Kailash Chandra Jajoriya vs Ajmer Vidyut Vitran Nigam Limited
2021 Latest Caselaw 18552 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR


                  D.B. Spl. Appl. Writ No. 1419/2019

Kailash Chandra Jajoriya S/o Shankar Lal Jajoriya, Aged About 38
Years, Village Samila, Tehsil And District Ratlam (M.P.) And
Presently Working On The Post Of Assistant Engineer (O & M),
Ajmer    Vidyut    Vitran       Nigam      Limited,        Kushalgarh,      District
Banswara (Raj.).


                                                                     ----Appellant
                                     Versus


1.      Ajmer     Vidyut       Vitran    Nigam        Limited,     Through     The
        Secretary (Admn.), Vidyut Bhawan, Makarwali Road,
        Panchsheel Nagar, Ajmer (Raj.).
2.      The   Managing         Director,     Ajmer       Vidyut    Vitran   Nigam
        Limited, Vidyut Bhawan, Makarwali Road, Panchsheel
        Nagar, Ajmer (Raj.).
3.      The Chairman (Discom), Ajmer Vidyut Vitran Nigam
        Limited, Vidyut Bhawan, Janpath - Jyoti Nagar, Jaipur
        (Raj.).
4.      The Superintending Engineer (O And M), Ajmer Vidyut
        Vitran Nigam Limited, Vidhyut Nagar, Banswara (Raj.).


                                                                  ----Respondents


For Appellant(s)           :     Mr. Himmat Jagga
For Respondent(s)          :     Mr. Mrigraj Singh



           HON'BLE MR. JUSTICE SANDEEP MEHTA
              HON'BLE MR. JUSTICE SAMEER JAIN

                                 Judgment

07/12/2021

By the Court: (Per Hon'ble Mr. Jain, J.)

1. Being aggrieved by the impugned order dated 07.8.2019

passed in SBCWP No. 11642/2019, the present DBCSAW is

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preferred under Rule 134 of the Rajasthan High Court Rules read

with Article 225 of the Constitution of India.

Facts of the Case

2. The facts of the case are that the appellant came to be

appointed on the post of Junior Engineer-I (Electrical) way back in

the year 2007 as probationer trainee.

3. The working performance of the appellant was found to be

satisfactory and, therefore, on completion of two years of

satisfactory service, he was confirmed. Presently, the appellant is

working on the post of Assistant Engineer (O&M), AVVNL,

Kushalgarh District Banswara.

4. The cause & controversy in the matter arose when vide

memorandum dated 8.2.2012, while working as Junior Engineer

under the Assistant Engineer (O&M) AVVNL Partapur, it was

alleged that he had failed to discharge his duties with full devotion

against the interest of the respondent Nigam. On the basis of

Report submitted by the Feeder Manager, Banswara, it was

reported that the appellant had allowed excess power supply at

Asoda, Lohariya and Paloda PHED Feeders during the period

22.11.2011 to 12.12.2011 beyond the prescribed time limit and

due to this negligency, the Nigam had been put to financial loss.

The specific provisions of Rajasthan Electricity Board Employee

Conduct Regulation, 1976 were invoked in the said memorandum.

5. In response to the same, the appellant submitted a detailed

reply on 14.7.2012 denying the allegations wherein it was

submitted that there was serious problem of drinking water in

Paloda, as a result thereof there was 'Jan-Andolan', and therefore,

the District Collector, Banswara issued an instruction by letter

dated 24.5.2010 to the Superintending Engineer, Banswara to

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provide proper and regular electricity supply at least for eight

hours to pumping stations. The Assistant Engineer, PHED issued a

letter dated 28.5.2010, intimating the Assistant Engineer, AVVNL

Partapur to provide eight hours' regular power supply at six

places.

6. The excess supply was sanctioned by the appellant in

compliance of these directions issued by the authorities concerned

and no financial loss whatsoever was caused to the department as

the PHED has already deposited requisite dues on such electricity

consumption.

7. The personal hearing in response to the memorandum and

reply was afforded to the petitioner on 21.11.2013, but after

conclusion of the hearing, the respondent Managing Director was

transferred and new Managing Director joined and hearing was

again afforded on 3.3.2014. Vide order dated 12.3.2014, the

respondent Managing Director-cum-Disciplinary Authority in a non

speaking manner without considering the fact that in the identical

matter one Shri Jalaj Raj Gupta, the Assistant Engineer on the

same set of facts has been exonerated vide order dated

06.12.2013 has imposed the penalty of stoppage of two annual

grade increment without cumulative effect in respect of appellant

without completing inquiry.

8. Against the said order, the appellant preferred an appeal

before the Appellate Authority, which also came to be rejected

vide order dated 06.5.2015 which is alleged to be cryptic and non

speaking thereby violating the principles of natural justice.

9. Being aggrieved of the same, the appellant preferred an

appeal before the Energy Secretary on 30.3.2017 which was

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refused to be entertained by an order dated 8.8.2018 on account

of fact that there is no provision of second appeal.

10. Being aggrieved from the above, the petitioner also made a

parallel representation before the Hon'ble Chief Minister vide

acknowledgments dated 17.11.2017 and 30.11.2017. After lapse

of a considerable time when being remediless and feeling

frustrated by the inaction of the authorities and being treated with

hostile discrimination in as much as, one Shri Jalaj Raj Gupta who

on the same facts and allegation was exonerated vide order dated

6.12.2013, the petitioner preferred a writ petition before this

Court under Article 226 of the Constitution of India claiming

violation of his fundamental rights guaranteed under Article 14 &

19 of the Constitution of India.

11. The learned Single Judge, vide order dated 07.8.2019

dismissed the writ petition in limine on account of delay and

laches and approaching the Court on the basis of made up

documents.

Contention of the counsel for the petitioner

12. Learned counsel appearing for the appellant vehemently

submitted that the finding arrived at by the learned Single Judge

needs interference as the documents in question were not made

up. The appellant has availed each and every possible remedy

available to him from the period 2014 to 2019 like representation

before the Disciplinary Authority, Appellate Authority, Energy

Secretary, Hon'ble Chief Minister in `Jan Sunwai' and it was only

on 08.8.2018, when a specific letter was issued by the respondent

No. 1 that there is no provision of second appeal and soon

thereafter he preferred the writ petition in this Court.

(5 of 8) [SAW-1419/2019]

13. Learned counsel further submits that there is no delay on the

part of the appellant and the documents are more than evident to

show that the same were issued by the respondents and were not

made up documents. Learned counsel further submits that on

Pari Materia facts and allegations, Assistant Engineer Shri Jalaj Raj

Gupta was exonerated by the erstwhile Managing Director vide

order dated 6.12.2013 whereas, the petitioner has been punished

which is a clear case of hostile discrimination being practiced

between similarly situated employees. The petitioner was acting in

discharge of official duty in a totally bonafide manner and there is

no loss of exchequer to the respondents and thus, he was also

liable to be exonerated.

Contentions of the learned counsel for the respondents.

14. Learned counsel for the respondents vehemently opposed

the submissions made by learned counsel for the appellant and

submits that there is a gross delay of four years and all remedies

have been exhausted and the appellant is taking advantage in the

garb of compliance of the orders of the Collector and

Superintending Engineer as he has caused financial losses and

approached this Court after delay of four years from passing of

appellate order dated 6.5.2015.

15. When a pertinent query was put to learned counsel about the

order dated 06.12.2013 exonerating Shri Jalaj Raj Gupta, he was

not able to controvert. However, he is not in a position to dispute

that the case of the petitioner is Pari Materia to the case of Shri

Jalaj Raj Gupta but adjudicating authorities were different.

Discussion and Finding





                                             (6 of 8)                    [SAW-1419/2019]



16.      We    have   considered       the     arguments            advanced     by   the

respective counsel, scanned the record of appeal and perused the

impugned order of learned Single Bench.

17. The rejection of the writ petition was primarily on account of

delay and laches supplemented by a refusal to appreciate merits

of the case by the learned Single Judge as it was observed that

the documents before the authorities were created/made-up

documents. It is an admitted fact on record that the appellant, in

compliance to memorandum letter dated 08.2.2012 submitted his

reply on 14.7.2012, attended personal hearing before the

Disciplinary Authority wherein a non-speaking order dated

12.3.2014 was passed, against which, an appeal was filed, which

was rejected again by a non-speaking and cryptic order dated

06.5.2015. The appellant submitted the second appeal before the

Energy Secretary of the respondent-Department on 30.3.2017

and also submitted representation to the Chief Minister on

28.5.2018 in `Jan Sunwai'. The letter dated 08.8.2018 (Annexure/

R/4) submitted by the respondents goes to show that in response

to the appeal filed before the Energy Secretary in the year 2017, a

letter as late as on 08.8.2018, was issued rejecting his

representation/second appeal by stating that there is no provision

of second appeal.

18. In light of said fact, we are of the view that the findings

recorded by the learned Single Judge in rejecting the writ petition

on account of delay and laches and on the charge of made up

documents appear to be unwarranted and unsubstantiated and,

therefore, the order dated 07.8.2019 passed by the learned Single

Judge cannot be sustained on the face of the record.

(7 of 8) [SAW-1419/2019]

19. In the interest of justice, instead of remanding the matter

back, we deem it appropriate to consider the matter on merits of

the case.

20. It is not disputed that in a similar set of facts, allegations

and charges the Assistant Engineer Shri Jalaj Raj Gupta in the

very same disciplinary proceedings was exonerated vide order

dated 06.12.2013, which was placed on record as Annexure/11,

There is no iota of difference between the case of the appellant

and Shri Jalaj Raj Gupta. The only difference being Disciplinary

Authority, after passing of the order in the case of Shri Jalaj Raj

Gupta was changed. It was expected of the Managing Director,

the first Disciplinary Authority to have given due precedence to

the order passed in the case of Shri Jalaj Raj Gupta on the same

set of facts and circumstances. However, the respondent No. 2

has ignored and passed a non-speaking and cryptic order

penalizing the petitioner without giving any justification.

21. On perusal of the record, taking into consideration the

submissions and having considered the reply, memorandum and

order dated 06.12.2013, we have no hesitation in observing that

the case of the appellant and Shri Jalaj Raj Gupta stands on the

same footing and adverse order dated 12.3.2014 and subsequent

Appellate order dated 06.5.2015 passed by the Appellate

Authorities need to be set aside as they caused serious prejudice,

hostile discrimination and are against the principles of parity and

judicial discipline.

22. In light of the above discussion, the appeal is allowed and

the disciplinary proceedings initiated against him vide

memorandum dated 08.2.2012 are set aside and all subsequent

proceedings thereto are quashed.

(8 of 8) [SAW-1419/2019]

23. We make it clear that the respondents shall maintain parity

and consistency while adjudicating the matters in disciplinary

proceedings or otherwise not to act discriminately causing

prejudice to the similarly situated persons. The Disciplinary

Authorities are expected to act judiciously and to exercise the

jurisdiction with objectiveness and to decide the matters by

reasoned orders.

24. The stay petition also stands disposed of.

                                   (SAMEER JAIN),J                                        (SANDEEP MEHTA),J

                                    ns. 34-1/-









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