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2002 DIGILAW 1235 (ALL)

Ramesh Chandra Gupta v. Executive Engineer

2002-09-10

RAKESH TIWARI

body2002
JUDGMENT : - Rakesh Tiwari 1. HEARD the learned counsel for the parties and perused the record. 2. THE brief facts of the case giving rise to the writ petition are that in the year 1975, the petitioner was posted as store-keeper in the office of Sub-Divisional Officer, Electricity Transmission Construction, Sub-Division, Muzaffarnagar. He was incharge of the store. In the night of 24/25.6.1975, the drain cork of a transformer was stolen by some unknown persons and in its place cloth was stuffed in the oil outlet to prevent it from draining on the ground. This incident happened while the watchman was on guard duty. 3. IT is alleged by U. P. State Electricity Board (hereinafter referred to as the Board) that on account of the theft of the drain cork, the Board has suffered a loss to the tune of Rs. 60,000. The petitioner came to know about the aforesaid theft in the night itself and reported the matter to the Sub-Divisional Officer concerned on 25.6.1975 and also lodged an F.I.R. with the police authorities. 4. A preliminary enquiry in the aforesaid matter was conducted by one Shri N. P. Singh Katara, Sub-Divisional Officer, Electricity Transmission Construction, Sub-Division Muzaffarnagar who submitted a report on 28.6.1975 (Annexure-7 to the counter-affidavit). In the preliminary enquiry, a categorical conclusion was arrived at that the theft was committed by a non-technical man and an outsider. From the said report, it is also clear that some aspersions were made on the chowkidar Girish Chandra that if he had used a bit of intelligence, the theft could have been avoided. An enquiry was also conducted by the Executive Engineer, Electricity Transmission Construction Division, Saharanpur, who submitted an enquiry report dated 20.9.1975 to the Superintending Engineer, Electricity Transmission and Construction Circle, Aligarh. The Enquiry Officer did not find the petitioner guilty of the alleged theft of drain cork. The said enquiry report is appended as Annexure-C.A. 2 to the counter-affidavit. 5. FROM the aforesaid enquiry reports, it is conclusively proved that the petitioner was not concerned at all for the loss, it any, which had taken place during the theft and it was not on account of any mistake or inaction on the part of the petitioner. 6. The said enquiry report is appended as Annexure-C.A. 2 to the counter-affidavit. 5. FROM the aforesaid enquiry reports, it is conclusively proved that the petitioner was not concerned at all for the loss, it any, which had taken place during the theft and it was not on account of any mistake or inaction on the part of the petitioner. 6. ON the basis of the aforesaid enquiry reports dated 28.6.1975 and 20.9.1975, the respondents did not take any action against the petitioner and it appears that the matter was dropped. All of a sudden, after lapse of about 18 years, respondent Nos. 1 and 2 passed the impugned orders dated 4.3.1993 and 19.3.1993 respectively by which an amount of Rs. 35,300 was directed to be recovered from the salary of the petitioner and remaining amount of Rs. 24,700 has been ordered to be recovered from Girish Chandra to compensate the alleged loss of Rs. 60,000 due to the theft of the drain cork. The petitioner aggrieved by the aforesaid orders dated 4.3.1993 and 19.3.1993 has filed the present writ petition. These orders have been challenged on the ground that they are wholly illegal, arbitrary and without jurisdiction. 7. IT is contended on behalf of the petitioner that from the aforesaid enquiry report, it is clear that respondent No. 1 did not hold the petitioner guilty of alleged theft of drain cork or of any misconduct. 8. THE stand of the respondents in the writ petition is that they are recovering the amount from the petitioner for the alleged theft of drain cork and loss of 20-25 drums of transformer oil. It appears from the enquiry report that the petitioner was charged with loss of transformer oil which was said to have drained out from the transformer from the outlet which was plugged by cloth in place of drain cork. It appears from record that the oil was coming out from the outlet in drops, this gives irresistible conclusion that there was oil in the transformer from which the drain cork had been stolen and it appears that the respondents have now changed their stand and have sought to recover the amount of Rs. 60,000 from the petitioner and Girish Chandra in respect of 20-25 drums of theft of alleged transformer oil. 60,000 from the petitioner and Girish Chandra in respect of 20-25 drums of theft of alleged transformer oil. It appears that stopper cork of the transformer is not of much value but since a vague charge of loss of transformer oil was made for an amount of Rs. 60,000 the story was converted into the theft of 20-25 drums transformer oil as the value of the cork would not be much. The counsel for the petitioner also has brought to the notice of the Court the contradictions in the enquiry reports and has further submitted that before passing the impugned orders, the petitioner was not given any notice by respondent Nos. 1 and 2 for recovery of the aforesaid amount. The counsel for the petitioner states that a memorandum has been issued by the Chairman of the Board framing guidelines and providing manner in which the Board may proceed with against a delinquent employee for awarding punishment. This memorandum has been filed as Annexure-4 to the writ petition. In this regard, paras 2 and 3 of the memorandum are relevant which are reproduced below : "(2) It has been observed by the Board that generally disciplinary proceedings against officers/officials of the Board are instituted mostly in regard to such charges that in the event of their being substantiated, ordinarily the punishments indicated at (i) to (iv) above can only be expected to be imposed or are imposed upon them. In accordance with C.C.A. Rules and also various orders in force on the subject, these punishments can be inflicted without instituting any formal disciplinary proceedings, if good and sufficient reasons exist. It is only in regard to such charges/ lapses as are so grave that in the event of their being established, the punishments indicated at (v) to (vii) above are awarded or can only be expected to be inflicted after instituting formal disciplinary proceedings followed by issue of a show-cause notice. (3) Disciplinary proceedings are usually time consuming and delays in these proceedings are also unfair to the delinquent Board's servant and lead to administrative inefficiency. (3) Disciplinary proceedings are usually time consuming and delays in these proceedings are also unfair to the delinquent Board's servant and lead to administrative inefficiency. Accordingly, to cut down these delays and to achieve speedier disposal of such cases within the framework of existing procedure/ provisions of C.C.A. Rules and the ruling of the Supreme Court on the subject, the Board is pleased to issue the following instructions in the matter for guidance of its officers : (i) As soon as any dereliction of duty or other misconduct on the part of Board's servant comes to notice, the appropriate authority should immediately examine the allegations, if necessary, after getting an investigation of an informal character done into the matter. (ii) After examination of the allegations as also memos of evidence etc. if the appropriate authority comes to the provisional conclusion that in the event of the charges to be framed against an officer/officials being substantiated, the final punishment that shall be awarded would amount only to issuing a warning or a censure entry, formal disciplinary proceedings are not necessitated. Simply an explanation of the individual should be called for and the punishment of warning or censure entry, as the case may be, should be awarded on merits of the explanation, i.e., if the explanation is not found satisfactory or tenable at all. The punishments of warning and censure can, however, also be awarded even without calling for an explanation depending upon the merit and circumstances of the case. (iii) In the event of the appropriate authority coming to a conclusion that if the charges to be framed against an officer/ official are substantiated, the punishment that can be inflicted would amount to (i) withholding of increments, with or without cumulative effect or (ii) recovery from pay of the whole or part of any pecuniary loss caused to Board by negligence or breach of orders only, formal disciplinary proceedings are again not necessary. In such cases an explanation of the person should be called for. If the explanation is not found tenable, the person concerned may be informed of the provisional conclusion in regard to the punishment with reasons thereof and be asked to show cause why the proposed punishment should not be inflicted upon him. In such cases an explanation of the person should be called for. If the explanation is not found tenable, the person concerned may be informed of the provisional conclusion in regard to the punishment with reasons thereof and be asked to show cause why the proposed punishment should not be inflicted upon him. After receipt of his reply to the above show cause notice, it may be examined on merits and if good and sufficient reasons exist, any of the above punishments can be inflicted upon him. In such cases, however, formal proceedings embodying a statement of the offence or fault, the explanation of the person concerned, and the reasons for the punishment shall be recorded. (iv) If the appropriate authority comes to the provisional conclusion that in the event of the charges to be framed against an employee being substantiated, the punishment that should be inflicted upon him shall be one of the punishment indicated at (v) to (vii) above i.e., (i) Reduction in rank or (ii) Removal from service or (iii) Dismissal from service, formal disciplinary proceedings should invariably be instituted, followed by issue of a show cause notice. Along with the show cause notice, the Board's servant charged shall invariably be supplied with a copy of the report of the inquiring officer together with the recommendations, if any, in regard to punishment, made by the officer conducting the enquiry. If for sufficient reasons the punishing authority disagrees with any part or whole of the report the inquiring officer, the point or points of such disagreement together with a brief statement of the grounds thereof shall also be communicated to the Board's servant charged. The final order of punishment should be a 'speaking order' i.e., it should contain a detailed account of the whole proceedings." The memorandum casts a legal obligation on the respondents to provide an opportunity of hearing to a delinquent employee before passing any order against him. 9. THE counsel for the respondents could not explain the variations in the enquiries regarding theft of drain cork and oil from the transformer has been changed to theft of 20-25 drums of oil. He could not explain that how there was loss of oil if transformer oil outlet was plugged and oil was also dripping from it. 9. THE counsel for the respondents could not explain the variations in the enquiries regarding theft of drain cork and oil from the transformer has been changed to theft of 20-25 drums of oil. He could not explain that how there was loss of oil if transformer oil outlet was plugged and oil was also dripping from it. Admittedly, no explanation of the petitioner was called for, why the proposed punishment of recovery of the aforesaid amount was being inflicted upon him. This was arbitrary on the part of the respondents in view of para 3 (iii) of the aforesaid memorandum. 10. THE petitioner has retired from service after attaining the age of superannuation on 30.6.2002. The counsel for the petitioner submits that in view of the pendency of the writ petition, the petitioner has not been paid any retiral benefits and no steps have been taken by the respondents in this regard. 11. FROM the facts and material on record, it is established that the petitioner was not guilty of any misconduct. This is also the finding in the enquiry reports. The petitioner was not working on the post of Watchman or Chowkidar and if any theft has occurred in the night, it was not his responsibility. In any case, the petitioner had promptly taken the steps and informed the authorities and had also lodged the F.I.R. The conduct of the petitioner rather shows that he acted in the matter in a very responsible manner. The matter was burried for about 18 years after finding that the petitioner was not involved in it. The respondents cannot all of a sudden and in violation of principles of natural justice be permitted to visit the petitioner with civil consequences and recovery of an amount of Rs. 35,300 from him though the value of the drain cork could not have been more than Rs. 100. 12. IN view of the aforesaid reasons, the writ petition succeeds and is allowed. The impugned orders dated 4.3.1993 and 19.3.1993 are quashed. Since the petitioner cannot be reinstated having already attained the age of superannuation, the respondents are directed not to recover any amount from the petitioner on the basis of the aforesaid impugned orders passed by respondent Nos. 12. IN view of the aforesaid reasons, the writ petition succeeds and is allowed. The impugned orders dated 4.3.1993 and 19.3.1993 are quashed. Since the petitioner cannot be reinstated having already attained the age of superannuation, the respondents are directed not to recover any amount from the petitioner on the basis of the aforesaid impugned orders passed by respondent Nos. 1 and 2 respectively and further to pay all consequential benefits and retiral benefits to the petitioner in accordance with law within a period of three months from the date of production of a certified copy of this order. There is no order as to costs.