Karan Singh vs Managing Director U.P.State Road Transport Corpn.Tehri Kothi,Lucknow

D.K. Seth, J.—Disciplinary proceeding was initiated against the petitioner by the Government treating him to be an employee of the Government in the erstwhile U.P. Government Roadways in the Transport Department even after U.P. State Road Transport Corporation was incorporated and the services of the petitioner was transferred to the said Corporation.

The petitioner had challenged the order of suspension and reversion dated 2681985 and 2111987 respectively in writ petition No. 1252 of 1986. In the said writ petition the ground of challenge was that the said two orders were passed by the Government though the services of the petitioner stood automatically merged in the Corporation with effect from 2841982. The said writ petition was disposed of by an order dated 1191991 where the contentions of respondent were noted to the extent that the suspension and reversion orders were passed by the Government would be deemed to have retained the authority to take disciplinary action against the petitioner and also to disapprove the promotion of the petitioner to the post of Depot Marager which was subject to the approval of the Government. Ultimately in the said judgment it was held that the petitioner was ceased to be in the employment of the Government with effect from 2841982. After the merger of his service in the Corporation, the State Government was not authorised to pass any order of approval or disapproval. It was the Corporation to take proper decision as to whether the promotion of the petitioner to the post of Assistant Transport Engineer/Depot Manager should be approved not in view of the fact that the Corporation stepped in to the shoes of the State Government and would be deemed to have all the powers and authorities to take such decision as the State Government would have taken in the matter. On the basis of such finding since the petitioner was found to have attained the age of super annuation during the pendency of the writ petition, the Court had directed that the petitioner would be entitled to all consequential benefits including the benefit of continuity in service. It was also Erected that although the petitioner was entitled to salary and emoluments admissible to the post of Assistant Transport Engineer/Depot Manager but the question as to his confirmation to the post of Assistant Transport Engineer/Depot Manager would be decided by the authorities of the Corporation.

It is alleged by Mr. P.S. Baghel, learned Counsel for the petitioner that after the said decision dated 1191991 another order was passed .on 1561992 which is Annexure6 to the writ petition whereby the petitioner was granted all service benefits in terms of the order dated 1191991 passed in the said writ petition but however in clause 4 of the said order it was pointed out that the said order bearing date 1651Q02, contained in Annexure 6, would be subject to the order dated 9111989 passed against the petitioner in a disciplinary proceeding against him and the order whereof shall remain unaffected by virtue of order dated 1561992.

Mr. Beghal contends that the said order dated 9111989 was not disclosed in the earlier writ petition which was decided on 1191991. He has also referred to various statements made in the counteraffidavit and the Supplementary counteraffidavit in order to show that the order dated 91119SJ was not in existence before 1191991. At the same time he had challenged the order on merit that the said order could not have been passed against the petitioner and in view of the decision dated 1191991 passed in the earlier writ petition.

Mr. Samir Sharma, learned Counsel for respondents however had supported the said order dated 9111989 contained in Annexure 5 to the writ petition on the ground that after 1191991 a fresh enquiry was held against the petitioner in which the petitioner did not participate and accordingly a fresh order on the disciplinary proceeding was passed.

I have heard learned Counsel for the parties.

In para 20 of the writ petition it has been alleged that the respondent did not disclose anything about the order dated 9111989 till the earlier writ petition was disposed of on 1191991. In paragraph 27 of the writ petition it has been alleged that the petitioner was not given any opportunity to participate in the alleged proceeding and that the proceeding was alleged to have been started on the basis of the chargesheet dated 1881986 and that no second showcause notice was issued.

In the counteraffidavit in paragraph 7, para 20 of the writ petition has been dealt with in the following manner:

"7. That the contents of Para Nos. 19 and 20 of the writ petition are not admitted. It is wrong to suggest that the petitioner had noknowledge about the domestic enquiry pending against him or about the order dated 19111989. In view of the directions of the Hon''ble High Court the matter was examined and by order dated 1551992 order of suspension and order of refusing promotion was cancelled and it was made clear that the order of punishment dated 9111989 would remain effective and all the benefits be paid to the petitioner."

It appears that the reply in the counteraffidavit is evasive and it has not been pointed out as to why the said fact was not disclosed at the time of hearing of the earlier writ petition.

The statement made in para 27 of the writ petition has since been dealt with in para 12 of the counteraffidavit where in it has been stated as follows:

"12. That the contents of para Nos. 26 and 27 of the writ petition are not admitted. In view of judgment of this Hon''ble Court dated 2251989 the petitioner was treated, to be an employee of the Corporation. Accordingly the State Government forwarded all the record to the Corporation for departmental enquiry. In spite of the fact the sufficient opportunity was afforded to the petitioner for filing a reply to the chargesheet, petitioner did not cooperate and did not file any reply to the chargesheet. Accordingly the enquiry officer Shri K.S. Verma, Additional Managing Director examined the material on record and was satisfied that the charges stood proved against the petitioner. He submitted his report. The appointing authority carefully examined all the material on record and was satisfied that the charges of serious misconduct stood proved against the petitioner and accordingly the order of punishment was passed. It is wrong to suggest that the enquiry was conducted by the State Government."

The said statement does not show that a fresh enquiry was conducted against the petitioner as has been sought to be argued by Mr. Samir Sharma. On the other hand it says that the State Government has forwarded the records of the Departmental enquiry in which the petitioner despite having been given opportunity did not participate. It has also contended that the enquiry officer had examined the materials on record and was satisfied that the charge against the petitioner proved and after having carefully examined the record he was satisfied that the charges of serious misconduct stood proved and, therefore, the order of punishment was passed.

Though it is specifically pointed out in para 27 of the writ petition that the petitioner was not given any opportunity, the reply to the said paragraph in the counteraffidavit does not indicate that any opportunity was at all given to the petitioner.

A Supplementary counteraffidavit was filed on behalf of the respondents which was affirmed by one Shri P. Ram on 1171997. In paragraph 7 of the said supplementary counteraffidavit it has been stated as follows:

"7. That with regard to the contents of paragraph No. 8 of the affidavit it is submitted that in pursuance of the judgment and order dated 1191991 passed by this Hon''ble Court the disciplinary proceedings had been conducted against the petitioner by the Head Office of the Corporation at Lucknow. It is wrong to suggest that the earlier enquiry conducted by the State Government had not been accepted by this Hon''ble Court. In fact the earlier order by the State Government had been set aside only on the ground that no interim order against absorption in the corporation had been obtained by the petitioner and as such as automatically stood absorbed in the service of the Corporation and hence the State Government had no power to place him under suspension."

A perusal of the said statement shows that the disciplinary proceedings has been conducted against the petitioner by he Head Office of the Corporation at Lucknow in pursuance of the judgment and order dated 1191991. If it is so in that event there could not have been any scope for passing of the order dated 9111991 almost two years before the order dated 1191991 was passed. The record shows that the said statement made in para 7 of the supplementary counteraffidavit is wholly incorrect statement which has been affirmed as based on record. The record that the said statement is wholly contrary to the record as discussed hereinbefore. Therefore, the statement made in para 7 of the supplementary counteraffidavit cannot be accepted.

Now the fact remains that it was held in the decision dated 1191991 passed in writ petition No. 1252 of 1986 that since 1982 the petitioner was not an employee of the State Government and the petitioner became an employee of the Corporation. Thus there was no relation of employer and employee between the State Government and the petitioner in 1986. If it is so, in that event, no proceeding could be initiated on the basis of chargesheet issued by the State Government. Disciplinary proceeding can only be initiated by the appointing or by the disciplinary authority so authorised. By no stretch of imagination after the petitioner had become employee of the Corporation, the State Government could send the record to either the appointing authority or the disciplinary authority for the purpose of conduct of enquiry against the petitioner. Nowhere it has been pointed out that the Corporation had ever issued chargesheet and conducted disciplinary proceeding against the petitioner. The enquiry that has been conducted by the State Government cannot be valid and legal. The said enquiry is wholly without jurisdiction, in view of cessation of relation of the employer and employee between the State Government and the petitioner with the merger of the service of the petitioner in the Corporation. Therefore, no reliance can be placed on the basis of such enquiry. Since the petitioner was not employee of the State Government, he was not supposed to participate in the said enquiry conducted by the authority without any jurisdiction. Therefore, nonparticipation of the petitioner in the said enquiry cannot be held against him. In such circumstances, it was not open to the Corporation accept and enquiry report of the Government the to act thereupon. There was no scope for the Corporation to proceed on the basis of such enquiry report which is wholly without jurisdiction and as such void.

As observed earlier, the Corporation having not initiated disciplinary proceeding itself and having not given opportunity to the petitioner to defend his case, the order dated 9111989 contained in Annexure 5 to the writ petition by no stretch of imagination can be sustained. Inasmuch as if the Corporation had relied on the enquiry conducted by the State Government without any jurisdiction, in that event, it did not hold an independent enquiry against the petitioner.

Admittedly the petitioner had retired in the meantime and a long time has lapsed. The Corporation did not think fit to initiate proper proceeding after 1191991. From the statements as discussed hereinbefore show that there are doubt about the genuineness of the existence of the order dated 9111989. The respondents themselves having contradicted their own statements in the Supplementary counteraffidavit and the counteraffidavit as pointed out hereinbefore, this Court is free to draw an inference that the statements made are incorrect and on the basis of such inference this court is entitled to arrive at a conclusion for disbelieving the statement made by the respondents.

In such circumstances, the matter having been dragging for such a long time, it would be no more open to the respondents to reopen the alleged chargesheet as against the petitioner. Such conclusion is being arrived at on the basis of the contradictory statements and stand taken by the respondents as well as the fact that the petitioner had retired in the meantime. This is because of the fact of nondisclosure of the passing of the order dated 9111989 till the order dated 1191991 was passed.

In the result, the writ petition succeeds and the order dated 9111989 contained in Annexure 5 to the writ petition is hereby quashed. Consequently clause (4) in the order dated 1551992 contained in Annexure 6 to the writ petition is also stand quashed only to that extent. Let a writ of certiorari do issue accordingly. The respondent may take steps to pay all service and retrial benefits in terms of the order dated 1191991 to the petitioner as early as possible preferably within a period of six months from date.

However, there will be no order as to cost. WE allowed.