Research › Search › Judgment

Allahabad High Court · body

2002 DIGILAW 338 (ALL)

PARAM LAL VERMA v. STATE OF U. P.

2002-03-01

M.KATJU, S.K.SINGH

body2002
M. KATJU AND S. K. SINGH, JJ. ( 1 ) BY means of this writ petition, the petitioner has prayed for issuance of a writ in the nature of certiorari quashing the order dated 29. 8. 2000 (Annexure-1 to the writ petition ). A further prayer has been made to command the respondents to pay the post retiral benefits to the petitioner. ( 2 ) THE petitioner came in the service of the U. P. Public Works Department (in short P. W. D.) in the year 1964 as Overseer which was subsequently re-named as Junior Engineer. In due course of time, the petitioner got his promotion as Assistant Engineer in the year 1981 and thereafter, as executive Engineer in the year 1994. While, the petitioner was working as Executive Engineer in the Constructions Division. Pokhri, district Chamoli. there were three Assistant Engineers under him Including one Mahesh Chandra. The petitioner was in charge of supervision of the amount of money as allocated and expenditure incurred by the different Assistant Engineers for the works, and in discharge of the aforesaid duty, the petitioner allocated and sanctioned different amounts to different Assistant Engineers. An amount of Rs. 11,00,000 was sanctioned to Mahesh chandra, Assistant Engineer, for distribution of wages to the workers and compensation to be paid to the farmers for the works done under his supervision in the department. The Assistant engineer to whom the amount was sanctioned was required to submit the accounts and details of expenditure/disbursement to the petitioner upon which the petitioner was to make proper adjustment in the records of the department, which report was sent to the higher authorities. According to petitioner, inspite of repeated letters written to Mahesh Chandra, Assistant engineer, he did not submit the details of expenditure/disbursement in respect to the aforesaid amount of Rs. 11. 00,000. On account of inaction on the part of Mahesh Chandra the petitioner got a first information report lodged against Mahesh Chandra on 16. 8. 1997 and thereafter. on 28. 8. 1997, details were submitted. Upon receiving the details of expenditure/disbursement of the amount from Mahesh Chandra, Assistant Engineer, the petitioner Informed the police official and the Superintending Engineer regarding receipt of the details as was to be submitted by mahesh Chandra. On 29. 8. 8. 1997 and thereafter. on 28. 8. 1997, details were submitted. Upon receiving the details of expenditure/disbursement of the amount from Mahesh Chandra, Assistant Engineer, the petitioner Informed the police official and the Superintending Engineer regarding receipt of the details as was to be submitted by mahesh Chandra. On 29. 8. 1997 itself, the petitioner wrote a letter to the Revenue Officials informing the aforesaid situation, on account of which delay was occasioned in submitting the details of adjustment in respect of the amount so allocated by the petitioner, and finding it to be an Irregularity on the part of the petitioner, he was placed under suspension by the order dated 22. 10. 1997. When the order of suspension was challenged by the petitioner in this Court vide writ Petition No. 40325 of 1997, this Court finally disposed of the writ petition by giving direction to the respondents to dispose of the representation of the petitioner against the impugned order of suspension within three weeks from the date of serving the representation along with copy of the order. It is stated that on 9. 2. 1998. the petitioner was served with a copy of the charge-sheet dated 20. 1. 1998 to which the petitioner submitted a detail reply. The State government had appointed the Chief Engineer (Garhwal Region ). P. W. D. , Pauri, as the enquiry officer. After completion of the enquiry, on 12. 12. 1998, an enquiry report was submitted in which the petitioner has been exonerated of all the charges levelled against him. It appears that by the time, a decision in the light of the enquiry report as submitted could be taken, the petitioner retired on 28. 2. 1999. It is thereafter on 1. 4. 1999, that the petitioner was served with a notice to the effect that the disciplinary authority has differed with the findings of the enquiry officer and the petitioner was required to submit his objection. On receipt of the aforesaid notice, the petitioner submitted his reply on 9. 4. 1999 (Annexure-10 to the writ petition ). 4. 1999, that the petitioner was served with a notice to the effect that the disciplinary authority has differed with the findings of the enquiry officer and the petitioner was required to submit his objection. On receipt of the aforesaid notice, the petitioner submitted his reply on 9. 4. 1999 (Annexure-10 to the writ petition ). After submission of reply by the petitioner, the State Government passed an order addressed to the secretary, U. P. Public Service Commission seeking opinion for imposing the punishment of deduction of 10% of the pension as payable to the petitioner and it is after the opinion of the U. P. Public Service Commission, that the impugned order dated 29. 8. 2000 was passed against which the petitioner has come to this Court. ( 3 ) WE have heard learned counsel for the petitioner and learned standing counsel representing the respondent Nos. 1 to 3 and have carefully examined the pleadings as set forth by the parties and the materials as exist on record. ( 4 ) LEARNED counsel for the petitioner submits that action on the part of the respondent No. 1 in passing the order dated 29. 8. 2000 is clearly illegal and arbitrary. It has been pointed out that the enquiry officer has totally exonerated the petitioner from all the charges and thus without any justification for differing with the conclusion as arrived at by the enquiry officer, the impugned punishment order has been given. It has been submitted that no reason whatsoever has been given for differing with the findings given by the enquiry officer. It has been further submitted that the charge against the petitioner was the delay in submitting the details in respect of the expenditure/disbursement of the amount allocated to the Assistant Engineer and secondly that without there being adjustment of one amount which was allocated, he sanctioned another amount. It has been further submitted that the charge against the petitioner was the delay in submitting the details in respect of the expenditure/disbursement of the amount allocated to the Assistant Engineer and secondly that without there being adjustment of one amount which was allocated, he sanctioned another amount. It has been pointed out that the alleged irregularity cannot be attributed to the petitioner in view of the fact that in the compelling circumstances, for disbursement of the wages to the workers and the farmers, the amount was necessary to be allocated and for giving timely information to the higher authorities, petitioner has repeatedly written to the concerned Assistant engineer and on account of inaction, on his part, the petitioner has also lodged first information report and it is on receipt of information/details from the Assistant Engineer, with all promptness that the petitioner has submitted the details and made adjustment as required. In view of this, it has been pointed out that no motive on the part of the petitioner can be attributable and the impugned action against the petitioner, is not warranted. Lastly, it has been submitted that neither the quantum of any loss to the Government has been found by the disciplinary authority nor it has been made clear that upto what time and for what amount 10% deduction from the pension will continue and, therefore, it is an arbitrary exercise to the great detriment of a retiring employee. For these reasons, it has been prayed that the impugned order of respondent No. 1 be quashed. ( 5 ) LEARNED standing counsel, in the light of the facts stated in the counter-affidavit, submits that the petitioner has been found to be guilty of violating the norms and of allocating the amount to the Assistant Engineer without there being the adjustment for the same and therefore, the petitioner has been rightly punished. Learned standing counsel further submits in the light of the facts as stated in paragraphs 9 and 12 of the counter-affidavit that the irregularity found on the part of the petitioner, was motivated and it was in collusion with Mahesh Chandra, Assistant engineer. Learned counsel submits that the disciplinary authority after applying his mind to the facts has rightly taken a correct decision and therefore, no interference is called for by this Court. Learned counsel submits that the disciplinary authority after applying his mind to the facts has rightly taken a correct decision and therefore, no interference is called for by this Court. ( 6 ) THE question which requires serious attention of this Court can be framed like this "when, how and in what circumstances and in what manner, the disciplinary authority can take a decision contrary to the findings/report submitted by the enquiry officer". There cannot be any quarrel with the fact that the disciplinary authority is not bound to accept the findings and the conclusion as contained in the enquiry officers report, and certainly, he can take a different decision for taking appropriate action in the light of the charges against a delinquent employee. However, at the same time, it must be said that the disciplinary authority cannot be said to be possessed with such power that simply on his own whims, he can take a decision contrary to that arrived at by the enquiry officer. In the light of the enquiry officers report, the law is well-settled that the charged employee is to be given opportunity to show cause and it is then alone that a contrary decision can be taken by the disciplinary authority. This clearly pre-supposes that the disciplinary authority will have to apply his mind to the facts and details as has come in the enquiry officers report as well as in the reply as submitted by the employee in response to the show cause notice issued by the disciplinary authority. The application of mind by the disciplinary authority cannot be said to be his subjective satisfaction but it will have to be an objective satisfaction. This clearly means that an analysis of the facts and findings given by the enquiry officer while exonerating the charged employee and the reply submitted by the charged employee to the show cause notice issued by the disciplinary authority, will have to be analysed and cogent reasons will have to be given for disagreement with the conclusion arrived by the enquiry officer. In the event the exercise by the disciplinary authority lacks the aforesaid requirements, the decision he arrives at, will have to be termed as arbitrary and perverse. It is in this backdrop that we have to examine the facts of the present case. The report of the enquiry officer dated 12. 12. In the event the exercise by the disciplinary authority lacks the aforesaid requirements, the decision he arrives at, will have to be termed as arbitrary and perverse. It is in this backdrop that we have to examine the facts of the present case. The report of the enquiry officer dated 12. 12. 1998 (Annexure-8 to the writ petition) clearly shows that all the charges levelled against the petitioner have been found to be not proved. No slackness or any ulterior motive on the part of the petitioner in discharge of his official duty has been found. The enquiry officer has clearly taken note of the fact that the petitioner has written more than half a dozen letters to the concerned Assistant Engineer for submitting the details in respect of the expenditure/ disbursement and on account of delay on his part. The petitioner has also lodged a first information report and it is after getting the required details, with all promptness that he completed the necessary formalities. It has been further mentioned by the enquiry officer that in view of the letter of the Engineer-in Chief. P. W. D. , the temporary allocation of the amount can be adjusted by forwarding the same and mentioning it as miscellaneous head. It has been specifically found by the enquiry officer that after submission of the details by the concerned engineer, all the amounts have been property adjusted and there is no loss whatsoever to the government exchequer on account of the alleged irregularity on the part of the petitioner. It is this conclusion of the enquiry officer based on a consideration of various materials which was the subject-matter of scrutiny by the disciplinary authority. When the disciplinary authority made up his mind not to agree with the report of the enquiry officer, a show cause notice was Issued to the petitioner to which a detailed reply was given. In the reply submitted by the petitioner, on 9. 4. 1999 (Annexure-10 to the writ petition), the petitioner has given full details in respect to his defence, by giving reference to the voluminous documents and other materials. On examination of the impugned order, we find that the disciplinary authority has not made any reference either about the various materials and the findings given by the enquiry officer in his report dated 12. 12. On examination of the impugned order, we find that the disciplinary authority has not made any reference either about the various materials and the findings given by the enquiry officer in his report dated 12. 12. 1998 nor in respect of the explanation submitted by the petitioner on 9. 4. 1999 and there is absolutely no analysis of any kind, in the light of the facts and materials which came before the disciplinary authority which may justify disagreement with the enquiry officers report and the explanation submitted by the petitioner. The disciplinary authority in a most routine and casual manner, after referring to the enquiry officers report and its conclusion, has just given his decision for punishing the petitioner by making deduction to the extent of 10% from his pension. It is also not clear from the order of the respondent No. 1 that the direction for deduction from pension payable to the petitioner is for what amount and for what period. Admittedly, the enquiry officer has clearly opined that no loss was occasioned to the Government exchequer on account of the alleged irregularity on the part of the petitioner and the disciplinary authority in its decision has not given any finding to the contrary. The material on record, as has been referred to by the enquiry officer also, clearly shows that the petitioner has repeatedly written more than half a dozen letters to the concerned Engineer for furnishing details, and for inaction on his part, the petitioner has lodged a first information report against him and it was on receipt of the required details that the petitioner completed the required formality at once. The stand taken by the respondent in the counter-affidavit that the irregularly on the part of the petitioner was on account of his collusion with the concerned engineer appears to be vague and without any basis whatsoever. On the facts and circumstances of the present case, no motive on the part of the petitioner can be attributed. Allocation of amount which was required for the disbursement to the workers/farmers was quite necessary, and the petitioner appears to have done his best to ensure the submission of the required details to the higher authority at the earliest, and, therefore, there appears to be no justification on the part of the disciplinary authority, to disagree with the conclusion of the enquiry officer. Moreover, as no reason whatsoever has been given by the disciplinary authority in its order, the impugned conclusion appears to be arbitrary and perverse. The petitioner has already retired on 28. 2. 1999 and there is nothing on record to suggest that there is any loss to the Government exchequer. Besides, there being a finding by the enquiry officer that the Government exchequer has not suffered any loss, on the facts of the present case, it appears that if the respondent No. 1 is asked to reconsider the matter, that will cause prejudice to the petitioner as it will also delay in flnallsation of the pensionary benefits, etc. On the facts, materials and findings on record and taking into account the totality of the circumstances, we are persuaded to take the view that the impugned order deserves to be quashed as it is wholly arbitrary. ( 7 ) FOR the reasons stated above, this writ petition succeeds and is allowed. The impugned order dated 29. 8. 2000, passed by respondent No, 1 is hereby quashed. The respondents are directed to settle all the pensionary benefits of the petitioner forthwith in the light of the observations made above. ( 8 ) PARTIES shall bear their own costs. .