Allahabad High Court
Sukhram Mathuria vs U.P. Financial Corporation And Others on 27 July, 2010
AFR
Judgment reserved on 14.07.2010
Judgment delivered on 27.07.2010
Civil Misc. Writ Petition No.16360 of 1997
Sukhram Mathuria Vs. U.P. Financial Corporation & Ors.
Hon. Sunil Ambwani, J.
Hon. Kashi Nath Pandey, J.
1. We have heard Shri W.H. Khan, Senior Advocate assisted by Shri J.H. Khan for the petitioner.
2. The petitioner was appointed as Asstt. Manager (Technical) in U.P. Financial Corporation in December, 1986. When he was posted in the Regional Office, Kanpur in the year 1988, his wife fell ill and had to undergo a surgical operation. The petitioner submitted a medical claim for reimbursement. The department found some discrepancy in the bill and instead of checking the bill and making the payment of the amount, the petitioner was placed under suspension by the Managing Director on 26th July, 1988 with disciplinary proceedings contemplated against him. He was served with charge sheet on 28th July, 1988 for submitting medical claim in excess of the amount paid to the nursing home. After a prolonged disciplinary proceedings of eight months, the petitioner was punished with a censure entry and withholding of three increments, with cumulative effect vide order dated 31st March, 1989.
3. In the year 1988-89 an adverse entry was also recorded in the petitioner's character roll. He was also communicated with adverse remarks recorded in the character roll for the year 1993-94 by letter dated 29.11.1996, after a period of three years. A representation against the adverse entry of the year 1993-94 is said to be still pending.
4. Shri W.H. Khan appearing for the petitioner submits that a criminal case was also lodged against the petitioner for false medical claims in which by order of the Munsif Magistrate-VIII, 2 Kanpur Nagar the petitioner was acquitted of the charges on 7.1.1991.
5. It is stated that Shri R.M. Sethi, I.A.S. took over the charge as Managing Director in August, 1994 and circulated a letter to all the employees and officers of the Corporation, to generate sense of confidence that if they have any difficulty and problem, they can approach him. The petitioner filed a representation to the Managing Director to redress his grievances both against the punishment order dated 31.3.1989 and the adverse entry of the year 1988-89. Shri Khan states that the representation addressed as appeal dated 10.10.1994 was filed, and is still pending. Shri Sethi, however, was transferred and thereafter nothing was done in the matter. The petitioner was, thereafter, superseded by the persons, junior to him namely Shri Virendra Kumar Kanaujia and Shri B.P. Kem on account of punishment order and adverse entries.
6. The punishment order dated 31st March, 1989 shows that after giving reasonable opportunity with regard to allegations of submitting a fake claim of medical expenses for reimbursement the petitioner was given reasonable opportunity to defend the charges. The Board of Directors considered and agreed with the report of the enquiry officer and imposed punishment under Regulation 40 (1) of the U.P.F.C. (Staff) Regulations, with directions to withdraw the suspension order and to censure him for committing act of cheating and criminal breach and trust with the Corporation in claiming the medical reimbursement for the treatment of his wife. The Board of Directors also decided to withhold three increments w.e.f. 1.4.1989 with cumulative effect and to reject the claim for medical reimbursement. The order passed by the Board of Directors became final, as it was not challenged by the petitioner.
7. The criminal case No.2470 of 1989, State Vs. Sukhram Mathuria under Section 218/420 IPC resulted into acquittal on the findings that the prosecution could not prove that the petitioner has not paid Rs.115/- towards pathology test; there was delay of 9 days 3 in filing the FIR and that the facts alleged in the FIR prima facie appear to be doubtful. The petitioner did not take any steps to challenge the punishment order either before the Board of Directors or before any adjudicatory forum after his acquittal on 7.1.1991.
8. The petitioner was awarded an adverse entry in his character roll by the Chief Manager (Administration) by order dated 28/29.12.1989 as follows:-
"Discipline : He should be more disciplined in office and should not indulge in loose talk against his Seniors."
9. The circular letter of Shri R.M. Sethi, I.A.S. was sent to the employees to generate a sense of confidence amongst them. The circular letter cannot be treated to have extended the limitation or providing a fresh opportunity for filing representation or appeal for adjudication. The punishment orders and the adverse entry of the year 1988-89, have become final and could be relied upon for denying promotion to the petitioner.
10. The petitioner also received an adverse entry in his character roll on 29.11.1996 for the year 1993-94 with remarks that the speed of his disposal is slow. His relationship with colleagues, superiors, industry initiative, devotion to duty, discipline and punctuality is poor and that he has negative attitude. He was also to make representation against the order. It is stated that the representation was filed on 4.1.1997, and is still pending.
11. Shri W.H. Khan would submit that under the U.P. Government Servant ( Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 applicable to the employees of U.P. Financial Corporation under residuary clause of Regulations, if the representation has not been decided, under rule 5 of the Rules of 1995 the report cannot be treated as adverse for the purposes of promotion crossing of efficiency bar and other service matters of the government servant concerned. He has relied upon the judgment in Mata Prasad 4 Gupta Vs. State of U.P. & Ors., 2009 (1) ADJ 172 (DB); Surjit Ghosh Vs. Chairman & Managing Director, United Commercial Bank & Ors., JT 1995 (2) SC 74; and G.M. Tank Vs. State of Gujarat & Anr., AIR 2006 SC 2129 in support of his submissions.
12. In the counter affidavit of Shri D.S. Lal, Deputy Senior Manager (Law), U.P. Financial Corporation, Allahabad it is stated that the petitioner was given adequate opportunity by the enquiry officer. His written statement of defence was taken into consideration and that against the order of Board of Director review lies under Regulation 48 of the U.P.F.C. Staff Regulations. No appeal was maintainable against the order. The petitioner did not prefer any review application. In para 15 of the counter affidavit it is stated that the petitioner has withdrawn the representation in his own judgment without any threat or pressure exercised by the Corporation. His appeal/ representation was thus not maintainable and was even otherwise not in accordance with the UPFC Staff Regulation, 1961. He was considered for promotion to the post of Manager (Technical) but was not found fit and that the communication to that effect was sent to him and is admitted.
13. We have carefully examined the proceedings in which punishment awarded to the petitioner, and the adverse entries recorded against him in his service record. The petitioner did not prefer any review or representation and further did not go to any adjudicatory forum against the order of his punishment imposed upon him. He was given sufficient opportunity of submitting his reply in the departmental proceedings. He was acquitted on insufficient evidence of having produced fake bills and delay in lodging FIR.
14. The petitioner acquiesced to the orders of punishment and adverse entry of the year 1988-89. His conduct reflected in the punishment order and adverse entry, thus could be relied upon by 5 the Corporation to deny him promotion and to supersede him by his juniors.
15. In Mata Prasad Gupta's (Supra) case, a special appeal filed by him against the judgment dismissing the writ petition and upholding the punishment order, was allowed. The High Court directed his promotion to be considered on which the department had passed an order giving notional promotion to him from the date his immediate juniors were promoted. In Surjit Ghosh (Supra) the appellate authority had passed the order of punishment taking away his right to file appeal and in G.M. Tank (Supra) case the petitioner was honorably acquitted by the criminal court from the charges on which he was punished by the department. All the three decisions are not applicable to the facts of the present case.
16. With regard to petitioner's representation against adverse entry of the year 1993-94, the allegations that he was communicated with the order dated 29.11.1996 after a period of 3 years has been denied in para 20 of the counter affidavit. The representation dated 4.1.1997 was filed much after the period of 45 days after communication of the entry and thus Rule 5 of the Rules of 1995 is not attracted.
17. The writ petition is dismissed.
Dt.27.07.2010 SP/