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2025 DIGILAW 881 (ALL)

Rajesh Kumar v. State of U. P.

2025-06-13

J.J.MUNIR

body2025
JUDGMENT : J.J. Munir, J. 1. This writ petition is directed against an order passed by the Cane Commissioner and Chairman, State Cane Services Authority, U.P., Lucknow, dated 11.03.2022, awarding the petitioner the penalty of withholding two increments with cumulative effect, directing proportionate recovery of the loss sustained by the Sahkari Ganna Vikas Samiti Limited, Shamli, and censuring him, all after holding disciplinary proceedings. The petitioner has further challenged the appellate order dated 24.09.2024 passed by the Commissioner, Cane and Sugar, U.P., Lucknow, dismissing his appeal and affirming the order of the Disciplinary Authority. 2. The petitioner was posted as a Cashier with the Cane Cooperative Development Society, Thana Bhawan, District Shamli w.e.f. 03.10.2018. The petitioner's conditions of service are governed by the Uttar Pradesh Cane Co-operative Service Regulations, 1975 (for short, ‘the Regulations of 1975’), as amended from time to time. The petitioner was issued a charge- sheet dated 28.12.2020 by the Deputy Cane Commissioner, Moradabad, who was nominated as the Inquiry Officer, carrying the following charges: 3. The petitioner filed his reply, denying the charges. His reply is dated 18.01.2021. 4. We do not intend to delve into the contents of the charge- sheet and the petitioner's reply or the evidence considered to hold it proved, because it is indeed not our province to evaluate evidence, which is the preserve of the Disciplinary Authority and the Appellate Authority. 5. What is in question here is the fairness of the procedure adopted during inquiry and if at any step of the proceedings, the petitioner has been denied his right to hearing, or subjected to unfair treatment. The Inquiry Officer submitted his report dated 28.08.2021, holding the petitioner guilty of Charges Nos.1 and 4, but exonerating him of Charges Nos.2 and 3. 6. On the foot of the said inquiry report, the Disciplinary Authority issued a show cause notice dated 24.09.2021, proposing to award a major penalty to the petitioner and requiring him to answer, enclosing with the show cause, a copy of the inquiry report. The petitioner furnished his explanation dated 29.11.2021, requesting an exoneration. The Disciplinary Authority, vide order dated 11.03.2022, punished the petitioner in the terms indicated at the outset of this order. The said order was appealed by the petitioner to the Appellate Authority by his appeal dated 18.09.2023. The appeal was dismissed by the Appellate Authority vide order dated 24.09.2024. 7. The petitioner furnished his explanation dated 29.11.2021, requesting an exoneration. The Disciplinary Authority, vide order dated 11.03.2022, punished the petitioner in the terms indicated at the outset of this order. The said order was appealed by the petitioner to the Appellate Authority by his appeal dated 18.09.2023. The appeal was dismissed by the Appellate Authority vide order dated 24.09.2024. 7. Aggrieved, this writ petition has been instituted by the petitioner. 8. A notice of motion was issued on 10.12.2024. In response, a counter affidavit has been filed on behalf of respondent Nos.3, 4 and 5 jointly, and a separate counter affidavit has been filed on behalf of respondent No.6, adopting the terms of the counter affidavit filed on behalf of respondent Nos.3, 4 and 5. The learned Counsel for the petitioner waived his opportunity to file a rejoinder when the matter came up on 20.12.2024. The parties having exchanged affidavits, the petition was admitted to hearing which proceeded forthwith. Judgment was reserved. 9. Heard Mr. Shreeprakash Singh, learned Counsel for the petitioner, Mr. Ravindra Singh, learned Counsel appearing on behalf of respondent Nos. 3, 4, 5 and 6 and Mr. Sharad Chandra Upadhyay, learned Standing Counsel appearing on behalf of respondent Nos. 1 and 2. 10. The crux of the submissions advanced by the learned Counsel for the petitioner in this case is that though a major penalty has been awarded to the petitioner, the salutary procedure, governing departmental inquiries in a matter where a major penalty may ensue, has not been followed. It has been urged by the learned Counsel for the petitioner that no witness was examined in support of the charges against the petitioner and that without examination of witnesses and production of material evidence on behalf of the establishment, the charges could not have been held proved by the Inquiry Officer, merely going through the charge-sheet and the petitioner's reply. 11. The learned Counsel for the petitioner has drawn the Court's attention to paragraph No.37 of the writ petition, where a specific plea in regard to the non-examination of witnesses and production of evidence has been raised. In the counter affidavit filed on behalf of respondent Nos.3, 4 and 5, the said plea has been answered in paragraph No.41 in the following terms: “41. In the counter affidavit filed on behalf of respondent Nos.3, 4 and 5, the said plea has been answered in paragraph No.41 in the following terms: “41. That in reply to the contents of paragraph 37 and 38 of the writ petition, it is stated that on examining the defence reply submitted by the delinquent employee, it was found that the delinquent employee has neither submnitted the reply in the context of the allegations found to be proved nor has he expressed his desire for personal hearing in his defence reply, whereas in the show cause notice issued by letter dated 24.09.2021, it has been clearly mentioned that, "If you want personal hearing or are willing to be cross-examined by any witness, then clearly mention it in your defence reply." Copy of show cause notice issued by letter dated 24.09.2021, is being filed as CA-7 to this Affidavit 12. We may hasten to add here that in paragraph No.41 of the counter affidavit, after the quoted part, the relevant provisions of the Regulations of 1975 have also been quoted in extenso, but that part is being excluded, for reason that we would quote the relevant provisions ourselves. 13. The learned Counsel for the petitioner has very emphatically argued that the inquiry that was held was not an inquiry in accordance with the Regulations of 1975, which require, in case of every departmental inquiry, where charges are denied, a date, time and place of inquiry to be scheduled by the Inquiry Officer. The Regulations of 1975 also require in accord with salutary principles that if a major penalty is likely to be imposed in consequence of the disciplinary proceedings, at the hearing before the Inquiry Officer, the establishment must produce their evidence, both documentary and oral. By oral evidence is meant witnesses for the establishment, who would prove their case and also prove documents. Learned Counsel for the petitioner submits that an inquiry cannot be validly held under the Regulations of 1975 by the Inquiry Officer, merely sifting through the charge-sheet and the delinquent's reply to record his conclusions, without production of the necessary evidence, both documentary and oral, on behalf of the establishment. 14. Mr. Learned Counsel for the petitioner submits that an inquiry cannot be validly held under the Regulations of 1975 by the Inquiry Officer, merely sifting through the charge-sheet and the delinquent's reply to record his conclusions, without production of the necessary evidence, both documentary and oral, on behalf of the establishment. 14. Mr. Ravindra Singh, learned Counsel appearing on behalf of respondent Nos.3, 4, 5 and 6, has argued that under the Regulations of 1975, the charges come with proof of themselves and if the delinquent wants to establish his innocence, that is his burden. It is not the employer's burden to prove the charge/ charges. 15. We have carefully considered the rival submissions advanced by learned Counsel for the parties, perused the record and also the relevant provisions of the Regulations of 1975. 16. The relevant provisions of the Regulations of 1975 are carried in Chapter X and those relevant to the issue are Regulations 68 and 69. Regulations 68 and 69 of the Regulations of 1975 read: “68. A complaint into which disciplinary proceedings are considered necessary on the basis of the preliminary inquiry, proceedings shall be recorded in writing in the form of charges which shall be communicated to the official concerned and a copy of the same endorsed to the authority concerned as mentioned in column 4 of the second schedule. The basis of each charge and the evidence proposed to be considered in support of the charge should be given in details against each charges. The official shall be called upon by the Enquiring Officer to submit his explanation in writing for each charge, within a specified time and also to state whether he desires to be heard in person or to produce any evidence (documentary or oral) or to examine or cross-examine any witness in his defence. (He will be allowed to see the relevant records if he so desires. After his explanation has been received a date will be fixed for personal hearing when evidence, both oral and documentary shall be produced. He will be allowed to cross-examine such witnesses as he likes. He will then be given an opportunity to produce his own witness or documents in support of his defence. After his explanation has been received a date will be fixed for personal hearing when evidence, both oral and documentary shall be produced. He will be allowed to cross-examine such witnesses as he likes. He will then be given an opportunity to produce his own witness or documents in support of his defence. The Inquiring Officer shall then weigh the entire evidence and given his findings on each charge and recommended, punishment when, in his opinion should be inflicted on the official, to the authority mentioned in column 4 of the second schedule. A record of the proceedings shall be maintained by the Enquiring Officer. If the official fails to submit his explanations within the time specified in the charge-sheet without sufficient reason, the Inquiring Officer shall be free to give his findings on the basis of the evidence before him and will recommend suitable punishment to the competent authority. In case, on the basis of the report of the Inquiring Officer, the competent authority proposes to dismiss, remove or reduce in rank the official concerned it shall inform the official concerned, of the action proposed to be taken and shall given another opportunity to the official to defend himself. A copy of the report of the Inquiring Officer shall also be supplied to the official concerned along with the show-cause notice. He shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person or to give further evidence for which an opportunity will be allowed to the official if so desired by him. The competent authority conducting the enquiry may, however, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings of the inquiry shall contain sufficient record of the evidence and statement of the findings and the grounds thereof. In case the competent authority decides to award a punishment other than dismissal, removal or reduction in rank, it may pass final orders on the basis of the inquiry report of the inquiring officer. The above procedure shall not apply where the charged official has absconded or where it is for other reasons impracticable to communicate within him. In such cases, the inquiring officer with make a complete report to the competent authority for taking suitable action against the official concerned. The above procedure shall not apply where the charged official has absconded or where it is for other reasons impracticable to communicate within him. In such cases, the inquiring officer with make a complete report to the competent authority for taking suitable action against the official concerned. All or any of the provisions of the above procedure may, in exceptional cases and for special and sufficient reasons to be recorded in writing, be waived by the competent authority with the prior and express approval of the cane commissioner in cases where there is difficulty in observing exactly the requirements of the procedure and if those requirements and be waived without in justice to the official charged. 69. At the conclusion of the disciplinary proceedings, the competent authority may impose any or more of the following punishments according to the nature and gravity of the offence: (a) Censure. (b) Withholding the increment or increments including stoppage at in efficiency bar or promotion. (c) Reduction to a lower post or time-scale or to a lower stage in time-scale. (d) Fine. (e) Recovery from the pay of the whole or part of the pecuniary loss caused to the institution or institutions placed under his charge by his negligence or breach of orders. (f) Removal from service. (g) Dismissal from service. N. B.--Dismissal disqualifies an employee from re-employment in the service.” 17. It must be remarked at the outset that the salutary principle governing the procedure to hold departmental inquiries in disciplinary matters, mandate a date, time and place of the inquiry to be scheduled by the Inquiry Officer and burdens the establishment to prove the charges by producing evidence in the first instance, both documentary and oral, in cases where a major penalty may be imposed. The salutary principles governing disciplinary proceedings, in general, do not require this onerous procedure to be followed in cases of disciplinary proceedings, where a minor penalty is contemplated, or may ultimately be imposed. The Regulations of 1975, much contrary to what Mr. Ravindra Singh has urged, provide very differently. These do not differentiate between the procedure of holding an inquiry in a matter where a major penalty may be or is imposed and those where a minor penalty is in contemplation or ultimately imposed. 18. The Regulations of 1975, much contrary to what Mr. Ravindra Singh has urged, provide very differently. These do not differentiate between the procedure of holding an inquiry in a matter where a major penalty may be or is imposed and those where a minor penalty is in contemplation or ultimately imposed. 18. Regulation 69 apparently classifies the penalties contemplated under Clauses (e), (f) and (g) thereof as major penalties, whereas those under Clauses (a), (b), (c) and (d), minor penalties. The distinction in the procedure between penalties covered by Clauses (e), (f) and (g) of Regulation 69 and those covered by Clauses (a), (b), (c) and (d), is attracted at the post-inquiry stage in the matter of the employer's obligation to give a show-cause notice along with a copy of the inquiry report, or as it is generally called, 'the second show cause'. Under Regulation 68 of the Regulations of 1975, in cases where the Disciplinary Authority proposes to dismiss, remove or reduce in rank the delinquent, the Authority is obliged to inform the delinquent of the action proposed to be taken and give him another opportunity to defend himself. For the purpose, a copy of the inquiry report has to be supplied to the delinquent along with the show cause. The delinquent is then to be given reasonable time to put in his written defence and say if he desires to be heard in person or give further evidence, for which opportunity would be allowed to the delinquent, if he asks for it. 19. The Disciplinary Authority, however, for sufficient reasons, to be recorded in writing, may refuse to call a witness. Now, these are very unusual features carried in the Regulations of 1975 about the procedure at the post-inquiry stage. The further unusual procedure under the Regulations of 1975 is that there is no distinction until the stage of completion of the departmental inquiry by the Inquiry Officer between the case of a major penalty or minor penalty. In both cases, a date, time and place has to be scheduled by the Inquiry Officer and the establishment has to produce evidence, both documentary and oral. In both cases, a date, time and place has to be scheduled by the Inquiry Officer and the establishment has to produce evidence, both documentary and oral. As already noticed under the salutary principles generally applicable to disciplinary proceedings, the procedure for holding an inquiry, fixing a date, time and place, and requiring the establishment to prove the charges by producing evidence, both documentary and oral, applies only in cases of major penalties; not all penalties. Under the Regulations of 1975, the procedure applies uniformly, irrespective of the severity or the grade of penalty involved. 20. We think that the submission of Mr. Ravindra Singh that under the Regulations of 1975, the charges come with proof of themselves, is one that is swayed by the different and special procedure provided at the stage of the second show cause. It is at that stage that the delinquent has been given the facility of producing further evidence, including a witness in his defence. Perhaps, this has somewhat influenced the submissions of Mr. Ravindra Singh the way he has advanced them before us. Regrettably, we cannot agree. 21. Apart from the fact that the second show cause served in this case reveals that the respondents had a major penalty in contemplation until that time, even if they did not have that in mind and intended to impose the punishment of withholding the increment or increments, including stoppage at the efficiency bar etc., they could not have departed from the procedure of holding a departmental inquiry, where, after scheduling the inquiry, the Inquiry Officer would be obliged to require the establishment to produce evidence, both documentary and oral, in support of the charges. This is because until that time, there is no distinction in the procedure to be followed, irrespective of the class of punishment to be awarded or contemplated to be awarded under the Regulations of 1975. Regulation 68 requires, irrespective of anything, the Inquiry Officer to fix a date for personal hearing, when evidence, both oral and documentary, shall be produced. Now, these are the precise words employed in the Regulations of 1975. They are followed by the words “he will be allowed to cross-examine such witnesses as he likes”. Now, cross-examination one does of witnesses produced by the other side. 22. Now, these are the precise words employed in the Regulations of 1975. They are followed by the words “he will be allowed to cross-examine such witnesses as he likes”. Now, cross-examination one does of witnesses produced by the other side. 22. The tenor of the second paragraph of Regulation 68, to our mind, is clear in that after receiving the delinquent's explanation, the date to be fixed by the Inquiry Officer for personal hearing when evidence, both documentary and oral, is required to be produced, does not mean, again, as Mr. Ravindra Singh submits, that the charges come with proof of themselves and the delinquent has to produce evidence to dispel the charges. That could never be the intent of Regulation 68, given the very generous scheme of Chapter X of the Regulations of 1975, where, more than ordinary opportunity is envisaged for the delinquent/ charge-sheeted employee at every stage of the proceeding. Going by the settled principles, which do not seem to have been excluded by the second paragraph of Regulation 68, at the scheduled date fixed for personal hearing, it is the establishment who have to be heard in support of the charges and it is they who have to produce evidence in the first instance, both documentary and oral, to prove the charges. 23. By oral evidence is meant witnesses. The witnesses would introduce and prove the documents, imbuing these with life, what are otherwise idle papers. They would testify to other facts as well, in order to prove the charges. It is these witnesses regarding whom a right has been given distinctly under the second paragraph of Regulation 68 to the delinquent to cross-examine. The words “he will be allowed to cross- examine such witnesses as he likes”, employed for the delinquent in paragraph 2 of Regulation 68, are followed by the words “he will then be given an opportunity to produce his own witness or documents in support of his defence”. These last words quoted are a clincher about the issue that in the opening part of paragraph 2 of Regulation 68, in keeping with the salutary principles, governing departmental inquiries, the burden has been cast on the establishment on the date fixed for personal hearing to hear the establishment's evidence first, before the delinquent is called upon to produce his evidence, both documentary and oral. 24. 24. A perusal of the inquiry report shows that no such procedure was followed by the Inquiry Officer, as mandated by Regulation 68. He has set forth the terms of the charge, followed by the petitioner's defence, and going through idle papers before him, decidedly without the production of any documentary or oral evidence on behalf of the establishment, returned his findings on each charge. This is certainly not the procedure which the Regulations of 1975 contemplate. This is also not the procedure, which the salutary principles, governing departmental inquiries, where a major penalty may be imposed, countenance. Since procedure for all kinds of punishment under the Regulations of 1975 is the same without distinction of the grade of punishment, all principles evolved in the context of major penalty inquiries would a fortiori apply to the present proceedings held by the respondents. 25. This position of the law is firmly settled, as held by 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) 26. The position of the law in this regard, that has withstood the test of time, has been recently endorsed by the Supreme Court in Satyendra Singh v. State of U.P. and another , 2024 SCC OnLine SC 3325 , where it has been held: “ 12. Learned counsel for the State was ad idem to the submissions of the appellant's counsel that no witness whatsoever was examined during the course of the inquiry proceedings. On a minute appraisal of the Inquiry Report, it is evident that other than referring to the documents pursuant to the so-called irregular transactions constituting the basis of the inquiry, the Inquiry Officer failed to record the evidence of even a single witness in order to establish the charges against the appellant. 13. On a minute appraisal of the Inquiry Report, it is evident that other than referring to the documents pursuant to the so-called irregular transactions constituting the basis of the inquiry, the Inquiry Officer failed to record the evidence of even a single witness in order to establish the charges against the appellant. 13. This Court in a catena of judgments has held that the recording of evidence in a disciplinary proceeding proposing charges of a major punishment is mandatory. Reference in this regard may be held to Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 and Nirmala J.Jhala v. State of Gujarat, (2013) 4 SCC 301 .” 27. There is a further feature involved here that vitiates the charge-sheet partly. Regulation 68 requires that in the charge- sheet, the basis of each charge and the evidence proposed to be considered in support of the charge should be given in detail against each charge. Here, all that is shown for evidence is a copy of a preliminary inquiry report dated 01.09.2020 conducted by the Deputy Cane Commissioner, Saharanpur. This could be the basis of the charges, but not the evidence to prove them. The evidence would be the documents, which would establish the charge and witnesses, who would prove those documents and other facts relevant to the charges, not already mentioned in the documents. A preliminary inquiry report is neither documentary evidence nor is it oral. It can be the basis of the charge alone. Regulation 68 of the Regulations of 1975, by its first paragraph, requires disclosure of the basis of each charge and the evidence proposed to be considered in support of the charge, furnishing it in detail against each of the charges carried in the charge-sheet. The charge-sheet here, as already pointed out, does not carry any details of evidence, by which, it is proposed to prove the charges. There is not even a mention of it, what to speak of details. To this extent, the charge-sheet dated 28.12.2020 is flawed and not in accordance with paragraph 1 of Regulation 68 of the Regulations of 1975. 28. In the result, this writ petition succeeds and is allowed The impugned order dated 11.03.2022 passed by the Cane Commissioner and the Chairman, State Cane Services Authority, U.P., Lucknow and the appellate order dated 24.09.2024 passed by the Commissioner, Cane and Sugar, U.P., Lucknow, are hereby quashed . 28. In the result, this writ petition succeeds and is allowed The impugned order dated 11.03.2022 passed by the Cane Commissioner and the Chairman, State Cane Services Authority, U.P., Lucknow and the appellate order dated 24.09.2024 passed by the Commissioner, Cane and Sugar, U.P., Lucknow, are hereby quashed . It will be open to the respondents, if they so elect, to pursue fresh proceedings against the petitioner. If they so elect, they would be obliged to draw up the charge-sheet in accordance with Regulation 68 of the Regulations of 1975, mentioning therein the details of evidence against each charge, by which, it is proposed to be proved. Apart from that, the charge-sheet dated 28.12.2020 would remain as it is. If the respondents pursue fresh proceedings against the petitioner, the inquiry would be held, bearing in mind the guidance in this judgment for the holding of departmental inquiries. It is further directed that if indeed fresh proceedings are pursued against the petitioner on the basis of the slightly rectified charge-sheet, a punishment higher than that already awarded to the petitioner shall not be imposed. It is made clear that if fresh proceedings are pursued against the petitioner, he would not be entitled to any monetary benefits from the quashing of the orders impugned immediately, but that would depend upon the event in the inquiry proceedings to be taken afresh. If no proceedings are taken, the respondents would be obliged to pay the petitioner the arrears of his emoluments, arising on account of the difference of what he has received and what would be payable with the penalty awarded effaced. 29. There shall be no order as to costs. 30. Let this order be communicated to the Cane Commissioner and Chairman, State Cane Services Authority, U.P., Lucknow and the Commissioner, Cane and Sugar, U.P., Lucknow by the Registrar (Compliance).