Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 25 (ALL)

Arbind Kumar v. State of U. P.

2024-01-04

J.J.MUNIR

body2024
JUDGMENT : J.J. MUNIR, J. 1. This writ petition is directed against the order dated 24.01.2023 passed by the Chairman, U.P. Power Corporation Limited, Lucknow, revising the order of the Disciplinary Authority suo motu, enhancing the penalty and punishing the petitioner with demotion to the post of a Junior Engineer. Also under challenge is the order dated 28.05.2022 passed by the Managing Director, U.P. Power Corporation Limited, Lucknow, the Disciplinary Authority, punishing the petitioner, after disciplinary proceedings, with the award of a censure and stopping one increment with cumulative effect. 2. The facts giving rise to this petition are these: The petitioner was a Junior Engineer in the service of the U.P. Power Corporation Limited. He was appointed as such in the year 2007. He was promoted to the post of an Assistant Engineer in the year 2014. After suffering the orders inflicting penalty, the petitioner is working as a Junior Engineer (Meter) with the Electricity Test Division, Purvanchal Vidyut Vitran Nigam Limited, Pratapgarh. The charge, in relation to which disciplinary proceedings were drawn against the petitioner, relates to the time when he was posted as an Assistant Engineer (Meter) in the Electricity Test Division, Purvanchal Vidyut Vitran Nigam Limited, Varanasi (for short ‘the Distribution Corporation’). By an office memo of 11th January, 2021, the petitioner was directed to inspect Single Phase Two Wire Meters (10-60 Amperes) at the establishment of a certain M/s. Secure Meter Limited, Ahmedabad (for short, ‘the Firm’). It appears that the purpose of the aforesaid inspection was to inspect meters that were to be purchased by the Distribution Corporation for installation at the premises of consumers. In order to travel to the destination, the petitioner booked an air passage from Varanasi to Ahmedabad on board Wise Jet Flight (SG-072), bearing PNR No. DSQ FVA, scheduled on 23.01.2021. There is on record a photostat copy of the said air ticket. 3. It is the petitioner’s case that due to bad weather, the flight was cancelled. The fact, about cancellation of the petitioner’s air ticket, was apprised to the representative of the Firm. As the inspection of meters was urgent and the petitioner was finding it difficult to book an air passage at short notice, the representative of the Firm booked a ticket for the air passage on 23.01.2021 from Varanasi to Ahmedabad via New Delhi. A copy of the said air ticket too is on record. As the inspection of meters was urgent and the petitioner was finding it difficult to book an air passage at short notice, the representative of the Firm booked a ticket for the air passage on 23.01.2021 from Varanasi to Ahmedabad via New Delhi. A copy of the said air ticket too is on record. Upon reaching Ahmedabad, the petitioner inspected the meters along with one of the representatives of some entity called NPCCL. The petitioner has described that entity as NPCCL with no clue to the abbreviation. It is asserted that he refunded the air fare and cost of the hotel accommodation paid by the Firm’s representative. Upon an inquiry made by the Director (P.M. & A.) vide letter dated 03.11.2021, the authorized signatory of the Firm vide letter dated 25.02.2022 confirmed that no costs of the petitioner’s travel were borne by the Firm. It mentions the fact that the air ticket the petitioner had booked was cancelled due to bad weather and the Firm had to facilitate his journey, besides lodging at Ahmedabad, for which the Firm were paid a sum of Rs.23,902/- by the petitioner, that is to say, for the air ticket and the hotel arrangement. This conduct of the petitioner was found against the service regulations and he was charge-sheeted vide charge-sheet dated 23.07.2021 issued by the Inquiry Committee, that was constituted. The charge-sheet aforesaid was issued to the petitioner by the Inquiry Officer after approval by the Managing Director. The charge-sheet carried the following charges: 4. The petitioner submitted a reply to the charge-sheet. He denied the charge with a plea of confession and avoidance. He admitted getting the ticket through the Firm, but assserted that he inspected the meters according to the prescribed parameters on 23.01.2021 and upon reaching the destination, paid the price of the air ticket purchased by the Firm to their representative in cash. He denied the charge, explaining the circumstances in the following terms: 5. The Inquiry Committee submitted its report dated 14. 09.2021, holding the charge proved. The Inquiry Committee returned the following finding: 6. It is averred in Paragraph No. 16 that during the course of inquiry, no oral evidence was led to prove the charges and only on the basis of the air ticket, the petitioner was held guilty. The Inquiry Committee submitted its report dated 14. 09.2021, holding the charge proved. The Inquiry Committee returned the following finding: 6. It is averred in Paragraph No. 16 that during the course of inquiry, no oral evidence was led to prove the charges and only on the basis of the air ticket, the petitioner was held guilty. It is also pleaded that in the absence of any witness being examined to support the charge levelled against the petitioner, he has been condemned unheard. The Inquiry Committee have neither recorded any oral evidence nor provided opportunity to the petitioner to adduce any evidence in his defence. 7. It is emphasized that on 12.10.2021, the Director (P.M. & A.) of the Distribution Corporation issued a show cause notice to the petitioner. The petitioner responded to the show cause by his reply dated 28.10.2021, where the petitioner again mentioned the fact that the air ticket booked by him was cancelled due to cancellation of the flight. Since, it was necessary for the petitioner to reach Ahmedabad at the earliest and test the meters, bearing in mind the interest of the Corporation, the petitioner travelled on an air ticket booked by the representative of the Firm. The further case was that the petitioner conducted the inspection of meters in accordance with norms, and after being satisfied with the quality, drew up an inspection report, signed by the representative of the NPCCL as the Inspecting Officer and the petitioner a witness. The petitioner has further said in his representation that he has not extended any undue advantage to the Firm. 8. It appears that the petitioner was again given a show cause notice along with a copy of the inquiry report by the Disciplinary Authority, the Managing Director of the Distribution Corporation by his memo dated 31.01.2022. The petitioner submitted his reply dated 14.03.2022. The petitioner enclosed three documents along with his reply dated 14.03.2022, which are directed to show that there was no compromise with his duties in inspecting the quality of meters. It is the petitioner’s case that without considering the relevant material and his representation, the Disciplinary Authority acted on bald allegations of the possibility of adverse effect on the quality of material (meters) and the possibility of extending undue advantage to the Firm. It is the petitioner’s case that without considering the relevant material and his representation, the Disciplinary Authority acted on bald allegations of the possibility of adverse effect on the quality of material (meters) and the possibility of extending undue advantage to the Firm. It is also said that the Disciplinary Authority has remarked that there is no refund of the price of the air ticket, which the petitioner says, is a perverse finding. He says that it is perverse, because in response to the letter dated 31.11.2021 by the Director (P.M. & A.) of the Distribution Corporation, addressed to the Firm, the authorized signatory of the Firm, had conveyed vide a letter dated 25.09.2022 that no cost of travel for the petitioner was borne by the Firm. 9. The Director of the Distribution Corporation, by his order dated 28.05.2022, awarded the petitioner the punishment of censure and stoppage of one increment with cumulative effect. The Chairman of the U.P. Power Corporation Limited, in exercise of his revisional powers under Section 13(c) of the Uttar Pradesh Power Corporation Limited Employees (Discipline and Appeal) Regulations, 2020 (for short ‘the Regulations’) enhanced the penalty by the impugned order dated 24.01.2023 and demoted the petitioner from the post of an Assistant Engineer to that of a Junior Engineer. The petitioner pleads that the impugned order dated 21.04.2023 was passed by the Director of the Power Corporation, who acting on his own motion under Regulation 13 and finding it a fit case for enhancement of penalty, after calling for the petitioner’s representation vide his notice dated 28.09.2022, enhanced the punishment. The petitioner has averred in Paragraph No. 27 of the writ petition that the aforesaid letter dated 28.09.2022 was never served upon the petitioner, but when he went to appear in a case in Court at Varanasi, the said letter was handed over to the petitioner on 27.04.2023 in the office of the Electricity Test Division, Varanasi. It is averred in Paragraph No. 28 that since the petitioner was transferred to Pratapgarh, he could not receive the letter dated 28.09.2022 issued by the Director of the Power Corporation within time and represent his case against the proposed enhancement of penalty. 10. In the counter affidavit, the respondents have refuted the petitioner’s allegations, where the necessity of witnesses has been denied for a proposition of law in Paragraph No. 4(vi) of the affidavit last mentioned. 10. In the counter affidavit, the respondents have refuted the petitioner’s allegations, where the necessity of witnesses has been denied for a proposition of law in Paragraph No. 4(vi) of the affidavit last mentioned. It is averred in Paragraph Nos. 4(ix), 4(xii) and 4(xiii): “4. (ix) Further the petitioner himself in his reply had admitted the fact of travelling on the air ticket provided by the firm. However, in reply to the said charge, he was not able to give any cogent evidence of refunding the said amount of Air Ticket to the representative of the firm. (xii) Further when the matter of the petitioner was duly examined by Respondent authority after taking into account the material evidence on record along with enquiry report and reply given by the petitioner, a situation of enhancement in punishment was found and a show cause notice was issued on 28.9.2022 to the petitioner to submit his reply within 15 days in regard to the fact as to why the punishment should not be enhanced and said show cause notice was duly served upon the petitioner which was also confirmed from the petitioner on his Mobile Number. Copy of proof of service of show cause notice dated 28.9.2022 provided to the petitioner is being annexed herewith and marked as Annexure- CA-4 to this counter affidavit. (xiii) Further when the petitioner had not submitted a reply to the show cause notice dated 28.9.2022, the Respondent No. 2 had passed a detailed, reasoned and speaking order dated 21.4.2023 enhancing the punishment and had awarded the censure entry along with demotion of the petitioner to the post of Junior Engineer.” 11. Heard Mr. Ritesh Srivastava and Ms. Shweta Singh, learned Counsel for the petitioner, Mr. Ujjwal Srivastava, Advocate holding brief of Mr. Abhishek Srivastava, learned Counsel appearing on behalf of the Power Corporation and Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel for the State. 12. It is, no doubt, true that the Corporation, once again in this case, as often noticed, have failed to adhere to the salutary procedure of examining witnesses in support of the charge before their Inquiry Officer, as laid down by preponderant authority to be the requirement of a valid inquiry in a disciplinary case, which may result in the imposition of a major penalty. But, the facts here are slightly different. But, the facts here are slightly different. The charge against the petitioner is about travelling on a ticket purchased by the Firm, from whom the electricity meters were to be procured by the Distribution Corporation and whose establishment the petitioner was to visit in order to inspect the quality of those meters. The charge labels this conduct as one contrary to rules of the Corporation. 13. It is also mentioned in the charge that the petitioner’s behaviour, conduct and method of work does not show him to be a responsible officer of the rank of an Executive Engineer. The forged (described as ^^dwVjfpr** in Hindi) conduct could have a possible impact on the quality of the materials purchased. The inference, therefore, is that he did the act, subject matter of charge, with a view to extend undue favour to the manufacturer. For one, the charge appears to be rather casually worded, in that, that the petitioner was never an Executive Engineer. He was an Assistant Engineer. Even if that be regarded as a mere irregularity, not impacting the proceedings, the same is true of the choice of words for the charge, where the petitioner’s conduct has been described as forged, said in Hindi by the words ^^dwVjfpr vkpj.k** Possibly, there cannot be any kind of a ‘forgery of conduct’ which is an act associated with tampering of documents or electronic record. Nevertheless, reading the charge to be that it was improper conduct on the petitioner’s part, this Court has proceeded to understand the matter, the way it has been dealt with by the Disciplinary Authority and the Revisional Authority. 14. So far as the submission of the learned Counsel for the petitioner, that in support of the charge, no witnesses were examined by the establishment, is concerned, it is true for a fact that the aforesaid salutary procedure to be adhered to in all inquiries, where a major penalty may be imposed, has not been followed. This is against the settled authority of the law. This is against the settled authority of the law. In this connection, reference may be made to the decisions of the Supreme Court in State of Uttar Pradesh and Others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 , Roop Singh Negi vs. Punjab National Bank and Others, (2009) 2 SCC 570 , State of Uttaranchal and Others vs. Kharak Singh, (2008) 8 SCC 236 and the Bench decision of this Court in State of U.P. and Another vs. Kishori Lal and Another, 2018 (9) ADJ 397 (DB), Smt. Karuna Jaiswal vs. State of U.P. 2018 (9) ADJ 107 (DB) and State of U.P. vs. Aditya Prasad Srivastava and Another, 2017 (2) ADJ 554 (DB). 15. The aforesaid salutary requirement is attracted to a case, where the delinquent denies the charge or so much material part of it, which the employer has to establish. Here, the charge is about the conduct of the petitioner in travelling on a ticket purchased by the Firm, whose meters he was going to inspect for their quality, and the charge further is that the conduct of the petitioner aforesaid, leads to the possibility of the quality of material purchased being compromised, as the petitioner might have favoured the Firm. The petitioner has no doubt denied the fact that he has compromised his position in any manner, affecting the quality of the material purchased after his inspection, which in any case was held in the presence of another Officer of higher rank. The charge is, therefore, reduced to the propriety of the petitioner’s conduct in travelling on a ticket purchased by the Firm, whose materials he was going to inspect. This part of the charge about the fact of purchasing the ticket, the petitioner does not deny. Rather, he says that on reaching destination, he paid the representative of the Firm the money spent on purchasing the ticket. 16. The petitioner has also explained the circumstances in which he had to purchase the ticket through the Firm’s representative. Therefore, so far as the petitioner’s conduct in travelling on a ticket purchased through the Firm’s representative is concerned, the said act is admitted. The entire charge, if understood, is only about the propriety of the petitioner’s conduct in purchasing a ticket through the Firm’s representative. There is no imputation that, in fact, the quality of the meters was compromised, in consequence of the petitioner’s act. The entire charge, if understood, is only about the propriety of the petitioner’s conduct in purchasing a ticket through the Firm’s representative. There is no imputation that, in fact, the quality of the meters was compromised, in consequence of the petitioner’s act. If that were the charge, the employer would have to establish it by leading oral evidence in support of the charge. But, that is not at all the case. The case is only about the propriety of the petitioner’s conduct in travelling on a ticket purchased by a representative of the Firm, where he was going to inspect. 17. The petitioner’s defence that on arrival at destination, he paid the Firm’s representative, has not been accepted by the Disciplinary Authority, because there was no evidence aliunde to show that the petitioner, in fact, paid the Firm, such as a cash receipt or payment in account. The letter written by the Firm about receiving the entire price of the air ticket and the arrangements for lodging made with the hotel has not been accepted as reliable evidence. This view of the Disciplinary Authority cannot be said to be manifestly illegal or perverse, that may be interfered with in the exercise of our jurisdiction under Article 226 of the Constitution. 18. The Revisional Authority, however, has enhanced the penalty, exercising power suo motu on a revision under Regulation 13(c) of the Regulations. The Revisional Authority, no doubt, has that jurisdiction under the Regulations, but two questions do arise in this case. The first is that the petitioner says that he was never served with the notice for enhancement by the Revisional Authority, as he has pleaded in Paragraph Nos.27 and 28 of the writ petition. He has, particularly, said that he could not be served with the Revisional Authority’s notice dated 28.09.2022 proposing enhancement, because by that time, he had been transferred to Pratapgarh. 19. In the counter affidavit, a copy of the notice for the proposed enhancement has been annexed, as also a photostat copy of the registered postal receipt, which shows the petitioner to be posted as an Assistant Engineer with the Distribution Corporation at Varanasi. The petitioner says that at the relevant time, he was posted at Pratapgarh and not Varanasi. 19. In the counter affidavit, a copy of the notice for the proposed enhancement has been annexed, as also a photostat copy of the registered postal receipt, which shows the petitioner to be posted as an Assistant Engineer with the Distribution Corporation at Varanasi. The petitioner says that at the relevant time, he was posted at Pratapgarh and not Varanasi. There is nothing said or shown in the counter affidavit, which may establish that the notice, in fact, was directed to the petitioner’s correct place of posting or residence at the relevant time. The assertion in Paragraph No. 28 of the writ petition that he was posted at Pratapgarh, and, therefore, never received the notice for enhancement, remains undisputed. The petitioner’s case in Paragraph No. 27 that he received the notice of enhancement much later on 27.04.2023, when he went to Court to appear in a case there and while visiting the Electricity Test Division, Varanasi, too has not been denied. Rather, it appears that the notice sent to the Assistant Engineer (Meter) of the Distribution Corporation, was served upon the petitioner, as he says, on 27.04.2023. The order was passed by the Revisional Authority on 24.01.2023. 20. This Court is, therefore, of opinion that the petitioner was never served with the notice of enhancement by the Revisional Authority in good time to enable him to answer. The requirement to serve a notice before enhancement of punishment is also a requirement under the Regulations, and, in any case, its non-service would be a violation of the principles of natural justice. For the said reason alone, the revisional order impugned cannot be sustained. 21. There is another reason, which has been spoken of as the second to merit consideration. While this Court has opined that the finding of the Disciplinary Authority is not bad, based on the petitioner’s admission about his impropriety of conduct or the misconduct in travelling on a ticket purchased by the Firm’s representative, where he was going to inspect, as also the finding in not believing the evidence about paying off the Firm’s representative upon arrival at destination, the quantum of punishment imposed, may still be the subject matter of some scrutiny by this Court on settled parameters. This Court is mindful of the fact that the quantum of punishment is a matter that primarily lies within the domain of the Disciplinary Authority and a fortiori the Revisional Authority. We cannot substitute our view simply because we think that the punishment imposed is disproportionate or excessive. We can interfere with the quantum of punishment only if we find it to be shockingly disproportionate; something revolting to the Court’s conscience given the charge, the evidence and the entirely of circumstances appearing against the delinquent. In this regard, reference may be made to the decision of the Supreme Court in Union of India and Others vs. Subrata Nath, 2022 SCC Online SC 1617, where it has been held: “21. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily re-appreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.” 22. Upon a perusal of the circumstances here, what this Court finds is that though the petitioner may be guilty of the impropriety of travelling on a ticket purchased by the representative of a Firm, where he was going to inspect quality, there is some explanation about the circumstances how the indiscretion happened. The petitioner had booked an air ticket for himself from Varanasi, but the flight was cancelled. The petitioner had booked an air ticket for himself from Varanasi, but the flight was cancelled. The petitioner, mindful of his duties to reach destination and inspect as an Officer of the Corporation, where another superior was joining him, committed the indiscretion of securing the ticket through the representative of the Firm. While it is true that there is no evidence aliunde that he repaid, there is also no reason to believe that he was saying falsehood altogether. The Disciplinary Authority has thought it fit not to believe him and we do not interfere with that finding, as already said. But, the fact remains that there is no charge, let alone a finding, that the petitioner actually favoured the Firm in any manner or compromised his employer’s interest. The Disciplinary Authority, on the totality of circumstances, thought fit to impose the major penalty of stopping one increment with cumulative effect. This, however, was enhanced by the Revisional Authority, acting suo motu to a demotion to the post of a Junior Engineer. The punishment awarded by the Disciplinary Authority is also a major penalty. 23. Given the totality of circumstances, where the conduct of the petitioner appears to be indiscreet and highly irregular, but not dishonest, or one that has caused any kind of a loss to the Corporation, the punishment of demotion by the Revisional Authority, to this Court’s conscience, is indeed shockingly disproportionate. Nevertheless, going by the settled law, this Court refrains from reducing the punishment ourselves and instead think that it would be appropriate to send back the matter to the Revisional Authority, the Chairman of the Power Corporation Limited, Lucknow, who would be under a command to pass a fresh order, in accordance law, bearing in mind the guidance in this judgment. 24. Quite apart from the remand to the Chairman of the Power Corporation on the issue of quantum, the matter, in any case, has to go back to the Chairman, because we have held that the petitioner was not given any opportunity of hearing. Therefore, the Chairman has to take a decision afresh after providing the petitioner adequate opportunity of hearing in the manner hereinafter directed by this Court. 25. In the result, this petition succeeds and is allowed in part. The impugned order dated 21.04.2023 passed by the Chairman, U.P. Power Corporation Limited, Lucknow is hereby quashed. Therefore, the Chairman has to take a decision afresh after providing the petitioner adequate opportunity of hearing in the manner hereinafter directed by this Court. 25. In the result, this petition succeeds and is allowed in part. The impugned order dated 21.04.2023 passed by the Chairman, U.P. Power Corporation Limited, Lucknow is hereby quashed. The Chairman of the Power Corporation is commanded to pass fresh orders in the exercise of his revisional jurisdiction. After furnishing the petitioner time to submit his reply to the notice of enhancement, which shall be three weeks from the date of receipt of a copy of this judgment, the Chairman shall pass his orders within six weeks of receipt of the petitioner’s reply. The order passed by the Chairman shall be communicated to the petitioner at his current place of posting within a week of the orders being recorded. Needles to say that the impugned order being quashed, in the interregnum, the consequences shall follow and the petitioner reinstated to his position forthwith as an Assistant Engineer and paid his current salary accordingly. The question of consequential benefits, pecuniary and otherwise shall abide by the decision of the Revisional Authority. 26. There shall be no order as to costs.