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,
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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
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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
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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
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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/