Pramod Kumar Bhukesh vs State Of U.P. Through Prin. Secy. ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

[A.F.R]
 
Reserved
 
Court No. - 4
 
Case :- SERVICE BENCH No. - 1487 of 2012
 
Petitioner :- Pramod Kumar Bhukesh
 
Respondent :- State Of U.P. Through Prin. Secy. Urban Development Lko. & O
 
Counsel for Petitioner :- Raj Kumar Upadhyaya,Dr L P Mishra
 
Counsel for Respondent :- C.S.C.,I.P.Singh,Rishabh Kapoor
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rang Nath Pandey, J.

Heard Dr. L. P. Misra, learned counsel for the petitioner, learned State Counsel representing the State of Uttar Pradesh and Shri Rishabh Kapoor, learned counsel representing the Uttar Pradesh Jal Nigam (hereinafter referred to as ''Nigam'), a statutory body established under section 3 of Uttar Pradesh Water Supply and Sewerage Act, 1975.

Facts of this case and the chain of events as disclosed by the pleadings available on record and on perusal of the records produced before the Court by the State Government and also by the Nigam, are interesting and disturbing at the same time. The petitioner, an employee of Nigam, is first inflicted with punishment of dismissal which is subsequently stayed by the State Government with the direction to the authorities of the Nigam to take a fresh decision, whereupon the Chairman of the Nigam reduces the order of punishment from dismissal to stoppage of two annual increments with permanent effect coupled with a warning to the petitioner that he will not misconduct himself again. The said decision of the Chairman of the Nigam reducing the punishment from dismissal to stoppage of two annual increments is reconsidered by the authorities of the Nigam and cancelling the said order of the Chairman, punishment order passed initially dismissing the petitioner is revived/restored.

As to whether the State Government could have stayed the order of punishment and directed the Nigam to reconsider the same, is one of the issues, which needs to be considered in this case.

The petitioner while working as Chief Engineer-II in the Nigam was issued a charge-sheet dated 02.07.2005 which contained imputation of three charges. The first charge related to award of certain works, value of which was Rs.100.75 crore, by completing the market survey within two days and certain other works worth Rs.35.16 crore, 21.137 crore, 6.66 crore and Rs. 4 crore, which were allotted allegedly, against the financial rules, to certain contractors. The allegation in this regard in respect of the first charge against the petitioner was that the contracts for these works were entered into with the contractors without taking recourse to the process of competitive bidding and execution of certain project work was got done without approval of the competent authorities.

The second charge related to charging less centage to the tune of Rs.1505.22 lakh.

The third charge was in respect of execution of certain works by charging the guarantee money @ Rs.2% of the contract amount as against prescribed rate of 10% in terms of the relevant rules and accordingly the petitioner was charged of not exercising appropriate supervision over his subordinates which resulted in financial loss to the Nigam on account of financial irregularities, which were committed in personal interest in connivance with the subordinate officers and contractors.

A supplementary charge-sheet dated 16.07.2005 was also served upon the petitioner wherein he was charged of submitting an enquiry report in respect of certain officers/employees for which he was not competent with a view to save the officers/employees connivingly.

The enquiry, on the basis of aforesaid charge-sheets, was conducted by the enquiry officer, who submitted his report dated 23.12.2005 to the Chairman of the Nigam vide his letter 30.12.2005. The enquiry officer found the first charge proved against the petitioner holding him guilty of presenting proposals for getting certain works done/executed through the procedure of PCR instead of allocating such works by adopting the process of competitive bitting. The enquiry officer also found the charge no.2 proved against the petitioner whereby he was held guilty of charging centage at a rate less than the prescribed rate. The third charge levelled against the petitioner in respect of charging the security amount from the contractors @ 2% of the contract amount in place of prescribed rate of 10% was also found proved against the petitioner by the enquiry officer.

On submission of the charge-sheet, the Chairman of the Nigam vide his letter dated 29.01.2006 furnished a copy of the enquiry report to the petitioner and required him to submit his reply/explanation to the said enquiry report. Thereafter the Chairman again on 10.02.2006 required the petitioner to submit his reply to the enquiry report submitted by the enquiry officer in respect of the supplementary charge-sheet as well, annexing therewith a copy of the enquiry report in relation to the supplementary charge-sheet dated 16.07.2005.

The petitioner submitted his explanation/reply to the enquiry report which was considered by the Chairman, who after taking into consideration enquiry report, the entire enquiry proceedings and the explanation submitted by the petitioner to the enquiry report, passed an order of punishment dated 09.05.2007 whereby he was dismissed from services of the Nigam. The Chairman while passing the said punishment order dated 09.05.2007 found the charges against the petitioner to be fully proved. It may be relevant to observe, at this juncture, that the enquiry officer in his enquiry report had also found all the charges against the petitioner proved.

The petitioner thereafter moved an application dated 18.05.2007 addressing the same to the Principal Secretary of the State Government in the department of Urban Development, the administrative department in relation to the Nigam, which, as observed above, is a statutory body established under an Act of State Legislature and is thus a body corporate. The said application was addressed to the Principal Secretary, Urban Development-cum-Chairman of the Nigam. In the application, the petitioner stated that he had received the order of punishment of dismissal from service dated 09.05.2007 through registered post which appeared to have been posted on 16.05.2007 from the General Post Office, Lucknow after the new Government in the State of U.P. was formed. The allegation in the said application was that the decision of dismissal from service dated 09.05.2007 was ante-dated. On these allegations, a prayer was made by the petitioner that the order of punishment of dismissal be cancelled and he may be reinstated in service.

Referring to the said application dated 18.05.2007, the Principal Secretary of the State Government in the Department of Urban Development wrote a letter to the Managing Director of the Nigam on 18.05.2007 itself stating therein that prima facie it appeared that the decision to dismiss the petitioner from service was taken either on 13.05.2007 or thereafter whereas on 13.05.2007 the Chairman of the Nigam had resigned from his post and as such there were reasons to believe that the punishment order dated 09.05.2007 had been issued on 16.05.2007. Accordingly, the Principal Secretary directed that the matter be enquired into and be placed before the new Chairman of the Nigam to be appointed, for his consideration/decision and final decision be taken on his approval/orders. The letter dated 18.05.2007 also provided that till the matter was placed before the new Chairman to be appointed for his consideration/decision, the implementation of the order of punishment would remain deferred.

The Principal Secretary, thereafter, referring to a demi official letter dated 03.08.2007 wrote a letter to the newly appointed Chairman of the Nigam on 24.09.2007 requiring the Chairman to examine the representation dated 26.06.2007 made by the petitioner which was received in the State Government and take necessary action as required by means of the earlier letters/orders of the State Government dated 18.05.2007 and 03.08.2007. The said letter dated 24.09.2007 also directed the Chairman of U.P. the Nigam to take action in terms of the earlier directions issued, within two days so that Hon'ble Chief Minister may be apprised of the action taken.

The Managing Director of U.P. Jal Nigam thereafter wrote a letter on 26.02.2008 to the State Government apprising the Government of the decision of the Chairman to seek legal opinion of the Legal Remembrancer/Principal Secretary (Law) of the State Government on the representation preferred by the petitioner. In reply to the said letter dated 26.02.2008, the State Government took a decision as is reflected from the ordere of the State Government dated 09.07.2008 to reinstate the petitioner taking a decision on the representation preferred by him against the order of punishment of dismissal from service. The order dated 09.07.2008 of the State Government refers to Rule 13 of U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinaftr referred to as ''Discipline and Appeal Rules, 1999) and it further recites that under Rule 13 of the said Rules, the State Government is vested with the authority of reviving/reviewing the order of punishment in respect of the employees of the Nigam.

We may notice, at this juncture, that there is no dispute in respect of the applicability of the provisions of Discipline and Appeal Rules, 1999 to the employees of the Nigam with corresponding changes. Before we proceed to mention further facts of the case, we would like to notice here that in terms of the Office Memorandum dated 03.02.2003 issued by the Chairman of the Nigam, which is based on a decision of the Board of Directors of the Nigam taken in its 138th meeting held on 22.01.2003, the provisions of Discipline and Appeal Rules, 1999 are applicable to the employees of the Nigam with certain amendments. According to the said Office Memorandum dated 03.02.2003 the words ''Hon'ble Governor' or ''the State Government' occurring in Discipline and Appeal Rules, 1999 shall be deemed to be substituted by the word ''Board of Directors of the Nigam' and accordingly the jurisdiction and powers vested in Hon'ble Governor or the State Government under Discipline and Appeal Rules, 1999 in relation to State Government employees, shall be exercised by the Board of Directors of the Nigam in respect of the employees of the Nigam. The Office Memorandum dated 03.02.2003 further provides that while exercising the jurisdiction and powers under Rules 13, 14 and 15 of Discipline and Appeal Rules, 1999 in respect of employees of the Jal Nigam, the provisions of Rule 16 of the said Rules, 1999 will not be applicable.

Thus, from a perusal of the Office Memorandum dated 03.02.2003, it is abundantly clear that the power of revision exercisable by the State Government under Rule 13 of Discipline and Appeal Rules, 1999 has to be exercised by the Board of Directors of the Nigam and not by the State Government in respect of the disciplinary matters relating to employees of the Nigam. Accordingly, we have no hesitation to observe and hold, at this juncture itself, that the decision of the State Government as reflected in its order dated 09.07.2008 whereby the State Government has exercised the powers of revision under Rule 13 of the Discipline and Appeal Rules, 1999 for reinstating the petitioner, is absolutely without jurisdiction. The said power of revision could be exercised only by the Board of Directors of the Nigam as is abundantly clear from the perusal of the Office Memorandum dated 03.02.2003 issued by the Chairman of the Nigam which is based on the decision of the Board of Directors of the Nigam taken in its meeting held on 22.01.2003. This clearly establishes that the order/decision dated 09.07.2008 of the State Government is coram non judice.

The matter, thereafter, appears to have been considered by the Board of Directors of the Nigam in its 148th meeting held on 27.08.2008 which decided to constitute a Three Members Committee comprising of (i) the Director of Local Bodies, Government of U.P., (ii) Special Secretary, Department of Urban Development and (iii) Director of Construction and Design Services, U.P. Jal Nigam to reconsider the punishment of dismissal from service inflicted upon the petitioner and to make its recommendation to the Board of Directors. The minutes of meeting of the Board of Directors dated 27.08.2008 clearly reveal that the matter was considered pursuant to the orders/letters of the State Government dated 18.05.2007 and 09.07.2008 which have been referred to in the preceding paragraphs of this judgment. The meeting of the Board of Governors held on 27.08.2008 was thus convened at the instance and on the directions of the State Government contained in its letters/orders dated 18.05.2008 and 09.05.2008.

In compliance of the order dated 09.07.2008 passed by the State Government, the Chairman of the Nigam passed an Office Memorandum dated 08.09.2008 reinstating the petitioner on his post.

The Board of Directors thereafter took a decision on 15.10.2008 to call for the recommendation of the Committee comprising of only two members, namely, Special Secretary, Government of U.P. in the Department of Urban Development and (ii) the Director of Local Body, Government of U.P. and accordingly by means of an order dated 11.11.2008 passed by the Principal Secretary of the State Government, the said Two Members Committee was constituted.

The Two Members Committee reconsidered the entire matter as per the directions of the State Government and the decision of the Board of Directors and submitted its report vide letter dated 21.01.2009. In the said enquiry report submitted by the Two Members Committee, all the three charges against the petitioner were again found proved. The charge levelled against the petitioner in the supplementary charge sheet was also found proved.

The Chairman of the Nigam vide his letter dated 30.08.2011 furnished a copy of report dated 21.01.2009 submitted by the Two Members Committee to the petitioner and also required him to furnish his reply/representation on the said report submitted by the said Committee. The petitioner in reply to the said letter dated 30.08.2011 submitted his explanation/representation to the report submitted by the Two Members Committee, vide his letter dated 29.09.2011. The Chairman was authorized by a decision of the Board of Directors in its 152nd meeting to take decision. The Chairman passed an order on 02.03.2012 whereby he also found the charges against the petitioner proved, however, he reduced the punishment of dismissal from service and inflicted the punishment of stoppage of two yearly increments with permanent effect against the petitioner and further while giving him special adverse entry, the Chairman also warned/cautioned him not to repeat the misconduct. As a result of the order dated 02.03.2013 the order of punishment of dismissal from service, dated 09.05.2007 stood cancelled.

In the counter affidavit filed by the Jal Nigam, it has been submitted that after the order dated 02.03.2012 was passed by the Chairman, the Director of Finance of the Nigam wrote a letter to the Chairman, dated 16.04.2012 wherein it was stated that the petitioner had represented the State Government against the order of dismissal dated 09.05.2007 instead of filing an appeal and taking exception to the manner in which the order dated 02.03.2012 was passed, the Director, Finance of the Nigam in his letter dated 16.04.2012 also stated that even the Two Members Committee appointed by the Board of Directors to re-enquire into the matter found the charges to be proved against the petitioner and though the charges were grave however, he was not dismissed and was allowed to work. In the said letter, the Director, Finance of the Nigam also stated that though the Two Members Committee submitted its report way back on 21.01.2009, however, the decision on the said report was taken with inordinate and unexplained delay on 02.03.2012 which facilitated the charged officer to indulge in irregular and illegal acts. He also expressed his apprehension that the order dated 02.03.2012 was ante-dated. The entire matter was thus, again considered by the Board of Directors of the Nigam in its 159th meeting held on 16.08.2012 wherein the legal opinion of the Principal Secretary, Law and learned Advocate General of the State of Uttar Pradesh on the order dated 09.07.2008 was taken into consideration. The Board of Directors in its meeting held on 16.08.2012 thus decided to review the entire matter in exercise of its power/jurisdiction vested in under Rule 14 of the Discipline and Appeal Rules, 1999 and accordingly cancelled the order dated 08.09.2008 passed by the Chairman whereby the petitioner was reinstated in service and also cancelled the order dated 02.03.2012 whereby the Chairman had reduced the order of punishment of dismissal from service to stoppage of two annual increments. The Board of Directors in the said decision dated 16.08.2012 also provided that for maintaining the order of dismissal dated 09.05.2007, separate speaking order shall be issued. In terms of the decision taken by the Board of Director in its meeting held on 16.08.2012, the Chairman issued a show cause notice dated 06.09.2012 whereby the petitioner was required to submit his reply/explanation as to why the order of punishment passed on 09.05.2007 may not be maintained. The petitioner instead of submitting reply to the said show cause notice dated 06.09.2012 issued to him by the Chairman wrote a letter dated 19.09.2012 to the Chairman demanding certain documents so that he can furnish the explanation to the show cause notice dated 06.09.2012.

This writ petition was thus, initially filed challenging the resolution of the Board of Directors dated 16.08.2012 and also challenging the show cause notice issued to the petitioner by the Chairman dated 06.09.2012.

By a letter dated 15.10.2012, the Chairman replied the letter of the petitioner dated 19.09.2012 and furnished certain documents and informations which were sought by the petitioner. On 24.01.2012 last opportunity was given to him to furnish the reply to the show cause notice dated 06.09.2012 whereafter the matter was placed before the Board of Directors in its 163rd meeting held on 05.07.2014 and the Board of Directors in the said meeting held on 05.07.2014 took a final decision and maintained the order of punishment of dismissal from service dated 09.05.2007. The said decision taken by the Board of Directors in its meeting held on 05.07.2014 was communicated to the petitioner by the Managing Director of the Nigam by means of the Office Memorandum dated 26.07.2014. The petitioner thereafter preferred an appeal against the said decision on 25.10.2014 which, too, was rejected by a decision taken by the Board of Directors in its 164th meeting held on 09.03.2016 and the said decision was intimated to the petitioner by the Managing Director vide Office Memorandum dated 18.04.2016. The Office Memorandum dated 26.07.2014 whereby the decision of the Board of Directors taken in its meeting on 05.07.2014 was communicated to the petitioner and also the Office Memorandum dated 18.04.2016 whereby the decision taken by the Board of Directors in its meeting dated 09.03.2016 rejecting his appeal was communicated to the petitioner, have been challenged by moving amendment application.

Thus, the petitioner, by invoking jurisdiction of this Court under Article 226 of the Constitution of India, has assailed the validity of (i) the decision of the Board of Directors taken in its meeting held on 05.07.2014 whereby the order of punishment of dismissal from service has been maintained and which has been communicated by the Office Memorandum dated 26.07.2014 passed by the Managing Director, (ii) the decision of the Board of Directors taken in its meeting held on 09.03.2016 whereby his appeal has been rejected and which has been communicated vide Office Memorandum dated 18.04.2016 of the Managing Director, (iii) the decision of the Board of Directors taken in its meeting held on 16.08.2012 and (iv) the show cause notice dated 06.09.2012 issued by the Chairman of the Nigam consequent upon resolution of the Board of Directors passed in its meeting held on 16.08.2012.

We have considered the arguments advanced on behalf of the respective parties by their counsel and have also perused the records produced by the State Government as also by the Nigam.

Impeaching the impugned action on the part of the respondents, learned counsel appearing for the petitioner has made four submissions. He has firstly submitted that while taking decision whereby the order of punishment of dismissal from service passed on 09.05.2007 by the Chairman has been restored, as a result of which the order of Chairman dated 02.03.2012 reducing the punishment of dismissal from service to stoppage of two annual increments with permanent effect stood cancelled, no opportunity of hearing to the petitioner was provided. Secondly, it has been argued on behalf of the petitioner that in absence of any specific power conferred, the decision of the Chairman dated 02.03.2012 could not have been reviewed. Thirdly, a submission has also been made by the learned counsel appearing for the petitioner that there is no additional material which could have permitted the respondents to have reviewed the order of Chairman dated 02.03.2012. Fourthly and lastly, it has been stated by the learned counsel for the petitioner that on identical charges, the other employees/officers have either been exonerated or have been inflicted with minor penalty and such a course adopted by the respondents, thus, amounts to subjecting the petitioner to hostile discrimination which infringes Article 14 of the Constitution of India and, thus, the impugned decision restoring the order of punishment of dismissal from service is unlawful and hence, not tenable.

Opposing the submissions made by the learned counsel for the petitioner, learned counsel representing the U.P. Jal Nigam, Sri Rishabh Kapoor has vehemently argued that every decision taken by the Board of Directors of U.P. Jal Nigam or its Chairman after the order of dismissal dated 09.05.2007 and before the decision of Board of Directors taken in its 159th meeting held on 16.08.2012 was on the dictates of the State Government which did not have any jurisdiction to issue any such direction and as such all such decisions are nullity. He has relied upon a judgment of Hon'ble Supreme Court in the case of Joint Action Committee of Air Line Pilots' Association of India (ALPA) and others Vs. Director General of Civil Aviation and others, reported in (2011) 5 SCC 435.

He has also stated that before taking the impugned decision whereby the order of punishment of dismissal from service has been restored, the petitioner was given appropriate opportunity of presenting his case and further that in terms of the provision contained in Rule 14 of the Discipline and Appeal Rules,1999, the Board of Directors has the statutory power to review any of its earlier decisions. He has drawn attention of the Court to a letter dated 16.04.2012 written by the Director, Finance of the Nigam to its Chairman bringing to his notice the illegalities committed by the Board of Directors and the Chairman earlier which had resulted in passing of the order dated 02.03.2012 by the Chairman whereby the punishment of dismissal from service inflicted upon the petitioner was reduced to stoppage of two annual increments with permanent effect. He has, thus, submitted that the contents of the said letter required the Board of Directors to review the decision under its authority/powers vested under Rule 14 of the Discipline and Appeal Rules, 1999 for the reason that it was noticed that while taking earlier decisions, material error of law had occurred which called for review. Sri Kapoor has, thus, submitted that the grounds taken by the petitioner for grant of prayers made herein are absolutely not tenable and no interference in this writ petition is warranted by this Court.

Fate of this writ petition revolves around the issue as to whether the State Government is vested with any lawful authority to have firstly stayed the order of punishment of dismissal from service and secondly to have required the Jal Nigam to review the said decision of punishing the petitioner with dismissal from service.

The State Legislature with a view to provide for establishment of a Corporation, authorities and organization for the development and regulation of water supply and sewerage services and for matters connected therewith enacted the Uttar Pradesh Water Supply and Sewerage Act, 1975( U.P. Act No. 43 of 1975). Section 2(15) of the said Act, 1975 defines "Nigam" to mean the Uttar Pradesh Jal Nigam established under Section 3. Section 3 provides that the State Government shall constitute a Corporation by the name of Uttar Pradesh Jal Nigam by a notification to be published in the Official Gazette, with effect from a date to be specified in such Gazette Notification. Sub-section (2) of Section 3 provides that U.P. Jal Nigam shall be a body corporate by the said name and it will have a perpetual succession and a common seal. Sub-section (3) of Section 3 of the Act provides that the Nigam shall be deemed to be a local authority. Section 4 provides that the Nigam shall consist of a Chairman appointed by the State Government and the members specified in sub-section (2) of Section 4. The power of appointment of the employees of Nigam is vested in the Nigam itself according to Section 8 which provides that Nigam may appoint such employees as it considers necessary on such terms and conditions as it thinks fit. Proviso appended to Section 8 provides that appointment of such employees as the State Government may specify shall be made and their terms and conditions shall be determined with the approval of the State Government.

The State Government, under Section 89 of the Act, 1975, has been vested with the authority and power to issue directions to the Nigam on questions of policy. The said provision further provides that the Nigam shall be guided by the said directions of State Government on questions of policy in discharge of its functions. Section 89 of the Act, 1975 is extracted hereunder:

"89.(i) in the discharge of its functions, the Nigam shall be guided by such directions on question of policy as may be given to it by the State Government.

(ii) if any question arises whether any matter is or is not a matter as respects which the State Government may issue a direction under sub-section (1), the decision of the State Government shall be final."

Thus, in terms of the provision contained in Section 89 of the Act, 1975, the State Government has been vested with the authority only to issue directions to the Nigam on questions of policy. That, in our considered opinion, would not mean that the State Government is vested with any authority to issue any direction or instruction to the Nigam in discharge of its day-to-day functions and transaction of its routine business. The matter relating to taking disciplinary action against the employees of the Nigam is to be taken care of by the Nigam in accordance with the rules meant for the said purposes. Any direction issued by the State Government in relation to the disciplinary matters would not be construed as a direction on any question of policy and thus, if the State Government issues any direction in relation to the certain disciplinary action taken against its employees by the Nigam, the same shall be without jurisdiction for the reason that such direction, by any stretch of imagination, cannot be construed to be a "direction on questions of policy". The State Government, of course, is fully well within the power and jurisdiction to issue directions to the Nigam in respect of the policy relating to cadre management including disciplinary actions, however, such directions can be general in nature and issuing any direction in a specific case, as has been done in the present matter, would not amount to issuing the direction on questions of policy. The policy connotes generality in respect of certain issue.

What we notice in this case is that after the petitioner was dismissed from service by means of the order passed by the Chairman of the Nigam on 09.05.2077, he moved an application to the State Government dated 18.05.2007, though the application is addressed to the Principal Secretary of the State Government in the Department of Urban Development-cum-Chairman of the Nigam, and it is on the said application that on 18.05.2007 itself the order of punishment of dismissal was stayed by the Principal Secretary of the State Government and it was further directed by him that the matter be placed before the new Chairman to be appointed. It is on record that earlier Chairman had resigned on 13.05.2007 and since the Principal Secretary in his order dated 18.05.2007 had directed that the matter be placed before the new Chairman to be appointed, it is clear that by the said date i.e. by 18.05.2007, there was no Chairman of the Nigam appointed and accordingly, the order/letter dated 18.05.2007 has to be, thus, construed to be an order/letter of the State Government and not that of the Chairman.

We have perused the entire record of the State Government which was produced by the learned Standing Counsel representing the State-respondents and we find that the order dated 09.07.2008 whereby the petitioner was ordered to be reinstated, is an order of the State Government and not that of the Chairman. The deliberations made before issuing the order dated 09.07.2008 as are available on the file reveal that the said order was passed by the State Government. While passing the order dated 09.07.2008, the State Government has recited therein that the State Government has been vested with the authority and jurisdiction of revision under Rule 13 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. The order dated 09.07.2008 further recites that the State Government thus directs reinstatement of the petitioner in exercise of its jurisdiction/power available to it under Rule 13 of the Discipline and Appeal Rules, 1999. However, while passing the order dated 09.07.2008 whereby the petitioner was ordered to be reinstated by the State Government, the Circular dated 03.02.2003 issued by the Chairman of the Nigam which is based on the decision of the Board of Directors of the Nigam taken in its 138th meeting held on 22.01.2003 was not taken into consideration. The said Circular dated 03.02.2003 clearly provides that the provisions of Discipline and Appeal Rules, 1999 which are otherwise applicable to the State Government employees shall be applicable to the employees of the Nigam with the amendment that the words "Governor" or "State Government" shall be substituted by the words "Board of Directors of the Nigam". Rule 13 of the Discipline and Appeal Rules, 1999 vests in the State Government a jurisdiction of revision and provides that the Government of its own motion or on the representation of concerned Government servant may call for the record of any case decided by an authority subordinate to it and it may confirm, modify or reverse the order passed by such authority, or it may direct for further inquiry or it may pass order reducing or enhancing the penalty or it may also make such other order which may be deemed fit. Rule 13 of the Discipline and Appeal Rules, 1999 is extracted herein below:

"13. Revision.- Notwithstanding anything contained in these rules, the Government may of its own motion or on the representation of concerned Government servant call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules;

(a) confirm, modify or reverse the order passed by such authority, or

(b) direct that a further inquiry be held in the case, or

(c) reduce or enhance the penalty imposed by the order, or

(d) make such other order in the case as it may deem fit.

The Office Memorandum dated 03.02.2003 issued by the Chairman of the Nigam is also extracted herein below:

 
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Thus, Rule 13 of the Discipline and Appeal Rules, 199 has to be read in conjunction with the Circular dated 03.02.2003 and accordingly the jurisdiction/power of the revision in respect of an order passed by any subordinate authority vests with the Board of Directors of the Nigam in respect of employees of the Nigam and not in the State Government. The power of revision vests in the State Government in terms of the provisions contained in Disciplinary and Appeal Rules, 1999 only in respect of the employees of the State Government and not in relation to the employees of the Nigam.

There is no ambiguity in this respect and accordingly we have no hesitation to hold, as observed above, that the order dated 09.07.2008 passed by the State Government whereby the petitioner was ordered to be reinstated, is absolutely without jurisdiction.

Now, while we examine the decision taken by the Board of Directors in its 148th meeting held on 27.08.2008, it is noticeable that the said decision was taken in pursuance of the letters/orders of the State Government, dated 18.05.2008 and 09.07.2008. We have already held above that the State Government in the matters of disciplinary proceedings in respect of the employees of the Nigam does not have any authority of either revising or reviewing the order of punishment. The letter dated 18.05.2008 whereby the direction was issued to place the matter before the Chairman of U.P. Jal Nigam, was issued by the State Government. Such a direction of the State Government as is contained in its letter dated 18.05.2008 is not referable to the powers of the State Government vested in it under Section 89 of the Act, 1975. The said letter has clearly been issued by the State Government and not by the Chairman of the Nigam.

Similarly, as has already been held above, the order dated 09.07.2008 issued by the State Government was also without jurisdiction and hence, the decision of the Board of Directors of the Nigam taken in its meeting held on 27.08.2008 whereby three members' committee was constituted to revisit the punishment awarded to the petitioner and the petitioner's suspension was revoked, in our considered opinion, will not be tenable being nullity.

At this juncture, reference may be made to the law laid down by Hon'ble Supreme Court in the case of Joint Action Committee of Air Line Pilots' Association of India (AlPAI) and others (supra), wherein it has been clearly held that the authority who has been vested with the power to exercise its discretion alone can pass the order and further that even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner. Para-28 of the aforesaid judgment is extracted herein below:

"In view of the above,the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner."

In the wake of the law enunciated by Hon'ble Supreme Court in the aforesaid decision, the submission made by learned counsel for the petitioner that the decision taken by the Board of Directors in its meeting held on 27.08.2008 was an independent decision of the Board of Directors, is not tenable for the reason that the record of this case clearly reveals that the said decision was taken at the instance of and on the direction issued by the State Government, vide its letters/orders dated 18.05.2007 and 03.08.2007. Nigam is a statutory body and its authority and functions are vested in its Board of Directors. The power of State Government in respect of issuing direction to the Nigam is confined only to the prescriptions available in Section 89 of the Act, 1975.

If we analyze the decision of the Board of Directors taken in its meeting on 27.08.2008, what we find is that the said decision cannot be said to be an independent decision of the Board and, as a matter of fact, the decision making process was started only on the direction issued by the State Government contained in its letters/orders dated 18.05.2007 and 09.07.2008. Therefore, the Board of Directors appears to have completely surrendered its discretion and thus abdicated its authority to the dictates of the State Government.

So far as the order of the Chairman passed by him on 02.03.2012 whereby the punishment of dismissal from service inflicted upon the petitioner was reduced to punishment of stoppage of two annual increments with permanent effect is concerned, the said order is based on the exercise conducted and the decision taken by the Board of Directors of the Nigam on the directions of the State Government and hence the said order dated 02.03.2012 can also not be permitted to be sustained.

It is in terms of the decision taken by the Board of Directors in its meeting held on 27.08.2008 that firstly three members' committee was constituted which was later on was converted into two members' committee, which submitted its report and the Chairman considered the said report as he was authorized by the Board of Directors by its resolution passed in its 152nd meeting to take decision. The order passed by the Chairman, dated 02.03.2012 was in pursuance of the decision taken by the Board of Directors which had not acted independently; rather on the dictates of the State Government. Accordingly we also hold that the order dated 02.03.2012 passed by the Chairman, is also not tenable.

So far as the submission made by learned counsel for the petitioner that before taking the decision whereby the order of punishment of dismissal from service has been restored, the petitioner was not provided any opportunity of hearing is concerned, we find that the said submission is not based on correct facts. We, while narrating the facts of this case above, have alrerady noticed that the Board of Directors in its meeting held on 16.08.2012 had decided to review the order passed by the Chairman on 02.03.2012 and it is in pursuance of the said decision of the Board of Directors taken in its meeting held on 16.08.2012 that the Chairman of the Nigam had issued a show cause notice on 06.09.2012 providing the petitioner opportunity to defend the order dated 02.03.2012. In pursuance of the said notice dated 06.09.2012, the petitioner initially wrote a letter on 19.09.2012 requiring the authorities of the Nigam to furnish him certain informations and documents which were provided to him by the authorities of the Nigam, vide letter dated 15.10.2012. The petitioner was, thus, given opportunity to represent his case before the final decision in the matter was taken by the Board of Directors in its meeting held on 05.07.2014. The decision dated 05.07.2014 taken by the Board of Directors was communicated to the petitioner by the Managing Director of the Nigam, vide his office memorandum dated 26.07.2014.

At this juncture, Rule 14 of the Discipline and Appeal Rules, 1999 needs to be quoted, which runs as under:

"14.Review.- The Governor may at any time, either on his own motion or on the representation of the concerned Government servant, review any order passed by him under these rules, if it has brought to his notice that any new material or evidence which could not be produced or was not available at the time of passing the impugned order or any material error of law occurred which has the effect of changing the nature of the case."

According to the aforesaid provision of Rule 14, in respect of the State Government employees, the Governor has been vested with the authority to review any order passed under the said Rule in two situations, namely, (1) if it is brought to his notice that any new material or evidence has emerged which could not be produced or was not available at the time of passing of the order under review and (2) any material error of law had occurred which has the effect of changing the nature of the case. We may reiterate that "Governor" occurring in Rule 14 stands replaced by "Board of Directors of the Nigam" in its application to the employees of U.P. Jal Nigam.

In the instant case, submission made by learned counsel for the petitioner is that there was no new material or evidence which had emerged to necessitate the exercise of power of review. However, what we notice here is that the power of review can be exercised by the reviewing authority, which in this case is the Board of Directors of the Nigam in view of the Circular issued by the Chairman of the Nigam dated 03.02.2003, in case any material error of law had occurred while passing the order under review which has the effect of changing the nature of the case.

In the instant case, the order dated 02.03.2012, passed by the Chairman of the Nigam revising the punishment inflicted on the petitioner, vide order dated 09.05.2007 was passed as he was authorized by the Board of Directors to to so and the Board of Directors of the Nigam had decided to review the punishment order in its meeting held on 27.08.2008 not independently; rather at the dictates of the State Government as is clear from perusal of the letters/orders dated 18.05.2007 and 09.07.2008 passed by the State Government.

Accordingly, since the State Government lacked jurisdiction to have issued the letters/orders dated 18.05.2007 and 09.07.2008, as such the decision of the Board of Directors to review the order of punishment is nullity. Hence, while taking decision to review the punishment of dismissal from service inflicted on the petitioner, the authorities of the Nigam had clearly committed material error of law which had the effect of changing the nature of the order passed on 02.03.2012 by the Chairman of the Nigam. In view of this, we have no hesitation to hold that the power of review in this case has been exercised by the authorities of the Nigam in accordance with the provision contained in Rule 14 of the Discipline and Appeal Rules,1999 read with Circular issued by the Chairman of the Nigam, dated 03.02.2003.

Learned counsel for the petitioner has also stated that the Rule 15 of the Discipline and Appeal Rules, 1999 provides that no order under Rules 12, 13 or 14 imposing or enhancing of any penalty could be made unless the employee concerned has been given a reasonable opportunity of showing cause against the proposed imposition or enhancement, as the case may be and in this case, since by the impugned decision the original order of punishment of dismissal from service dated 09.05.2007 has been restored, as such the same would amount to enhancing the penalty imposed upon the petitioner by the order of Chairman passed on 02.03.2012 and, thus, the petitioner was entitled to be given an opportunity of showing cause.

As we have already noticed above, the final decision by the Board of Directors to restore the order of punishment dated 09.05.2007 was taken by the Board of Directors in its meeting held on 05.07.2014 which was preceded by the decision of the Board of Directors taken in its meeting held on 16.08.2012 to review the order dated 02.03.2012, pursuant to which a show cause notice was also given to the petitioner by the Chairman on 06.09.2012 which was replied too by the petitioner, vide his letter dated 15.10.2012. Thus, the petitioner, in our considered opinion, was given appropriate opportunity as required under Rule 15 of the Discipline and Appeal Rules, 1999. In this view, this submission of learned counsel for the petitioner also does not hold any ground.

Lastly, it has been submitted by the learned counsel for the petitioner that by inflicting punishment of dismissal from service, the petitioner has been subjected to hostile discrimination inasmuch as the other officers/employees who were also charged with similar verbatim charges, were either exonerated or were given minor penalty, whereas the petitioner has been dismissed from service.

In the instant petition, the order of dismissal dated 09.05.2007 is not under challenge; rather under challenge is the decision of the Nigam whereby the order dated 02.03.2012 has been annulled. This Court has already found in the preceding paragraphs of this judgment that the order dated 02.03.2012 was not lawful for the reasons indicated therefor as above. Since the order of dismissal dated 09.05.2007 is not under challenge before us, we refrain from making any observation in respect of this submission of the learned counsel appearing for the petitioner.

We also do not find any illegality in the decision communicated to the petitioner by the Managing Director, vide office memorandum dated 18.04.2016 whereby the appeal preferred by the petitioner has been dismissed.

For the reasons given and discussion made above, the writ petition being devoid of merit, is hereby dismissed.

However, notwithstanding dismissal of this writ petition, it will be open to the petitioner to challenge the original order of punishment dated 09.05.2007 by taking recourse to any legal remedy which may be available to him under law.

There will be no order as to costs.

Order Date :- 10.10.2018

akhilesh/sanjay

(Rang Nath Pandey, J.) (D. K. Upadhayaya, J.)