ISHWAR AVTAR GOYAL Vs. STATE OF UTTARANCHAL
LAWS(UTN)-2012-6-100
HIGH COURT OF UTTARAKHAND
Decided on June 28,2012

Ishwar Avtar Goyal Appellant
VERSUS
STATE OF UTTARANCHAL Respondents

JUDGEMENT

BARIN GHOSH,J. - (1.) I personally thank Mr. Sudhir Singh, Advocate for assisting both of us, by supplying us, almost correct English translation of the documents, which are required for determination of the dispute raised in the writ petition.
(2.) WRIT petitioner was an employee of Uttaranchal Power Corporation Limited. When he was serving his employer, a charge sheet dated 17th July 2004, was issued to him. Petitioner gave a reply thereto. Subsequent thereto petitioner retired. The disciplinary proceeding thus initiated was concluded after the petitioner retired by passing an order by which 1/4th of the pension of the petitioner has been withdrawn. There is no dispute that, disciplinary rules applicable to the State Government employees are also applicable to the employees of Uttaranchal Power Corporation Limited and, that in so far as the State Government employees are concerned, if a disciplinary proceeding is initiated, while the delinquent is in service, but the same is concluded after retirement of the delinquent, then the only disciplinary order that can be passed is withdrawal of the full or part of pension of the delinquent. Therefore, there is no dispute that the punishment imposed could be imposed. The question is, whether, in the facts and circumstances of the case, the disciplinary authority could at all impose the punishment, as has been imposed. The contention of the petitioner is that, there was no misconduct on his part and, at the best there was negligence or error of judgment and, accordingly, the same cannot be treated as misconduct, which is sine qua non for punishing an employee in a disciplinary proceeding.
(3.) IN the charge sheet it was stated that on 23rd October 2001, Director (Operation), Uttaranchal Power Corporation Limited brought to the notice of the petitioner by a letter dated 23rd October 2001, when the petitioner was working as General Manager (Commercial), Uttaranchal Power Corporation Limited, that, billing of M/s J.P. Industries Limited, Vishnu Prayag Hydro Electricity Project, was being done in LMV -4, whereas LMV -4 is granted to U.P. Power Corporation Limited, U.P.S.E.B., Uttar Pradesh State Electric Power Production Corporation and U.P. Hydel Corporation only. By the said letter the petitioner was also directed to November 2000, issued by Deputy General Manager to the concerned Executive Engineer. Petitioner does not dispute the same. The charge sheet, thereupon charged the petitioner that, the petitioner thereafter did not issue any order to the concerned Executive Engineer to bill in LMV -2, which was the correct LMV, and not in LMV -4 due to which the employer Corporation has faced great financial loss. Petitioner has not stated in his reply to the charge sheet that, he issued any direction or order to the concerned Executive Engineer to bill the concerned consumer in LMV -2 and not in LMV -4 upon discoveries that the consumer was being charged wrongly. In reply to the charge sheet, he also did not say that, he was incompetent to do so. He did not say so because, if what the Deputy General Manager did, the petitioner as General Manager could certainly undo the same. The fact remains, therefore, that, the charge to the effect that even after it came to the knowledge of the petitioner that, wrong billing is being made to the concerned consumer, petitioner did not take any remedial step to correct the billing. The question is, can it be contended that, this was enquire into the same was alleged in the charge sheet. Petitioner has not disputed the fact of receiving the said letter, nor he has disputed the contents of the said letter, as was highlighted in the charge sheet. It was alleged in the charge sheet that, after the said fact was brought to the knowledge of the petitioner, he informed the Director (Operation) that billing in LMV -4 is being done in view of order dated 17th October, 2002 requested to cancel the paragraphs, which highlighted in the Observation Report of Accountant General, Uttar Pradesh, pertaining to financial irregularity arising out of charging the said consumer under LMV -4 instead of LMV -2. The fact that the petitioner wrote such a letter dated 9October, 2002 is not in dispute. We are, therefore, unable to hold that the factors alleged in the charge sheet did not constitute misconduct. a mere negligence or error of judgment on the part of the petitioner. The petitioner has not been able to convince us to accept such action on the part of the petitioner, as a mere negligence or error of judgment. There was no just reason for a very responsible officer of the Power Corporation, as that of the petitioner, who was then the General Manager, to permit continuance of wrong billing on the basis of error of judgment or negligence. Even assuming that, the same was negligence or error of judgment, but the fact remains that by reason thereof the employer suffered loss, as electricity was supplied to the consumer in question at a much less price. The electricity thus supplied could not, nor can at all be recovered. The price thereof can be recovered. It has come on record that steps to recover price has been taken, but there is nothing to show that the price has been recovered. Furthermore, the charge sheet alleged that, the petitioner by a letter. In reply to the charge sheet the endeavour of the petitioner was to establish that, he was not asked earlier to rectify the mistake and, no sooner, he was asked to do so, he did the same. There is no dispute that at a much later point of time, when the petitioner had not taken any step to rectify the mistake, he was specifically asked to do so and, soon thereafter, he rectified the mistake. It must be kept in mind that in the charge sheet there was no charge of dishonouring any command given by any superior officer to the petitioner, the charge was that the petitioner despite knowing that by reason of a mistake committed by a junior officer the employer was financially suffering, he did not take any action to rectify the said mistake of his own and later tried to draw a curtain on the same.;


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