Delhi High Court
Sh. D. K. Sharma vs Bses Yamuna Power Ltd. & Anr. on 25 September, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 4458/1998
% 25th September, 2013
SH. D. K. SHARMA ..... Petitioner
Through: Mr. N.S. Dalal, Advocate with Mr.
H.L. Verma, Advocate.
versus
BSES YAMUNA POWER LTD. & ANR.
Through: Mr. Sandeep Prabhakar, Advocate
with Mr. Vikas Mehta, Advocate and
Mr. Amit Kumar, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, petitioner impugns the orders passed by
the departmental authorities; of the disciplinary authority dated 29.1.1998
and appellate authority dated 24.6.1998; whereby penalty has been imposed
upon the petitioner of reduction of pay by one stage in the same time scale
for a period of one year with further direction that the petitioner will not earn
increments of pay during the period of reduction and on the expiry of the
period of reduction the penalty order will not have the effect of postponing
his future increments of pay. This penalty order was passed by the appellate
authority by reducing the penalty imposed by the disciplinary authority and
W.P.(C) No.4458/1998 Page 1 of 5
which was of reduction in pay by three stages in the same time scale for a
period of one year.
2. Learned counsel for the petitioner argues before me only one
point with respect to the date of imposition of penalty. It is argued that in
the present case enquiry officer's report came on 23.5.1994, however the
show cause notice was issued exactly one year later on 22.5.1995 and even
this show cause notice dated 22.5.1995 was never served upon the petitioner
much much later till 15.9.1997. It is argued that punishment ought to have
been imposed on the same date or at least in around the same period in
which other chargesheeted officials were imposed similar penalties. It is
relevant to note that by the subject chargesheet dated 18.10.1989 three
employees were proceeded against, namely Sh. D.K. Sharma-petitioner who
was a junior clerk, Sh. M.G. Ahluwalia who was commercial superintendent
and Sh. S.P. Sharma who was an inspector. Essentially what is argued is
that once the penalty is of reduction of pay, delay in passing of the penalty
order would mean higher monetary loss to the petitioner for no fault of the
petitioner. The effect of delay in imposition of penalty has various
consequences and domino effect with respect to postponing of increase of
pay, delayed promotions and so on.
3. The admitted facts are that enquiry report in the present case is
W.P.(C) No.4458/1998 Page 2 of 5
dated 23.5.1994. The show cause notice alleged to have been issued by the
respondent is dated 22.5.1995. However, there is nothing on record that this
show cause notice dated 22.5.1995 was immediately thereafter served upon
the petitioner. It was only served in September, 1997. Petitioner has
specifically taken up this grievance in the memorandum of appeal before the
appellate authority, however, the appellate authority in his order dated
24.6.1998 does not at all touch this aspect. Petitioner has before this Court
accordingly contended and pleaded by making necessary averments in
ground (g) of the writ petition. The counter affidavit of the respondent is
silent with respect to contents of ground (g) on the aspect of delay in service
of the show cause notice and the enquiry officer's report upon the petitioner.
Not only the counter affidavit is silent when response was given to ground
(g), but also in response to paras 16 and 17 of the writ petition, there is
complete silence with respect to grievance of the petitioner in delay in
imposition of the penalty on account of delay in service of the show cause
notice dated 22.5.1995 and also giving of the enquiry report.
4. The only statement which is found in the counter affidavit with
respect to delay in imposition of punishment upon the petitioner pertains to
delay in receiving advice from CVC. In my opinion, this defence is without
any merit because issue is really not of delay in advice from CVC but delay
W.P.(C) No.4458/1998 Page 3 of 5
in issuance of show cause notice pursuant to the enquiry officer's report and
the delay in serving of the enquiry officer's report itself. Therefore, in my
opinion, petitioner has made out a case of his being treated similarly with the
other charged officials, namely Sh. M.G. Ahluwalia and Sh. S.P. Sharma.
I may note that there is nothing on record as to when the disciplinary
authority passed the punishment orders on Sh. M.G. Ahluwalia and Sh. S.P.
Sharma. However, counsel for the parties appearing before me agree that
whatever is the date of imposition/passing of penalty orders against Sh.
M.G. Ahluwalia and Sh. S.P. Sharma, that date will be taken with respect to
passing of the penalty order against the petitioner in this case.
5. In view of the above, writ petition is allowed to the limited
extent by holding that punishment which is imposed upon the petitioner by
the appellate authority order dated 24.6.1998 will come into effect on the
same date on which the disciplinary authority passed the punishment order
in the case of Sh. M.G. Ahluwalia and Sh. S.P. Sharma. It is further
clarified that in case there is any difference of dates in the orders passed by
the disciplinary authority with respect to Sh. M.G. Ahluwalia and Sh. S.P.
Sharma the later of two dates orders will apply and will be the date for
imposition of the penalty order upon the petitioner. The effect of this would
be that on the petitioner serving out his punishment so far as reduction of
W.P.(C) No.4458/1998 Page 4 of 5
pay is concerned, immediately thereafter all other consequential benefits of
service will apply to the petitioner.
6. Writ petition is partly allowed and disposed of with the
aforesaid observations, leaving the parties to bear their own costs.
SEPTEMBER 25, 2013 VALMIKI J. MEHTA, J.
Ne
