Sheesh Pal Singh v. State of U.P & Anr.

Judgment

1. This writ petition is directed against the order dated

31.05.2023 passed by the Managing Director, Uttar Pradesh Power Corporation Limited, Lucknow (for short, 'the Corporation'), punishing the petitioner after disciplinary proceedings with the withholding of three increments with cumulative effect. There is a further direction that in the future he will not be posted on a sensitive position.

2. The petitioner is a Junior Engineer in the employ of the Corporation. He was initially appointed on the post of a Technician Grade-II on 11.03.2008 and promoted as a Junior Engineer on 08.03.2019. He was posted with the Electricity Urban Distribution Division-III, NOIDA and then transferred to the Electricity Urban Distribution Division-V, NOIDA and posted at the 33/11 K.V. Electricity Sub-Station, Sector 132 and 135, NOIDA, Gautam Buddh Nagar on 21.08.2024. The petitioner says that he has been discharging his duties to the best of his abilities and has an unblemished service record. The petitioner was served with a charge-sheet dated 28.08.2021, carrying two charges in the year 2017-18. The two charges against the petitioner read: "आरोप संख्या -01 ्ቦी ्ቢमቖीी नቧद् प्र ्ቦी बቫहाारी बቫवाासी पनቧााा पोटस सቷसमቖडाा , परगवा ा ाासी्ቢ हरव सቷज्ቢा ह््ቢद्दशार दारा आपके बቫािर या शदशकाया की गयी थी बቫक उवके दारा टूहड्ቢ का संयोजव ्ቢेवे ाेा् बቫ्वांक 31.07.2017 ीे आाे्व दश्लक ि0 100.00 2 जीा करके आाे्व बቫकया गया था। उक संयोजव को बቫवगरा करवे ाेा् आपके दारा ि0 15000/- की ररिा की ीांग की गयी थी। उक अाडध धवराशदश के समहदध ीे ्ቦी ्ቢमቖीी नቧद् दारा पी्मቖ सचनቧा ऊजार , उ 0 प 0 सरकार ्ቢमቖवऊ दारा बቫ्वांक 23.08.2017 ीे शदशकाया करवे के उपरादा बቫ्वांक 26.08.2017 ीे ्ቦी ्ቢमቖीी नቧद् की िपये 9800/- रसी् कासी गयी, ्ቢेबቫकव बቫ्वांक 24.06.2018 ाक ्ቦी ्ቢमቖीी नቧद् के याा व ाो संयोजव साीीी और व ाी जॉबह काार हवाया गया , जहबቫक ्ቦी ्ቢमቖीी नቧद् के साथ ाथा हा् ीे बቫकये गये आाे्वो पर ररिा ्ቢेकर कायराााी कराे ा्ये बቫाि्ा संयोजव नቧा्ቢू कर सयूाड्ቢ को नቧा्ቢू कर बቫ्या गया। आरोप संख्या -02 ्ቦी ्ቢमቖीी नቧद् प्र ्ቦी बቫहाारी बቫवाासी पनቧााा पोटस सቷसमቖडाा परगवा ा ाासी्ቢ हरव सቷज्ቢा ह््ቢद्दशार दारा टूाड्ቢ का संयोजव ्ቢेवे ाेा् बቫ्वांक 31.07.2017 शदशकाया पर कायार्ቢय पहदध बቫव्ेदशक, पचቐኌीांनቧ्ቢ बቫाि्ा बቫाारत बቫवगी ल्ቢ0, ीेरठ के कायार्ቢय जाप सं0 1341/ पबቫाबቫाबቫवल्ቢ/ ीेरठ / शदशकाया पकोो / ीाा-07/2018 बቫ्वांक 13.07.2018 के अव्पा्ቢव ीे गबቫठा जांनቧ सबቫीचा दारा बቫााेनቧवा ीे या इंबቫगा बቫकया गया ाड बቫक ्ቦी सीसू या्ा प्र ्ቦी दशीदशपा्ቢ ससा वे जॉबनቧ सबቫीचा के सी् ाथा हा् ीे दशपथ पर पर या हयाव बቫ्या बቫक "ीेरे बቫपाा जी के दारा बቫािाग ीे अपवे व्ቢकू प के ल्ቢये आाे्व बቫकया गया था उपरोक बቫाि्ा संयोजव को ्ेवे के ल्ቢये ्ቦी दशीदशपा्ቢ ससा के दारा ि0 35000/- बቫाि्ा संयोजव ्ेवे के एाज ीे एां ि0 5000/- साीीी उठाावे के एाज ीे क् ्ቢ ि0 40000/- बቫ्ये ाथा रसी् ीार 9800/- की ाी ्ी गयी" ्ቦी सीसू या्ा के ल्ቢलमቖा हयाव के आधार पर शदशकायाकाार से अाडध धवराशदश ीांगवे ाेा् आरोबቫपा बቫकया जााा ाड।"

3. The petitioner submitted his reply dated 01.10.2021 along with documents, denying the charges. He raised pleas in his defence. When this petition came up for admission on

06.12.2024, this Court issued a notice of motion in terms of the following orders: “By the impugned order, the Managing Director, Uttar Pradesh Power Corporation Limited, Lucknow has punished the petitioner, a Technician Gr.-II (Draftsman) with the award of a censure and withholding of three increments with cumulative effect. In addition, there is a direction that the petitioner will not be assigned any sensitive posting.

The submission of the learned Counsel for the petitioner is that no date, time and place for holding the inquiry was fixed by the Inquiry Committee and witnesses were not examined in support of the charges by the Corporation/Establishment. Issue notice. Notice on behalf of respondent No. 1 is accepted by Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel, whereas that on behalf of respondent No. 2, by Mr. Abhishek Srivastava, Advocate. Both the learned Counsel are granted ten days' time to file a counter affidavit. There are relevant averments in paragraphs Nos. 9, 10 and 12, which must be particularly answered. 3 Adjourned to 17.12.2024. To be taken up as fresh. The Registrar (Compliance) is directed to communicate this order to the Managing Director, Uttar Pradesh Power Corporation Limited, Lucknow through the learned Chief Judicial Magistrate, Lucknow by Monday i.e. December 9, 2024.”

4. A counter affidavit has been filed on behalf of the Managing Director, U.P. Power Corporation Limited, Lucknow by Mr. Abhishek Srivastava, learned Counsel. It is taken on record. Let it be numbered by the Office.

5. Learned Counsel for the petitioner waives his right to file a rejoinder affidavit.

8. Admit. Heard forthwith. Heard Mr. R. K. Mishra, learned Counsel for the petitioner and Mr. Ujjwal Srivastava, learned Counsel holding brief of Mr. Abhishek Srivastava, learned Counsel for respondent No.2 and Ms. Amrita Singh, learned Additional Chief Standing Counsel on behalf of respondent No.1.

9. Shorn of the details of allegations carried in the two charges and the evidence in support, if any, the short point that has been urged by the learned Counsel for the petitioner is that no date, time and place for holding the inquiry was fixed by the Inquiry Committee, vitiating the Committee's report. The other limb of the submission is that no witnesses were examined in support of the charges by the establishment. It is argued that both these flaws go to the root of the matter and vitiate the inquiry report, because this was a matter where a major penalty was imposed, without following the salutary procedure, for holding a departmental inquiry in a matter involving the imposition of a major penalty. 4

10. It is also argued that these lapses also constitute a breach of Regulation 7 of the Uttar Pradesh State Power Corporation Employees (Discipline and Appeal) Regulations, 2020 (for short, 'the Regulations of 2020'). Learned Counsel for the petitioner has invited the attention of this Court to paragraph Nos.10 and 12 of the writ petition, where pleas in support of the point urged find place. The pleas raised in paragraph Nos.10 and 12 of the writ petition have been answered in paragraph Nos.5, 5(v), 5(vi) and 5(ix) of the counter affidavit: “5. That the contents of paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the writ petition are not admitted as stated hence denied and in reply thereto it is submitted that as follows: (v). That the enquiry committee had afforded an opportunity of hearing to the petitioner through Videoconferencing vide letter dated 10.3.2022 fixing date, time and place as 11.3.2022 at 11:00 a.m. Copy of the letter dated 10.3.2022 is being annexed herewith and marked as Annexure- CA-1 to this affidavit. (vi). That the enquiry committee after going through the material available on record had submitted its enquiry report on 21.03.2022 wherein both the charges were found to be proved against the petitioner, who was posted as TG-II, (Draftsman) at EDD-I, Bulandshahar. (ix). That from perusal of the record it is evident that no witness was proposed either in the chargesheet or any witness was named by the petitioner to examine during the departmental enquiry, therefore, no witness was examined by the Corporation to prove the charges during the course of departmental enquiry in the present case. Further to remove all these anomalies an Office Memorandum has been issued wherein it has been directed to all the authorities of the Corporation and the discoms enquiry 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. Since the petitioner in his reply to the chargesheet has not given names of any witness for examination/cross examination, therefore, no witness was examined by the Corporation.”

11. Now, the salutary procedure for holding an inquiry in a major penalty matter is well settled. It requires that the Inquiry Committee or officer must distance themselves from the 5 establishment and convene themselves into an impartial Tribunal. They must not regard the charges in the charge-sheet proved at the commencement of the inquiry. The Inquiry Committee must call upon the establishment, which bears the burden to prove the charges to produce their evidence through a Presenting Officer, comprising both documentary and oral evidence. The Presenting Officer must introduce the documentary evidence and prove it by production of suitable witnesses on behalf of the establishment, who would testify to other relevant facts, constituting the charges as well. Once, the witnesses have been examined on behalf of the establishment, they have to be offered to the delinquent for cross-examination. In the next lap of proceedings, the Inquiry Committee would be obliged to call upon the delinquent to produce evidence in his defence. This too would comprise of documentary evidence as also witnesses. If witnesses on behalf of the delinquent are produced, they would be similarly offered by the Inquiry Committee to the establishment for cross-examination.

12. It has to be observed that if the delinquent does not produce any evidence or does not appear at all, this would not lead to the charges being established by any kind of a default on the delinquent's part. The charges have to be established by production of evidence aliunde, both documentary and oral, by the establishment. It is of particular significance to note that witnesses have to be examined by the establishment in support of the charges in any matter, where a major penalty may be imposed. This is a well established salutary procedure governing all departmental inquiries, involving the possible imposition of a major penalty.

13. The other requirement about the fixing of a date, time and place for holding the inquiry is also part of the salutary 6 procedure. It does not mean that a date, time and place has to be fixed, where the delinquent is summoned before the Inquiry Officer and asked to explain his position with regard to the charges, dispelling the allegations as if they come with proof of themselves. The fixing of a date, time and place of inquiry means that the inquiry is scheduled for a particular date and time at the specified venue, of which both the establishment and the delinquent are conveyed due information. At the appointed date, time and venue of inquiry, it is the establishment, who have to be heard in the first place, obliging them to produce evidence in support of the charges. We have detailed this procedure hereinabove and need not say it again.

14. Nothing of this kind appears to have been done in the present case. It is admitted in paragraph Nos.5 and 5(v) of the counter affidavit that the Inquiry Committee intimated the petitioner of the date, time and place for hearing him and did hear him through videoconferencing. They never fixed a date, time and place for hearing the establishment's witnesses. Therefore, they were apparently in breach of salutary procedure. Paragraph No.5(vi) of the counter affidavit says that after going through the material on record, the Committee submitted its inquiry report. This shows that the Inquiry Committee went through the charge-sheet and the petitioner's reply and idle papers annexed to these. The documents, that were annexed, were never led in evidence on behalf of the establishment, or for that matter, by the petitioner and proved by the production of relevant witnesses. The documents were, therefore, as already remarked, just idle papers, but not evidence of any kind, on which the Inquiry Committee could have acted. It is admitted in paragraph No.5(ix) that no witnesses were examined on behalf of the establishment, 7 because none were named in the charge-sheet. Not naming the witnesses does not relieve the respondents of their obligation to examine witnesses in a matter involving the possible imposition of a major penalty. It is virtually admitted on behalf of the Corporation in paragraph No.5(ix) of the counter affidavit that directions have been issued by the Corporation to their Authorities and those of the Distribution Corporations that they should strictly adhere to the provisions of Regulation 7 of the Regulations of 2020 and must first examine officers of the Corporation to prove the charges. Then they should give opportunity to the charge-sheeted employee to cross-examine witnesses, examined-in-chief for them. Also, the charge- sheeted employee has then to be given opportunity to produce witnesses in his defence. This virtually shows that the respondents admit the fact that they have been in breach of Regulation 7 of the Regulations of 2020 and also the salutary procedure for holding an inquiry in a major penalty matter. While this may take care of future disasters, it would not save the conclusions of the present Inquiry Committee and the order impugned passed on its basis.

15. This law in this regard is firmly settled 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).

16. The position of the law in this regard that has withstood 8 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.