Brajesh Kumar vs State Of U.P. And 3 Ors.
2018 Latest Caselaw 1814 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 39 
 
AFR
 
Case :- WRIT - A No. - 53314 of 2016
 
Petitioner :- Brajesh Kumar
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Prashant Shukla,Ram Prakash Upadhyay
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

Hon'ble Jayant Banerji,J.

Heard Sri Prashant Shukla, learned counsel for the petitioner and learned Standing Counsel for the respondents.

The petitioner in the writ petition is seeking quashing of the order dated 26.2.2016 whereby a penalty of withholding of one increment with cumulative effect along with censure entry has been awarded to the petitioner.

Briefly stated, the facts are that the petitioner was appointed as Assistant Engineer on 31.12.2008 in the Irrigation Department, Banda Division-III. He joined his duties on 24.01.2009. Thereafter, under the orders of the Executive Engineer, Irrigation Department, Banda Division-III, the work of the petitioner was allotted to one Atul Kumar with the rider that he would hold the post till the petitioner returns from his training. This order was subsequently withdrawn by the Superintending Engineer vide order dated 17.2.2009 and the Executive Engineer was directed to hand over the charge to the petitioner. Thereafter, by an order dated 16.5.2009 passed by the Chief Engineer (Betwa), Irrigation Department, Jhansi, the petitioner was given the work of pinching of marginal 'budh' and construction of 'chute' drain. According to the petitioner, even thereafter, the charge and payments to be made by him were not handed over to him. Therefore, the Superintending Engineer, respondent no. 3, vide his letter dated 25.6.2009 directed the Executive Engineer to immediately hand over the charge of works to the petitioner in compliance of the Government Order otherwise disciplinary proceedings would be initiated against him. Thereafter, the petitioner commenced his work and contracts were awarded for construction of chute drain for Marginal bundh city side from 15.6.2009 to 10.7.2009 as would be evident from the document filed as annexure-8 to the writ petition. Thereafter, on 1.1.2010, the petitioner was sent for training which he completed on 31.3.2010 as per the certificate granted to him in this regard, annexure-9 to the writ petition. During this time, the petitioner was placed under suspension by order dated 10.7.2013, against which he filed writ petition no. 52744 of 2013 and the order of suspension was stayed. Thereafter, a charge-sheet was issued to the petitioner under covering letter dated 12.2.2014. The petitioner submitted his reply to the charge-sheet on 10.3.2014. The inquiry was held and the inquiry officer submitted his report dated 6.1.2014 holding that although the charge of non-compliance of Rule 369, Part-6 of the Financial Handbook namely, awarding more than one contract to the same contractor was proved but there was no financial loss caused to the department and that because  the petitioner was untrained Assistant Engineer, the mistake was only procedural and not intentional. The disciplinary authority, however, did not accept the recommendation of the inquiry officer and issued a disagreement note dated 21.7.2015 to which the petitioner submitted his reply and thereafter, the impugned order dated 26.2.2016 has been passed whereby the penalty withholding of one increment with cumulative effect permanently has been imposed against the petitioner and penalty of censure has also been imposed.

The contention of the learned counsel for the petitioner is that though the charge-sheet refers to the period when the petitioner was working as Assistant Engineer i.e. 24.4.2009 to 17.7.2013, but the irregularity alleged against the petitioner is only for the period April, 2009 and the charge-sheet mentions that during this period, out of 33 lots he awarded 5 lots to one M/s. R.K. Company, 4 lots to Sri Ram Dutt Mishra, 18 lots to Sri Pradeep Kumar Jadia, 2 lots to M/s. Sabname Company, 2 lots to Sri Durga Prasad and 2 lots to Daddu Prasad and these allotments to more than one person were made without oral instructions of the Superintending Engineer. Learned counsel for the petitioner further submitted that prior to the period for which these allegations have been made against the petitioner, he had not even been sent for training which is actually from 15.6.2009 to 10.7.2009 and therefore, the petitioner could not have been expected to know that he was required to take oral instructions from the Superintending Engineer. He has also referred to the Office Circular dated 8.12.1999, annexure-18 to the writ petition, which clearly mentions that in the case of newly appointed Assistant Engineers, the Executive Engineer should, from time to time, supervise their works, give them guidance so that there are no financial irregularities and that the newly appointed Assistant Engineers can discharge the duties of their post without any difficulty.

Learned Standing Counsel, on the other hand, submitted that the inquiry officer has held the charge of non-compliance of Rule 369 of Para-6 of the Financial Handbook to have been proved, therefore, the misconduct of the petitioner has been proved and he cannot escape his liability and therefore, merely because there was no financial loss caused to the department by the petitioner, it cannot be said that there was no misconduct or that he could not have been charged or punished.

We have heard learned counsel for the parties and perused the documents on record.

From a perusal of the charge-sheet, we find that the charges against the petitioner are all of the period prior to sending him for training. At that time, the petitioner was only an Assistant Engineer (Untrained). The charges against him are not that during this period he was trained and had knowledge of Rule 369, Part-6 of the Financial Handbook. The charges against the petitioner are also not of defalcation or embezzlement or even causing loss of government money whereas he has only been charged of granting contracts to more than one person without obtaining oral instructions of the Superintending Engineer. We fail to understand, what would be the value of an oral instruction given by a Superintending Engineer which can be retracted by him at his whim if he himself lands in a trouble. It would have been a different matter if the petitioner was required to obtain instructions from the Superintending Engineer in writing or that there was any such instructions which the petitioner has flouted. That is not the charge against the petitioner. The validity and application of the circular dated 8.12.1999 has not been denied by the respondents in their counter affidavit.

In fact, there is an admission in paragraph 16 of the counter affidavit that the petitioner was assigned the construction work in terms of the circular dated 8.12.1999. If there has been any infraction  of the provisions of Rule 369, Part-6 of the Financial Handbook, in all fairness, it can be attributed to the lack of knowledge of the petitioner about the procedure. It is not the case of the respondents that the Executive Engineer had been guiding the petitioner from time to time and the petitioner did not obey those instructions as contemplated in the circular dated 8.12.1999.

There is another aspect of the matter which shocks our conscience i.e. the petitioner was at the threshold of his career and he is absolutely a green horn and entered in service in 2009 itself and before sending him for training, he was assigned the work of construction, as admitted by the respondents in paragraph 16 of the counter affidavit. The respondents have nowhere disclosed that the petitioner was made aware of the procedure prescribed in Rule 369 Part-6 of the Financial Handbook.

As we have already noted above, the charge against the petitioner also is not that he deliberately flouted the provisions of Rule 369 for extraneous consideration in awarding contract to one person. It is in this background and considering that the petitioner is an absolutely young person who had just entered service and had not even undergone training and was not apprised with the rules and procedure, the imposition of penalty of withholding one increment with cumulative effect permanently was a very harsh punishment.

The State is expected to be a model employer and to take care of the welfare of its employees and unless the employee is found to have seriously misconducted himself, no harsh action is required to be taken. The defence taken by the respondents in their disagreement note is that ignorance of law is no defence. That may be correct only up to a point provided it is disclosed that the petitioner was supposed to have knowledge of the intricacies of the rules and procedure and was made aware  of the same prior to undergoing training in terms of the circular dated 8.12.1999.

Therefore on a conspectus of facts, in our opinion, the impugned order is extremely harsh and can, in fact, destroy the morale of the employee. In such a situation, the petitioner could have been let off with simple warning so that he would be cautious for future rather than saddle him with a major penalty at the very threshold of his career.  

We, therefore, set aside the order dated 26.02.2016 passed by the respondent no. 2 and remand the matter to the respondent no. 1 to consider the petitioner's case in the light of the observations made above within a period of three months from the date of receipt of a certified copy of this order.

The writ petition is accordingly allowed.

Order Date :- 2.8.2018

nd