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2014 DIGILAW 30 (ALL)

BAIKUNTH NARAYAN TIWARI v. STATE OF U. P.

2014-01-06

D.Y.CHANDRACHUD, DILIP GUPTA

body2014
Dilip Gupta,J. The appellant is aggrieved by an order of a learned Single Judge dated 29 November 2013 dismissing the petition challenging an order passed in disciplinary proceedings. The appellant, who was a Junior Clerk, was proceeded against inter alia on a charge of misconduct. Upon the charges being found to be established, he was punished by a permanent stoppage of two increments, a censure and a direction has been issued that he should not be posted on any sensitive post for the next five years. 2. Learned counsel appearing on behalf of the appellant submits that ( i) the punishment of stoppage of two increments is a major penalty whereas an order of censure is a minor penalty and both the penalties could not have been simultaneously imposed; ( ii) the punishment that the appellant shall not be posted on any sensitive post for five years is not provided under the Rules; and ( iii) the entire action was proceeded under the Rules of 1930 which have since been superseded by the State Government by the Rules of 1999 namely, U.P. Government Servants ( Discipline and Appeal) Rules, 1999. 3. During the course of hearing of the Special Appeal, it has been fairly stated that none of these submissions were urged before the learned Single Judge. 4. However, it has been submitted, relying on the judgment of the Supreme Court in Bongaigaon Refinery & Petrochemicals Ltd. & Ors. Vs. Girish Chandra Sarma, ( 2007) 7 SCC 206 , that since the Special Appeal is in continuance of original writ proceedings, the appellant may be permitted to urge the points so canvassed. 5. Apart from the statement which has been made on behalf of appellant, it also emerges from the records that the submissions, which are now sought to be raised at the hearing of the appeal, have not been urged either in the grounds taken in the writ petition or in the grounds of memo of appeal. Ordinarily, it is a matter of first principle that it would be unfair to find fault with the order of the learned Single Judge in respect of a point which was not canvassed or urged. Ordinarily, it is a matter of first principle that it would be unfair to find fault with the order of the learned Single Judge in respect of a point which was not canvassed or urged. The judgment of the Supreme Court in Bongaigaon Refinery ( supra) was in respect of a matter where the Division Bench of the High Court had in fact assessed that the employee in question alone had been made a scapegoat whereas the decision was unanimously taken by all the members of three Committees namely, the Tender Committee, Techno-Commercial Committee and the Price Negotiation Committee. In these circumstances, the Supreme Court held that it was not the respondent alone who can be held responsible when the decision was taken by as many as three Committees. Consequently, though the plea of perversity was abandoned before the learned Single Judge, the Supreme Court held that it would not operate as an estoppel from being urged before a Division Bench in an appeal. The judgment of the Supreme Court would indicate that the issue as to whether a point which has not been urged before the learned Single Judge should be allowed to be urged before a Division Bench in the Special Appeal is a matter which lies in the judicious exercise of the discretion of the Court. 6. As we have noted in the present case, the submissions which were canvassed in the oral hearing in the appeal had no foundation in the pleadings in the writ petition, had not been urged before the learned Single Judge and have not been raised in the grounds of memo of appeal. Since the submissions go to the root of the matter, we are not inclined to displace the appellant from urging these submissions but are of the view that in the first instance they should be permitted to be raised before the learned Single Judge by filing a review petition. We leave it open to the learned Single Judge to consider and take an appropriate view, if such a review is filed. 7. We, accordingly, dispose of the Special Appeal by permitting the appellant to move a petition by way of review before the learned Single Judge. We clarify that it will be open to the appellant to raise all appropriate submissions. We also clarify that we have not expressed any view on the merits of the submissions. 8. 7. We, accordingly, dispose of the Special Appeal by permitting the appellant to move a petition by way of review before the learned Single Judge. We clarify that it will be open to the appellant to raise all appropriate submissions. We also clarify that we have not expressed any view on the merits of the submissions. 8. There shall be no order as to costs.