Allahabad High Court
Dhirendra Kumar Chaudhary vs State Of U.P. And 5 Others on 31 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:100639
Reserved
AFR
Court No. - 34
Case :- WRIT - A No. - 18084 of 2022
Petitioner :- Dhirendra Kumar Chaudhary
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Kapil Dev Singh Rathore,Vikram Dev Singh Rathore
Counsel for Respondent :- Abhishek Srivastava,C.S.C.,Devesh Vikram
Hon'ble J.J. Munir,J.
1. This writ petition is directed against an order of the Chairman, Uttar Pradesh Power Corporation Limited, Lucknow (for short, 'the Corporation') dated 23.07.2021, dismissing the petitioner from service, besides directing recovery, and the appellate order of the Corporation Board dated 18.02.2022, dismissing the petitioner's appeal arising out of the order passed by the Chairman aforesaid.
2. The petitioner was appointed a Peon with the erstwhile Uttar Pradesh State Electricity Board on 11.04.1997. Subsequently, upon establishment of the Uttar Pradesh Power Corporation Limited and its subsidiary Distribution Companies, including the Purvanchal Vidyut Vitran Nigam Limited, the Uttar Pradesh State Electricity Board was dissolved. The petitioner and other employees of the Board were transferred to the Corporation. The petitioner was posted with Purvanchal Vidyut Vitran Nigam Limited, Varanasi (hereinafter, referred to as the Distribution Corporation). The Corporation, considering the petitioner's unblemished service record, granted him promotion to the post of an Office Attendant. He was serving on the said post until the date of the impugned order.
3. In the year 2017, a Human Rights Organization, called Teesri Ankh through its founder, one Shailendra Kumar Mishra, laid complaints to the Distribution Corporation regarding incorrect revision/correction of electricity bills of consumers. Upon receipt of the said complaint, the Director (P&A) of the Corporation, vide order dated 21.05.2017, constituted a three member Inquiry Committee to hold a preliminary inquiry into the veracity of the allegations. The three member Committee probed the matter and submitted reports dated 17.11.2017 and 01.06.2018 to the Director (P&A), last mentioned. Upon receipt of the reports, the Director (P&A), vide a letter dated 17.09.2018, transferred the matter to himself for the purpose of instituting disciplinary proceedings against the officer and employees, including the petitioner, as indicated in the letter. Subsequently, a charge-sheet dated 22.04.2019 was issued to the petitioner by a two member Inquiry Committee comprising the Chief Engineer and the Accountant of the Corporation.
4. A perusal of the charge-sheet shows that though it carries a solitary charge but, in fact, it relates to seventy different consumers about whom there were allegations regarding irregular proceedings to rectify their electricity bills and electricity disconnections, without following the guidelines of the Corporation as well as ignoring the provisions of the Electricity Supply Code, 2005 in order to give undue benefit to the consumers, causing wrongful loss to the Corporation and wrongful gain to himself. The evidence cited in support of the charge are sixteen complaints by Shailendra Kumar Mishra, founder General Secretary of Teesri Ankh, the Human Rights Organization, Gorakhpur and a letter of the Director of the Distribution Corporation dated 17.09.2018. In answer to the charge-sheet dated 22.04.2019, issued to the petitioner, he submitted a reply dated 19.06.2019.
5. It is the petitioner's case that no formal notice regarding fixation of a date for inquiry was given to the petitioner but the petitioner was informally informed by the Executive Engineer, Electricity Distribution Division of the Distribution Corporation about the date of hearing. The petitioner appeared before the Inquiry Committee which recorded the petitioner's statement. It is, particularly, pleaded in paragraph no. 18 of the writ petition that the Inquiry Committee did not inform the petitioner about any other proceedings nor the date was fixed by the Inquiry Committee, except the last mentioned date, where the statement of the petitioner alone was recorded.
6. It is averred in paragraph no. 19 that except recording the petitioner's statement, no evidence whatsoever was led before the Inquiry Committee by anybody. In paragraph no. 22 it was averred that the testimony of Shailendra Kumar Mishra, Naveen Kumar Srivastava and S.P. Varshney was never recorded by the Inquiry Committee during the inquiry. Further, the Inquiry Committee did not give opportunity to cross-examine witnesses. The Inquiry Committee submitted their report to the Corporation. It is averred by the petitioner in paragraph no. 23 that the Corporation, by their order dated 27.07.2020, remitted the matter to the Inquiry Committee.
7. It is the petitioner's case in paragraph no. 24 that after the earlier report by the Inquiry Committee was remitted for consideration by the Corporation by their order of 27.07.2020, no further inquiry was held by the two member Committee. The Inquiry Committee submitted a fresh report dated 05.09.2020.
8. In the inquiry report, that was submitted, as already noticed, in the garb of a solitary charge, there are seventy distinct charges relating to seventy different consumers. The Inquiry Committee, therefore, in their conclusion gave a finding differently in relation to the different consumers mentioned at serial no. 1 to 70 of the charge. The findings of the Inquiry Committee read:
क०सं०
बिल संशोधन की स्थिति
आरोप संख्या-01
1.
बिल संशोधन निमानुसार है।
कम सं0-07, 08 09, 12, 13, 14, 15, 16, 18, 19, 20, 21, 23, 25, 26, 27, 29, 32, 33, 34, 35, 37, 38, 42, 49, 51, 53, 54, 55, 58, 60, 61, 63, 67, 69 एवं 70
2.
बिल संशोधन त्रुटिपूर्ण है।
कम सं0-02 04 05, 06, 10, 22, 24, 28, 30, 31, 36, 39, 40, 41, 43, 44, 50, 52, 59 एवं 66
3.
बिल संशोधन में आंशिक त्रुटि दर्शित है।
कॅम सं0-17 एवं 68
4.
आरोपित सेवक से संबंधित नहीं है।
कम सं0-01, 03, 11, 45, 46, 47, 48, 56, 57, 62, 64 एवं 65
संदर्भित प्रकरण में कुल 70 बिल संशोधन / पी०डी० प्रकरणों की जाँच की गयी जिसमें से 12 नग प्रकरण (उपरोक्त तालिका में अंकित) आरोपित सेवक से संबंधित नहीं पाये गये, शेष 58 नग प्रकरणों में से 36 प्रकरणों में बिल संशोधन नियमतः पाया गया तथा कोई भी त्रुटि दर्शित नहीं है। शेष 22 बिल संशोधनों के प्रकरणों में त्रुटि/आंशिक त्रुटि दर्शित है। उक्त 22 प्रकरणों में से 3 नग प्रकरणों (कम सं० 5, 39 एवं 40) में कॉरपोरेशन को पहुँचाई गयी वित्तीय क्षति की धनराशि रू0 61,967.00 आगणित होती है तथा शेष 19 नग प्रकरणों में संदर्भित कम संख्या पर अंकित कारणों के दृष्टिगत वित्तीय क्षति की गणना किया जाना संभव नहीं है।
कॉरपोरेशन के आदेश स0-87-प्र०सु०-०1/पाकाली/2002-20-प्र०सं०/2000 दिनांक 25.02.2000 के अनुसार विद्युत बीजकों में संशोधन किये जाने हेतु संबधित बिल क्लर्क का प्राथमिक उत्तरदायित्व, सहायक अभियन्ता(रा०) एवं लेखाकार(रा०) का पर्यवेक्षणीय उत्तरदायित्व तथा अधिशासी अभियन्ता का प्रशासकीय उत्तरदायित्व निर्धारित है। अतः कॉरपोरेशन को पहुँचाई गयी उपरोक्त वित्तीय क्षति हेतु संबंधित बिल लिपिक, सहायक अभियन्ता(रा०), लेखाकार(रा०) तथा अधिशासी अभियन्ता (आरोपित सेवक) उत्तरदायी है।
साथ ही यह भी अवगत कराना है कि प्रश्नगत बिल संशोधन/स्थायी विच्छेदन के अधिकांश प्रकरणों को तत्कालीन सहायक अभियन्ता(रा०) द्वारा भी हस्ताक्षरित किया गया है। किन्तु संदर्भित सहायक अभियन्ता (राजस्व) के विरुद्ध अनुशासनिक कार्यवाही का प्रकरण जाँच समिति को संदर्भित नहीं किया गया है।
9. It is averred in paragraph no. 25 of the writ petition that, from 27.07.2020 to 04.09.2020, no inquiry whatsoever was conducted by the two member Committee nor the petitioner associated with the proceedings in any manner. The Inquiry Committee, without conducting any further inquiry, submitted their report dated 05.09.2020.
10. After receipt of the inquiry report dated 05.09.2020 on the 11th of December, 2020, the Director (P&A) of the Corporation issued directions to the Chief Engineer (Distribution) of the Distribution Corporation, Gorakhpur Region, Gorakhpur to constitute a two member Committee to conduct an inquiry with regard to the revision of bills of twenty three consumers.
11. In compliance with the said order dated 11.12.2020, the Chief Engineer constituted a two member Inquiry Committee, comprising one A.K. Singh, Superintending Engineer, Electricity Works Division, Gorakhpur and Manoj Kumar Verma, Deputy Chief Accounts Officer, Gorakhpur to conduct an inquiry into revision of the specified bills of consumers. This two member Committee submitted a report, along with a letter dated 25.01.2021, issued by the Superintending Engineer. The aforesaid report was forwarded by the Chief Engineer (Distribution) of the Distribution Corporation to the Director (P&A) of the Corporation vide letter dated 27.01.2021.
12. Still later, the Director (P&A) sought a further report from the I.T. Cell of the Corporation and did receive a report from them. The Chairman of the Corporation, vide letter dated 31.03.2021, enclosing a copy of the inquiry report dated 05.09.2020, submitted by the two member Committee, and, also a copy of the incorrect/partially incorrect electricity bills together with a calculation sheet computing the financial loss, required the petitioner to show cause. This was the second show cause. In response to the second show cause, the petitioner submitted his objections of June, 2021.
13. On 23.07.2021, the Chairman of the Corporation passed the impugned order dismissing the petitioner from service and further imposing upon him the penalty of recovery of a sum of Rs. 3,88,584/-. The petitioner preferred an appeal dated 27.09.2021 to the Board of Directors through the Chairman of the Corporation. It is the petitioner's case that he submitted a voluminous 350 pages of documents in support of this appeal but that may not be very relevant to the point on which the decision of this matter turns. The Board of Directors, by their order dated 18.02.2022, rejected the petitioner's appeal and affirmed the punishment awarded by the Chairman of the Corporation.
14. Aggrieved by the order dated 23.07.2021, passed by the Chairman of the Corporation and the appellate order made by the Board of Directors dated 18.02.2022, this writ petition has been preferred by the petitioner under Article 226 of the Constitution.
15. A counter affidavit was filed on behalf of the Corporation. When the matter come up for admission on 08.12.2023, the parties having exchanged affidavits, it was admitted to hearing which proceeded forthwith. Judgment was reserved.
16. Heard Mr. Kapil Dev Singh Rathore, learned Counsel for the petitioner, Mr. Abhishek Srivastava, learned Counsel appearing for respondent nos. 2, 3 and 4, the contesting respondents and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing for respondent no. 1.
17. It is argued by the learned Counsel for the petitioner that on the strength of the averments in paragraph no. 43 of the writ petition that during the inquiry at no point of time, any evidence was led on behalf of the Establishment, documentary or oral, to establish the charges. No witness was examined by the Establishment to prove the charges or the documents sought to be relied upon.
18. A perusal of the charge-sheet shows that the documents relied upon are sixteen complaints by Shailendra Kumar Mishra and a letter from the Director (P&A) dated 17.09.2018. Neither of these documents have been substantiated in evidence against the petitioner nor an effort made to prove these documents by examining the authors. It is urged that at least the complainant, who has submitted the sixteen complaints, ought to have been examined as a witness at the inquiry.
19. It is further submitted that, besides the sixteen complaints and the letter of the Director (P&A), no other document was relied upon by the respondents or produced during the inquiry. It is specifically pointed out by the learned Counsel for the petitioner, with reference to paragraph no. 46 of the writ petition, that neither Shailendra Kumar Mishra nor the three members of the Committee, doing the preliminary inquiry, were examined as witnesses before the Inquiry Committee.
20. It is emphasized that the inquiry report, submitted by the two member Committee, was initially submitted and discarded by the Disciplinary Authority vide order dated 27.07.2020 and the matter remitted for further inquiry. After the matter was remitted on 27.07.2020 the inquiry, that was conducted between 27.07.2020 and 31.08.2020, leading to the inquiry report dated 05.09.2020, did not at all associate the petitioner with it. It is argued that no inquiry, whatsoever, was held between 27.07.2020 and 04.09.2020 by the Inquiry Committee.
21. The learned Counsel for the petitioner submits that the Disciplinary Authority, if it thought fit to discard the inquiry report originally submitted, ought to have intimated the petitioner of the matter, and, more than that, the Inquiry Committee, upon resuming the inquiry, after the matter was remitted, should have intimated the petitioner about the further inquiry that was being undertaken where the petitioner should have been called and the Establishment required to prove the charges in his presence by leading evidence, both documentary and oral. This was not at all done.
22. A serious exception is also taken to the course of action where, after receipt of the inquiry report dated 05.09.2020, a fresh inquiry report was invited in regard to twenty three cases of objectionable billing, according to the respondents' case.
23. It is also urged that there was absolutely no reason after two inquiry reports had been received, to call for a report from the I.T. Cell of which there is no copy available to the petitioner. Whatever the I.T. Cell inquired, the petitioner was never associated with it.
24. It is emphasized further that the two member Committee subsequently asked to look into the twenty three cases and the I.T. Cell never associated the petitioner though both put in their reports to the Disciplinary Authority, on the foot of which the impugned order has been passed.
25. In the counter affidavit, there is an omnibus and a vague denial of the averments very specifically taken in the writ petition.
26. Mr. Abhishek Srivastava, learned Counsel for the Corporation, points out that the petitioner was given full opportunity of personal hearing before the Inquiry Committee on 12.09.2019. The petitioner had also taken ten days' time to file his supplementary reply. He never showed interest to examine/cross-examine witnesses, leading to the inquiry proceedings being completed.
27. It is also urged by Mr. Srivastava that the petitioner did not dispute the documents supplied to him or their genuineness and cannot, therefore, say that no witness was examined to prove the same. The entire procedure, for holding a disciplinary inquiry, was punctiliously followed as the learned Counsel for the Corporation would submit.
28. This Court, upon consideration of the parties' case, is of opinion that the respondents' stand cannot be accepted for more than one reason. The foremost requirement of a valid inquiry in any disciplinary proceedings likely to lead to the imposition of a major penalty is the salutary principle that it is the burden of the Establishment to prove the charge/charges by leading evidence in the first instance, both documentary and oral, before an Inquiry formally convened through a Presenting Officer.
29. It is also imperative that as part of the evidence, witnesses on behalf of the Establishment be examined in all matters where a major penalty is likely to be imposed. Someone has to introduce and prove idle papers and turn them into speaking documents. This is not a case where the petitioner has admitted the documents by endorsement that the respondents have relied upon.
30. Another feature of the matter is that the documents relied upon by the Establishment are mere complaints of misconduct alleged against the petitioner. These are not documents that comprise evidence aliunde. If for the purpose of sustaining the charges, the respondents have looked into some other documents from their records, which have not been cited in the charge-sheet, it is a serious infraction of natural justice for that would amount to consideration of evidence behind the petitioner's back. To add to it is the feature that after the inquiry report dated 05.09.2020, a further inquiry report was called by the Disciplinary Authority, which was in regard to twenty three matters of objectionable revision of bills. This report was apparently submitted by another Inquiry Committee on 25.01.2021. To add to it, the Disciplinary Authority appears to have sought information and report from the I.T. Cell of the Corporation and also considered the material provided by the I.T. Cell. All this material was considered behind the petitioner's back without bringing it to his notice and providing him an opportunity to rebut it.
31. It is also not apparent from the reports of the Inquiry Committee, two in number, that they have convened themselves into a formal Inquiry tribunal distancing themselves from the Establishment and required the Establishment to prove the charges by leading evidence, both documentary and oral (witnesses). It is imperative in a matter involving the imposition of a major penalty that the Inquiry Committee should distance themselves from the Establishment, even if otherwise a part of it and act as impartial arbiters. They must require the Establishment to prove the charges by leading documentary as well as oral evidence in the first instance. The Inquiry Committee here appear to have sat with the presumption that the charges are proof of themselves, instead of requiring the Establishment, in the presence of the petitioner, to lead their evidence through a Presenting Officer, both oral and documentary.
32. The only fair procedure for an inquiry, that would be countenanced by law, was that the Establishment ought to have been required to prove the charges against the petitioner in relation to each of the seventy and odd cases of irregular billing by producing both documentary and oral evidence through a Presenting Officer. The witnesses examined should have been offered for the petitioner's cross-examination. After this stage was over, the petitioner was to be given opportunity to likewise produce his evidence in defence, both documentary and oral. If he chose to lead oral evidence as well, the petitioner's witnesses in defence too would be cross-examined by the Establishment. If the petitioner did not lead any evidence it would not absolve the Establishment from leading evidence to prove the charges before the Inquiry Committee. We do not think that the Inquiry Committee ever distanced themselves from their loyalties to the Establishment and always understood the charges to be sponsored by themselves. They regarded the charges proved to begin with or at least prima facie and expected the petitioner to dispel them. This is not the procedure by which charges in a departmental inquiry, involving the imposition of a major penalty, can be proved much less sustained. In this connection, reference may be made in support of the the salutary principle mentioned to the decision 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).
33. This case has more than just these issues about the failure of the Establishment to prove the charges in the manner they have to be in a case involving the imposition of a major penalty. The reason is, we think that here is a case, where the Disciplinary Authority has looked into more than one inquiry report and also a report from the I.T. Cell. The evidence, cited in support of the charge, is hardly any evidence. It is just a bunch of complaints by a man called Shailendra Kumar Mishra representing some self-styled Human Rights Organization called 'Teesri Ankh'. The complaints can hardly be regarded as documents in proof of seventy different cases of incorrect or flawed revision of bills of consumers. These charges or irregularities can be substantiated on the basis of documents and oral evidence forthcoming from the Establishment of the Corporation. That kind of evidence, except for a letter written by the Director (P&A), is simply not mentioned in the charge-sheet.
34. The discussion on charges by the Inquiry Committee shows that they have considered evidence in intricate details about billing et cetera which apparently has never been put or brought to the petitioner's notice during the inquiry. It has been considered by the Inquiry Committee and by the Disciplinary Authority absolutely behind the petitioner's back. Also, the Disciplinary Authority has relied upon another inquiry report dated 31.03.2021 but the second show cause, that was given to the petitioner, carries with it only one report, that is to say, the first report of the Inquiry Committee dated 05.09.2020, not the other report dated 31.03.2021.
35. It is also true that some information was also sought from the I.T. Cell of the Corporation. Unless a categorical case was taken in the counter affidavit that the report of the I.T. Cell was not at all taken into consideration or the fact mentioned in the impugned order explicitly, it has to be presumed that the later report by the other Inquiry Committee, dated 31.03.2021, and, also some reports by the I.T. Cell, were considered by the respondents in arriving at their conclusions. Logically as well, given the intricate and technical nature of the charges, it is most likely that all kinds of evidence of technical detail would have been considered by the Disciplinary Authority, a fact also reflected from the orders impugned. But, the issue is: if this evidence, before being taken into consideration, was put to the petitioner during the inquiry in which he participated, in whatever manner he was allowed.
36. We do not think that all the technical evidence, that the Disciplinary Authority and the Inquiry Committee took into consideration, was brought to the petitioner's notice with opportunity to him to rebut the same. In the absence of all this being done the findings of the Disciplinary Authority and the Appellate Authority are utterly vitiated for violation of principles of natural justice that have led to demonstrable prejudice to the petitioner. The result would be that all proceedings, beyond the charge-sheet, stand vitiated and it would remain open to the respondents to proceed against the petitioner de novo from the stage of the charge-sheet.
37. In the result, this petition succeeds and is allowed. The impugned order dated 23.07.2021 passed by the Chairman of the Corporation and the appellate order dated 18.02.2022 passed by the Corporation Board are hereby quashed. The petitioner shall be reinstated in service forthwith and paid his current salary regularly. The respondents shall be free to pursue fresh proceedings against the petitioner from the stage of the charge-sheet, bearing in mind the guidance in this judgment. If the respondents elect to pursue fresh proceedings, arrears of emoluments for the period of time that the petitioner has remained out of employment shall not be payable immediately. These shall abide by the event in the disciplinary proceedings. If the respondents do not elect to pursue fresh proceedings against the petitioner, he will be entitled to 50% of his emoluments for the period of time that he has remained out of employment. It is further ordered that in case the respondents elect to pursue fresh proceedings, it would be open to the respondents to place the petitioner under suspension pending disciplinary proceedings, which shall then be expedited and concluded early, wherein the petitioner shall cooperate. It is further ordered that in the event, the petitioner is placed under suspension by the respondents, the respondents shall be obliged to ensure prompt and regular payment of subsistence allowance to the petitioner during the period of suspension, which they will pay without asking the petitioner to produce a non-alternative engagement certificate.
39. There shall be no order as to costs.
40. Let this judgment be communicated to the Chairman, Uttar Pradesh Power Corporation Limited, Lucknow and the Managing Director, Uttar Pradesh Power Corporation Limited, Lucknow through the Civil Judge (Senior Division), Lucknow by the Registrar (Compliance).
Order Date :- 31.5.2024
Prashant D./Anoop
(J.J. Munir,J.)
