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2017 DIGILAW 1003 (ALL)

ANIL KUMAR SHARMA v. LIFE INSURANCE CORPORATION

2017-04-13

DAYA SHANKAR TRIPATHI, VIKRAM NATH

body2017
JUDGMENT Hon’ble Daya Shankar Tripathi, J.—By means of this writ petition filed under Article 226 of the Constitution, prayer has been made to issue writ in the nature of certiorari quashing the punishment order dated 30.5.2014 passed by the Disciplinary Authority (Annexure 20 to the writ petition) and appellate order dated 13.1.2015 passed by the Appellate Authority (Annexure 22 to the writ petition). 2. Facts giving rise to this writ petition, in brief, are that the petitioner was initially appointed as Development Officer in Life Insurance Corporation of India (hereinafter referred to as ‘the Corporation’). Later on, he was promoted to the post of Administrative Officer and thereafter promoted to the post of Senior Administrative Officer at Dehradun. While working at Dehradun, he received communication dated 22.11.2012 sent by the Executive Director (Personnel) referring to a complaint of Principal, Mariampur High School, Kanpur, wherein it was alleged that the petitioner accepted bribe of Rs. 37,500/- from the said Institution, while being posted there and he was directed to submit his explanation regarding the same. Petitioner submitted his explanation on 30.11.2012 and annexed a communication dated 26.11.2012 of Principal of the said Institution mentioning therein that the complaint was lodged against the petitioner due to some misguidance, which is not pressed. 3. A charge-sheet dated 12.12.2012 was served to the petitioner, wherein two charges were levelled against him, which are reproduced below : “Charge No. 1: That you demanded and accepted an amount of Rs. 37500/- as bribe from Sister Kripa, Principal, Mariampur High School, Kanpur against the first instalment of Rs. 150000/- released to the institution by the Corporation, of the sanctioned amount of Rs. 349275/- under LIC Golden Jubliee foundation for development of land as playground for indoor games and furniture of their school. Thus you have not only displayed lack of integrity but have also brought disrepute to the Corporation by your act. Charge No. 2: That you have coerced the complainant to withdraw the complaint against you.” 4. Petitioner submitted his reply dated 27.12.2012, against the charge-sheet served upon him. Thus you have not only displayed lack of integrity but have also brought disrepute to the Corporation by your act. Charge No. 2: That you have coerced the complainant to withdraw the complaint against you.” 4. Petitioner submitted his reply dated 27.12.2012, against the charge-sheet served upon him. Enquiry was conducted by the Enquiry Officer and Enquiry Officer submitted the enquiry report dated 17.5.2013 with finding that although there are circumstantial evidence against the petitioner, which leads to suspicion of having acceptance of bribe by the petitioner and withdrawal of complaint by Sister Kripa due to coercion, but there is no concrete evidence to establish the same. Relevant portion of the report is reproduced below : “Though there are circumstantial evidence which leads to the suspicion of having acceptance of bribe by CSO, Shri A.K. Sharma and withdrawal of complaint by Sister Kripa due to coercion, but there is no concrete evidence/document to prove that Mr. Sharma had demanded and accepted the bribe of Rs. 37500/- from Sister Kripa, Principal of Mariampur High School, Kanpur and that Mr. Sharma has coerced the complainant to withdraw the complaint. The charge No. 1 and 2 are not fully proved.” 5. Enquiry report was sent to the petitioner, against which he submitted his reply dated 14.6.2013. After considering the enquiry report and reply submitted by the petitioner, the Disciplinary Authority passed order dated 23.7.2013 and remitted the case back to Enquiry Officer for conducting the enquiry afresh. Same Enquiry Officer was appointed to conduct the enquiry and same Presenting Officer was directed to present the case. Enquiry Officer conducted the enquiry afresh and submitted his enquiry report dated 20.12.2013 with finding that both the charges levelled against the petitioner are proved. 6. Show-cause notice dated 1.3.2014 was served upon the petitioner alongwith the enquiry report dated 20.12.2013. Petitioner submitted his reply dated 11.4.2014 against the show-cause notice and enquiry report. After considering the enquiry report and reply submitted by the petitioner, the Disciplinary Authority passed order dated 30.5.2014, whereby punishment of reversion to lower cadre to the post of Administrative Officer in the minimum of the time scale was awarded against the petitioner. Petitioner submitted his reply dated 11.4.2014 against the show-cause notice and enquiry report. After considering the enquiry report and reply submitted by the petitioner, the Disciplinary Authority passed order dated 30.5.2014, whereby punishment of reversion to lower cadre to the post of Administrative Officer in the minimum of the time scale was awarded against the petitioner. Relevant portion of the punishment order is reproduced below : “NOW, THEREFORE, I, the Disciplinary Authority, order that the penalty of “Reversion to the lower cadre in the post of Administrative Officer in the minimum of the time scale applicable to the cadre of Administrative Officer” in terms of Regulation 39 1 (d) of the LIC of India (Staff) Regulations, 1960 be and is hereby imposed on Shri A.K. Sharma” 7. An appeal was preferred by the petitioner against the aforesaid punishment order dated 30.5.2014 passed by the Disciplinary Authority. The Appellate Authority disposed of the said appeal vide order dated 13.1.2015 and modified the punishment order passed by the Disciplinary Authority by substituting punishment of reduction to lower post of Administrative Officer at stage five of the time scale. Relevant portion of the appellate order is reproduced below : “With my aforesaid observations, I find that the contentions raised by the Appellant in his appeal dated 25.6.2014 has no merit. However considering the overall facts and circumstances of the case, I am inclined to modify the penalty of “Reversion to the lower cadre in the post of Administrative Officer in the minimum of the time scale applicable to the cadre of Administrative Officer” imposed upon Shri A.K. Sharma in terms of Regulation 39(1)(d) of the LIC of India (Staff) Regulations, 1960 vide order dated 30.5.2014 by the Disciplinary Authority to that of “Reduction to Lower Post of Administrative Officer at stage Five of the time scale” in terms of Regulation 39(1)(d) of the LIC of India (Staff) Regulations, 1960. NOW THEREFORE, I order that the Appeal dated 25.6.2014 preferred by Shri A.K. Sharma, S.R.No. 209957 be and is hereby disposed of accordingly.” 8. The aforesaid punishment order dated 30.5.2014 and appellate order dated 13.1.2015 are under challenge to this writ petition. 9. Counter and rejoinder-affidavits have been exchanged. 10. NOW THEREFORE, I order that the Appeal dated 25.6.2014 preferred by Shri A.K. Sharma, S.R.No. 209957 be and is hereby disposed of accordingly.” 8. The aforesaid punishment order dated 30.5.2014 and appellate order dated 13.1.2015 are under challenge to this writ petition. 9. Counter and rejoinder-affidavits have been exchanged. 10. We have heard the rival arguments advanced by Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare, learned counsel for the petitioner, Sri Manish Goyal, learned counsel for the respondent-Corporation and perused the material placed on record. 11. Learned Senior Counsel for the petitioner Sri Khare submitted that once an enquiry report was submitted by the Enquiry Officer, the Disciplinary Authority could not direct for conducting the enquiry afresh. He further submitted that no list of witnesses was mentioned in the charge-sheet and complainant Sister Kripa appeared during the enquiry proceedings all of a sudden, due to which prejudice has been caused to the petitioner as he was not having knowledge to the fact that this witness is to be examined during the enquiry proceedings. He further submitted that Sister Vimal has not been examined during the course of enquiry, before whom bribery is alleged to have been given to the petitioner. He further submitted that the complaint has been withdrawn by the complainant and there was no evidence against the petitioner, but the enquiry report has been submitted against the petitioner on the basis of mere presumption. He further submitted that the punishment order passed against the petitioner is without application of mind and punishment order passed by the Disciplinary Authority is disproportionate. He lastly submitted that the writ petition deserves to be allowed. 12. Learned counsel for the respondent-Corporation submitted that the Disciplinary Authority is empowered to issue direction for conducting the enquiry afresh, non-disclosure of name of Sister Kripa in the charge-sheet cannot be said to be any way causing prejudice to the petitioner and it is discretion of the Department to produce required number of witnesses during the course of enquiry. He further submitted that the complainant has withdrawn the complaint on request of the petitioner and that too after receiving back the amount of bribery, which cannot negate the fact of bribery taken by the petitioner. He further submitted that the complainant has withdrawn the complaint on request of the petitioner and that too after receiving back the amount of bribery, which cannot negate the fact of bribery taken by the petitioner. He further submitted that the Disciplinary Authority has passed the punishment order after considering the enquiry report submitted by the Enquiry Officer and reply submitted by the petitioner and punishment order is quite reasoned and speaking and the punishment order passed by the Disciplinary Authority is quite proportionate to the charges found to be proved against the petitioner. He lastly submitted that the writ petition is liable to be dismissed. 13. First and foremost argument advanced by the learned counsel for the petitioner is that once enquiry report was submitted by the Enquiry Officer and charges levelled against the petitioner were not found to be proved, the Disciplinary Authority was not empowered to direct the Enquiry Officer for conducting the enquiry afresh. 14. It is noteworthy that although the Enquiry Officer mentioned in his report that Charge Nos. 1 and 2 levelled against the petitioner are not fully proved, but he mentioned in his conclusion that there are circumstantial evidence, which leads to the suspicion of having acceptance of bribe by the petitioner and withdrawal of complaint by Sister Kripa due to coercion, but there is no concrete evidence against the same. The Disciplinary Authority made two observations in his order dated 23.7.2013 that prosecution documents are not admitted by the CSO and taken on record by the EO during the course of enquiry proceedings and secondly the PO has cross-examined the CSO at the first regular hearing, which is against the principles of natural justice and directed to the same Enquiry Officer to conduct the enquiry afresh. It is also noteworthy that the same Presenting Officer was directed to present the case of Department during the course of enquiry. Thus, it is crystal clear that neither the Enquiry Officer nor the Presenting Officer were changed by the Disciplinary Authority for conducting the enquiry afresh. 15. Learned counsel for the petitioner has relied upon CSHA University and another v. B.D. Goyal, (2010) 15 SCC 776, in which it has been held by the Apex Court that denovo enquiry cannot be ordered without recording reasons for disagreeing with enquiry report, which was in favour of the delinquent employee. 15. Learned counsel for the petitioner has relied upon CSHA University and another v. B.D. Goyal, (2010) 15 SCC 776, in which it has been held by the Apex Court that denovo enquiry cannot be ordered without recording reasons for disagreeing with enquiry report, which was in favour of the delinquent employee. Relevant portion of the report is reproduced below : “7. It is no doubt true that the punishing authority or any higher authority could have disagreed with the finding of the enquiring officer, but in such a case the authority concerned is duty-bound to record reasons in writing and not on ipse dixit can alter the finding of an enquiring officer......” 16. We find from the record that Disciplinary Authority has recorded reasons for directing the Enquiry Officer to conduct the enquiry afresh, in the present case, mentioning the aforesaid two grounds. Hence, the aforesaid case law is not applicable to the facts and circumstances of this case. 17. In Union of India and others v. P. Thayagarajan, (1999) 1 SCC 733 , it has been held by the Apex Court that Disciplinary Authority is empowered to pass order for conducting enquiry afresh. Relevant portion of the report is reproduced below : “9. The reasoning adopted by the Division Bench of the High Court was plainly incorrect. Whatever may be the powers of the appellate authority, the disciplinary authority will have to be satisfied with the procedure adopted by the enquiry officer before passing an order. It does not stand to logic that in a given case, the appellate authority could order a fresh enquiry and not the disciplinary authority at whose instance the enquiry began and which is not satisfied with the enquiry held for some vital defects in the procedure adopted. Therefore the order made by the High Court cannot be sustained. The same stands set aside and we allow the appeal and dismiss the writ petition filed by the respondent.” 18. Considering the aforesaid facts and circumstances of this case and law laid down by the Apex Court in the aforesaid cases, we are of the view that the order dated 23.7.2013 passed by the Disciplinary Authority for conducting the enquiry afresh is based on reasons, which cannot be said to be illegal in any way. Considering the aforesaid facts and circumstances of this case and law laid down by the Apex Court in the aforesaid cases, we are of the view that the order dated 23.7.2013 passed by the Disciplinary Authority for conducting the enquiry afresh is based on reasons, which cannot be said to be illegal in any way. Accordingly, we find no force in the aforesaid argument advanced by the learned counsel for the petitioner that the Disciplinary Authority could not pass order for conducting the enquiry afresh. 19. Next argument advanced by the learned counsel for the petitioner is that charge-sheet served upon the petitioner did not disclose the name of complainant Sister Kripa to be examined during the course of enquiry as witness and the said witness was examined by the Department all of a sudden, for which the petitioner was not ready, resulting to cause prejudice to the petitioner. 20. It is noteworthy that the name of aforesaid witness Sister Kripa was known to the petitioner from very beginning of the matter. She is the complainant in the case, who made allegations against the petitioner that he demanded and accepted an amount of Rs. 37,500/- as bribe from her, in lieu of installment of Rs. 1,50,000/- released to the Institution. In the very beginning, reply of the petitioner was sought by the Department on the aforesaid complaint of Sister Kripa, to which reply was submitted by the petitioner and thereafter charge-sheet was served upon the petitioner. He procured communication dated 26.12.2012 from the complainant and thereafter submitted his reply against the charge-sheet. Hence, it cannot be said that the name of this witness came within the knowledge of the petitioner during the course of enquiry, due to which prejudice was caused to the petitioner. Hence, we do not find any force in the aforesaid argument advanced by the learned counsel for the petitioner that prejudice was caused to the petitioner due to aforesaid fact. 21. Next argument advanced by the learned counsel for the petitioner is that Sister Vimal has not been produced during the course of enquiry and her statement has not been recorded, who is said to be present at the time when the amount of bribery is alleged to have been taken by the petitioner. According to him, Sister Vimal is an important witness, who has been withheld by the Department during the course of enquiry. According to him, Sister Vimal is an important witness, who has been withheld by the Department during the course of enquiry. On the other hand, learned counsel for the respondent-Corporation submitted that it is immaterial how many witnesses have been examined by the Department during the course of enquiry, rather preponderance of probability and some material on record are necessary to arrive at the conclusion whether the delinquent employee has committed misconduct or not. 22. In Lalit Popli v. Canara Bank and others, (2003) 3 SCC 583 , it has been held by the Apex Court that the technical rules of evidence are not applicable in departmental enquiry and doctrine of proof beyond doubt is also not applicable in such proceedings. Relevant portion of the report is reproduced below : “16. .........The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K. Meena). In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of “proof beyond doubt” has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.” 23. In U.P. State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey and others, (1999) 1 SCC 741 , it has been held by the Apex Court that procedure of trial in a criminal case or a civil suit is not applicable in the matter of enquiry proceedings and rule of natural justice is required to be observed in the enquiry proceedings. Relevant portion of the report is reproduced below : “It will be seen that all the requirements for the initiation and conclusion of the disciplinary proceedings have been followed in the present case and rules of natural justice observed. Proceedings against the respondents were initiated on the reports of the officers under whom they were working and these reports formed part of the evidence in the proceedings. An inquiry proceedings is not held as if it is a trial in a criminal case or as if it is a civil suit. Rules of natural justice require that a party against whom an allegation is being inquired into should be given a hearing and not condemned unheard. An inquiry proceedings is not held as if it is a trial in a criminal case or as if it is a civil suit. Rules of natural justice require that a party against whom an allegation is being inquired into should be given a hearing and not condemned unheard. As to what are the rules of natural justice to be followed in a particular case would depend upon the circumstances in each case and must also depend on the provisions of law under which the charges are being inquired into in the disciplinary proceedings. In Nagendra Nath Bora and another v. Commr. of Hills Division and Appeals, Assam and others ( AIR 1958 SC 398 at p.409) this Court held that “the rules of natural justice very with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened should be decided not under any pre-conceived notions, but in the light of the statutory rules and provisions.” The respondents were apprised of the evidence against each of them and given opportunity of being heard in person and also to produce evidence in defence. Nothing more was required on the part of the inquiry officer. Procedure after the receipt of the reports of the enquiry officer was followed as prescribed. in our view, the High Court, therefore, fell in error in returning a finding that the rules of natural justice or the Regulations and Service Rules which are statutory in nature have not been followed.” 24. In State of Mizoram and another v. B.D. Thakur, (2003) 12 SCC 268 , it has been held by the Apex Court that if enquiry report is supported by the oral evidence, it should not be interfered with on the ground that the extent has not been examined. Relevant portion of the report is reproduced below : “4. Having heard the learned counsel for the parties and on examining the order of the disciplinary authority which was based upon the findings arrived at by the enquiring officer and on scrutiny of the judgment of the learned Single Judge, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the finding of guilt arrived at by the disciplinary authority. On the basis of the findings arrived at by the enquiring officer, the Division Bench of the High Court has itself in its order stated that there were ample evidence in support of the conclusion and if the finding is supported by oral evidence the same need not and should not have been interfered with on the ground that the extent has not been examined..........” 25. We find from the record that charge-sheet was duly served upon the petitioner, to which reply was submitted by him and proper opportunity of hearing was afforded to the petitioner during the course of enquiry and principles of natural justice was followed by the Enquiry Officer. After considering reply submitted by the petitioner, and the enquiry report, punishment order has been passed by the Disciplinary Authority. According to facts and circumstances of this case, we are of the view that no prejudice has been caused to the petitioner merely on the ground that aforesaid witness Sister Vimal has not been produced by the Department during the course of enquiry proceedings. 26. Next argument advanced by the learned counsel for the petitioner is that the complainant has withdrawn her complaint subsequently by letter dated 26.11.2012 stating that the complaint was lodged against the petitioner due to some misguidance and she has supported her aforesaid letter dated 26.11.2012, by her subsequent letters dated 26.12.2012 (Annexure 4 to the writ petition), 26.9.2013 and 3.10.2013 (collectively Annexure 23 to the writ petition). It has been further submitted that there was no evidence in the enquiry proceedings and enquiry report submitted by the Enquiry Officer is based on presumptions. 27. We further find from the record that the Enquiry Officer has recorded finding at page 12 of the enquiry report that the complainant stood by her complaint dated 10th September, 2012, during the course of enquiry. Relevant portion of the enquiry report is reproduced below : “Ex-P-14 (i & ii), P-19 & P-20 are owned by the writer of documents Sister Kripa on the proceedings dated 9.10.2013 through her written statement which speaks as under: “1. We stand by our complaints dated 10th Sept. 2012. 2. We also stand by a certificate dated 3rd Nov. 2012. 3. We also stand by the voucher generated to draw the money on 14th Jan. 2010 to pay said professional charge to Mr. Anil Sharma.” 28. We stand by our complaints dated 10th Sept. 2012. 2. We also stand by a certificate dated 3rd Nov. 2012. 3. We also stand by the voucher generated to draw the money on 14th Jan. 2010 to pay said professional charge to Mr. Anil Sharma.” 28. We further find from the record that the Enquiry Officer has recorded findings at page 15 of the enquiry report that Sister Kripa explained in her statement, the reasons for withdrawal of the complaint, which is reproduced below : “4. We also stand by the letter dated on 26.11.2012 concerning the withdrawal of the complain. Since money was return we had not further complaint. 5. One day Mr. Anil Sharma visited us and expressed that the letter given by us dated 26.11.2012 do not serve his purpose and he needed a detailed one under influence we drafted another one on 26.12.2012 of which one copy was given to Mr. Anil Sharma.” 29. We further find from the record that the Enquiry Officer has recorded findings in his report at page 15 that the witness Sister Kripa mentioned in her statement that Mr. Sharma visited her for mercy and later on money was received back. Relevant portion of report is reproduced below : “After few days from the date of complaint Mr. Sharma visited us for mercy and later on we received the money back through the person said to be sent by Mr. Anil Sharma.” 30. Accordingly, Enquiry Officer collected evidence during the enquiry to the effect that the complainant stood by her complaint against the petitioner and complaint was withdrawn by her as money was received back. 31. Considering the aforesaid facts and circumstances of this matter, we are of the view that enquiry report submitted by the Enquiry Officer is based on evidence collected during the enquiry proceedings and there is no force in the aforesaid arguments advanced by the learned counsel for the petitioner that the enquiry report is based on presumptions. 32. Next argument advanced by the learned counsel for the petitioner is that the punishment order passed by the Disciplinary Authority is non-speaking and without application of mind, which cannot be sustained in the eye of law. 32. Next argument advanced by the learned counsel for the petitioner is that the punishment order passed by the Disciplinary Authority is non-speaking and without application of mind, which cannot be sustained in the eye of law. Learned counsel for the petitioner has relied upon Allahabad Bank and others v. Krishna Narayan Tewari, (2017) 2 SCC 308 , in which it has been held by the Apex Court that non application of mind by the Enquiry Officer or the Disciplinary Authority, non recording of reason in support of conclusion arrived at by them are also grounds on which the writ Courts are justified in interfering with the orders of punishment. Relevant portion of the report is reproduced below : “Non-application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ Courts are justified in interfering with the orders of punishment.” 33. We find from the record that report of Enquiry Officer is based upon evidence collected during the enquiry proceedings and reasons have been recorded by the Enquiry Officer to arrive at the conclusion that charges levelled against the petitioner are found to be proved. We further find from the record that the Disciplinary Authority has considered the enquiry report and reply submitted by the petitioner and punishment order is speaking and based on reasonings. We are of the view that the aforesaid case law relied upon by the learned counsel for the petitioner is not applicable in the facts and circumstances of this case. 34. Learned counsel for the petitioner has lastly submitted that the punishment order passed against the petitioner is harsh and disproportionate to the charges levelled against him. 35. In the case of Ranjit Thakur v. Union of India and others, (1987) 4 SCC 611 , it has been held by the Apex Court that the sentence has to suit the offence and the offender and it should not be vindictive or unduly harsh. The relevant portion reported in paragraph No. 25 is reproduced below: “....The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. The relevant portion reported in paragraph No. 25 is reproduced below: “....The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proprotionality, as part of the concert of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.” 36. We find from the record that the charges levelled against the petitioner have been found to be proved by the Enquiry Officer that he demanded and accepted an amount of Rs. 37,500/- as bribe from an Educational Institution and coerced the complainant to withdraw the complaint against him. Petitioner was holding the post of Administrative Officer in the Department of Life Insurance Corporation of India, dealing with public work. Charges proved against the petitioner are serious in nature. After considering the enquiry report and reply submitted by the petitioner, the Disciplinary Authority passed punishment order of reversion to the lower cadre in the post of Administrative Officer in the minimum of the time scale applicable to the cadre of Administrative Officer, against the petitioner and considering the entire facts and circumstances of this case, the Appellate Authority substituted the punishment order passed by the Disciplinary Authority, to punishment of reduction to Lower Post of Administrative Officer at stage Five of the time scale. The Department has already taken a lenient view in awarding punishment against the petitioner. We are of the view that the punishment order passed against the petitioner is not so disproportionate to the charges found to be proved against him, as to shock the conscience. We do not find any force in the aforesaid argument advanced by the learned counsel for the petitioner that the punishment order passed against the petitioner is harsh and disproportionate. 37. For all the reasons mentioned hereinabove, we are of the considered opinion that the writ petition lacks merit and is liable to be dismissed. We do not find any force in the aforesaid argument advanced by the learned counsel for the petitioner that the punishment order passed against the petitioner is harsh and disproportionate. 37. For all the reasons mentioned hereinabove, we are of the considered opinion that the writ petition lacks merit and is liable to be dismissed. It is dismissed accordingly.