Research › Browse › Judgment

Allahabad High Court · body

1992 DIGILAW 1513 (ALL)

Rajesh Kumar Tripathi v. State of U. P

1992-11-13

I.S.MATHUR

body1992
JUDGMENT I.S Mathur, J. - By this writ petition, the petitioner who was a Typist in the office of the District Government Counsel (Criminal) Unnao, has challenged the order of dismissal conveyed to him vide order of the District Magistrate, dated 12.7.1990 (Annexure 10 to the writ petition). 2. The petitioner was appointed on the post of Typist on temporary basis vide order dated 16.10.1979 (Annexure 1 to the writ petition). He joined the post on 7.10.1979. He was confirmed on the said post by order dated 22.1.1985 (Annexure 2 to the writ petition). He was suspended vide order dated 18.11.1989 (Annexure 3 to the writ petition) on the ground that an inquiry was contemplated against him for absenting without leave leaving the headquarter without permission, behaving in an irresponsible manner and conducting himself against the provisions of Government Servant Conduct Rules, 1956-A charge- sheet dated 16.12.1989 (Annexure 4 to the writ petition) was served on him. The petitioner replied to this charge-sheet on 6.1.1990 (Annexure 5 to the writ petition). A show-cause notice was served on the petitioner on 20.3.1990 (Annexure 7 to the writ petition) as to why he should not be removed from service. No inquiry report was supplied along with this show-cause notice. The petitioner requested for the copy of the inquiry report (vide Annexure 8 to the writ petition) but this was not supplied to him. However, the order of removal was passed on 11.7.1990 and this was conveyed to him on 12.7.1990 (vide Annexure 10). 3. The petitioner has challenged this order of removal on the ground that out of four charges, charges Nos. 3 and 4 were not proved and charge Nos. 1 and 2 were only partially proved. The order is also challenged) on the ground that the punishment awarded is not commensurate with the charges alleged to have been proved and that the inquiry has not been properly conducted inasmuch as no opportunity was given to him and the documents filed by the petitioner have not been considered. It is also submitted that copy of the inquiry report was not given to the petitioner along with the show-cause notice and the order passed is not a speaking order. 4. No counter-affidavit has been filed by the opposite parties in spite of repeated opportunities being given. 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel. 4. No counter-affidavit has been filed by the opposite parties in spite of repeated opportunities being given. 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel. During arguments, the learned counsel for the petitioner challenged the order of removal on the grounds that it is not a speaking order and that even if the alleged charges were held to be proved, the punishment awarded is grossly excessive. 6. It is now well settled that the authorities acting quasi-judicially are bound to give reasons in support of their orders and absence of reason, vitiates the order. The Supreme Court as well as this Court have been repeatedly insisting upon this requirement. See S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 ;]; A.L. Kalra v. Project Equipment Corporation, 1990(2) SLR 446 (SC) B.P. Chaurasia v. State of U.P. and others, 1983 LCD 169, Bakshak Indira Narain Tripathi v. Union of India, 1987(5) LCD 178. 7. In S.N. Mukherjee v. Union of India, the Supreme Court has observed that the authorities exercising quasi-judicial function must record reasons for its decision irrespective of whether the decision is subject to form the revisions or the judicial review and that the reason should be clear and explicit. 8. In B.D. Chaurasia v. State of U.P. and others, 1983(1) LCD 169, a Bench of this Court has observed that an order of punishment must contain reasons therefore and if such an order is passed and is served on the employee without even enclosing the inquiry report, it must be held to be illegal. Mere statement of conclusion is different from reasons for the conclusion. In Bakshak Indira Narain Tripathi v. Union of India and others, 1987(5) LCD 178, another Bench of this Court has held that non-consideration of the reply of the petitioner or an order without reference to his defence must be held to be illegal. 9. The order of removal dated 11.7.1990, referred to in the order of District Magistrate dated 12.7.1990, has not been produced. The learned counsel submitted that this order was not served on the petitioner. The record shows that the opposite parties were repeatedly directed to produce the copy of this order, dated 11.7.1990, but this has not been produced. 9. The order of removal dated 11.7.1990, referred to in the order of District Magistrate dated 12.7.1990, has not been produced. The learned counsel submitted that this order was not served on the petitioner. The record shows that the opposite parties were repeatedly directed to produce the copy of this order, dated 11.7.1990, but this has not been produced. Since there is nothing to controvert petitioner's allegations that the copy of the removal order dated 11.7.1990 referred to in the order dated 12.7.1990 has not been served on the petitioner, it was for the opposite parties to have produced this order in order to controvert the assertion of the petitioner that the documents filed by him have not been considered and the order is not a speaking order. Adverse inference against the opposite parties is inevitable and the submissions made on behalf of the petitioner that the order is not a speaking order, will have to be accorded. 10. The order passed must the found to the illegal also on the ground that the copy of the inquiry report was not supplied to the petitioner before passing the impugned order of removal. It is now well settled that even after the amendment of Article 311 of the Constitution, it is necessary to supply the copy of the inquiry report to the petitioner (vide Union of India v. Ramzan Khan, AIR 1991 SC 471 . 11. There is also force in the submission of the learned counsel for the petitioner that even if it be assumed that the petitioner is guilty of the misconduct alleged to have been proved against him, the punishment awarded is grossly excessive. A perusal of the charge-sheet and the inquiry report would indicate that the two charges that have been held to be partially proved were as follows: (i) The petitioner remained absent on 11.10.1989 without his leave having been sanctioned and he also moved an application for casual leave for 10.11.1989 when no such leave was due and he remained absent till 18.11.1989. (ii) He remained absent from Headquarter from 11.11.1989 to 14.11.1989 without sanction of leave without intimating the address. 12. (ii) He remained absent from Headquarter from 11.11.1989 to 14.11.1989 without sanction of leave without intimating the address. 12. In regard to the first charge, the only part that husband held to be proved by the Enquiry Officer is that he supplied for casual leave in spite of being aware that no such leave was due, but he has accepted the explanation of the petitioner that he had to go to Kanpur in connection with the treatment of his mother. 13. In regard to the second charge, only this part has been held to be proved that the petitioner did not inform specially that he was going to Kanpur in connection with the treatment of his mother. 14. Even if it be assumed that both these charges have been correctly held to be proved, these could not attract the extreme penalty of removal. 15. Normally this Court will not go into the question of sufficiency of the punishment or the quantum of punishment and would avoid interference in the discretion of the appointing authority in this regard. However, when facts show that punishment awarded is grossly excessive or is not commensurate with the offence proved, this Court will have to interfere. In this connection the Supreme Court has observed as follows in V.R. Katarki v. State of Karnataka and others, AIR 1991 SC 1241 : "Ordinarily, justification of the quantum of punishment imposed in a disciplinary action is not for the Court to decided and there have been occasions when this Court has taken interference by the High Court on quantum of punishment as an act is excess of jurisdiction. While we are cognizant of that fact. Keeping the residue of the charges in view, we are inclined to hold that dismissal of the appellant from service was out of proportion and compulsory retirement could meet the ends of justice." In Ved Prakash Gupta v. M/s Delton Cable Co. (P) Ltd., 1984(2) SLR 5 (SC) also the Supreme Court has observed that the punishment should not be disproportionate to the offence proved. In that case the employee was dismissed on the charge of using filthy language. The Supreme Court held that the punishment of dismissal was disproportionate to the misconduct. In State of U.P. v. Sadan and Mishra, 1984(2) LCD 294 the order of dismissal on the ground of conviction under Section 323 was held to be excessive. 16. In that case the employee was dismissed on the charge of using filthy language. The Supreme Court held that the punishment of dismissal was disproportionate to the misconduct. In State of U.P. v. Sadan and Mishra, 1984(2) LCD 294 the order of dismissal on the ground of conviction under Section 323 was held to be excessive. 16. In my opinion, considering the facts of this case and the legal position, it must be held that the punishment of removal awarded to the petitioner is grossly disproportionate to the charges proved against him and the order is liable to be set aside on this ground also. 17. The order of removal, dated 11.7.1991, conveyed to the petitioner, vide order dated 12.7.1990 (Annexure 10 is accordingly liable to be and is hereby quashed. The petitioner shall be deemed to be continuing in service and paid arrears of salary, future salary and allowances in accordance with rules. The arrears shall be paid within three months from the date of production of a certified copy of this judgment. The opposite parties shall be at liberty to proceed on with disciplinary proceedings and pass fresh speaking order in the light of the observations made in the judgment. 18. In the circumstances of the case, there shall be no order as to costs .