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2016 DIGILAW 3546 (ALL)

SHRAWAN KUMAR v. STATE OF U. P.

2016-10-24

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is a class-IV employee in the office of the District Magistrate, Unnao. He has instituted this writ proceeding for issuance of a writ of certiorari to quash an order passed by the District Magistrate dated 27th June, 2013 whereby he has been reverted to lower scale and his salary from 12.5.1993 to 14.3.1995 has been denied on the ground of no work no pay. 2. A brief reference to the factual aspects would suffice. 3. The petitioner is a class-IV employee and earlier he was the President of the Class-IV Employees’ Union also. He was transferred vide order dated 31.8.1991 from Unnao to Tehsil - Safipur. Later, he moved an application for modification of his transfer. Upon such representation, the District Magistrate modified his transfer order on 28.9.1991 whereby the petitioner was asked to join at Tehsil - Purwa in place of Tehsil - Safipur. It appears that when the petitioner did not join, an order was issued by the District Magistrate on 11.10.1991 directing the petitioner to join at the new place of posting immediately. 4. It appears that the petitioner complied the said order. He joined at the new place of posting i.e. at Purwa. He was subjected to disciplinary proceedings on the ground that he has furnished an inflated traveling bill wherein a charge-sheet was furnished upon him on 30.4.2012 containing five charges. In fact the principal charge against the petitioner is that he has submitted a bill of Rs. 1107.30/- wherein he has shown that he has transported his household goods by a tractor on 1.10.1991, 2.10.1991, 8.10.1991 and lastly on 24.10.1991. It is stated that each time he had demanded a sum of Rs. 200/- thus the total bill was of Rs. 1000/-. The second charge also relates to the same allegation that the enquiry reveals that he did not carry his goods and he was not living at Purwa thus without any actual transportation he submitted fake bills. The third charge is also in respect of the same allegation that he did not disclose name of the owner of the tractor and his address, thus the said bill is a fabricated document. The third charge is also in respect of the same allegation that he did not disclose name of the owner of the tractor and his address, thus the said bill is a fabricated document. The fourth charge is in respect of a letter sent by him whereby he has threatened the authorities concerned to make payment of the said bill and in case the payment is not made, he would take legal action against the authority concerned. The fifth charge is that he wrote a letter to the District Magistrate on 30.3.1992 that if his bill is not paid by 6.4.1992 he will sit for hunger strike on 7.4.1992 at 10.30 a.m. at the office of the District Magistrate and on the said date he actually sat on hunger strike which, in the opinion of the employer, was contrary to the provisions of the U.P. Government Servants Conduct Rules. 5. The petitioner submitted his reply on 7.5.2012. The main defence taken by him was that he was transferred three times and the bill submitted by him was not fake bill. Moreover, the report submitted by the Tehsildar against him is under the pressure of the District Magistrate. The enquiry officer found that all the charges are proved and the petitioner was dismissed from services on 10.5.1993. 6. The petitioner, aggrieved by the dismissal order, preferred Writ Petition No. 3951 (S/S) of 1993, wherein an interim order dated 15.5.1993. 7. It appears that after the interim order was passed by this Court, the petitioner sent a letter under the registered cover on 21.5.1993 to the authority concerned and when the order was not complied with he sent a reminder on 10.6.1993. Eventually, on 19.3.1995 the respondents allowed the petitioner to join in compliance of the order passed by this Court. 8. The aforesaid writ petition of the petitioner was allowed by this Court on 21.12.2011 and the matter was remitted back to the competent authority leaving it open to the competent authority/opposite party No. 2 therein, to proceed afresh from the stage of issuing of charge-sheet in accordance with law. 8. The aforesaid writ petition of the petitioner was allowed by this Court on 21.12.2011 and the matter was remitted back to the competent authority leaving it open to the competent authority/opposite party No. 2 therein, to proceed afresh from the stage of issuing of charge-sheet in accordance with law. In compliance thereof the respondents conducted a fresh enquiry and again found the petitioner guilty of submitting false bill and all the five charges were found to be proved and he was reverted to the lower pay scale with a further punishment of denying the salary from 12.5.1993 to 14.3.1995 which was not paid to him on the basis of no work no pay. 9. When, in spite of the aforesaid service, the order of this Court was not complied with, the petitioner preferred Contempt Petition No. 1280 of 2013. In the said contempt petition the respondents were found guilty and the Court recorded a finding that due regard was not given to the order of this Court and a cost of Rs. 5,000/- was imposed by this Court. Relevant part of the order dated 22.7.2013 passed in the aforementioned contempt petition reads as under: “Delay in implementing the order of this Court has been explained only after February, 2013, when the deponent joined as District Magistrate, Unnao. The delay earlier to 2013 remains unexplained. It appears that due regard was not given to order of this Court. Considering the totality of the facts and circumstances of the case, cost amounting to Rs. 5,000/- (rupees five thousand) is hereby imposed to be deposited to Awadh Bar Association payable in fifteen days from today. It is made clear that the cost amount shall be recovered from the officer/official, who is found responsible for delay in implementing the order of this Court.” 10. I have heard learned counsel for the petitioner and the learned Standing Counsel. 11. Learned counsel for the petitioner contended that the charges are not proved as the petitioner was transferred three times, therefore, he raised the bills for three transfers separately and the enquiry officer has wrongly recorded a finding that the charges are proved. It is also submitted by the learned counsel for the petitioner that the petitioner resorted to hunger strike when his bill was not cleared by the authority concerned. 12. It is also submitted by the learned counsel for the petitioner that the petitioner resorted to hunger strike when his bill was not cleared by the authority concerned. 12. Learned Standing Counsel has drawn the attention of the Court to paragraph-11 of the counter-affidavit wherein it is mentioned that the Tehsildar has made an enquiry and found that the petitioner was not living at Purwa where he was transferred and he has submitted fake bills. 13. I have considered the rival submissions and perused the record. 14. The petitioner was furnished a charge-sheet dated 30.4.2012 wherein five chargeses were framed against him. The charge Nos. 1 to 4 relate to misconduct of the petitioner of furnishing false bills. It appears that the petitioner has submitted three separate bills showing that he has carried his household goods on 1.11.1991, again he submitted a bill to bring all his goods back and the third bill he has raised that again he was transferred. In reply to the charge-sheet the petitioner has not denied the charge No. 1 effectively. He has taken evasive and general stand that the Tehsildar has submitted his report under the pressure of the District Magistrate. 15. From the record it is also evident that in respect of the reply to the charge-sheet and his T.A. bill, he did not examine any witness in his support. The defence of the petitioner that he was transferred three times is totally incorrect. In fact he was transferred on 31.8.1991 from Unnao to Safipur. He made an application to modify his transfer order and on his application the transfer order was modified on 28.9.1991 whereby instead of Safipur he was asked to join at Purwa. On 11.10.1991 an order was sent to the petitioner to comply the transfer order and join at the new place of posting at Purwa. These facts clearly indicate that the defence of the petitioner that he was transferred three times and, therefore, he has raised the bills accordingly, is not correct. 16. Learned counsel for the petitioner has also repeated the same statement that the petitioner in a short span of time was transferred as many as three times. These facts clearly indicate that the defence of the petitioner that he was transferred three times and, therefore, he has raised the bills accordingly, is not correct. 16. Learned counsel for the petitioner has also repeated the same statement that the petitioner in a short span of time was transferred as many as three times. However, from a perusal of annexure-9 the orders dated 31.8.1991, 28.9.1991 and 11.10.1991 it is evident that the petitioner was not transferred three times but by the order dated 28.9.1991 his transfer order dated 31.8.1991 was only modified, and by the order dated 11.10.1991 he was asked to join at the new place of posting immediately. Hence, I find that the findings recorded by the enquiry officer and the disciplinary authority that the charges are proved, do not warrant any interference under Article 226 of the Constitution. 17. Moreover, the charge No. 5 that the petitioner resorted to hunger strike has not been denied. It is a well-settled law that the disciplinary authority is an appropriate authority to award punishment. The High Court under Article 226 of the Constitution could interfere with the findings recorded in the departmental enquiry where the findings are based on no legal evidence or where the conclusion, on the very face of it, is so arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. But if there is some evidence which has been accepted by the enquiry officer and which may reasonably supports the conclusion that the delinquent is guilty of the charge, it is not the function of the High Court to sit as a Court of appeal and review the evidence and to arrive at independent findings on the evidence. The Court may interfere if the proceedings have been found to be held in a manner inconsistent with the principles of natural justice or in violation of statutory rules. 18. It is also held that an error of law can be corrected by a writ Court, but not an error of fact however it may grave be. The Supreme Court in the case of State of Andhra Pradesh and others v. Chitra Venkata Rao, AIR 1975 SC 2151 , has held as under: “21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. The Supreme Court in the case of State of Andhra Pradesh and others v. Chitra Venkata Rao, AIR 1975 SC 2151 , has held as under: “21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao ( AIR 1963 SC 1723 ). First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a Court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226. 23.The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate Court. The findings of fact reached by an inferior Court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan ( AIR 1964 SC 477 ).” 19. The Supreme Court has considered the aforesaid judgement in the case of Chairman-cum-Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others, (2009) 15 SCC 620 . Similar view was taken by the Supreme Court in the case of State of Andhra Pradesh and others v. S. Sree Rama Rao, AIR 1963 SC 1723 , wherein the Court has held as under: “7. Similar view was taken by the Supreme Court in the case of State of Andhra Pradesh and others v. S. Sree Rama Rao, AIR 1963 SC 1723 , wherein the Court has held as under: “7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.” 20. A similar view has also been taken by the Supreme Court in the case of State Bank of India v. Ram Lal Bhaskar and another, (2011) 10 SCC 249 , wherein the Court has held as under: “13. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not reappreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent No. 1 do not constitute any misconduct and that the respondent No. 1 was not guilty of any misconduct.” 21. The Supreme Court in the case of Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao, (2012) 1 SCC 442 , has held thus: “31. The instant case requires to be examined in the light of the aforesaid settled legal proposition and keeping in view that judicial review is concerned primarily with the decision-making process and not the decision itself. More so, it is a settled legal proposition that in a case of misconduct of grave nature like corruption or theft, no punishment other than the dismissal may be appropriate. (Vide Pandiyan Roadways Corpn. Ltd. And U.P. SRTC v. Suresh Chand Sharma, (2010) 6 SCC 555 )” 22. In view of the above, I do not find any ground to interfere in the punishment awarded to the petitioner. (Vide Pandiyan Roadways Corpn. Ltd. And U.P. SRTC v. Suresh Chand Sharma, (2010) 6 SCC 555 )” 22. In view of the above, I do not find any ground to interfere in the punishment awarded to the petitioner. As regards the finding of the disciplinary authority that the petitioner would not be entitled to get salary from 12.5.1993 to 14.3.1995, I find that the said direction is contrary to law. This Court on 15.5.1993 had stayed the termination order dated 10.5.1993. In spite of the order of this Court, the respondents have not permitted the petitioner to join and after his repeated requests he was allowed to join only in the year 1995. 23. It is a well-settled law that if action of the authority is contrary to an interim order passed by this Court, such action is void. Reference may be made to the judgement of the Supreme Court in the case of Delhi Development Authority Authority v. Skipper Construction Co. (P) Ltd. and another, (1996) 4 SCC 622 . In the said case the Supreme Court has held as under: “18. The above principle has been applied even in the case of violation of orders of injunction issued by Civil Courts. In Clarke v. Chadburn Sir Robert Megarry V-C observed: “I need not cite authority for the proposition that it is of high importance that orders of the Court should be obeyed. Willful disobedience to an order of the Court is punishable as a contempt of Court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some change in the rights and liabilities of others, I cannot see why it should be said that although they ere liable to penalties for contempt of Court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.” 19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Limited v. S.Suppiah and Sujit Pal v. Prabir Kumar Sun. In Century Flour Mills Ltd. it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the Court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognize that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order. 20. In Sujit Pal a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the Court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law. 21. There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. This was necessary, it observed, to prevent the abuse of process of law. 21. There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give away. The Court must ensure full justice between the parties before it. Claims of Prabhjot Singh and Prabhjit Singh (Sons of Tejwant Singh)” 24. The Supreme Court has considered the aforementioned judgment in the case of Rajeshwar Singh v. Subrata Roy Sahara and others, (2014) 14 SCC 257 and Bihar State Government Secondary School Teachers Association v. Ashok Kumar Sinha and others, (2014) 7 SCC 416 , wherein the Court has held that if any action is taken against the interim order, same cannot be countenanced and it is a duty of the Court to bring the parties to the position at the time of passing of an interim order. 25. When the petitioner was not allowed to join, he had filed a contempt petition. In the contempt petition it was found that the respondents have failed to explain the delay in complying the order and they were found guilty hence a cost of Rs. 5000/- was imposed upon them. 26. In view of the above, I find that the respondents cannot take advantage of their own wrong. They did not comply the interim order and thereafter they have denied the salary on the ground of ‘’no work no pay’. In such situation, the Supreme Court has held that the principle of no work no pay would not be applicable where the employee is ready to work but the employer refused to permit to the employee to work. In that event, such principle is not applicable. Accordingly, I find that the petitioner is entitled for salary from 12.5.1993 to 14.3.1995. The same shall be paid to the petitioner within three months from the date of communication of this order. 27. It is open to the State Government to recover the said amount from the salary which is paid to the petitioner from the officer who had refused the petitioner to join in the year 1993. The State Government may also recover the said amount from the officer even if he has retired, after giving him opportunity of hearing. 27. It is open to the State Government to recover the said amount from the salary which is paid to the petitioner from the officer who had refused the petitioner to join in the year 1993. The State Government may also recover the said amount from the officer even if he has retired, after giving him opportunity of hearing. 28. With the aforesaid observations the writ petition is partly allowed. 29. No order as to costs.