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
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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
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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
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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