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2017 DIGILAW 1244 (ALL)

Suresh Ram v. U. P. Power Corporation Ltd.

2017-05-10

S.N.SHUKLA, SHEO KUMAR SINGH-I

body2017
JUDGMENT Sheo Kumar Singh-I, J. 1. Heard Dr. L.P. Mishra, Advocate, assisted by Mr. S.K. Upadhyay, learned counsel for the petitioner, as well as Mr. S.K. Kalia, Senior Advocate, assisted by Mr. Amit Kumar Singh Bhadauriya, learned counsel for respondents. 2. By means of the present writ petition filed under Article 226 of the Constitution of India the petitioner has challenged the order dated 15.02.2014 (Annexure No. 1 to the writ petition) issued by the Managing Director, U.P. Power Corporation Limited, whereby the petitioner was held guilty of misconduct and was punished by way of censure entry and deduction of amount equal to three increments. It has further been prayed to issue a writ, order or direction in the nature of certiorari quashing the impugned charge sheet dated 17.03.2006 communicated to the petitioner vide letter dated 18.03.2006 and to consider the candidature of the petitioner for promotion as Director (Distribution), U.P. Power Corporation Limited, Shakti Bhawan, Lucknow. 3. The brief facts giving rise to filing of the present writ petition are that the petitioner was initially appointed as Assistant Engineer at Obra on 31.05.1982 and was promoted to the post of Executive Engineer with effect from 01.06.1991. In due course of time the petitioner was promoted to the post of Superintending Engineer and again as Deputy General Manager (Distribution), U.P. Power Corporation Limited at Electricity Distribution Circle, Hardoi. While working on the post of Deputy General Manager at Electricity Distribution Circle, Hardoi, from 2001 to July 2002, a forged purchase order amounting to Rs. 6,34,905/- was issued in favour of M/s. Naman Traders, Sitapur. After scrutiny of papers and inquiry, it was found that the aforesaid purchase order was a forged order causing heavy pecuniary loss to the Corporation and as such a disciplinary proceeding was initiated against the petitioner. The matter was directed to be inquired by an Enquiry Committee constituted under Clause 6 of the U.P. State Electricity Board (Officers & Servants) (Condition of Service) Regulation, 1975 and copy of the charge sheet was issued to the petitioner. The matter was directed to be inquired by an Enquiry Committee constituted under Clause 6 of the U.P. State Electricity Board (Officers & Servants) (Condition of Service) Regulation, 1975 and copy of the charge sheet was issued to the petitioner. After considering the inquiry report, it was found by the department that loss caused to the Exchequer or to the Department was not considered by the Committee, thus, the matter was again referred to the Enquiry Committee II after approval of the competent authority and the Enquiry Committee, after giving an opportunity of hearing to the petitioner and recording the statement of the relevant witnesses, submitted the report in which the petitioner was found guilty of dereliction of duties and committed the act in connivance of the Proprietor of M/s. Naman Traders causing huge financial loss to the Corporation. By the impugned order, the petitioner was punished with censure entry and deduction of an amount equal to three increments. Due to the report of the Committee and the punishment order, the candidature of the petitioner was not considered for promotion to the higher post, thus, the present writ petition. 4. While filing the counter affidavit the respondents have submitted that while working as Deputy General Manager in District Hardoi the petitioner forwarded the forged purchase order for payment amounting to Rs. 6,34,905/- in the name of M/s. Naman Traders, Sitapur, and it was sent to Executive Engineer, Electricity Distribution Division II, Hardoi, for payment and subsequently it was paid causing heavy pecuniary loss to the Corporation. It has further been submitted that the order to initiate inquiry was passed by a competent authority and the petitioner was given opportunity of hearing and after that the competent authority passed the order impugned by awarding the punishment as mentioned above. 5. The petitioner has raised the following legal points: - i. The person/authority initiating the department inquiry was not competent to pass the order to initiate the departmental inquiry. ii. The person/authority passing the impugned order of punishment was not competent to pass the punishment order. 6. The services of the petitioner are regulated by the regulations called the Uttar Pradesh State Electricity Board Services of Engineers Regulations, 1970. The relevant provision dealing with the matter of appointment and disciplinary inquiry is given below: - “3(2) ‘Appointing Authority’ means the authorities defined in Regulation 14. 6. The services of the petitioner are regulated by the regulations called the Uttar Pradesh State Electricity Board Services of Engineers Regulations, 1970. The relevant provision dealing with the matter of appointment and disciplinary inquiry is given below: - “3(2) ‘Appointing Authority’ means the authorities defined in Regulation 14. (5) ‘Board’ means the U.P. State Electricity Board constituted under Section 5 of the Act....... 14. Appointing Authorities. - The Appointing Authorities of the Members of Service shall be as follows: - Name of the PostAppointing Authority 1. Assistant Engineer 2. Assistant Executive Engineer 3. Executive Engineer 4. E.E. (Selection Grade) 5. Superintending Engineer 6. All Officers above the rank of S.E.Chairman Board 7. The matter relating to conditions of service/departmental inquiry and punishment is regulated by U.P. State Electricity Board (Officers & Servants) (Conditions of Service) Regulations, 1975 (hereinafter referred to as the 1975 Regulations), which provides that the authority who is empowered by or under any Regulation of the Board for the time being in force, to appoint an officer or servant of the Board, or any authority to whom such authority is subordinate, shall be the competent authority to dismiss, remove, reduce in rank or compulsorily retire such officer or servant. The matter relating to punishment and opportunity of hearing has been given in Regulations 3 and 4 which are quoted below: - 3.(1) No such person as aforesaid shall be dismissed, removed or reduced in rank except after enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry to impose upon him any such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty imposed. Provided further that this clause shall not apply -- (a) to an order of termination of service of a temporary officer or ‘servant of the Board by the authority for the time being competent to make appointments to the post held by him or by any authority to which such authority is subordinate, whether the same be founded on any charges against him or on administrative ground or due to his services being no longer required provided that such charges, if any, are not mentioned in the order issued to him; or (b) to an order of reversion from an officiating appointment to the post substantively held by such officer or servant, whether on the basis of any charges against him or an administrative grounds, provided that such charges, if any, are not mentioned in the order issued to him; or (c) to an order of compulsory retirement at any time after his attaining the age of 50 years under the U.P. State Electricity Board (Employees’ Retirement) Regulation 1975; or (d) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (e) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (f) where the Governor is satisfied that in the interest of security of the State or of the Board it is not expedient to hold such inquiry or to give such opportunity and, accordingly directs the Board to dismiss or remove such officer or servant. (2) If in respect of any officer or servant of the Board the Governor issues any direction as is referred to in proviso (f) to sub-clause (1), the Board shall comply with such direction forthwith. 4. The Chairman or Secretary shall have power to suspend any officer or servant of the Board pending or in contemplation or an inquiry or during the tendency of a criminal investigation inquiry or trial against him. Provided that in respect of officer of the rank of Superintending Engineer and above such power shall be exercised only by the Chairman. 4. The Chairman or Secretary shall have power to suspend any officer or servant of the Board pending or in contemplation or an inquiry or during the tendency of a criminal investigation inquiry or trial against him. Provided that in respect of officer of the rank of Superintending Engineer and above such power shall be exercised only by the Chairman. Provided further that in the case of officers of the rank of Superintending Engineer and above an appeal shall lie for such order of the Chairman to the Board and in the case of other officers an appeal shall lie from the order of Secretary to the Chairman. Provided also that in the case of other officers and servants the power of such suspension may also be exercised by any appointing authority or by any other authority to whom, power of suspension is delegated under any other Regulation, and an appeal from the order passed by an authority under this provision shall lie to the next higher authority. 8. The Board has been empowered to constitute one or more Enquiry Committees as provided in Regulation 6 of 1975, which is quoted below: - 6. Constitution of Committee to Inquire into Cases: - (1) The Board may from time to time constitute one or more enquiry committees, as it may consider necessary for inquiry into allegations, complaints or charges against officers and servants. (2) Every Enquiry Committee constituted under clause (1) shall consist of the following: (i) A Chief Engineer or Additional Chief Engineer, UPSEB ----- (Convener) (ii) A Law Officer or Additional Law Officer, UPSEB -------- (Member) (iii) An Officer from the Accounts Branch of UPSEB not below the rank of Accounts Officer nominated by the Chairman in that behalf --------- (Member) Provided that if at any stage of the proceedings, it comes to notice that the convener or any member of the Inquiry Committee has in his capacity otherwise than as Member of the Inquiry Committee already dealt with or expressed opinion in, any case which is the subject matter of inquiry under these Regulations, the Chairman shall forthwith appoint another person to replace him. Until such replacement is made the proceedings of the case shall remain suspended and shall after such replacement recommence from the stage at which they were suspended. Until such replacement is made the proceedings of the case shall remain suspended and shall after such replacement recommence from the stage at which they were suspended. Provided further that where the convener or any Member of any Inquiry Committee is, due to transfer, leave, absence or any other reason, whatsoever, unable to perform his duties as such, or the Chairman for any other reason considers it expedient in the interest of smooth and proper working of the Inquiry Committee so to do, the Chairman may, subject to subsequent ratification by the Board appoint any other person (s) in place of such convener or Member, as the case may be. (3) The Chairman or Secretary, U.P. State Electricity Board may refer an inquiry against an officer or servant or against a group of officers or servants of the Board to the Inquiry Committee constituted under Sub-regulation (1) and it shall be lawful for the Inquiry Committee to hold and conduct the inquiry. and take such action, including framing of charge sheet, as may be necessary under the rules or orders referred to in Regulation 2, and forward its report together with recommendations, if any, regarding action to be taken against the person or persons proceeded against, to the Chairman or Secretary of the Board, as the case may be: 9. Learned counsel for the respondents has submitted that the Enquiry Committee II had provided the opportunity of personal hearing to the petitioner on 27.02.2007 and vide Annexure CA-1 the petitioner appeared before the Committee and submitted his statement which was recorded by the Committee. At the time of examination of the inquiry report dated 03.10.2007 the competent authority found that the Committee in its report had not considered the aspect of financial loss caused to the Corporation and thus it was decided that the person responsible for the same will be held responsible and a decision thereof was taken by the competent authority. The petitioner was also given an opportunity by providing the copy of the report to submit his explanation regarding the quantum of punishment and it has been argued on behalf of the respondents that before awarding the punishment the petitioner was given an opportunity of hearing. 10. Learned counsel for the petitioner has submitted that the officer/authority passing the order was not competent to pass an order. 10. Learned counsel for the petitioner has submitted that the officer/authority passing the order was not competent to pass an order. 1975 Regulations provides that the power to inflict all kinds of punishment except removal, dismissal and reduction in rank or compulsory retirement may also be exercised by the officer to whom such power is or has been delegated by the Board. In exercise of power conferred by Section 79 (c) of the Electricity (Supply) Act, 1948, the Board made certain regulations to amend the service conditions of Regulations, 1975, which was issued vide Notification dated 15.09.1987. Regulation 1-A has been amended as follows: - “I-A The authority who is empowered by or under any Regulation of the Board for the time being in force, to appoint an officer or servant of the Board, or any authority to whom such authority is subordinate, shall be the competent authority to compulsorily retire and to impose all or any of the following punishments on such officer or servant of the Board; 1. Censure; 2. Withholding of increment, including stoppage at an efficiency bar; 3. ......... 4. Recovery from pay of the whole or part of any pecuniary loss caused to Board by negligence or breach of orders; ............. Provided that the power to inflict all the punishments, except removal, dismissal and reduction in rank or compulsory retirement may also be exercised by officers to whom such power is or has been delegated by the Board.” 11. The Board of Directors vide its meeting held on 25.06.2007 took a decision that the Managing Director of the Corporation will be the Appointing Authority for all officers below the rank of Superintending Engineer whereas for the officers of the rank of Superintending Engineer and above, the Chairman of the Corporation will be their Appointing Authority. The delegation of power has been issued vide office memorandum dated 02.08.2007, 20.06.2009, 25.01.2010, 22.12.2010 and 12.04.2012. It was clarified by the learned counsel for the respondents that though vide office memorandum dated 12.04.2012 all such powers which were delegated to the Joint Managing Director of the Corporation were withdrawn and were restored with the Chairman and Managing Director of the Corporation but vide office memorandum dated 01.08.2012, all such powers, which were delegated to Additional Managing Director, were restored to the Managing Director. Office memorandum dated 01.08.2012 was approved by the Board of Directors and in this way, the Managing Director of the Corporation, as argued by the learned counsel for the respondents, is the competent authority to impose the punishment to the officers of rank of Chief Engineer Level-II. Office memorandum dated 01.08.2012, which was issued by the Chairman of the U.P. Power Corporation Limited delegating the power to the Managing Director, was approved by the Board of Directors vide its meeting held on 20.09.2012. The relevant order has been annexed with the counter affidavit. In light of above facts, the Managing Director of the Corporation is the competent authority to impose the impugned order as has been awarded to the petitioner. 12. Learned counsel for the respondents has further submitted that the matter of irregular diversion of fund during the period when the petitioner was posted as Chief Engineer was a serious matter and a caucus was operating in the Electricity Distribution Division, Hardoi, in which right from lower level clerks to the posts within the control of the petitioner were said to be covertly involved in issuing of false and fraudulent purchase orders with mala fide intention and ulterior motives. 13. Learned counsel for the petitioner has submitted that Mr. Arun Prakash and Mr. O.S. Pandey, the then Executive Engineers were responsible for the aforesaid forged purchase order and no action has been taken by the competent authority against them. 14. In paragraphs 28 and 29 of the counter affidavit, it has been submitted that Mr. Arun Prakash, the then Executive Engineer, was also found guilty for above wrong payment and he has already been awarded punishment by deduction of pension and recovery of Rs. 3,06,464/-. Since Mr. O.S. Pandey, the then Executive Engineer posted in Electricity Distribution Division II, Hardoi, expired, no disciplinary action could have been taken against him. 15. On the basis of above submissions, we are of the view that the matter was inquired by a competent committee constituted by the Board by operation of the Act vide Resolution 6 and the Committee constituting the person as mentioned in Clause 2(i), (ii) and (iii) of Regulation 6, is empowered to conduct the proceedings and submit the report. Similarly, the Managing Director is competent to pass the order impugned and the version that the person/officer passing the order has no authority is not tenable. 16. Similarly, the Managing Director is competent to pass the order impugned and the version that the person/officer passing the order has no authority is not tenable. 16. The third question as raised by learned counsel for the petitioner is that the letter dated 15.02.2014 was communicated by one Anu Sachiv named S.D. Tiwari and he was not competent to pass an order. 17. It has been narrated by learned counsel for the respondents that the order passed by the competent authority/Managing Director was officially communicated by the officer called Anu Sachiv and Anu Sachiv had not passed the order. In this way, the ground taken by the petitioner is also not sustainable in the eyes of law. 18. We have considered the rival contentions of learned counsel for the parties and are of the view that the person/authority initiating departmental inquiry was competent to initiate the inquiry and the Committee holding the inquiry was competent to hold the inquiry and after giving an opportunity of hearing to the petitioner, inquiry report was submitted to the competent authority and the competent authority/Managing Director having authority to pass the order, after giving an opportunity of hearing, passed the order impugned and there is nothing on record to say that the order was passed without jurisdiction. Thus, the petition is devoid of merit and is liable to be dismissed and is hereby dismissed. No order as to costs.