in the absence of any severe action being taken against the two employees on 06.10.2021, the two of them resorted to partaking liquor in the office, which was captured on a video and made viral on the social media, harming the Corporation’s reputation. The petitioner was, therefore, charged with slackness of control over his subordinates by failing to take firm disciplinary action in the matter of employees using unparliamentary language against one another, permitting a bad tradition and culture to flourish in the office, leading to the Corporation’s image being tarnished, besides neglecting to perform his duties. 7. The other charge relates to the incident dated 06.10.2021 and the gravamen of this charge is that after the incident about Jai Prakash, the former Divisional Accountant went viral on the social media, the Inquiry Officer appointed by the Distribution Corporation to inquire in the matter, was confronted by Jai Prakash, with his Annual Confidential Report[‘ACR’ for short] for the year 2021-21 awarded by the petitioner, rating him an outstanding employee. The petitioner was, therefore, charged with the misconduct of awarding an outstanding entry to the employee concerned, ignoring his moral values and his behaviour with subordinates, and further, for the act of disclosing the contents of the ACR to the employee concerned, breaching confidentiality. 8. The petitioner says that an inquiry commenced against him and he was given opportunity for a personal hearing, regarding which, a notice dated 26.03.2022 was issued to him. The petitioner further says that he sought time in the matter, which was granted to him by an order dated 12.04.2022. The petitioner submitted his reply to the charge-sheet on 13.04.2022. He appeared for personal hearing on 19.04.2022 before the Inquiry Officer. An Inquiry Report was submitted on 20.05.2022, holding the petitioner guilty on the first charge in part, and finding the second charge not proved at all. A show-cause notice was issued to the petitioner on 16.06.2022, requiring him to submit his reply. The petitioner answered the show cause in terms of his reply dated 15.07.2022, again dispelling the charges. It is the petitioner’s case that he has been exonerated on the second charge, because it was found that he had never written the ACR relating to Jai Prakash. He was punished with the award of a censure and withholding of two increments on the basis of partial proof of the first charge about not recommending appropriate action against the two employees, who used unparliamentary language in the office. It is the petitioner’s case that he held a preliminary inquiry into the matter and at his level, he gave them a severe warning and making a report to the higher authorities in the Distribution Corporation, who could, on facts, reported to them, initiate appropriate disciplinary action. It is also the petitioner’s case that he never intended, by his report dated 18.08.2021, to close the disciplinary matter. The petitioner has specifically pleaded in paragraph No. 25 that his report dated 18.08.2021 has, later on, been made basis by the Managing Director of the Corporation to place the Office Assistant, Santosh Shukla and the Divisional Accountant, Jai Prakash, under suspension, and later on, terminate their services. 9. The petitioner has specifically pleaded in paragraph No. 25 that his report dated 18.08.2021 has, later on, been made basis by the Managing Director of the Corporation to place the Office Assistant, Santosh Shukla and the Divisional Accountant, Jai Prakash, under suspension, and later on, terminate their services. 9. In the supplementary affidavit filed on behalf of the petitioners, it is averred that during the inquiry held, no witnesses were produced on behalf of the Corporation to prove the charges against the petitioner, which is an imperative, by salutary principle, in matters governing the award of a major penalty. A counter affidavit has been filed on behalf of respondents Nos. 2, 3 and 4, to which a rejoinder affidavit has been filed. This petition was admitted to hearing on 04.12.2023, which proceeded forthwith. Judgment was reserved. 10. Heard Mr. Prabhat Kumar Singh, learned Counsel for the petitioner, Mr. Abhishek Srivastava, learned Counsel for respondents Nos. 2, 3 and 4 and Mr. Abhay Singh Tomar, Advocate holding brief of Mr. Adarsh Bhushan, learned Counsel for respondent No. 5. 11. It is submitted by Mr. Prabhat Kumar Singh, learned Counsel for the petitioner that the impugned orders passed by the Disciplinary Authority and the Appellate Authority, as well as the Inquiry Report, on which these are founded, are vitiated, for reasons that the Inquiry Committee held the first charge proved, without the salutary procedure for the Establishment to prove the charges, leading to the imposition of a major penalty being, at all, observed. It is pointed out that the Inquiry Committee have not convened themselves properly into an Inquiry Tribunal and required the Establishment to produce their evidence in support of the charge through a Presenting Officer. It was imperative, according to the learned Counsel for the petitioner, in an inquiry involving the imposition of a major penalty, for the Establishment to produce not only documentary evidence, but also examining witnesses. In the absence of documentary evidence led according to the aforesaid principle, the Authorities could not have relied upon the report to pass the orders impugned. It is next submitted, with much emphasis by learned Counsel for the petitioner, that the punishment imposed, for a part of the first charge that was proved, is shockingly disproportionate, which this Court must quash on that count alone. 12. Mr. Abhishek Srivastava, learned Counsel for respondents Nos. It is next submitted, with much emphasis by learned Counsel for the petitioner, that the punishment imposed, for a part of the first charge that was proved, is shockingly disproportionate, which this Court must quash on that count alone. 12. Mr. Abhishek Srivastava, learned Counsel for respondents Nos. 2, 3 and 4, on the other hand, submits that the salutary principle that in an inquiry leading to imposition of a major penalty, it is imperative for the Establishment to prove the charge(s) by leading both documentary and oral evidence, as well as examining witnesses, may not apply in this case, for the reason that the said principle is, after all, a facet of procedural fairness. Here, Mr. Srivastava submits that there is no procedural unfairness involved, even if it is assumed that the Establishment failed to lead evidence in the manner necessary in a departmental inquiry, involving the imposition of a major penalty, for reason that all that has been found against the petitioner is the act of exceeding his jurisdiction and letting off the two employees with a severe warning, a jurisdiction he did not possess. The petitioner does not dispute the contents of his report dated 18.08.2021. 13. Upon hearing learned Counsel for parties and perusing the record, this Court finds that it is, no doubt true that the Establishment have not, at all, produced documentary or oral evidence in the manner imperative in a departmental inquiry, likely to lead to the imposition of a major penalty. Also, a reading of the Inquiry Report shows that the Inquiry Committee comprising the Chief Engineer and the Senior Accounts Officer have not convened themselves into an Inquiry Tribunal, distancing themselves from the Establishment, of which they are employees, and requiring the Establishment to prove the charges by producing evidence, both documentary and oral. The Inquiry Committee seem to have sat in their office, and amidst the routine of other business, gleaned through the papers produced along with the charge-sheet and the petitioner’s reply and recorded their conclusions. This is certainly not the manner in which a departmental inquiry into a matter, where there is the likelihood of imposition of a major penalty involved, ought be held. The Inquiry Committee, after all, in a matter involving the imposition of a major penalty, must sit as an impartial arbiter and start with a clean slate. This is certainly not the manner in which a departmental inquiry into a matter, where there is the likelihood of imposition of a major penalty involved, ought be held. The Inquiry Committee, after all, in a matter involving the imposition of a major penalty, must sit as an impartial arbiter and start with a clean slate. They must look at the charges with an impartial eye, and not regarding the charges as proof of themselves. The Establishment must be required to produce evidence at a properly convened hearing, even if the delinquent does not appear, which must include both documentary evidence as well as witnesses to prove the charge(s). This has not been done at all in the present case. 14. This Court thinks that there could have been some force in Mr. Srivastava’s submissions, in the peculiar facts here, that non-adherence to the salutary principles governing the conduct of a departmental inquiry in matters involving the imposition of a major penalty may not have prejudiced the petitioner. This line of reasoning emanates from the fact that the Inquiry Committee has held the petitioner guilty of one part of the first charge, which says that in disposing of the disciplinary matter against the employees, instead of merely making a report to his superiors, the petitioner exceeded his jurisdiction. The said finding is based on the petitioner’s report dated 18.08.2021, which the petitioner does not deny at all, and the terms of it are explicit. If that was all, the angle of procedural unfairness on account of deviation from the salutary principles governing the holding of a departmental inquiry in a matter where the imposition of a major penalty was involved, holding it to be a case of no prejudice at all to the petitioner, may not have vitiated the result. But, the finding of the Inquiry Officer and the Disciplinary Authority are just not about the petitioner’s transgressing his jurisdiction in disposing of the disciplinary matter by his report dated 18.08.2021, which he was not permitted by law to do. The remarks of the Inquiry Committee in respect of the first charge, that has been formally found proved, are far-reaching and are just not limited to a transgression of the petitioner’s jurisdiction in disposing of the disciplinary matter against two employees with a warning. These read : (emphasis by Court) 15. The remarks of the Inquiry Committee in respect of the first charge, that has been formally found proved, are far-reaching and are just not limited to a transgression of the petitioner’s jurisdiction in disposing of the disciplinary matter against two employees with a warning. These read : (emphasis by Court) 15. A reading of the above remarks would show that the petitioner was held guilty of maintaining slack control over his office, where there was indiscipline rife amongst employees, who were partaking liquor in the office. There are also remarks to the effect that the two employees concerned, that is to say, Jai Prakash and Santosh Shukla, had some kind of a fear struck amongst the other employees, on account of which, they were able to carry on these activities in the office. It is on the basis of these remarks that the Disciplinary Authority, the Chairman of the Corporation, while holding the petitioner guilty of a part of the first charge, and choosing the punishment to impose, has recorded his findings in the following words : (emphasis by Court) 16. The Disciplinary Authority has concluded that the petitioner has slack control over his subordinates, who were regularly indulging in partaking liquor in the office premises, a fact that was within the petitioner’s cognizance. The Disciplinary Authority has observed that the petitioner could not contain these tendencies or initiate action to control the employees working under him, leading to an event which portrayed the Corporation in poor light. 17. Now, the charge is just not about committing a technical folly in disposing of the complaint against the two employees concerned by the petitioner at his level, regarding which, he had no jurisdiction. It is more about the slackness of control, which the petitioner has been held generally to have had over his subordinates in the office, who were, over a period of time, indulging in the misconduct of partaking liquor during office hours and striking fear amongst their colleagues, who would not speak out. It is more about the slackness of control, which the petitioner has been held generally to have had over his subordinates in the office, who were, over a period of time, indulging in the misconduct of partaking liquor during office hours and striking fear amongst their colleagues, who would not speak out. If these are matters which have entered the consideration of the Inquiry Committee, the Disciplinary Authority and the Appellate Authority, a finding about any of them could not have been validly recorded by the Inquiry Committee, without the Establishment producing evidence, including witnesses, to prove the facts of slackness of control over subordinates on the petitioner’s part, the employees consuming liquor and indulging in general indiscipline in the office over a long period of time by striking fear amongst their colleagues. These are matters, regarding which, salutary principles governing the holding of a departmental inquiry, in the manner that the Establishment have to first prove the charges by formally producing evidence, both documentary and oral, that is to say, witnesses, has to be adhered to. The Inquiry Committee could just not look at the petitioner’s report dated 18.08.2021 and draw all these inferences. For the same reason, the Chairman of the Corporation, the Disciplinary Authority, could not have drawn the inferences that he did, on the foot of an Inquiry Report written by a Committee that did not adhere to the salutary procedure of requiring the Establishment to prove the charges by producing documentary as well as oral evidence. The law, that in a matter leading to award of a major penalty, it is the obligation of the Establishment to prove the charge(s) in the first instance, by producing documentary evidence as well as witnesses, is far too well settled to brook doubt. The law, that in a matter leading to award of a major penalty, it is the obligation of the Establishment to prove the charge(s) in the first instance, by producing documentary evidence as well as witnesses, is far too well settled to brook doubt. In this connection, reference may be made to the guidance 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). 18. This Court is, therefore, of opinion that the impugned orders cannot be sustained. Of course, the respondents would have liberty to proceed afresh against the petitioner from the stage of issue of the charge-sheet, if they so elect, but, in the event, the respondents elect to proceed afresh against the petitioner, they shall not impose a penalty higher than that imposed by the impugned orders. 19. In the result, this writ petition succeeds and stands allowed. The impugned order dated 16.11.2022 passed by the Chairman of the Corporation and the Appellate Order dated 26.07.2023 passed by the Board of Directors of the Corporation are hereby quashed. The respondents will have liberty to proceed afresh against the petitioner from the stage of the charge-sheet, subject to the condition that a penalty higher than that awarded by the impugned orders shall not be awarded. 20. There shall be no order as to costs. 21. Let the Registrar (Compliance) communicate this judgment and order to the Chairman, Uttar Pradesh Power Corporation Limited, Lucknow and the Board of Directors, Uttar Pradesh Power Corporation Limited, Lucknow.