Akthar Basha v. Neyveli Lignite Corporation, rep. by the Director (Power)
2014-10-14
N.PAUL VASANTHAKUMAR, P.R.SHIVAKUMAR
body2014
DigiLaw.ai
Judgment N. Paul Vasanthakumar, J. 1. Heard Mr. V. Raghavachari, learned counsel appearing for the appellant and Mr. N. Nithianandam, learned counsel appearing for the respondents. 2. This writ appeal is filed against the order made in W.P.No.23368 of 2005, dated 06.9.2012 wherein the appellant has challenged the order of punishment of reduction of pay for one stage for a period of one year imposed by the Disciplinary Authority by an order dated 26.4.1993, which was affirmed by the Appellate Authority, by an order dated 28.2.2005. 3. Facts leading to the filing of the writ petition before the learned single Judge was that appellant was proceeded with two charges, namely – 1. Failure to ensure correct measurement of ground level in the measurement books for the purpose of calculation of lifts and adoption of hypothetical datum level instead, leading to over payment to the contractor to the tune of Rs.2,18,066/- resulting in loss to the Corporation. 2. Failure to ensure recording of correct carry over to quantities in the bills abstract, leading to excess payment of Rs.2,95,558.75 to the Contractor. For the said charges, an explanation was called for from the appellant and the appellant has submitted his explanation on 25.10.1988 stating that he had inadvertently over looked due to lack of experience in executing major works and made measurement and there was no malafide intention on his part. The said elementary error initially committed was detected and the financial interests of the Corporation was duly protected and the appellant has expressed regret for the said mistake and prayed for condoning the said mistake. In the said explanation, the appellant opted for enquiry, inspite of accepting the mistake and prayed for pardon. Thereafter, enquiry was conducted and the Enquiry Officer gave a finding in respect of the charges. 4. The Disciplinary Authority accepted the findings of the Enquiry Officer, provisionally concluded that pay of the appellant should be reduced in the time scale by four stages in the scale of pay of Rs.1460-60-2180 and a show cause notice was issued on 08.6.1990. The appellant gave his explanation to the said show cause notice for the provisional penalty and after considering the same, lenient punishment was imposed, as stated supra.
The appellant gave his explanation to the said show cause notice for the provisional penalty and after considering the same, lenient punishment was imposed, as stated supra. The appeal filed by the appellant before the Appellate Authority having not been disposed of, the appellant has filed writ petition before this Court in W.P.No.7492 of 2004 and pursuant to the direction issued by this Court on 23.12.2004, the Appellate Authority has passed an order on 28.2.2005 holding that the appellant could have avoided the allegations made against him, if he was more vigilant and the Appellate Authority agreed with the finding of the Enquiry Officer and also taking note of the lenient punishment imposed by the Disciplinary Authority, that is, reduction of one stage for a period of one year, thought fit not to interfere with the punishment imposed. The said orders were upheld by the learned single Judge. 5. The learned counsel appearing for the appellant contended that there was six years delay in initiating the disciplinary proceedings and there being no loss to the Corporation, the initiation of disciplinary proceedings itself is bad. The learned counsel further submitted that the superior officers, who were also responsible for sanction of the bill was not proceeded with and as such there was a discriminatory treatment insofar the appellant is concerned. 6. In answer to the said submissions, the learned counsel appearing for the Neyveli Lignite Corporation submitted that the delay point was not raised in the explanation submitted by the appellant and the appellant having accepted the mistake and prayed for pardon, the appellant cannot raise the issue of delay, particularly, having regard to opting for conducting enquiry and after full participation in the enquiry only, a finding of guilt was recorded and no prejudice is established. We are in full agreement with the said submission made by the learned counsel for the respondents, as the appellant has not shown any prejudice due to the alleged delay and he has also fully participated in the enquiry and the Enquiry Officer has also recorded a find of guilt of the appellant. 7. Insofar as the contention that no loss to the Corporation occurred, the learned counsel appearing for the respondent Corporation has submitted that a sum of Rs.2,18,066/- was given as advance pursuant to the measurement taken by the appellant.
7. Insofar as the contention that no loss to the Corporation occurred, the learned counsel appearing for the respondent Corporation has submitted that a sum of Rs.2,18,066/- was given as advance pursuant to the measurement taken by the appellant. Even though the said amount was adjusted in the final bill, the Contractor had enjoyed the said amount for ten months due to the wrong measurement made by the appellant. Therefore, there is a financial loss, though not to the tune of Rs.2,18,066/-. The said fact was also considered by the Disciplinary Authority, Appellate Authority as well as the learned single Judge. 8. Insofar as the contention that the superior officers were not proceeded, it is to be noted that the appellant was the field level officer, who made measurement and the same having been admitted by the appellant in his explanation to the charge memo at the first instance, the appellant cannot plead that the other officers are also to be proceeded with. Hence all the contentions raised by the learned counsel for the appellant deserves no consideration. The Disciplinary Authority and the Appellate Authority have rightly considered the issue raised before this Court and having regard to the lenient punishment imposed, the learned single Judge was right in not interfering with the punishment imposed by the Disciplinary Authority and the Appellate Authority, as it is well settled in law that imposing punishment is the function of the Disciplinary Authority and the Courts can interfere, if the punishment is disproportionate. The punishment awarded in this case is a minor punishment which is proportionate to the gravity of the delinquency. Hence, we are unable to find any reason to interfere with the order of the learned single Judge. 9. In the result, the writ appeal is dismissed. Since the punishment imposed was reduction of pay for one stage for a period of one year, on expiry of the said period of one year, the pay of the appellant shall be restored, if not already restored. No costs.