Madhya Pradesh High Court
Shree Kant Kastwar Son Of Late Shri L.P. ... vs Madhya Pradesh Electricity Board, ... on 17 April, 2006
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
ORDER A.K. Shrivastava, J.
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the validity of impugned orders Annexure-P-5 dated 19.9.1996, Annexure-P-12 dated 17.9.98, Annexure-P-16 dated 14.3.2000 and Annexure-P-27 dated 12.5.2000.
2. The petitioner at the relevant point of time was serving as Executive Engineer (Civil) Under the establishment of the respondents. Vide Annex.P-1 dated 23.3,93 he was charge-sheeted and following charges were framed against him:
Shri S.K. Kastwar while working as an Executive Engineer (Civil) in the office of then Chief Engineer (Civil) -II, MPEB, Jabalpur w.e.f. 25.5.89 to 8.6.92 scrutinised the Vendor's design calculations and drawings for 1200 Cu. m. capacity R.C.C. overhead tank No. 1 at Project Colony of Sanjay Gandhi Thermal Power Station. While scrutinising the said desing and drawing Shri S.K. Kastwar;
(a) did not scrutinise the design calculations as per technical specification of approved contract document and as per relevant I.S. Code of practaice,
(b) did not scrutinise the drawing as per approved Vendor's design calculations.
3. Vide Annex.P-2 dated 12.4.93 the petitioner refuted the charges and specifically mentioned in his reply that the work of scrutinising the vendor's design calculation and drawing of 1200 Cu. M. capacity RCC overhead tank No. I at Project Colony of S.G.T.P.S., Birsinghpur was never entrusted to him. There is specific averment in the reply that this work was assigned to then DE (Civil) Shri D.V.S. Rao attached to the office of the CE (Civil)-II by then CE (Civil)-II. It was further submitted in the reply that Shri Rao in turn marked the papers to A.E. Shri Talreja, attached to him. After checking of the design by Shri Talreja, Shri Rao requested the petitioner to guide Shri Talreja on some specific points in the design (mainly the design of footing slab). Thus the main stand of the petitioner against the charge-sheet In his reply is that during the period from 25.5.89 to 8.6.92 he was not entrusted the impugned work of design.
4. The contention of the petitioner was taken into consideration by the disciplinary authority and vide order Annex.P-5 dated 19.9.96 and it was directed that the next annual grade increment of the petitioner shall stand withheld for a period of two years without cumulative effect. The said order was passed by the Board.
5. It appears that under misconception the petitioner submitted an appeal against the order Annex.P-5 dated 19.9.96 to the Board itself and since the appeal did not lie, vide order Annex.P-7 dated 12.3.98 the Board treated the appeal to be a review petition and order was passed by the Board that the punishment of the petitioner is modified to the extent that a minor penalty of withholding of his next annual grade increment for a period upto 28.2.1998 without cumulative effect.
6. Shri Adhikari, learned Counsel for the petitioner by inviting my attention to Annex.P-10 dated 1.4.98 submitted that a show cause notice was again issued to the petitioner that why the punishment of withholding next annual grade increment for a period of two years without cumulative effect may not be revived. The petitioner against the said show cause notice submitted his reply which was considered and thereafter vide order Annex.P-12 dated 17.9.98. It was directed that the punishment which was inflicted by Annex.P-5 should be revived. The net result was that the next annual grade increment was again directed to be withheld for a period of two years without cumulative effect. The petitioner against the said order Annex.P-12 again filed an appeal for review (Annex.P-13) which has been dismissed vide order Annex.P-16 dated 14.3.2000 on the ground that there cannot be any second review as per MPCS (CC&A) Rules, 1966 as adopted by the Board, The petitioner's representation in regard to his supersession, as his juniors were promoted, was also rejected vide Annex.P-27 dated 12.5.2000. Hence this petition has been filed.
7. It has been vehemently argued by learned Counsel for the petitioner that at the relevant period to the petitioner was not assigned the impugned work of design and if that be the position, the punishment order cannot be passed against the petitioner. In support of his contention, learned Counsel has invited my attention to certain letters which are the part of Annexure-P-13 (memorandum of appeal for review). By inviting my attention to letter dated 5.9.89 of the contractor M/s Dayal Singh Bakshi addressed to the Chief Engineer (C) II it has been contended by the learned Counsel that it has been mentioned in the letter that with reference to the letter the contractor is modifying design and drawing for the soil bearing capacity limit 35 + 5 i.e. 30 T/m. There is another letter of Chief Engineer (Civil) dated 18.10.89 addressed to M/s Dayal Singh Bakshi and in that letter it has been mentioned that the design and drawing submitted by you for the work under subject has been scrutinised and it was requested that 6 copies of revised drawings may be submitted after incorporating the above points to enable the office of CE (Civil). It has been contended that this letter is signed on behalf of DVS Rao and in that regard pleadings on Page 13 of the petition are very much there. Thereafter, contractor Dayal Singh Bakshi vide his letter dated 10.11.89 in context to the letter dated 18,10.89 submitted relevant design and drawing as desired by the CE (Civil) which was signed on behalf of Shri DVS Rao and was written to the Chief Engineer (Civil) II. Thus it has been contended by learned Counsel that the petitioner was not entrusted with the work of impugned designing. In order to strengthen his argument he has invited my attention to the Additional Return filed by respondents 1 and 2 and has submitted that on Page No. 2 thereof a chart has been mentioned demonstrating the duties assigned to the petitioner. The relevant impugned period is Item No. 8 "6th May - January 90" and design work assigned to the petitioner has been shown. It has been contended that there are as many as 10 items in the said chart and every item is supported by the documents which are also annexed with the additional return but for stale work of design work shown in the said chart, for that no document has been annexed, which would mean that the design work was never entrusted to the petitioner. By inviting my attention to the charge-sheet issued to DVS Rao it has been contended that same charges were leveled against Shri Rao but different punishment of only censure was inflicted to him. In that regard punishment order of Shri Rao Annex.P-28 dated 19.9.96 has been placed on record. Thus it has been contended that there should be parity in punishment and in that regard decision of the Supreme Court Director General of Police and Ors. v. G. Dasayan has been cited. Another decision on the point which has been cited by Shri Adhikari, learned Counsel for the petitioner is M. Raghavelu v. Govt. of A.P. and Anr. . By placing reliance on the decision of B.C. Chaturvedi v. Union of India and Ors. (1995) 6 SCC 749 it has been contended that since the given case in hand is of no evidence, therefore, punishment which has been inflicted on the petitioner be quashed.
8. Per contra Shri Anoop Nair, learned Counsel appearing for respondents 1 and 2 has submitted that the duty assigned to DVS Rao was altogether different and, therefore, the question of parity in punishment does not arise. Learned Counsel has also argued in support of the impugned orders.
9. After having heard learned Counsel for the parties, I am of the view that this petition deserves to be allowed.
10. There is specific averment of the petitioner that right from the beginning at the relevant point of time he was not assigned the work of design of the impugned tank. In that regard my attention has been invited to the averments made in Annex.P-2 which is a reply of petitioner against the charge-sheet wherein it has been specifically mentioned by him that the work of scrutinising the vendor's design calculation and drawing of 1200 Cu. M. capacity RCC overhead tank No. I at Project Colony of S.G.T.P.S., Birsinghpur was never entrusted to him. Then it has been specifically mentioned that the same was assigned to then DE (Civil) Shri DVS Rao attached to the office of the CE (Civil) II. Shri Rao in turn marked the papers to AE Shri Talreja attached to the him (Shri Rao), After checking of the design by Shri Talreja, Shri Rao requested the petitioner to guide Shri Talreja on some specific points. In para (k) of the memorandum of writ petition also, the same objection has been taken by the petitioner. On going through the impugned order Annex.P-5 which is punishment order of petitioner it is gathered that nowhere this objection of the petitioner was dealt and decided and the impugned order Annex.P-5 has been passed by the Board. The petitioner preferred an appeal against the said order (Annex.P-5). True, the appeal would not lie to the Board against the impugned order Annex.P-5 passed by the Board. But, it appears that under misconception the appeal was preferred by petitioner to the same authority. The Board vide order Annex.P-7 dated 12.3.98 treated the appeal as review petition and diluted the punishment order and punishment of Annex.P-5 was substituted by amending the penalty of withholding of his next annual grade increment for a period up-to 28.2.98 without cumulative effect.
11. Since the period of minor penalty was reduced only up-to 28.2.98 the petitioner was required to be considered for promotion as the DPC met on 31.3.98. Surprisingly vide order Annex.P-10 dated 1.4.98 i.e. immediately next day when the DPC met, another show cause notice was issued by the Board to the petitioner that why the original punishment inflicted on him vide order Annex.P-5 i.e. penalty of withholding of his next annual increment for a period of two years without cumulative effect may not be revived. The petitioner vide Annex.P-11 submitted his reply an the Board vide order Annex.P12 dated 17.9.98 revived the original punishment order i.e. withholding of next annual grade increment for a period of two years without cumulative effect. After x-raying the entire gamut it appears that for not providing the promotion to the petitioner the said show cause notice was issued only a day after the DPC met and again the punishment order (Annex.P-5) was revived vide order Annex.P-12 dated 17.9.98. Against the said order petitioner preferred an appeal for review but the same was rejected vide order Annex.P16 dated 14.3.2000 on the ground that as per MPCS (CC&A) Rules, 1966 as adopted by the Board, there is no provision of second review in the matter. At this juncture it would be appropriate to mention that the Board has adopted double standard contrary to each other. It be seen that since the appeal which was preferred by the petitioner against the punishment order Annex.P-5 was not maintainable, the same was treated as review petition and in the review petition the punishment order was diluted by imposing penalty of withholding next annual grade increment for a period up-to 18.2.98 and if that is the position, how and under which law second review order reviewing original penalty (Annex,P-5) has been passed by the Board on 17.9.98 (Annex.P-12). Thus it is clear that for not providing benefit of promotion to the petitioner the said order was passed.
12. On going through the punishment order of DVS Rao -Annex.P-28 dated 19.9.96 by which penalty of 'Censure' has been inflicted on him, it is gathered that same charges were framed against the petitioner. It would be condign to re-write those charges and imputation regarding charges:
Shri D.V.S. Rao, while working as an Executive Engineer (Civil) in the office of then C.E. (Civil) - II, M.P.E.B, Jabalpur w.e.f. 26.5.88 to 29.10.90 scrutinised the Vendor's desing calculation and drawings for 1200 Cu.M. capacity R.C.C. overhead tank No. 1 at Project Colony of Sanjay Gandhi Thermal Power Station, while scrutinising the said design and drawing Shri D.V.S. Rao,
(a) did not scrutinise the design calculations as per technical specifications of approved contract documents and as per relevant I.S. code of practice.
(b) did not scrutinise the drawing as per approved Vendor's design calculations.
By keeping article of charges of the petitioner as well article of charges of DVS Rao in juxtaposition it is luminously clear that the article of charges of both the persons are identical. There is specific pleading in the petition that impugned work of design was entrusted to Shri Rao. Though it is refuted by the Board, but there is no sufficient material that Shri Rao was holding different work. Apart from this, as discussed hereinabove, in the additional return the chart which has been annexed in regard to the work assigned to the petitioner no document in order to show that design work was assigned to the petitioner, has been filed while the document in regard to the work entrusted to the petitioner has been filed. Thus, for this reason also it can be said that the petitioner was not entrusted by the impugned work of design. In the cases of M. Raghavelu (supra) and G. Dasayan (supra) the Supreme Court has held that there should be parity in the punishment. Since Shri Rao was punished only by "Censure" the view of this Court is that the different standard of punishment should not be adopted by the Board inflicting punishment to the petitioner. Apart from this, as discussed hereinabove, the present case is of no evidence and if that is the position, the decision of B.C. Chaturvedi (supra) is quite relevant.
13. For the reasons stated hereinabove, this petition succeeds and is hereby allowed with costs. The impugned orders Annexure-P-5 dated 19.9.1996, Annexure-P-12 dated 17.9.1998, Annexure-P-16 dated 14.3.2000 and Annexure-P-27 dated 12.5.2000 are hereby quashed. Counsel's fee Rs. 2,000/-, if pre-certified.