Azizul Haque Quaraishi vs U.P.S.R.T.C. & Others
2015 Latest Caselaw 517 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					Judgment reserved on 06.05.2015
 
					Judgment delivered on 15.05.2015
 

 
Case :- WRIT - A No. - 53124 of 2008
 
Petitioner :- Azizul Haque Quaraishi
 
Respondent :- U.P.S.R.T.C. & Others
 
Counsel for Petitioner :- In Person,A.H.Quaraishi
 
Counsel for Respondent :- C.S.C.,Ajal Krishna,J.N. Singh,Sunil Kumar Mishra
 

 
Hon'ble Mahesh Chandra Tripathi,J.

1. Heard Shri A.H. Quaraishi-the petitioner in person and Shri Rahul Agarwal, learned counsel for the respondents.

2. By means of present writ petition, the petitioner has prayed for following reliefs:-

"1. An order, direction or writ in the nature of certiorari quashing the impugned termination order dated 01.9.2008 (Annexure No.1 to this writ petition).

2.An order or direction in mandamus nature to the respondent nos. 1, 2 and 3 (employers) to provide the due post - Assistant Regional Manager since 1993 to the petitioner by means of providing notional promotion from time to time, in accordance with the Award dated 18.6.2001 as it has been already provided to his 30 juniors upto the year 2007 considering the facts and circumstances mentioned in the above ground number 3 and 5.

3. An order or direction or writ in the nature of certiorari against the accused/culprits who have committed offence over the sanctity, dignity, integrity and majesty of Hon'ble Courts as well as caused injury to the petitioner so that no one should dare to commit such offences in future.

4. Such other and further order or direction in nature of mandamus, which this Hon'ble Court may deem fit and proper in the circumstances of this present case.

5. An order awarding cost of this writ petition."

3. Brief facts giving rise to the present case are that the petitioner was initially appointed on the post of Trainee Supervisor in Central Workshop, U.P. State Road Transport Corporation, Kanpur (in short, the Corporation) in the year 1974. While serving as Mechanic in the production unit at Central Workshop of the Corporation, the petitioner's services were terminated on 29.5.1989 with retrospective effect from 12.1.1987. He was reinstated on 15.9.1998. Once again a show cause notice was given to him. He raised an industrial dispute, which was registered as Adjudication Case No.75/1997. The Labour Court passed an award dated 18.6.2001 in his favour. The Corporation filed a Writ Petition No.39600 of 2001, in which a conditional stay order was passed by this Court on 3.12.2001. The Corporation filed a Special Leave Petition against the interim order, which was dismissed on 11.3.2002. The aforesaid writ petition was also dismissed on 9.10.2002 against which the Corporation filed a Special Leave Petition on 10.1.2003. Initially, there was stay but the Special Leave Petition No.24677 of 2002 was dismissed on 24.3.2003 and the petitioner was again reinstated.

4. On 30.7.2003 a charge sheet was issued to the petitioner with imputations that in pursuance of direction issued by this Court, he has been paid Rs.85,310/- whereas he was entitled only Rs.34,483/- and that he had misrepresented the department and had consequently embezzled the amount. The second charge sheet was issued to him on 20.8.2003 alleging that he did not give satisfactory reply to the Assistant General Manager (Technical) regarding the duties performed by him. A departmental enquiry was held and that by the order dated 15.11.2003 the petitioner had been terminated from service. He filed the Writ Petition No.54716 of 2003, in which an interim order was passed on 12.12.2003 staying the termination order dated 15.11.2003. This Court directed that the petitioner shall be allowed to work and pay his salary regularly. The respondents were further directed to take permission from the Court before taking any disciplinary action in future against the petitioner. The Corporation filed a Special Appeal No.58 of 2004 against the interim order dated 12.12.2003. The Special Appeal was dismissed on 27.1.2004 and the Corporation had withdrawn the termination of the petitioner on 20.2.2004 and the petitioner was reinstated.

5. It appears that instead of proceeding with an enquiry afresh on the same charges, the petitioner was charged with fresh charges on 13.4.2004 of moving in and out of the gate of the workshop without permission; using unparliamentary language and failing to attend to his duties and that once again his services were terminated by the General Manager on 1.9.2008, giving rise to this writ petition.

6. The present writ petition was entertained by this Court and an interim order was passed on 11.2.2009 in his favour with following effect-:-

"Taking into special facts and circumstances, the termination order dated 1.9.2008 is stayed subject to condition, that the petitioner files an affidavit in this Court stating that he will attend his duties regularly and shall not disobey the orders of his officers. The petitioner will also undertake that he will not take any part in any union activities and strictly abide by the terms & conditions and service rules under which he is serving. Let the affidavit be filed within one week. The interim order will take effect only after the affidavit is filed and accepted by the Court."

7. Shri A.H. Quaraishi-the petitioner appearing in person has submitted that the petitioner was appointed as Mechanic in the Corporation in the year 1978 and since then, he was in continuous service. He has been victimized on three occasions with malafide intention and contaminated ex-parte motivated enquiry. Even though as per the statement made on 27.1.2004 before Hon'ble Chief Justice in Special Appeal No.58 of 2004, the then General Manager, Central Workshop of the Corporation-respondent no.2 had withdrawn both the charge sheets dated 30.7.2003 and 20.8.2003 vide letter dated 8.4.2004 and also withdrawn the termination order dated 15.11.2003 but instead of providing past promotions to him in compliance of the earlier Award dated 18.6.2001, the respondents again terminated his services vide an order dated 1.9.2008. He has further submitted that on looking the plight of the petitioner, this Court had intervened and stayed the termination order, which clearly gives an impression that the Corporation had tried to demolish his future prospects. He has further made his submission that he had completed 40 years' of his service. Initially he was appointed as Junior Foreman and having diploma holder and placed at serial no.42 in the initial select list whereas in other departments of the Government the diploma holders are generally called as Junior Engineer and no promotion has been given to him in his entire service period due to malafide intention while several juniors to him have been provided the post of Assistant Regional Manager since the year 1993. The petitioner has retired on attaining the age of superannuation i.e. 60 years on 31.7.2014 and even the retiral dues and benefits under the orders for Assured Career Progression have not been paid to him till date. Due to great apathy shown by the department the higher education of his two daughters was greatly affected and initially the petitioner was also compelled to vacate the official quarter, which was allotted to him. He has submitted that the present writ petition is liable to be allowed with heavy costs.

8. The petitioner appearing in person has further submitted that the enquiry officer did not provide any opportunity to defend himself and submitted the enquiry report on the instruction of the then General Manager, Central Workshop of the Corporation. The charges levelled against him are fabricated and arbitrary. The impugned termination order dated 1.9.2008 has been issued on the basis of four years' old show cause notice dated 19.11.2004 without considering the representations submitted by the petitioner.

9. On the other hand, Shri Rahul Agarwal, learned counsel appearing for the Corporation has raised a preliminary objection regarding maintainability of the writ petition specially on the ground that the petitioner has got efficacious alternative remedy to approach to the superior officer and the present writ petition is liable to be dismissed on the ground of efficacious alternative remedy. On the merit of the case, he has submitted that in the present matter, the petitioner has violated Regulation 61 and 62 of the Uttar Pradesh State Road Transport Corporation Employees (other than officers) Regulations, 1981 and the major punishment, which has been awarded to the petitioner, is commensurate with the allegations levelled against him. He submits that the termination order is liable to be upheld by this Court.

10. In reply, Shri A.H. Quaraishi has further submitted that the first objection raised by Shri Rahul Agarwal, learned counsel for the Corporation cannot be sustained at this stage as in the present matter, pleadings have been exchanged and this Court, after going through the material available on record, had entertained the writ petition at the admission stage and stayed the termination order. He has further submitted that the appeal at that point of time could not be filed as Shri A.K. Srivastava, who was the appellate authority, has been arrayed as respondent no.2 in the writ petition and as such no appeal could be filed. He submitted that in the present matter the impugned order cannot be sustained on the ground of principle of natural justice whereas in the present matter the enquiry officer did not provide any opportunity to the petitioner to defend himself and completed the enquiry as per dictate of the then General Manager, Central Workshop of the Corporation. The same has been given in detail in paras 47, 51 and 52 of the writ petition. The charges levelled against the petitioner are fabricated and arbitrary. No doubt the petitioner throughout his career had always raised the genuine demand regarding his promotion but for the reasons best known to the respondents, they had never tried to give the promotion and other time scale to the petitioner

11. In the interim order dated 12.12.2003 passed in Writ Petition No.54716 of 2003, the Court observed that prima facie the charges are not of such a nature that a departmental enquiry should have been initiated against the petitioner. It is apparent from the back ground of the case that the enquiry was motivated and the petitioner is being made a victim and is being punished for entering into litigation with the Corporation. In these circumstances, the remedy of departmental appeal will be wholly illusory. Against the aforesaid interim order dated 12.12.2003 the Corporation filed Special Appeal No.58 of 2004, which was dismissed on 21.7.2004.

12. This Court, while entertaining the writ petition, had clearly observed that the charges, on which petitioner's services have been terminated, prima facie appear to be a process of victimization which is not yet over. This is the third occasion when the petitioner's services have been terminated. On the first occasion the Labour Court allowed the reference. On the second occasion after the interim order the charges were withdrawn and now again on the charges, which prima facie did not merit termination of services, the petitioner has been again terminated.

13. The Court can exercise the power of judicial review, if there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Such exercise of power would stand vitiated. The Court may be justified in exercising the power of judicial review, if the impugned order suffers from mala fide, dishonest or corrupt practices, for the reason, that the order had been passed by the authority beyond the limits conferred upon the authority by the legislature. Thus, the Court has to be satisfied that the order had been passed by the authority only on the grounds of illegality, irrationality and procedural impropriety before it interferes. The Court does not have the expertise to correct the administrative decision. Therefore, the Court itself may be fallible and interfering with the order of the authority may impose heavy administrative burden on the State or may lead to unbudgeted expenditure.

14. In Air India Ltd v. Cochin International Airport Ltd & ors AIR 2000 SC 801 Hon'ble Supreme Court, explaining the scope of judicial review, held that the Court must act with great caution and should exercise such power only in furtherance to public interest and not merely on the making out of a legal point. The Court must always keep the larger public interest in mind in order to decide whether its intervention is called for or not.

15. In Krishan Yadav & another vs. State of Haryana & ors AIR 1994 SC 2166 Hon'ble Supreme Court held that there may be a case where the holders of public offices have forgotten that the offices entrusted to them are a sacred trust and such offices are meant for use and not abuse. Where such trustees turn to dishonest means to gain an undue advantage, the scope of judicial review attains paramount importance.

16. The Court must keep in mind that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. Thus, the Court is devoid of the power to re-appreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding.

17. The question of interference on the quantum of punishment, has been considered by the Supreme Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution.

18. In Ranjit Thakur v. Union of India & Ors., AIR 1987 SC 2386, this Court observed as under:

"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 proportionality, as part of the concept of judicial review, would ensure that even on the 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. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." (Emphasis added)

19. In B.C. Chaturvedi vs. Union of India & ors AIR 1996 SC 484 Apex Court, after examining various its earlier decisions, observed that in exercise of the powers of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority.

20. In V. Ramana vs. A.P.S.R.T.C. & ors AIR 2005 SC 3417, Hon'ble Supreme Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof.

21. As per record the charges, which were levelled against the petitioner, are not serious in nature. In view thereof, the termination order shocks the conscience of the court and by no stretch of imagination can it be held to be proportionate or commensurate to the delinquency committed by the petitioner.

22. It is apparent from the record that in the present matter, the petitioner has been discriminated and even his 30 juniors had been promoted on the post of Assistant Regional Manager upto the year 2007 and they were given promotional pay scales but the same has been denied to the petitioner.

23. In the aforesaid facts and circumstances the impugned order dated 1.9.2008 cannot be sustained and is accordingly quashed.

24. The writ petition is allowed. A writ of mandamus is issued to the respondents to pay the entire retiral dues and all consequential benefits to the petitioner within a period of two months from the date of production of a certified copy of this order before them. It is further directed to the competent authority to consider the case of the petitioner for notional promotion on the post of Assistant Regional Manager in accordance with the Award dated 18.6.2001, as has been conferred in favour of his juniors within two months.

Order Date :- 15.5.2015

RKP

(Mahesh Chandra Tripathi,J.)