Major Penalty Cannot Be Imposed If Inquiry Concluded Without Oral Testimony By Witnesses: Allahabad High Court

The Allahabad High Court has held that inquiry shall be flawed if oral testimony is given a go-by in cases involving imposition of major penalty.

While allowing the writ petition, Justice J.J. Munir observed that the establishment has to prove its case before the inquiry officer by leading evidence. Merely pointing out that the petitioner has not disputed the authenticity of documents produced or has not asked the establishment to produce any witnesses for examination or cross-examination does not satisfy the standard of proof in such a case.

“This Court is afraid that this is not the standard by which in a domestic inquiry, particularly one on serious charges likely to lead to the imposition of a major penalty, the Establishment has proved its case. In all such matters, where the charge(s), if proved, may lead to the imposition of a major penalty, it is the bounden duty of the Establishment to prove their case before the Inquiry Officer by leading evidence, particularly, oral evidence, that is to say, by production of witnesses in support of charge/ charges.”

Further, the Court held that “once the Establishment discharge their burden of letting in documentary evidence and examination of relevant witnesses in support of the charges, does the burden shift upon the delinquent to produce his evidence in rebuttal, documentary as well as oral. Even if the delinquent does not produce evidence in defence, that does not absolve the Establishment of their obligation to produce evidence in support of the charges, including witnesses.”

Factual Background

Petitioner was appointed as Technician Grade-II (Vidyut) after selection by the U.P. Electricity Service Commission, Lucknow. Subsequently, he was transferred in the capacity of Junior Engineer to Vidyut Vitran Khand-I, Loni, District Ghaziabad, where he discharged his duties before being suspended by order dated 16.05.2019.

Charge sheet under Sections 409 and 120B, I.P.C., filed in pursuance of F.I.R. lodged against the petitioner was registered as Case Crime No. 2802 of 2019. The petitioner was granted bail on 25.01.2020 and served with charge sheet dated 07.09.2019 in disciplinary proceedings against him.

After remaining suspended for more than three years, the Allahabad High Court in writ proceedings directed the respondents to conduct inquiry within six weeks, failing which the petitioner was to be reinstated, which was done by order dated 19.08.2021.

In subsequent disciplinary proceedings, petitioner’s plea requesting for minor punishment, in the same manner as similarly situated employees, was rejected. Thereafter, the Managing Director, U.P. Power Corporation, dismissed the petitioner from service and ordered recovery of Rs. 3,46,23,208/- which was assailed by the petitioner before the High Court.

High Court Verdict

The Court confined itself to the question of procedural lapse during inquiry proceedings on account of the same going to the root of the matter if proved. It was observed that the fact of no witness being produced was not denied by the respondents. They only contended that the petitioner did not dispute authenticity of the documents, nor did he show any interest in asking the respondents to produce any witnesses for examination or cross-examination.

The Court noted that it is the bounden duty of the establishment to prove its case before the inquiry officer by leading evidence, particularly where imposition of major penalty is a possibility. Only after such duty has been discharged by producing oral evidence via witnesses does the burden of proof shift to the delinquent. Non-production of evidence by the delinquent does not absolve the establishment of said duty.

Reliance was placed on the decisions of the Supreme Court in Roop Singh Negi v. Punjab National Bank and others, and the decisions of Allahabad High Court in Smt. Karuna Jaiswal v. State of U.P., State of U.P. and another v. Kishori Lal and another, Ranveer Singh v. Union of India and others, and Prem Narain Singh v. State of U.P. and another to hold that oral evidence via witnesses is imperative in cases of imposition of major penalty.

Further, the Court observed that “it is not the respondents' case that the petitioner endorsed that he admitted the documents, on the face of those and dispensed with any kind of proof. Therefore, if the petitioner did not say anything about the documents during the course of inquiry, it would not relieve the Establishment of their burden to prove their case by examining witnesses, who would also prove the documents produced in evidence on their behalf.”

Accordingly, the writ petition was allowed with direction that the petitioner be reinstated and paid regular salary, and subsistence in case he was suspended again. Respondents were granted liberty to proceed with a fresh inquiry on the basis of charge sheet already issued.

Case Title: Suresh Babu vs. State of U.P. and others [WRIT - A No. - 12991 of 2023]

Case Citation: 2023 LiveLaw (AB) 433

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