Court No. - 36
Case :- WRIT - A No. - 5868 of 2019 Petitioner :- Girdhari Lal Respondent :- State Of U.P. Through Principal Secretary Nagar Vikas, Lucknow And 3 Others Counsel for Petitioner :- Siddhartha Srivastava,Shams Tabrez Ali Counsel for Respondent :- C.S.C.,Pranjal Mehrotra
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Siddharth Srivastava, learned counsel for the petitioner, learned Standing counsel appearing for respondent no.1 and Sri Pranjal Mehrotra, learned counsel for respondent nos.2 to 4.
The present petition is primarily filed against an office order dated 28.9.2018 issued by the Managing Director, U.P. Jal Nigam whereby the decision of the Board of Directors, U.P Jal Nigam for further enquiry in the matter of diversion of Rs.38.83 crores in the Maintenance Division during the financial year 2008-2009 and 2012-2013 had been ordered. The office memorandum dated 13.12.2018 whereby a Committee has been constituted to make an enquiry against the petitioner and other officers who were posted in the Maintenance Division, Agra at the relevant point of time, is also subject matter of challenge. The chargesheet dated 2.2.2019 issued by the enquiry Committee is also under challenge in the present petition.
The first submission of learned counsel for the petitioner is that the order impugned has been passed after superannuation of the petitioner on 31.10.2018. Fresh enquiry cannot be initiated against the retired employee without following procedure prescribed under Article 351-A of the Civil Services Regulations. The Board of Director, U.P. Jal Nigam is not the competent authority to direct for fresh enquiry against a retired employee. Second limb of submission is that on the same set of allegations levelled in the impugned chargesheet dated 2.2.2019 served on the petitioner, a departmental enquiry with the chargesheet dated 21.1.2016 was conducted wherein on the enquiry report dated 22.3.2018, punishment order dated 15.5.2018 was passed while the petitioner was in service. A departmental appeal under Rule 11 of U.P. Government Servant (Discipline and Appeal Rules 1999 in short) has been filed on 27.7.2018 which remains pending. A reminder was sent to the appellate authority on 23.10.2018 to decide the appeal as the petitioner was about to retire on 31.10.2018. The appeal was, however, kept pending for no fault of the petitioner.
Now by the office memorandum dated 28.9.2018, decision has been taken for making fresh enquiry on the same set of allegations. The submission is that the Board of Director was not competent to take any adverse view on the punishment order during pendency of appeal before the competent appellate authority. The decision of the Board reversing the punishment order is nothing but usurpation of the jurisdiction of the appellate authority. Further the petitioner is seriously prejudiced by the fact that no opportunity of hearing was granted before reversal of the punishment. The decision to order denovo enquiry is a result of arbitrary and illegal exercise of power by the Board. No reasoning has been assigned for reversal of the punishment order passed by the disciplinary authority.
Sri Pranjal Mehrotra, learned Advocate for the respondent, Jal Nigam defended the order of the Managing Director for initiation of fresh enquiry with the submission that the office memorandum dated 28.9.2018 itself narrates the enquiry controversy. A bare reading of the same indicates that the charges of serious financial/administrative irregularities came in the light with the report of the team of the Auditor General.
The charges are of diversion of funds of Rs.38.83 crores for the period during which the petitioner was posted in the Maintenance Division, Agra. When the said fact came to the knowledge of the Board, and on the fact finding enquiry by the Comptroller and Auditor General of India the departmental enquiry was ordered against the other employees and retired employees, by granting permission/sanction by the Board in its 164th meeting, in exercise of powers under Article 351-A of the Civil Services Regulation. After completion of the departmental enquiry, the record pertaining to enquiry and punishment order was examined by the Board. Having noticed the gravity of charges, and that the enquiry was not conducted properly and punishment awarded was not commensurate with the gravity of the allegations, a decision was taken to quash the punishment order and make a further enquiry.
The decision to reverse the punishment order and to make further enquiry has been taken in exercise of the power of the Board of Directors, U.P., Jal Nigam under Rule 13 of the Rules 1999. The representation moved by the petitioner against the order dated 23.10.2018 has, thus, been rejected with the above reasoning.
In the supplementary counter affidavit, the office memorandum 3.2.2003 has been brought on record notifying the decision of the Board of Directors of the Jal Nigam taken in 138th meeting held on 22.1.2003, for adoption of U.P. Government Servant (Discipline and Appeal) Rules 1999 with amendments. Submission is that the power of the Governor of the State of U.P or the State Government in the matter of a disciplinary enquiry against the Government Servants under the rules 1999 is to be exercised by the Board of Directors U.P. Jal Nigam in the matter of employees of the Jal Nigam. Further the Government order dated 8.10.2001 is also placed before the Court to submit that pursuant to a decision taken by the State Government the powers of Governor under Article 351-A of the Civil Services Regulations is to be exercised by the Board of U.P. Jal Nigam in the matter of disciplinary enquiry against its employees of the U.P. Jal Nigam. The submission, thus, is that the decision to cancel enquiry reports and the punishment order passed by the disciplinary authority taken by the Board by invoking powers under Rule 13 of the Rules 1999 cannot be said to suffer from lack of jurisdiction. Even otherwise the Board is vested with the power to sanction for initiation of departmental enquiry against the retired employees of U.P Jal Nigam by invoking provisions of Regulation 351-A of the Civil Services Regulations.
Having heard learned counsel for the parties and perused the record, it is noteworthy that under the Rule 13 of the Rules 1999 the revisional power vested in the State Government is now conferred on the Board of U.P. Jal Nigam pursuant to office memorandum dated 3.2.2003. As a result of it, in place of State Government, the Board of U.P Jal Nigam is the competent authority to exercise supervisory revisional powers of the State Government. It cannot be disputed that the revisional power is discretionary and is subject to the limits prescribed by the Statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping the subordinate authority to the revising authority within the bounds of their authority ie: to make them act according to the procedure established by law and according to the well defined principles of justice. The question of exercise of extent of the revisional jurisdiction is to be considered in each case with reference to the language employed in the Statute. Reference be made to the judgment of Apex Court in case of Raja Laksmi Dyeing Works and others vs Rangaswamy Chettiar reported in 1980 4 SCC 259. Under Rule 13 of 1999 Rules, the competent revisional authority can call for the record of any case decided by an authority subordinate to it and pass appropriate order confirming or modifying or reversing the order under scrutiny besides other powers as provided for under the Rules.
Rule 13 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 reads as under:-
“13.Prolonged suspension-Unreasonable-Disapproving unreasonable prolonged suspension, the Apex Court has observed in Public Service Tribunal Bar Association vs State of U.P and others), as under:-
“If a suspension continues for indefinite period or the order of suspension passed is mala fide then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution.”
The statutory power conferred upon Disciplinary Authority to keep an employee under suspension during contemplation or pending disciplinary enquiry cannot thus be interpreted in a manner so as to confer an arbitrary,, unguided and absolute power to keep an employee under suspension without enquiry for unlimited period or by prolonging enquiry unreasonably. Particularly when the delinquent employee is not respnsible for such delay.”
A careful reading of the rule with the office memorandum dated 3.2.2003 indicates that the Board of U.P. Jal Nigam was competent authority to call for the records of the case decided by the subordinate authority both on its own motion or on the representation of the concerned employee. Further in exercise of the revisional power, it was competent to confirm modify or reverse the order passed by the subordinate authority or direct a further enquiry in the case. It was also competent to reduce the penalty imposed by the subordinate authority or to make such orders as it may deem fit in particular case.
In the instant case, the Board of U.P Jal Nigam called for the record of preliminary enquiry, the final departmental enquiries as also the decision taken by the disciplinary authorities in the matter of diversion of Rs.38.83/- crores in the Maintenance Division, Agra. There is no dispute about the fact that the petitioner was posted in the Maintenance Department as Assistant Engineer during the financial years 2008-09 to 2012-2013. In exercise of revisional powers under U.P. Government Servant (Disciplinary Appeal) Rules 1999, the Board having examined the record placed before it and found that no proper enquiry was conducted and the decision of the disciplinary authority subordinate to it suffer from various illegalities. The decision was, therefore, taken to initiate further enquiry in the matter of diversion of funds in the aforesaid financial year.
The contention of learned counsel for the petitioner that once decision has been taken by the disciplinary authority to inflict punishment and appeal was pending against the punishment order, the Board was not competent to invoke revisional jurisdiction, is found devoid of force. The submission that the validity of the punishment order dated 15.5.2018 could not have been examined by the Board is a fallacy. In a challenge to the punishment order in Writ petition no.15447 of 2018 (Girdhari Lal vs State of U.P and others), the petitioner was relegated to approach the alternative forum. The appeal filed by the petitioner though was pending but the said fact does not take away the revisional jurisdiction of the Board, to call for the record of the disciplinary enquiry conducted by the subordindate authority or to reverse the punishment order during the pendency of the departmental appeal.
The Board was well within its jurisdiction vested under Rule 13 of the Rules 1999 to reverse the punishment order and to direct a fresh/further enquiry in the matter of diversion of public funds. The office memorandum dated 28.9.2018 has been issued by the Managing Director in compliance of the decision of the Board in its 170th meeting to hold further enquiry against all officers posted in the Maintenance Division, Agra, during the aforesaid period.
As far as, the contention of learned counsel for the petitioner that after superannuation of the petitioner on 31.10.2018, the Board was not empowered to exercise supervisory revisional jurisdiction under Rule 13 of 1999 Rules, it is found that present is not a case of initiation of fresh enquiry or denovo enquiry after retirement of an employee. Rather, it is a case where disciplinary enquiry was initiated with the chargesheet dated 21.1.2016 and the enquiry was concluded with the punishment order dated 15.5.2018. The punishment inflicted by the disciplinary authority was not found commensurate with the charges levelled against the petitioner and simultaneously, it was found that proper enquiry had not been conducted by the enquiry officer. While reversing the punishment order, a further enquiry has been ordered by the Board in exercise of its revisional power conferred under Rule 13 of 1999 Rules. The chargesheet dated 2.2.2018 cannot be said to be a new chargesheet for initiation of denovo enquiry rather it would be a chargesheet served by the enquiry officer appointed under the orders of the superior authority passed under the statute for the purpose of making further enquiry. The contention that the chargesheet dated 2.2.2019 is hit by the Regulation 351-A of the Civil Services Regulations is, thus, found misconceived. All arguments raised by the learned counsel for the petitioner in this direction are, therefore, liable to be upturned.
Lastly, the question remains is that of opportunity to the petitioner to demonstrate that the charges levelled against him are vague, or false, it is held that the petitioner has full liberty to prove the same in the departmental enquiry.
The present petition is therefore, disposed of with a direction that the petitioner shall participate in the disciplinary enquiry to be conducted by the Committee constituted by the Managing Director under the order dated 13.12.2018 after submitting his reply to the chargesheet dated 2.2.2019. As the allegations are against several officials worked in the Maintenance Division, Agra and the disciplinary enquiry is pertaining to embezzlement/defalcation of public funds in the financial year 2008-2009 to 2012-2013, the Committee is bound to take some time to conclude the enquiry. A direction is, therefore, issued to the Committee to make an endeavour to conclude the enquiry as expeditiously as possible.
The writ petition is disposed of. Order Date :-26.9.2019/Harshita