Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3290 (ALL)

Dronacharya Bajpayee v. State of U. P.

2009-10-14

SHABIHUL HASNAIN

body2009
JUDGMENT Shabihul Hasnain, J.—Heard Sri B. N. Shukla, learned counsel for the petitioner and Sri Sharad Kumar Srivastava, for opposite party Nos. 2 to 5 while notice has been received on behalf of opposite party No. 1 by learned standing counsel. 2. The petition was filed in the year 1992 seeking writ of mandamus directing the opposite parties to treat the petitioner as Assistant Traffic Inspector from 1989 and further to pay him all the arrears of salary and other arrear due to him, by proper fixation of salary alongwith other consequential benefits. 3. Later on the petitioner was dismissed from service by an order dated 31.8.1993 after inquiry based on the charge-sheet dated 6.4.1988. The petitioner amended the writ petition and challenged the dismissal order as well as the charge-sheet and prayed for commanding the opposite parties to reinstate the petitioner on the post of booking clerk/Assistant Traffic Inspector with full salary and back wages alongwith consequential benefits. The amendment was made with the permission of this Court's order dated 4.10.2004. 4. The case of the petitioner in brief is that as per the version of the opposite parties the petitioner was transferred from Unnao Depot to Fatehpur Depot vide order dated 5.2.1988 issued by the General Manager, but the petitioner neither received the aforesaid order nor handed over the charge to the concerned officer in spite of the repeated orders by the higher officers and contrary to the same remained working Beeghapur Bus Station of Unnao Depot voluntarily. As such departmental inquiry against the petitioner was initiated against the alleged misconduct for non-compliance of the alleged transfer order dated 5.2.1988. In fact no such transfer order was ever received by the petitioner nor he refused to receive the same. Therefore, there was no case of non compliance of the alleged transfer order. 5. A charge-sheet was issued against the petitioner on 6.4.1988 and five charges were leveled against him in the following terms : 1. Disobedience of the departmental orders. 2. Voluntarily staying at Beeghapur Bus Station without authority. 3. Not handing over the charge to the concerned officer, disobeying the orders of higher officers. 4. Use of unparliamentary language during the conversation with higher officers. 5. Acting against the departmental service rules. 6. Disobedience of the departmental orders. 2. Voluntarily staying at Beeghapur Bus Station without authority. 3. Not handing over the charge to the concerned officer, disobeying the orders of higher officers. 4. Use of unparliamentary language during the conversation with higher officers. 5. Acting against the departmental service rules. 6. The important factors to mention here is that in between the payment of salary of the petitioner was stopped in February, 1988 for non- compliance of the transfer order dated 5.2.1988. Against this the petitioner filed a case before the prescribed authority under the Payment of Wages Act, 1936. The case was registered as P.W. Case No. 21 of 1988 Dronacharya Bajpai v. U.P.S.R.T.C. and others. The case was contested by the officers on behalf of U.P.S.R.T.C. 7. It has been stated by the petitioner that Sri H. K. Singh, General Manager, Sri Balbir Singh, Senior Center Incharge and Sri Arjun Lal, water-boy- dak runner were produced as witnesses before the prescribed authority by the opposite parties. The evidence was led by the petitioner also and the case was decided by the prescribed authority in favour of the petitioner vide Award dated 1.9.1988. This Award is part of the writ petition as Annexure No. 17. 8. A perusal of the award dated 1.9.1988 shows that the prescribed authority has returned the finding that the transfer order dated 5.2.1988 was never received/handed over to the petitioner, hence the petitioner continued to work at Beeghapur Station as booking clerk legally with full authority. As such the petitioner was awarded Rs. 930.70 as salary for the month of February, 1988 and Rs. 930.70 as compensation for damages in addition to Rs. 100 as costs of the case. 9. The main argument of the learned counsel for the petitioner in this writ petition is that once it has been established through the aforesaid case that the transfer order, which is the basis of the subsequent alleged disobedience was in fact never handed over to the petitioner, then all the charges arising out of this act stand abrogated. Simultaneously an inquiry was also conducted into the charges levelled through the charge-sheet dated 6.4.1988 as mentioned above. The petitioner submitted reply to this charge-sheet and further submits that the inquiry officer conducted the inquiry in an arbitrary manner without giving sufficient opportunity to the petitioner to defend his case. Simultaneously an inquiry was also conducted into the charges levelled through the charge-sheet dated 6.4.1988 as mentioned above. The petitioner submitted reply to this charge-sheet and further submits that the inquiry officer conducted the inquiry in an arbitrary manner without giving sufficient opportunity to the petitioner to defend his case. The request of the petitioner to call the then General Manager and Assistant Regional Manager, Unnao, as well as retired salary clerk Sri Ahmad Babu as witness was rejected by the inquiry officer merely by saying that the petitioner could not demonstrate the relevancy of the evidence of the aforesaid persons. In fact those persons were the most relevant witnesses of the whole episode of the alleged non-compliance of the transfer order dated 5.2.1988 because the said order was said to have been issued by the General Manager and Sri Ahmad Babu was dealing with the work of the payment of salary, which is made on the basis of the attendance of the employee concerned. The Assistant Regional Manager, Unnao, was also very relevant witness because he had appeared and conducted the case before the Court of prescribed authority on behalf of the department in a P.W. Case No. 21 of 1988, Dronacharya Bajpai v. General Manager, U.P.S.R.T.C., which was filed by the petitioner for the payment of his salary for the month of February, 1988, which was decided in favour of the petitioner, as the department could not prove its case. It is pertinent to point out here that the issue in the case P.W. No. 21 of 1988 and in the departmental inquiry was one and the same as both relate to the same cause of action of alleged non-compliance of the alleged transfer order dated 5.2.1988. 10. Petitioner further states that in the aforesaid manner the inquiry officer conducted the inquiry proceedings and submitted the alleged inquiry report to the competent authority. Neither the copy of the inquiry report nor any show-cause notice was given to the petitioner as has been alleged in the dismissal order dated 31.8.1993. It was only after the publication of show-cause notice in the daily newspaper “Dainik Jagran” dated 21.7.1993 the petitioner came to know about the conclusion of the departmental inquiry, conducted against him. 11. Petitioner again submitted that thereafter the petitioner submitted his reply dated 26.7.1993 which was received in the office of Regional Manager on 4.8.1993. It was only after the publication of show-cause notice in the daily newspaper “Dainik Jagran” dated 21.7.1993 the petitioner came to know about the conclusion of the departmental inquiry, conducted against him. 11. Petitioner again submitted that thereafter the petitioner submitted his reply dated 26.7.1993 which was received in the office of Regional Manager on 4.8.1993. The copy of the said reply was also sent by the registered post on 18.8.1993., which is annexed as Annexure No. 16 to the writ petition. Thereafter, ignoring the reply submitted by the petitioner, the dismissal order dated 21.8.1993 was passed by the Regional Manager. 12. Since the earlier relief sought against the cause of action mentioned in the writ petition, stands finally merged with the dismissal order, which has been challenged by way of amendment, it will be proper to deal with the dismissal order in the writ petition. 13. On behalf of the opposite parties, a preliminary objection has been raised by Mr. Sharad Kumar Srivastava, learned counsel for the opposite parties that the petitioner was dismissed after departmental proceedings vide order dated 31.8.1993. The petitioner filed amendment application challenging the dismissal order dated 11.5.2000, i.e., after lapse of six years nine months. Reasonable explanation has not been given by the petitioner for moving amendment application after such a delay. This argument of the opposite parties is erroneous and unsustainable on the face of it. It is not open for the opposite parties to take this plea today. The amendment application was allowed by this Court. Time was given for filing of the objection, which never came. 14. Moreover, a counter-affidavit to the amended writ petition has been filed on behalf of the U.P.S.R.T.C., which is on record. So, it is absolutely fallacious argument to be raised at the time of final hearing that the delay in filing of the amendment application was not explained by the petitioner. In fact, objection about delay in moving the application for amendment should have been taken by the U.P.S.R.T.C. way back in the year 2000 when the application for amendment was moved on 11.5.2000. This argument does not hold any strength. 15. Second objection raised by the learned counsel for the opposite parties is that the dismissal order was not consequential outcome of the original relief claimed by the petitioner. This objection is totally frivolous and artificial. This argument does not hold any strength. 15. Second objection raised by the learned counsel for the opposite parties is that the dismissal order was not consequential outcome of the original relief claimed by the petitioner. This objection is totally frivolous and artificial. Once dismissal order was passed and by necessary amendment same has been challenged and the amendment application was allowed challenging the dismissal order; then the original relief claimed in the writ petition naturally merges with the amended relief. Moreover in the counter-affidavit filed to the amended writ petition, does not contain any such objection. On this ground alone, the contention of the learned counsel for the parties is liable to be rejected. 16. Next argument raised by the learned counsel appearing for U.P.S.R.T.C. is that by way of amendment the petitioner has totally altered and substituted the new cause of action, which is not permissible under the law and as has been held, again to go back to the same argument levelled above. It will suffice to say that such objection should have been taken at the time of filing of the amendment application way back in the year 2000. At this belated stage objection regarding maintainability of the amendment application cannot be seen especially when no such objection was taken by the opposite parties when they filed the counter-affidavit. 17. One more preliminary objection has been taken by the opposite parties is the plea of alternative remedy. The argument is that the petitioner should have availed alternative remedy of appeal against the dismissal order. The argument is fallacious. Again at the cost of repeatation, the argument is liable to be rejected on the ground that it should have been taken at the appropriate time. Once this Court has allowed the amendment application and the counter-affidavit has been filed by the opposite parties without taking any objection of this kind, their plea of alternative remedy, at this belated stage, looses its value. 18. Learned counsel for the opposite parties after raising these aforesaid four preliminary objection has argued that the finding given in the Award by the Prescribed Authority in claim petition No. 21 of 1988 under the Payment of Wages Act, cannot have any binding effect on the result of the inquiry conducted on the basis of a separate charge-sheet issued to the petitioner. In reply to the aforesaid argument of the opposite parties, learned counsel for the petitioner has submitted and shown through the record that the charge levelled in the charge-sheet is identical to the issue framed by the prescribed authority in deciding the claim under the Payment of Wages Act. From the perusal of the documents, it is crystal clear that the salary of the petitioner for the month of February, 1988 was stopped on the basis of non-compliance of the transfer order dated 5.2.1988. Issue in question being identical and the same in both the proceedings, will definitely have a bearing on the result of the other. 19. The second argument is that the charge-sheet was given to the petitioner on 6.4.1988 and the prescribed authority gave award on 1.9.1988, hence the department was justified in conducting the inquiry. In reply to this, the petitioner has submitted that the dismissal order was passed on 31.8.1993, i.e., after five years of passing of the Award by the prescribed authority. When the prescribed authority after the evidence led by the witnesses of the U.P.S.R.T.C. gave a categorical finding that the transfer order was never handed over to the petitioner, then how in the departmental inquiry the question of fact can be changed and other conclusion be drawn. Even otherwise the proceeding before the prescribed authority under the Payment of Wages Act is quasi-judicial proceeding while departmental inquiry is an administrative action; the finding of the quasi-judicial authority on the same identical question of fact, will have overriding effect on the finding of the administrative conclusion. 20. It has been further argued that against the Award of the prescribed authority, an appeal was preferred by the respondent before the District Judge, Unnao on 7.11.1992, which was dismissed on 28.11.1992. This fact has been brought on record through Annexures No. 19 and 20 to the writ petition. 21. It is, thus, clear that before passing of the dismissal order the finding of facts attained finality by virtue of appeal being rejected by the District Judge. Therefore, the argument of the learned counsel for the opposite parties cannot but be rejected. 22. Learned counsel for the opposite parties says that the petitioner was given full opportunity in the inquiry. This has been denied by the petitioner in the writ petition and also in the rejoinder-affidavit. Therefore, the argument of the learned counsel for the opposite parties cannot but be rejected. 22. Learned counsel for the opposite parties says that the petitioner was given full opportunity in the inquiry. This has been denied by the petitioner in the writ petition and also in the rejoinder-affidavit. In any view of the matter, since on the identical charges finding of the quasi-judicial authority has to prevail, hence no credit can be given to the finding of the administrative pronouncement especially when there is specific allegation that the relations between the officers and the petitioner, were not cordial otherwise. 23. Lastly as an additional argument, it has been contended that the petitioner has absconded from duty with effect from 2.1.1991. Learned counsel for the petitioner says that this allegation was never made part of the charge-sheet nor any separate charge-sheet was issued to the petitioner. The contention of the learned counsel for the opposite parties is baseless and denied. After addressing the Court for two days, Mr. Sharad Kumar, learned counsel for the opposite parties, in addition to his earlier arguments, has given written argument, which is taken on record. 24. On the basis of rival contentions of the parties, perusal of the inquiry report as well as dismissal order and the written argument filed by the opposite parties, this Court has reached to the conclusion that after finding of the quasi-judicial authority, i.e., the Prescribed Authority under the Payment of Wages Act on identical charge, the departmental inquiry and its finding do not carry any sanctity. All the charges arise out of one basic question as to whether the transfer order dated 5.2.1988 was ever given or handed over to the petitioner. This question has been answered conclusively in negative by the prescribed authority after proper appreciation of oral and documentary evidence led by the opposite parties. Therefore, the finding of the departmental inquiry cannot be relied. As a consequence thereof, the inquiry report as well as the dismissal order passed on such inquiry report is liable to be quashed. 25. So far back wages are concerned, there is no straitjacket formula available. While fixing the back wages several factors need to be noted. Therefore, the finding of the departmental inquiry cannot be relied. As a consequence thereof, the inquiry report as well as the dismissal order passed on such inquiry report is liable to be quashed. 25. So far back wages are concerned, there is no straitjacket formula available. While fixing the back wages several factors need to be noted. After giving considerable thought in this regard, the Court comes to the conclusion that the petitioner had although suffered too much at the hands of the opposite parties till date but in paras 12 and 13 of the amendment application moved on 11.5.2000, the petitioner has stated financial hardships, which led to the death of his brother and his falling severely ill. With the description in these paragraphs, it can safely be assumed that the petitioner, after his illegal dismissal, on 31.8.1993 not only suffered financially, socially and medically but he was not gainfully employed anywhere. Therefore, it will be in the fitness of things that back wages of full salary from the date 31.8.1993 to the date when the petitioner became able to challenge the order of his dismissal through amendment application dated 11.5.2000, be awarded as back wages to the petitioner. The petitioner was also hospitalized during this period at a Nursing home, address of which has been given, hence he could not have been earning from any other Source during that period. 26. In the result, the writ petition succeeds and is allowed. The inquiry report as well as the dismissal order 31.8.1993 are, hereby, quashed. The petitioner shall be reinstated in service forthwith. It is further directed that the petitioner shall be paid back wages for the period from 31.9.1993 to 11.5.2000 within a period of two months from the date a certified copy of this order is placed before the authority concerned.