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[Cites 8, Cited by 0]

Allahabad High Court

Madan Gopal vs State Of U.P. And Others on 12 January, 2010

Author: Kashi Nath Pandey

Bench: Kashi Nath Pandey

Court No. - 29

Case :- WRIT - A No. - 35407 of 2007

Petitioner :- Madan Gopal
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Mohd. Naushad Siddiqui, Arvind
Kumar,Arvind Srivastava
Respondent Counsel :- C.S.C.

Hon'ble Satya Poot Mehrotra,J.

Hon'ble Kashi Nath Pandey,J.

The present Writ Petition under Article 226 of the Consittution of India has been filed by the petitioner, inter-alia, praying for issuance of direction to decide the Representation/Appeal dated 05.02.2007 filed by the petitioner.

Affidavits have been exchanged between the parties. The Writ Petition is being disposed of at this stage with the consent of the learned counsel for the parties.

From the averments made in the Writ Petition and other affidavits on the record, it appears that the petitioner was appointed as Assistant Engineer in the Public Works Depatment on 15.09.1983. The State Government by its letter dated 13.04.1993, confirmed the services of the petitioner.

The petitioner was placed under suspension by the order dated 26.10.2005 (Annexure 1 to the Writ Petition), and the disciplinary proceedings were initiated against the petitioner.

The petitioner was given Charge-sheet levelling two charges against the petitioner. Charge no. 1, inter-alia pertained to various financial irregularities allegedly committted by the petitioner. Charge no. 2, inter-alia, pertained to pecuniary loss caused by the petitioner to the Government.

The petitioner submitted his Reply to the Charge-Sheet. The Inquiry Officer held the inquiry proceedings, and thereafter submitted his report dated 04.05.2006. The Inquiry Officer recorded findings on both the charges against the petitioner, and found that the said charges against the petitioner were proved. Copy of the said Inquiry Report has been filed as Annexure 1 to the Affidavit accompanying 2 Civil Miscellaneous (Amendment) Application no. 292796 of 2007.

After the submission of the Inquiry Report, the Disciplinary Authority sent copy of the Inquiry Report to the petitioner as per the provisions of Rule 9(4) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 calling upon the petitioner to submit his representation. The petitioner submitted his Representation dated 23.06.2006. Comments of the Chief Engineer, Public Works Department, Kanpur were called on the said Representation of the petitioner.

After considering the Inquiry Report, the Representation submitted by the petitioner, the Comments submitted by the Chief Engineer as well as other relevant records, the Disciplinary Authority by the order dated 08.01.2007 (Annexure 2 to the Writ Petition) imposed the following punishment against the petitioner :

1. Recovery of 35% of Rs. 93,971/- i.e. a sum of Rs. 33,890/- in respect of the pecuniary loss caused to the Government.
2. Temporary stoppage of two annual increments for two years.
3. Censure entry be given to the petitioner.

The aforesaid order dated 08.01.2007 (Annexure 2 to the Writ Petition) passed by the Disciplinary Authority was challenged by the petitioner by amending the Writ Petition.

It further appears that prior to the filing of the present Writ Petition, the petitioner had filed a Representation/Appeal against the said order dated 08.01.2007. By the order dated 10.09.2007, the Representation/Appeal of the petitioner was decided. It was directed that the period of suspension of the petitioner, namely, from 26.10.2006 to 08.01.2007 would be treated as the period spent on duty for the purposes of pension but only subsistence allowance would be admissible to the petitioner for the said period. Copy of the said order dated 10.09.2007 has been filed as Annexure 2 to the Affidavit accompanying to the aforesaid Amendment Application filed on behalf of the petitioner.

We have heard Sri. Mohd. Naushad Siddiqui, learned counsel for the petitioner and the learned Standing Counsel appearing for the 3 respondents and perused the record.

From the perusal of the Inquiry Report, it is evident that after giving the petitioner reasonable opportunity of being heard in the matter, the Inquiry Officer submitted a detailed Inquiry Report on consideration of the material on record, and found the charges against the petitioner as proved. No perversity or illegality has been shown in the findings recorded by the Inquiry Officer in respect of the two Charges levelled against the petitioner.

Again, the Disciplinary Authority gave opportunity to the petitioner to make Representation against the findings recorded by the Inquiry Officer. The Disciplinary Authority on consideration of the material on record agreed with the findings recorded by the Inquiry Officer, and imposed the punishment against the petitioner as mentioned above. No illegality has been shown to have been committed by the Disciplinary Authority in passing the impugned order dated 08.01.2007.

It is well settled that in a proceeding under Article 226 of the Constitution of India, the High Court is concerned only with the questions whether the enquiry was held by an authority competent in that behalf and according to the prescribed procedure and whether the principles of natural justice have not been violated. The High Court does not act as a court of appeal over the decision of the authorities holding a departmental enquiry. Reference in this regard may be made to the following decisions:

1. State of A.P. and others Vs. S. Sree Rama Rao, AIR 1963 SC 1723(1727)
2. Bhagat Ram Vs. State of H.P. and others, AIR 1983 SC 454(459) In view of the above legal position, we are of the opinion that no interference is called for with Inquiry Report and the impugned order dated 08.01.2007.

Coming now to the question of proportionality of the punishment, a Division Bench of this Court in Hukum Chand Vs. State Service Tribunal, Lucknow and others, 2008 (3) ALJ 479 (D.B.), summarized the legal position as under (Paragraph 51 of the 4 said ALJ):

"It has been laid by the Supreme Court in various decisions that the punishment imposed by the Disciplinary Authority or the Appellate Authority should not be subjected to judicial review unless the same is shocking to the conscience of the Court/Tribunal. Reference in this regard may be made to the following decisions:
1. Chairman and Managing Director, United Commercial Bank and others Vs. P.C. Kakkar, AIR 2003 SC 1571 (2003 All LJ 812) (paragraphs 1,12,13 and 14).
2. V. Ramana Vs. A.P.S.R.T.C. and others, AIR 2005 SC 3417 (paragraphs 12,13 and 14).
3. General Secretary, South Indian Cashew Factories Workers Union Vs. Managing Director, Kerala State Cashew Development Corporation Ltd. and others, AIR 2006 SC 2208 (paragraph 16).
4. Union of India and others Vs. Dwarka Prasad Tiwari, (2006) 10 SCC 388:(2006 AIR SCW 5185) (paragraphs 10,11,15,16 and 17)".

Having regard to the nature and seriousness of the Charges levelled and proved against the petitioner, we are of the opinion that the punishment imposed by the petitioner cannot be said to be disproportionate. The punishment cannot, in our view, be said to be such as is shocking to the conscience of the Court. Therefore, no interference is called for with the punishment imposed on the petitioner.

In view of the above, we are of the opinion that the Writ Petition lacks merits, and the same is liable to be dismissed.

The Writ Petition is accordingly dismissed. However, on the facts and in the circumstances of the case, there will be no order as to costs.

Order Date :- 12.1.2010.

Sushma