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Surya Bhan Singh v. State Of U.P. And Others - WRIT - A No. 70392 of 2005  RD-AH 8373 (25 April 2006)
Court No. 52
Civil Misc. Writ Petition No. 70392 of 2005
Surya Bhan Singh
State of U.P. and others
Hon'ble V.K. Shukla, J.
Present writ petition has been filed by petitioner questioning the validity of the action taken against petitioner in disciplinary proceeding undertaken against him by withholding three annual increments and further withholding salary for the period during which petitioner was placed under suspension and censuring the petitioner for his conduct.
Brief background of the case is that petitioner had been performing and discharging his duties as clerk. One P.K. Singh, who had been discharging and performing duties as Foreman, attained the age of superannuation on 05.04.1997. Orders were passed by Upper Mukhya Nagar Adhikari pursuant to order dated 31.03.1997 passed by Mukhya Nagar Adhikari authorizing the petitioner to perform duties as Foreman till regular selection was made and it was made clear that petitioner would be paid salary of his original post and no additional payment would be made while performing and discharging duties as Foreman. Various irregularities were found, and on account of said irregularities, disciplinary proceedings were initiated, petitioner was placed under suspension and charge sheet was issued to the petitioner on 05.03.2004. In the disciplinary proceedings Inquiry Officer conducted enquiry and submitted report. After the report had been submitted, Disciplinary Authority inflicted punishment referred to above on 29.05.2004, against which petitioner preferred appeal before the Commissioner, who rejected the appeal. While rejecting the appeal, Commissioner also made observations that original post of the appellant is second grade clerk and the work should be assigned to the petitioner as per his appointment. At this juncture, present writ petition has been filed.
Counter affidavit has been filed on behalf of Nagar Nigam, and therein action taken against petitioner has been sought to be justified. Rejoinder affidavit has also been filed, wherein averments made in the counter affidavit have been disputed and that of writ petition have been reiterated.
After pleadings aforementioned have been exchanged, writ petition has been taken up for final hearing and disposal with the consent of the parties.
Sri Birendra Singh, learned counsel appearing for the petitioners, contended with vehemence that this is a case of no evidence, and as such punishment which has been awarded is unsustainable and coupled with this, it has been contended that appellate authority while deciding the appeal had no jurisdiction to make unwarranted observation qua functioning of petitioner as Foreman, as such the impugned order is unsustainable and liable to be set aside.
Sri A. K. Srivastava, learned counsel representing the respondents, on the other hand, contended that in the disciplinary proceeding which has been conducted, guilt of petitioner has been established, and as such no interference be made. As far as observation made by appellate authority is concerned, it has been submitted that in the facts and circumstances of the present case, the same has been rightly made, and the writ petition is liable to be dismissed.
After the respective arguments have been advanced, the first issue raised by the petitioner qua no evidence against petitioner and punishment inflicted is bad, has to be adverted to. In the inquiry conducted against petitioner, it has been admitted by the petitioner that contract was invited by him and in entire inquiry undertaken this invitation of contract is genesis of entire mischief and on account of his complicity, petitioner has been found guilty in the disciplinary proceedings undertaken against him. It has also been found that application was moved on 14.04.2003 by the concerned driver, and more curiously, on the said application contract had been invited on 09.04.2003, and then this fact was reflected then large scale manipulation and manoeuvring has been done. Report of the Inquiry Officer is based on consideration of evidence which was led before the Inquiry Officer. The Disciplinary Authority as well as Appellate Authority has not committed any error in accepting the aforementioned report of the Inquiry Officer and inflicted punishment as per their wisdom, which is not liable to be interfered with.
Now the next question raised by the petitioner is qua observations made by the Commissioner while deciding the appeal to the effect that petitioner holds original post of clerk Grade II, as such work commensurate to the said post be assigned to him. Under Rule 38 of U.P. Nagar Mahapalika Sewa Niyamawali, 1962, the appellate authority has been vested with the power to go into the question whether the fact on which the order was based has been established, and whether the facts established afford sufficient ground for taking action,and whether the penalty imposed is excessive, adequate or inadequate, and thereafter appellate authority has ample authority to pass order as it thinks fit and proper. A proviso has been added to the said rule 38, which provides that whenever appellate authority proposes to enhance the punishment then an opportunity to show cause against the proposed enhancement has to be given. Here, in the present case, the appellate authority has not at all enhanced the punishment and looking into the facts and circumstances of the case, the appellate authority has found the punishment to be adequate. Observation has been made by the Commissioner while deciding the appeal that work commensurate to the original post of petitioner should be assigned to him. It is correct that authority deciding appeal should confine himself only to the merits of the claim and shall decide the appeal within the parameter prescribed. However, in the facts of the present case passing observation cannot be said to be clearly outside the context, inasmuch as when a person has been found misusing his position on the officiating post, then it is undesirable to assign him duties on the said post.
Consequently, even if the said remarks made, are out of context in Appeal, this Court refuses to quash the aforementioned remarks made by the Commissioner, as in the facts of the present case, remarks have been rightly made. Writ petition fails and is dismissed.
No order as to costs.
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