Delhi High Court
Sh. D. K. Sharma vs Bses Yamuna Power Ltd. & Anr. on 25 September, 2013
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 4458/1998
% 25th September, 2013
SH. D. K. SHARMA ..... Petitioner
Through: Mr. N.S. Dalal, Advocate with Mr.
H.L. Verma, Advocate.
versus
BSES YAMUNA POWER LTD. & ANR.
Through: Mr. Sandeep Prabhakar, Advocate
with Mr. Vikas Mehta, Advocate and
Mr. Amit Kumar, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, petitioner impugns the orders passed by the departmental authorities; of the disciplinary authority dated 29.1.1998 and appellate authority dated 24.6.1998; whereby penalty has been imposed upon the petitioner of reduction of pay by one stage in the same time scale for a period of one year with further direction that the petitioner will not earn increments of pay during the period of reduction and on the expiry of the period of reduction the penalty order will not have the effect of postponing his future increments of pay. This penalty order was passed by the appellate authority by reducing the penalty imposed by the disciplinary authority and W.P.(C) No.4458/1998 Page 1 of 5 which was of reduction in pay by three stages in the same time scale for a period of one year.
2. Learned counsel for the petitioner argues before me only one point with respect to the date of imposition of penalty. It is argued that in the present case enquiry officer's report came on 23.5.1994, however the show cause notice was issued exactly one year later on 22.5.1995 and even this show cause notice dated 22.5.1995 was never served upon the petitioner much much later till 15.9.1997. It is argued that punishment ought to have been imposed on the same date or at least in around the same period in which other chargesheeted officials were imposed similar penalties. It is relevant to note that by the subject chargesheet dated 18.10.1989 three employees were proceeded against, namely Sh. D.K. Sharma-petitioner who was a junior clerk, Sh. M.G. Ahluwalia who was commercial superintendent and Sh. S.P. Sharma who was an inspector. Essentially what is argued is that once the penalty is of reduction of pay, delay in passing of the penalty order would mean higher monetary loss to the petitioner for no fault of the petitioner. The effect of delay in imposition of penalty has various consequences and domino effect with respect to postponing of increase of pay, delayed promotions and so on.
3. The admitted facts are that enquiry report in the present case is W.P.(C) No.4458/1998 Page 2 of 5 dated 23.5.1994. The show cause notice alleged to have been issued by the respondent is dated 22.5.1995. However, there is nothing on record that this show cause notice dated 22.5.1995 was immediately thereafter served upon the petitioner. It was only served in September, 1997. Petitioner has specifically taken up this grievance in the memorandum of appeal before the appellate authority, however, the appellate authority in his order dated 24.6.1998 does not at all touch this aspect. Petitioner has before this Court accordingly contended and pleaded by making necessary averments in ground (g) of the writ petition. The counter affidavit of the respondent is silent with respect to contents of ground (g) on the aspect of delay in service of the show cause notice and the enquiry officer's report upon the petitioner. Not only the counter affidavit is silent when response was given to ground
(g), but also in response to paras 16 and 17 of the writ petition, there is complete silence with respect to grievance of the petitioner in delay in imposition of the penalty on account of delay in service of the show cause notice dated 22.5.1995 and also giving of the enquiry report.
4. The only statement which is found in the counter affidavit with respect to delay in imposition of punishment upon the petitioner pertains to delay in receiving advice from CVC. In my opinion, this defence is without any merit because issue is really not of delay in advice from CVC but delay W.P.(C) No.4458/1998 Page 3 of 5 in issuance of show cause notice pursuant to the enquiry officer's report and the delay in serving of the enquiry officer's report itself. Therefore, in my opinion, petitioner has made out a case of his being treated similarly with the other charged officials, namely Sh. M.G. Ahluwalia and Sh. S.P. Sharma. I may note that there is nothing on record as to when the disciplinary authority passed the punishment orders on Sh. M.G. Ahluwalia and Sh. S.P. Sharma. However, counsel for the parties appearing before me agree that whatever is the date of imposition/passing of penalty orders against Sh. M.G. Ahluwalia and Sh. S.P. Sharma, that date will be taken with respect to passing of the penalty order against the petitioner in this case.
5. In view of the above, writ petition is allowed to the limited extent by holding that punishment which is imposed upon the petitioner by the appellate authority order dated 24.6.1998 will come into effect on the same date on which the disciplinary authority passed the punishment order in the case of Sh. M.G. Ahluwalia and Sh. S.P. Sharma. It is further clarified that in case there is any difference of dates in the orders passed by the disciplinary authority with respect to Sh. M.G. Ahluwalia and Sh. S.P. Sharma the later of two dates orders will apply and will be the date for imposition of the penalty order upon the petitioner. The effect of this would be that on the petitioner serving out his punishment so far as reduction of W.P.(C) No.4458/1998 Page 4 of 5 pay is concerned, immediately thereafter all other consequential benefits of service will apply to the petitioner.
6. Writ petition is partly allowed and disposed of with the aforesaid observations, leaving the parties to bear their own costs.
SEPTEMBER 25, 2013 VALMIKI J. MEHTA, J.
Ne
W.P.(C) No.4458/1998 Page 5 of 5