Digvijay Narain Shukla vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 9924 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 
Case :- WRIT - A No. - 2657 of 2023
 
Petitioner :- Digvijay Narain Shukla
 
Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation And Water Resources Lko.
 
Counsel for Petitioner:- Shambhoo Sharan Lal Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

(1) Heard Shri S.S.L. Srivastava, learned Counsel for the petitioner and Shri Amitabh Rai, learned Additional Chief Standing Counsel for the State/respondent.

(2) The present petition under Article 226 of the Constitution of India has been filed by the petitioner assailing the validity of the judgment and order dated 23.10.2020 passed by U.P. State Public Services Tribunal, Lucknow (hereinafter referred to as ''Tribunal'), whereby the Claim Petition No. 843 of 2019: Digvijay Narain Shukla Vs. State of U.P. and others, challenging the order of punishment of censure dated 29.11.2018, has been rejected.

(3) A prayer has also been made by the petitioner to quash the office memo of punishment of censure, dated 29.11.2018 with a consequent direction to the respondents to consider his notional promotion to the post of Executive Engineer (Civil) w.e.f. 29.12.2017 i.e. the date junior to him, namely, Arvind Kumar Pandey, has been promoted to the post of Executive Engineer (Civil) with all consequential benefits.

(4) It has been argued by the learned Counsel for the petitioner that the learned Tribunal has not appropriately considered the issues involved in this matter inasmuch as that though the enquiry officer did not find the alleged charges proved against the petitioner, but even then disciplinary authority, without issuing any notice under sub-rule 2 of Rule 9 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 while disagreeing with the enquiry report and also without indicating any reason for the punishment, has passed the impugned order of punishment of censure dated 29.11.2018. His further submission is that the impugned order of punishment of censure dated 29.11.2018 has been passed on presumption inasmuch as that on the one hand, finding has been recorded by the disciplinary authority that the petitioner is not responsible for the construction work by sub-standard construction material, and on the other hand, simultaneously the disciplinary authority recited that it appears that the petitioner has not supervised the quality of work. He further argued that there is no record which may indicate that the construction work, which is said to be below standard, was completed during the tenure of the petitioner but the Tribunal erred in recording the finding that those construction works, which have been found below standard, have been completed during the tenure of the petitioner. He also argued that the Junior Engineer is responsible and accountable for the quality and quantity of the work of construction of bridge and the Executive Engineer has made payment against the executed work but they have not been subjected to disciplinary proceedings and only the petitioner, who has been posted as Assistant Engineer after completion of the work of construction of bridge, has been subjected to disciplinary proceedings. In view of the aforesaid, the submission made on behalf of the petitioner is that impugned order awarding the punishment of censure is not sustainable and accordingly the order passed by the Tribunal is liable to be set-aside.

(5) Per contra, learned Additional Chief Standing Counsel representing the State/respondents has submitted that the learned Tribunal has taken into account all the relevant aspects of the matter and has returned a finding that there is no denial to the fact on behalf of the claimant/petitioner that the construction work, which was found sub-standard, was completed during the tenure of the petitioner and disbursement for the construction work done was also made during the tenure of the petitioner, without verifying the quality of the work done and as such the petition lacks merits, which is liable to be dismissed.

(6) The point that arises for our consideration in this writ petition is as to whether in the given facts of the present case, the Tribunal ought to have interfered with the punishment imposed on the petitioner by the disciplinary authority and accordingly could not have rejected the claim petition filed by him.

(7) The issue is no longer res integra that the disciplinary authority, being fact finding authority, is 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, it is the within the domain of the disciplinary authority to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct.

(8) Further, the Court, while exercising the powers vested in it under judicial review, should ordinarily refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record. The Hon'ble Supreme Court in Union of India vs. P. Gunasekaran : (2015) 2 SCC 610, elaborated upon the extent of the exercise of writ jurisdiction in the matters relating to disciplinary proceedings and inter alia held as under :-

"13. Under Articles 226/227 of the Constitution of India, the High Court shall not :

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) Interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience"

(9) Recently, the Hon'ble Supreme Court in Union of India and Others v. Ex. Constable Ram Karan : (2022) 1 SCC 373 made the following pertinent observations :-

"23. The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary authority.

24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."

( emphasis supplied)

(10) Thus, the legal position is clear, in as much as, in exercise of powers of judicial review, the High Court 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 Court 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 it shocks the conscience of the Court, 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 Court decide to impose appropriate punishment by itself, on offering cogent reasons.

(11) Apparently, it is available on records of the present case that the petitioner was posted as Assistant Engineer in Saryu Drainage Division-2, Balrampur from 01.10.2011 to 16.08.2014. An enquiry was conducted by the Technical Advisory Committee (in short, T.A.C.) for the work done in the aforesaid Division w.e.f. 09.02.2015 to 12.02.2015. After completion of the enquiry, T.A.C. had submitted its report, wherein construction work was found to be sub-standard. The said report was examined in detail by the Chief Engineer Committee and after examining the matter in detail, the Chief Engineer Committee recommended to make enquiry into the matter regarding irregularities committed in the construction work.

(12) Noticing the irregularities committed in the construction work, an enquiry against the petitioner under Rule 7 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 was conducted by the Executive Engineer (South)-1. A charge-sheet dated 05.09.2017 was served upon the petitioner, leveling eight charges against him regarding dereliction in discharge of his duty. The petitioner, thereafter, submitted his reply dated 25.09.2017 followed by supplementary reply dated 18.10.2017 to the aforesaid charge-sheet, denying the charges levelled against him. Thereafter, the enquiry officer had submitted his report to the disciplinary authority and on the said basis, a show cause notice was issued to the petitioner. The petitioner, in response to the show cause notice, had submitted his reply dated 26.02.2018. The disciplinary authority, thereafter, has passed the impugned order dated 29.11.2018 inflicting the minor penalty of censure to the petitioner.

(13) The impugned order of punishment of censure was challenged by the petitioner by instituting Claim Petition No. 843 of 2019, which was dismissed by the Tribunal by means of the order dated 23.10.2020, which is under challenge before us.

(14) A three Judge Bench of the Hon'ble Supreme Court in the case reported as B.C. Chaturvedi Vs. Union of India & Others :(1995) 6 SCC 749 has distinctively held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The Hon'ble Supreme Court elaborately held as follows:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel ( 1964) 4 SCR 718 this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

( emphasis supplied)

(15) Keeping in view the aforesaid judgment, when we peruse the present case leading to the order of punishment dated 29.11.2018, we find from the records that the charge-sheet was duly served upon the petitioner; the petitioner submitted his reply to the charge-sheet followed by the supplementary reply to the charge-sheet; on receipt of the enquiry report, the disciplinary authority has served a copy of it to the petitioner and also issued a show cause notice to the petitioner; the petitioner has submitted his reply to the show cause notice; and on receipt of the reply to the show cause notice, the disciplinary authority has passed the impugned order of punishment of censure. We also find from perusal of the impugned order of punishment that the disciplinary authority has adverted to the evidence and various material available on record of the departmental proceedings against the petitioner to arrive at the conclusion of guilt of the petitioner. The disciplinary authority has also given reasons and has relied upon the material and evidence available on record for inflicting minor punishment of censure. Thus, it cannot be anybody's case, particularly the petitioner, that he was not afforded any opportunity or the principle of natural justice was not followed.

(16) Further, even the Tribunal has recorded and returned a finding that the petitioner was held to be jointly guilty for the charges of not abiding to the contractual requirement of earthworks, which resulted in pecuniary loss of Rs. 7,849.66 to the State and also referred to paras 7, 8 and 9 of the Irrigation Manual of orders and specifically sub-para (1) and (3) of para 8 of the said manual to hold that the petitioner was responsible and answerable for the loss in the aforesaid earthworks. The Tribunal went on to record that although the petitioner was held jointly guilty for the charges of pecuniary loss to the State, however, in order to save himself from being questioned, the petitioner has not only has paid the said pecuniary loss entirely, but has also tried to shift his responsibility on others. The learned Tribunal has also recorded that although the petitioner had been agitating and relying on para-9 of the Irrigation Manual but was not able to justify his acts in terms of para-8 of the said Manual.

(17) The Tribunal has painstakingly returned a finding that the evidence in the present matter points, not only towards the work having been completed during the tenure of the petitioner, but also that even the payments have been disbursed during that period. Thus, the Tribunal has held that it was the responsibility of the petitioner to have verified the quality of works executed, before directing for disbursal of any payments, which he failed miserably.

(18) As to the punishment awarded the Tribunal has found that the same to be reasonable and justified and as such has refused to interfere. In Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu : (2008) 5 SCC 569, the Hon'ble Supreme Court referred to several precedents on the Doctrine of Proportionality of the order of punishment passed by the disciplinary authority and held that:

"21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."

(19) As a sequel to the above and in view of the binding precedents, this Court is of the considered view that the Tribunal has nowhere missed the woods and has returned a just, legal and proper finding in the impugned order, which does not merit any judicial review by this Court. The impugned order passed by the Tribunal as well as impugned order of punishment of censure do not suffer from any illegality or infirmity.

(20) For all the aforesaid reasons, the writ petition lacks merit and is, accordingly, dismissed. However, there will be no order as to costs.

Order Date :- 5.4.2023

Ajit/-