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D.P.SHUKLA versus DIRECTER OF LOCAL BODY

High Court of Judicature at Allahabad

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D.P.Shukla v. Directer Of Local Body - WRIT - A No. 3456 of 1985 [2007] RD-AH 7361 (23 April 2007)

 

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. 10

CIVIL MISC. WRIT PETITION NO. 3456 OF 1985.

Shri D. P. Shukla.                                                                                    ...Petitioner.

Versus

Director of Local Bodies, U.P. Lucknow and another                      ....Respondents.

..........................

Hon'ble Anjani Kumar, J.

Hon'ble Sudhir Agarwal, J.

Aggrieved by the order dated 18th December, 1984 passed by the Director, Local Bodies, U.P., Lucknow, respondent No. 1 imposing punishment of censure and stoppage of two annual increments with cumulative effect, petitioner has filed this writ petition under Article 226 of the Constitution of India.

The facts leading to filing of the present writ petition in brief are that the petitioner was appointed as Executive Officer in the year 1980. The State Government issued an order on 22nd October, 1983 directing to initiate disciplinary proceedings appointing Dy. Director, Local Bodies, U.P., Lucknow as enquiry officer. The petitioner was also placed under suspension vide order dated 23rd January, 1984 on the allegation that while posted at Nagar Palika, Mussoorie , he caused undue advantage to certain colonizers permitting them to construct multi storied buildings in violation of municipal bye-laws. A charge-sheet was issued to the petitioner on 3rd February, 1984 which was replied by him on 5th May, 1984 denying all the charges stating that the responsibility if any, ought to have been fastened on the officer in-charge responsible for sanction of map as per bye-laws and not of the petitioner. Supplementary reply was also submitted by the petitioner on 19th July, 1984. Thereafter the petitioner was not informed of the enquiry proceedings and all of a sudden, impugned order of punishment dated 18th December, 1984 was served upon him.

The respondents have filed counter affidavit stating that the petitioner was given full opportunity and the charges are based on documentary evidence. The  petitioner did not request for personal hearing. The Enquiry officer submitted report holding charges proved and only thereafter impugned order of punishment was passed imposing minor punishment. Further for giving minor punishment, no detailed oral inquiry is required under the Rules.

We have heard counsel for the parties and perused the record.

Learned counsel for the petitioner assailed the order of punishment on three grounds firstly, that no oral enquiry was conducted by giving him opportunity to defend and this vitiates the entire proceedings; secondly, impugned order has been passed without supplying copy of the enquiry report and thirdly, impugned order was not passed by the competent authority.

It is not disputed that for the purpose of procedure to be followed for holding disciplinary enquiry against a member of Palika Centralized Services, in view of Rule 37 (1) of U.P. Palika Centralized Services Rules, 1966, provisions of Rule 31 (1) of U.P Nagar Mahapalika Sewa Niyamawali, 1962 would be applicable in the case in hand. Rule 31 (1) of the U.P. Nagar Mahapalika Sewa Niyamavali, 1962 is reproduced below:

'31. Procedure for disciplinary proceedings_ (1) No order (other than an order based on facts which have led to his conviction on a criminal charge) of dismissal , removal or reduction in rank (which includes reduction to a lower post or time-scale or to a lower stage in a time-scale, but excludes the reversion to a lower post of a person who is officiating in a higher post), shall be passed on any servant of the Mahapalika unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged servant of the facts and circumstances against him. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs an oral enquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. Neither the Mahapalika nor the servants of the Mahapalika shall be entitled to be represented by a counsel. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The officer conducting the enquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the  charged servant."

A perusal of the aforesaid Rule makes it clear that a detailed oral enquiry is required to be conducted where punishment is liable to be imposed on Palika servants is dismissal, removal or reduction in rank (which includes reduction to a lower post or time-scale or to a lower stage in a time-scale. Where the minor punishment of censure or stoppage of increment etc. would have been imposed, the procedure prescribed under Rule 31 is not applicable at all. It is not disputed that the impugned order has not been passed without affording any opportunity to the petitioner in as much as the allegations were communicated to him, he submitted reply dated 5th May, 1984 and supplementary reply dated 19th July, 1984 and only thereafter impugned order has been passed. Learned counsel for the petitioner could not show that the aforesaid punishment order is violative of procedure prescribed under any provision applicable to him.  As already discussed, Rule 31 cannot be said to be attracted in this case. Now coming to the second question, that the impugned order has been passed without supplying copy of the enquiry report to the petitioner. A constitution Bench of the Hon'ble Apex Court has already held in the case of Managing Director, E. C. I. L., Hyderabad Vs. B. Karunakar reported in AIR 1994 SC 1074 that in all the cases where the order of punishment was passed before the 20th November, 1990 in such cases order of punishment cannot be vitiated only on the ground that the copy of the enquiry report was not supplied to the delinquent employee.

So far as the third question that the punishment order was not passed by the competent authority, the learned counsel for the petitioner could not show that the State Government was not competent to pass the impugned order of punishment.

In this view of the matter, we do not find any merit in the petition and it is dismissed accordingly. No order as to costs.

Dated: 23.04.2007

HR


Copyright

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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