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RAVI KANT SHUKLA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ravi Kant Shukla v. State Of U.P. And Others - WRIT - A No. 35496 of 2003 [2006] RD-AH 8081 (20 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO. 35496 OF 2003

Ravi Kant Shukla

Versus

State of U.P. and others

HON. SHISHIR KUMAR, J.

By means of this writ petition the petitioner has approached this Court for issuing a writ of certiorari quashing the impugned order dated 14.7.2003 passed by respondent no.2 by which the services of the petitioner have been terminated. A copy of the said order has been annexed as Annexure-8 to the writ petition. Further a writ in the nature of mandamus directing the respondents to reinstate the petitioner in service with all consequential benefit has been prayed for.

The facts arising out of the writ petition are that the petitioner joined the services in Kanpur Electric Supply Administration (KESA) on 6.6.1975 on the post of Routine Grade Clerk. Thereafter upon passing the requisite departmental examination the petitioner was posted to the post of Junior Noter and Drafter in the year 1977. On the basis of the seniority the petitioner was promoted to the post of Senior Noter and Drafter in the month of August 1997. The petitioner submits that from the date of initial appointment the service record of the petitioner was unblemished and there was no complaint against the petitioner and at no point of time any adverse entry was ever awarded against the petitioner. It has been stated that there is distinction between P.D. finalization (Permanent Disconnection) and bill amendment job is extremely crucial and needs to be put into perspective. The P.D. finalization work is exclusively related to the processing of papers for making calculation from the date of connection as per schedule on the basis of attached documents, reports of Junior Engineer, S.D.O.  and on the basis of the consumer's affidavit. As regards the job of work of bill amendment relates to correction of amount mentioned in the bill. It appears that on 20.12.2002 a consumer bill of one Sri Kiran Kumar which was visiting the office for the purpose of P.D. bill came to the petitioner and the petitioner after following the procedure and on the basis of the report has calculated as per the schedule and computed the amount of payment to the tune of Rs.24037.70 (in place of Rs.83,366/- which was originally mentioned in the bill). Thereafter the petitioner duly prepared an approval sheet and put the same for approval before the Assistant Engineer. It has been mentioned in the writ petition that the calculation made by the petitioner was found correct. It appears that the consumer has informed the petitioner that he has already spoken to Sri K.U. Khan, Assistant General Manager regarding grant of approval, then the petitioner on the saying of the consumer sent the approval sheet to the office of the AGM through the consumer. The said action of the petitioner was bonafide and there was no intention by the petitioner to give any benefit to the consumer. It appears that there was some hot exchange between the consumer and the AGM relating to the said bill and AGM has taken the aforesaid act of the petitioner to be misconduct and the petitioner was called and the petitioner explained his conduct before the AGM. but it appears that this fact came to the knowledge of the General Manager and a charge memo was given to the petitioner to explain.

Subsequently an order of suspension was passed and the petitioner was suspended and a charge sheet was given to the petitioner. On 27.1.2003, Annexure-4 to the writ petition and only one charge was leveled against the petitioner to the effect that the petitioner has amended the bill of Rs.83,000/-and odd to Rs.24000/- and odd and the petitioner was directed to submit a reply. The petitioner submitted a reply to the charge sheet in detail and denied the charge. Copy of the same has been annexed as Annexure-5 to the writ petition. In reply to the charge sheet the petitioner has clearly stated that  as the said consumer was running for a period of six months for correction of the aforesaid PD bill, therefore, the petitioner has calculated the same on the basis of the relevant record and it is not a case that the petitioner has corrected the bill and reduced the amount only to give some financial benefit to the consumer. It has also been stated and submitted that the calculation made by the petitioner was correct and the amount reduced by the petitioner approximately was correct and the same was finally accepted by the department. Therefore, it cannot be a case of financial misappropriation or giving a financial benefit to the consumer. As relates the handing over the relevant paper to the consumer directly to place before the AGM, the petitioner clearly submits that it is a bonafide mistake of the petitioner in good faith and it does not amount to misconduct or disobedience of any order passed by the higher authority.

After submission of the reply the petitioner has not been informed by the Inquiry Officer relating to the Inquiry and no date and time was ever informed and it appears that the inquiry report was submitted to the disciplinary authority. From the finding recorded by the Inquiry Officer it is clear that the Inquiry Officer has recorded a finding to this effect that though the petitioner is found guilty but as there is no financial loss to the department, as such some minor punishment be awarded. It appears that after receiving the aforesaid inquiry report the disciplinary authority has called an explanation vide letter dated 25.6.2003. The petitioner submitted a detailed reply and then an order dated 14.7.2003 was passed terminating the services of the petitioner.

It has been submitted on behalf of the petitioner that the order of termination is liable to be quashed only on the ground that after submitting the reply of the charge sheet, the petitioner was never informed regarding any date, time and place of the inquiry. No information to that effect has been given by the Inquiry Officer at any point of time to the petitioner. It has further been submitted on behalf of the petitioner that the said fact has not been denied by the respondents in their counter affidavit. In para 28 of the counter affidavit a fact to this effect has been admitted by the respondents that "It is stated that on the reply submitted by the petitioner to the charge-sheet he clearly admitted the charge leveled against him. As such no further inquiry in the matter was considered necessary" In such a situation the petitioner, submits that a requirement of law is that the Inquiry officer has to intimate the date, time and place for the purpose of holding the inquiry. The petitioner has not been afforded an opportunity to examine the relied upon witnesses. The Inquiry officer has called two witnesses and after taking their statements has submitted the inquiry report. In such a situation this cannot be said to be proper procedure as provided under the law.

           Further submission made on behalf of the petitioner is that the charge against the petitioner is not such which can be treated to be misconduct. Awarding the punishment of termination from service, the punishment awarded against the petitioner is to harass and is disproportionate to the charges leveled against the petitioner. In view of the well-settled principle of law if the punishment awarded by the disciplinary authority is excessive and disproportionate, this Court while exercising the jurisdiction under Article 226 of the constitution of India can always interfere and can set aside the punishment if it shocks to the conscious of the Court.

On the other hand counsel for the respondent Sri Ranjeet Saxena has submitted that the petitioner has a clear alternative remedy byway of raising industrial dispute before the Labour Court. It has also been submitted on behalf of the respondents that the petitioner was directed by the competent authority not to correct the bills in future but in spite of the aforesaid fact the petitioner has corrected the P.D. Bill as such the punishment which has been awarded is correct. It has further been submitted on behalf of the respondents that a proper procedure as provided in the law has been followed. A charge sheet was given to the petitioner and after inviting the reply the Inquiry Officer has submitted a report to the disciplinary authority and the disciplinary authority has directed before passing the order imposing the major punishment has issued a show cause notice and reply was invited and the petitioner has submitted the reply and then the order of punishment has been awarded. As such there is no illegality in the order passed by the respondents and the writ petition is liable to be dismissed.

I have heard the learned counsel for the petitioner Sri Shyamal Narain and Sri Ranjeet Saxena who appears for the respondents and have perused the record from which it is clear that admittedly there is no dispute to this effect that the charge-sheet was given to the petitioner and the petitioner has submitted a reply but from the averment made in the counter affidavit it is clear that the Inquiry Officer has not held the proper inquiry as provided under the law. There is nothing on record to show that the Inquiry Officer has ever issued any notice to the petitioner for holding an inquiry or to appear before the Inquiry Officer and their statements have been recorded and reliance has been placed upon the statements taken by the Inquiry Officer. The petitioner was never informed by the Inquiry Officer regarding the statements of the two witnesses. From the record it is also clear that no time, date and place was ever fixed by the Inquiry Officer. As such in view of the decision of two Division Bench Judgments of this Court reported in 2002(2) ESC Allahabad Page 247 Shabadulla Vs. Commissioner, Varansi Division and 2004 (3) UPLBEC Page 2864, Managing Director Vs. Radheyshyam this Court on the basis of the Apex Court judgments has taken into consideration that unless and until date time and place is fixed by the Inquiry Officer for the purpose of inquiry, if it has not been done, the total inquiry is vitiated. In the counter affidavit, the respondents have clearly admitted this fact that there was no need for any inquiry. The similar view has been taken in Subhash Chandra Sharma Vs. U.P. Cooperative Spining Mills and others reported in UPLBEC-II, 2001, Page 1475, held that in cases where a major punishment proposed to be imposed, an oral inquiry is must, whether the employee request for it or not, for this it is necessary to issue a notice to the employee concerned intimating him date, time, and place of the enquiry, and held by Division Bench Judgment of this Court in Subhash Chandra Sharma Vs. Managing Director reported in 2000 (I) UPLBEC 541 against which SLP has been dismissed by Supreme Court on 16.8.2000. In view of the fact the writ petition is liable to succeed only on this ground.

In view of the aforesaid fact, the order passed by the respondent dated 14.7.2003, Annexure-8 to the writ petition is hereby quashed and the matter is remanded back to the stage of inquiry. The respondents are directed to hold a proper inquiry according to law, if possible preferably within 3 months. It is also made clear that the petitioner will cooperate in the inquiry.

With these observations the writ petition is disposed of .No order as to costs.

20.4.2006

V.Sri/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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