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2005 DIGILAW 993 (ALL)

RAM SAHAY YADAV v. STATE OF UTTAR PRADESH

2005-05-19

N.K.MEHROTRA

body2005
N. K. MEHROTRA, J. ( 1 ) THIS is a petition for issuing a writ of certiorari quashing the impugned charge-sheet dated 22/25/1. 2005 and the suspension order of the same date as contained in Annexure-1 to the writ petition. ( 2 ) THE impugned charge-sheet has been served on the petitioner along with the impugned suspension order and the petitioner who was posted in Lucknow office of the competent authority Urban Land Ceiling, has been attached with the office of the Urban Land Ceiling in saharanpur because the inquiry officer is at Saharanpur. ( 3 ) A perusal of the impugned charge-sheet goes to show that there are ten charges against the petitioner. The first charge is that the petitioner has been wrongly addressing himself as assistant Engineer without being promoted from the post of Junior Engineer and he has noted irrelevant words in the attendance register in the column of the employees. The petitioner has sent letters directly to the Government without sending it through proper channel. The next charge is that he has not taken possession of the land acquired under the Urban Land Ceiling act. The next charge is that the petitioner has concealed the material facts about the possession over the acquired land and he gave wrong information to the Government in the matters of various cases to give undue advantage to other persons. The petitioner did not take possession over Khasra No. 529 in case No. 8017/2194 and in case file No. 20756. The other charges are that petitioner gave the wrong information other than the factual position on the spot. ( 4 ) THE case of the petitioner is that he is not guilty of the charges. So far as he using the designation as Assistant Engineer is concerned, he has filed a writ for getting the designation, in the High Court which is pending and in several correspondence, authorities were also addressing him as Assistant Engineer Incharge. It is also the case of the petitioner that charge-sheet has been given by Shri Mishri Lal Paswan who was only looking after the work of Addl. District magistrate, Land Acquisition after the transfer of Shri D. S. Sharma, the then competent authority and Addl. It is also the case of the petitioner that charge-sheet has been given by Shri Mishri Lal Paswan who was only looking after the work of Addl. District magistrate, Land Acquisition after the transfer of Shri D. S. Sharma, the then competent authority and Addl. District Magistrate (Land Acquisition), Lucknow and as such the power to issue charge-sheet did not vest in Shri Mishri Lal Paswan and when in place of Shri Sharma, the new incumbent namely Shri R. N. Rizvi took charge of Addl. District Magistrate, Land Acquisition, lucknow and was vested with the power of competent authority, Urban Land Ceiling, he could only issue the charge-sheet and therefore, the charge-sheet issued by the incompetent person is not sustainable in the eyes of law and is liable to be quashed. ( 5 ) COUNTER-AFFIDAVIT has been filed by the opposite parties. ( 6 ) AFTER hearing the learned Counsel for the parties, I find that the Director, Urban Land Ceiling, is the appointing authority of the petitioner. The suspension order has been issued by the director, Urban Land Ceiling. The charge-sheet has been approved by the Director, Urban Land ceiling. Therefore, the challenge to the competence of the person issuing the suspension order or the charge-sheet is meaningless. The learned Counsel for the petitioner has vehemently argued that in all the charges either the petitioner is not guilty or the allegations are incorrect or that work was not assigned to him. ( 7 ) IT is settled law that it is one of the implied terms of the relationship between the employer and the employee that the employer is entitled to exercise disciplinary control over the employees and the order of suspension comes within the sweep of disciplinary action. To place an employee under suspension, is an unqualified right of the employer. There is provision under the Service rules for suspending an employee during disciplinary inquiry. ( 8 ) LEARNED Counsel for the petitioner has argued that the order of suspension affects an employee injuriously and then visits an employee with serious evil consequences. It has also been argued that normally suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of there being established, may ordinarily warrant major penalty. It has also been argued that normally suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of there being established, may ordinarily warrant major penalty. According to the petitioners Counsel, the charges does not show such a misconduct which may warrant suspension or the attachment of the petitioner in stead of Lucknow office to saharanpur office which is at a long distance from the place of his posting at Lucknow. ( 9 ) LEARNED Addl. Chief Standing Counsel Shri N. C. Mehrotra has submitted that the petitioner has been attached with Saharanpur office because the inquiry officer was posted at Saharanpur and there is no request by the petitioner for change of the inquiry officer or for the change of his attachment, before the competent authority. ( 10 ) LEARNED Addl. Chief Standing Counsel has placed reliance on a judgment of the Supreme court in Union of India v. Upendra Singh, 1994 (2) BLJR 1349, [1994 (68) FLR 762 ], [1994] 207 ITR 782 (SC), JT 1994 (1) SC 658, (1994) I LLJ 808 SC, 1994 (1)SCALE 637 , (1994) 3 SCC 357 , [1994 ] 1 SCR 1070, 1994 (2) SLJ 77 (SC), 1994 (1) UJ 434 (SC), (1994) 2 UPLBEC 966. In this case, the Supreme Court has observed as follows : "in the case of charges framed in a disciplinary inquiry, the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any), no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to the Court or tribunal, they have no jurisdiction to took into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the Court/ Tribunal is one of the judicial review, the parameters of which are repeatedly laid down by this Court. The function of the Court/ Tribunal is one of the judicial review, the parameters of which are repeatedly laid down by this Court. " ( 11 ) SO far as the scope of judicial review is concerned, it would be pertinent to quote the provisions of the Supreme Court in H. B. Gandhi Excise and Tax Officer-cum-Assessing authority Karnal and Ors. v. Gopi Nath and Sons and Ors. , 1992 Suppl. (2) SCC 312, in which it was held as follows : "judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only the correctness of the decision making process but also on the correctness of the decision itself. " ( 12 ) LEARNED Counsel for the petitioner has further submitted that the suspension and the proceedings in disciplinary inquiry can be stayed if it is found that petitioner is not responsible for the alleged misconduct. But in view of the aforesaid decisions, such a review cannot be made at this stage when the disciplinary proceedings are pending. ( 13 ) LEARNED Counsel for the petitioner has next submitted that the order of attachment with saharanpur office, is punitive because the petitioner has been attached with the office at a very long distance from the place of his posting. This request can be looked into by the appointing authority. ( 14 ) THEREFORE, the proper remedy for the petitioner is to make a representation to the appointing authority for change of the place of attachment or the change of the inquiry officer, if there is any ground for the same and the appointing authority will consider the request with a view in the mind that the attachment should not appear to be punitive. ( 15 ) LEARNED Counsel for the petitioner has submitted that the inquiry is being delayed but the addl. C. S. C. has submitted that it is because of the failure on the part of the petitioner that he has not submitted the reply to the charge-sheet. Therefore, it is directed that if the petitioner submits his reply, the inquiry shall be concluded within a period of three months from the date the petitioner submits reply to the charge-sheet and in case the inquiry is not concluded in spite of the co-operation of the petitioner in the inquiry by not seeking any unnecessary adjournment, the impugned suspension order will stand revoked but the inquiry shall be concluded, expeditiously. ( 16 ) THE period during which the petitioner seeks adjournment, shall not be counted in the period of three months as stated above. ( 17 ) WITH the aforesaid observations, the writ petition is dismissed. . .