# Arbind Kumar v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 870
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-04
- **Case number:** Writ - A No. 14972 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arbind-kumar-v-state-of-u-p-ors-51500
- **Pages:** 10

## Headnote

A. Service Law - Disciplinary proceeding -
Punishment - Demotion - Award of a
censure and stopping one increment with
cumulative
effect
-
Quantum
of
punishment - Scope of interference -
Charge of travelling on a air ticket
purchased
by
the
Firm,
where
the
petitioner was going to inspect quality,
was leveled - Defence of cancellation of
earlier
flight,
for
which
petitioner
purchased the ticket, and further of
paying the price of ticket upon destination
was taken - Though no witnesses were
examined by the establishment, but there
was admission of the petitioner to travel
on Firm's ticket - Effect - Held, the finding
of the Disciplinary Authority is not bad,
based on the petitioner's admission about
his
impropriety
of
conduct
or
the
misconduct in travelling on a ticket
purchased by the Firm's representative,
where he was going to inspect, as also the
finding in not believing the evidence about
paying off the Firm's representative upon
arrival at destination, the quantum of
punishment imposed, may still be the
subject matter of some scrutiny by this
Court on settled parameters - High Court
can
interfere
with
the
quantum
of
punishment only if we find it to be
shockingly disproportionate - Given the
totality of circumstances, where the conduct
of the petitioner appears to be indiscreet
and highly irregular, but not dishonest, or
one that has caused any kind of a loss to the
Corporation, the punishment of demotion by
the Revisional Authority, to this Court's
conscience,
is
indeed
shockingly
disproportionate. (Para 12, 14, 21 and 23)

B. Service law - Violation of natural justice -
Punishment
-
Revisional
authority
enhanced the punishment - No notice of
enhancement
was
served
upon
the
petitioner - Effect - Held, the requirement
to serve a notice before enhancement of
punishment is also a requirement under the
Regulations, and, in any case, its nonservice would be a violation of the principles
of natural justice. (Para 20)

Writ petition partly allowed. (E-1)

List of cases cited :-

## Text

870 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner, that is, if the respondents
chose not to pursue fresh proceedings. It
would be open to the respondents after
reinstating the petitioner to assign him
duties at such station as they wish and pay
him current salary or place him under
suspension pending inquiry, in which event
the petitioner shall be regularly paid his
subsistence allowance, without asking him
to furnish a non-alternative engagement
certificate. If fresh proceedings are taken,
the entitlement of the petitioner to receive
emoluments for the period of his ouster
from service will abide by the final result
of those proceedings. If the petitioner is
finally reinstated in service at the end of
proceedings, with whatever punishment is
meted out to him, other than a terminal
punishment, he will be entitled to all
benefits of seniority and continuity.

25. There shall be no order as to costs.
----------
(2024) 2 ILRA 870
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 14972 of 2023

Arbind Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ritesh Srivastava, Ms. Shweta Singh

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava

A. Service Law - Disciplinary proceeding -
Punishment - Demotion - Award of a
censure and stopping one increment with
cumulative
effect
-
Quantum
of
punishment - Scope of interference -
Charge of travelling on a air ticket
purchased
by
the
Firm,
where
the
petitioner was going to inspect quality,
was leveled - Defence of cancellation of
earlier
flight,
for
which
petitioner
purchased the ticket, and further of
paying the price of ticket upon destination
was taken - Though no witnesses were
examined by the establishment, but there
was admission of the petitioner to travel
on Firm's ticket - Effect - Held, the finding
of the Disciplinary Authority is not bad,
based on the petitioner's admission about
his
impropriety
of
conduct
or
the
misconduct in travelling on a ticket
purchased by the Firm's representative,
where he was going to inspect, as also the
finding in not believing the evidence about
paying off the Firm's representative upon
arrival at destination, the quantum of
punishment imposed, may still be the
subject matter of some scrutiny by this
Court on settled parameters - High Court
can
interfere
with
the
quantum
of
punishment only if we find it to be
shockingly disproportionate - Given the
totality of circumstances, where the conduct
of the petitioner appears to be indiscreet
and highly irregular, but not dishonest, or
one that has caused any kind of a loss to the
Corporation, the punishment of demotion by
the Revisional Authority, to this Court's
conscience,
is
indeed
shockingly
disproportionate. (Para 12, 14, 21 and 23)

B. Service law - Violation of natural justice -
Punishment
-
Revisional
authority
enhanced the punishment - No notice of
enhancement
was
served
upon
the
petitioner - Effect - Held, the requirement
to serve a notice before enhancement of
punishment is also a requirement under the
Regulations, and, in any case, its nonservice would be a violation of the principles
of natural justice. (Para 20)

Writ petition partly allowed. (E-1)

List of cases cited :-

1. St. of U. P. & ors.Vs Saroj Kumar Sinha;
(2010)
2
SCC
772
2 All. Arbind Kumar Vs. State of U.P. & Ors.
871
2. Roop Singh Negi Vs Punjab National Bank &
ors.; (2009) 2 SCC 570

3. St. of Uttaranchal & ors. Vs Kharak Singh;
(2008) 8 SCC 236

4. St. of U.P. & anr. Vs Kishori Lal & anr.; 2018
(9) ADJ 397 (DB) (LB)

5. Smt. Karuna Jaiswal Vs St. of U.P.; 2018 (9)
ADJ 107 (DB) (LB)

6. St. of U.P. Vs Aditya Prasad Srivastava &
anr.; 2017 (2) ADJ 554 (DB)(LB)

7. U.O.I.& ors.Vs Subrata Nath; 2022 SCC
OnLine SC 1617

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against the order dated 24.01.2023 passed
by the Chairman, U.P. Power Corporation
Limited, Lucknow, revising the order of the
Disciplinary Authority suo motu, enhancing
the penalty and punishing the petitioner
with demotion to the post of a Junior
Engineer. Also under challenge is the order
dated 28.05.2022 passed by the Managing
Director, U.P. Power Corporation Limited,
Lucknow,
the
Disciplinary
Authority,
punishing the petitioner, after disciplinary
proceedings, with the award of a censure
and
stopping
one
increment
with
cumulative effect.

2. The facts giving rise to this petition
are these:

The petitioner was a Junior Engineer
in
the
service
of
the
U.P.
Power
Corporation Limited. He was appointed as
such in the year 2007. He was promoted to
the post of an Assistant Engineer in the
year 2014. After suffering the orders
inflicting penalty, the petitioner is working
as a Junior Engineer (Meter) with the
Electricity
Test
Division,
Purvanchal
Vidyut Vitran Nigam Limited, Pratapgarh.
The
charge,
in
relation
to
which
disciplinary
proceedings
were
drawn
against the petitioner, relates to the time
when he was posted as an Assistant
Engineer (Meter) in the Electricity Test
Division, Purvanchal Vidyut Vitran Nigam
Limited,
Varanasi
(for
short,
'the
Distribution Corporation'). By an office
memo of 11th January, 2021, the petitioner
was directed to inspect Single Phase Two
Wire Meters (10 - 60 Amperes) at the
establishment of a certain M/s. Secure
Meter Limited, Ahmedabad (for short, 'the
Firm'). It appears that the purpose of the
aforesaid inspection was to inspect meters
that were to be purchased by the
Distribution Corporation for installation at
the premises of consumers. In order to
travel to the destination, the petitioner
booked an air passage from Varanasi to
Ahmedabad on board Wise Jet Flight (SG072), bearing PNR No. DSQ FVA,
scheduled on 23.01.2021. There is on
record a photostat copy of the said air
ticket.

3. It is the petitioner's case that due to
bad weather, the flight was cancelled. The
fact, about cancellation of the petitioner's
air ticket, was apprised to the representative
of the Firm. As the inspection of meters
was urgent and the petitioner was finding it
difficult to book an air passage at short
notice, the representative of the Firm
booked a ticket for the air passage on
23.01.2021 from Varanasi to Ahmedabad
via New Delhi. A copy of the said air ticket
too
is
on
record.
Upon
reaching
Ahmedabad, the petitioner inspected the
meters
along
with
one
of
the
representatives of some entity called
NPCCL. The petitioner has described that
entity as NPCCL with no clue to the
872 INDIAN LAW REPORTS ALLAHABAD SERIES
abbreviation. It is asserted that he refunded
the air fare and cost of the hotel
accommodation
paid
by
the
Firm's
representative. Upon an inquiry made by
the Director (P.M. & A.) vide letter dated
03.11.2021, the authorized signatory of the
Firm
vide
letter
dated
25.02.2022
confirmed that no costs of the petitioner's
travel were borne by the Firm. It mentions
the fact that the air ticket the petitioner had
booked was cancelled due to bad weather
and the Firm had to facilitate his journey,
besides lodging at Ahmedabad, for which
the Firm were paid a sum of Rs.23,902/- by
the petitioner, that is to say, for the air
ticket and the hotel arrangement. This
conduct of the petitioner was found against
the service regulations and he was chargesheeted vide charge-sheet dated 23.07.2021
issued by the Inquiry Committee, that was
constituted. The charge-sheet aforesaid was
issued to the petitioner by the Inquiry
Officer after approval by the Managing
Director. The charge-sheet carried the
following charges:

"गोपनीय सूत्रोीं से नडस्काम स्तर पर
प्राप्त सूचना के आधार पर पाया गया नक आपके
द्वारा फमद M/s Secure Meters Ltd., E-566,
Sanand-II, Sanand Ahmadabad के सामग्री
की ननरीक्षण एिीं गुणित्ता के समय ननम्न नििरण
के अनुसार आचरण नकया जो नक सेिा
ननयमािली के निरूर्द् िै :-

1. सामग्री ननरीक्षण िेतु कायदायी
सींस्था के माध्यम से यात्रा नटकट प्राप्त नकया गया
जो निर्ागीय ननयमानुसार अनुनचत िै ।

2. आपका यि व्यििार, आचरण एिीं
कायदशैली एक नजिेदार अनधशासी अनर्यन्ता
स्तर के अनधकारी से स्वीकार योग्य निीीं िै।
कूटरनचत आचरण से सामग्री की गुणित्ता पर
प्रनतकूल प्रर्ाि पड़ने की सम्भािना से इनकार
निीीं नकया जा सकता। आपके द्वारा सामग्री
ननमादता को अनुनचत लार् पहुींचाने के उद्देश्य से
यि कृत नकया गया ।

अतैंः
आप
अपने
कतदव्योीं
एिीं
उत्तरदानयत्वोीं के ननिदिन में र्ोर नशनथलता
बरतने, कदाचरण बरतने एिीं कारपोरेशन की
छनि धूनमल करने तथा उ0प्र0 सरकारी कमदचारी
आचरण ननयमािली-1956 (यथा सींशोनधत) के
सींगत ननयमो के उल्लींर्न करने िेतु प्रथम दृिया
दोषी पाये जाते िै।"

4. The petitioner submitted a reply to
the charge-sheet. He denied the charge with
a plea of confession and avoidance. He
admitted getting the ticket through the
Firm, but assserted that he inspected the
meters
according
to
the
prescribed
parameters
on
23.01.2021
and
upon
reaching the destination, paid the price of
the air ticket purchased by the Firm to their
representative in cash. He denied the
charge, explaining the circumstances in the
following terms:

"उक्त ननरीक्षण के सम्बन्ध में मैने
नदनाींक 23.01.2021 को ििाई जिाज से यात्रा
करने िेतु नदनाींक 19.01.2021 को आन लाइन
नटकट िय नकया था नजसका पी0एन0आर0 सीं0
TFQFVA िै। (नटकट की छायाप्रनत सींलग्न)
मौसम की खराबी के कारण फ्लाइट ननरस्त िो
गयी। फ्लाइट ननरस्त िोने के सम्बन्ध में मैने
मेससद नसक्योर मीटसद नल0 के प्रनतनननध को फोन
द्वारा सूनचत कर नदया था। मेससद नसक्योर मीटसद
नल0 के प्रनतनननध ने अपनी आिश्यकता के
अनुरूप नटकट कराने का प्रयास करने िेतु
किा।
उन्होने
अपने
प्रयास
से
नदनाींक
23.01.2021 का िाराणसी से अिमादाबाद िाया
नदल्ली का नटकट कराकर मुझे सूनचत नकया।
मैने नदनाींक 23.01.2021 को अिमदाबाद
जाकर NPPCL के प्रनतनननध के साथ समस्त
पैरामीटसद को ध्यान में रखते हुए मीटर की
टेक्तस्टींग की । अिमदाबाद जाने पर नटकट की
2 All. Arbind Kumar Vs. State of U.P. & Ors.
873
धनरानश रू0 6590.00 का नगद र्ुगतान मेससद
नसक्योर मीटसद नल0 के प्रनतनननध को मैने कर
नदया था। इस प्रकार मेरे द्वारा सामग्री ननमादता
को नकसी र्ी प्रकार का अनुनचत लार् निीीं नदया
गया।"

5. The Inquiry Committee submitted
its report dated 14.09.2021, holding the
charge proved. The Inquiry Committee
returned the following finding:

"जमाँच सतर्ति कम र्ि :-

आरोनपत
सेिक
द्वारा
सामग्री
ननरीक्षण िेतु कायदायी सींस्था के माध्यम से यात्रा
नटकट प्राप्त करना स्वीकार नकया गया िै, जो
नक निर्ागीय ननयमानुसार अनुनचत िै। इनके
आचरण से सामग्री की गुणित्ता पर प्रनतकूल
प्रर्ाि पड़ने की सम्भािना से इन्कार निीीं नकया
जा सकता साथ िी इनके द्वारा कायदायी सींस्था
को अनुनचत लार् पहुॅ चाने की सम्भािना से र्ी
इन्कार निीीं नकया जा सकता। इनकम कमर्ा-
व्यवहमर सरकमरी लोक सेवक के तलर्े
तनर्माररि आचरण तनर्र्मवली कम उल्लंघन
है। अतैंः इनकी सत्यननष्ठा सींनदग्ध प्रतीत िोती
िै।

उपरोक्त के आलोक र्ें आरोतपि
सेवक पर लगमर्म गर्म आरोप तसद्ध पमर्म
गर्म।"

6. It is averred in Paragraph No.16
that during the course of inquiry, no oral
evidence was led to prove the charges and
only on the basis of the air ticket, the
petitioner was held guilty. It is also pleaded
that in the absence of any witness being
examined to support the charge levelled
against the
petitioner,
he
has
been
condemned
unheard.
The
Inquiry
Committee have neither recorded any oral
evidence nor provided opportunity to the
petitioner to adduce any evidence in his
defence.

7.

It
is
emphasized
that
on
12.10.2021, the Director (P.M. & A.) of the
Distribution Corporation issued a show
cause
notice to
the
petitioner.
The
petitioner responded to the show cause by
his reply dated 28.10.2021, where the
petitioner again mentioned the fact that the
air ticket booked by him was cancelled due
to cancellation of the flight. Since, it was
necessary for the petitioner to reach
Ahmedabad at the earliest and test the
meters, bearing in mind the interest of the
Corporation, the petitioner travelled on an
air ticket booked by the representative of
the Firm. The further case was that the
petitioner conducted the inspection of
meters in accordance with norms, and after
being satisfied with the quality, drew up an
inspection
report,
signed
by
the
representative of the NPCCL as the
Inspecting Officer and the petitioner a
witness. The petitioner has further said in
his representation that he has not extended
any undue advantage to the Firm.

8. It appears that the petitioner was
again given a show cause notice along with
a copy of the inquiry report by the
Disciplinary
Authority,
the
Managing
Director of the Distribution Corporation by
his memo dated 31.01.2022. The petitioner
submitted his reply dated 14.03.2022. The
petitioner enclosed three documents along
with his reply dated 14.03.2022, which are
directed to show that there was no
compromise with his duties in inspecting
the quality of meters. It is the petitioner's
case that without considering the relevant
material
and
his
representation,
the
Disciplinary Authority acted on bald
allegations of the possibility of adverse
effect on the quality of material (meters)
and the possibility of extending undue
advantage to the Firm. It is also said that
the Disciplinary Authority has remarked
874 INDIAN LAW REPORTS ALLAHABAD SERIES
that there is no refund of the price of the air
ticket, which the petitioner says, is a
perverse finding. He says that it is perverse,
because in response to the letter dated
31.11.2021 by the Director (P.M. & A.) of
the Distribution Corporation, addressed to
the Firm, the authorized signatory of the
Firm, had conveyed vide a letter dated
25.09.2022 that no cost of travel for the
petitioner was borne by the Firm.

9. The Director of the Distribution
Corporation, by his order dated 28.05.2022,
awarded the petitioner the punishment of
censure and stoppage of one increment
with cumulative effect. The Chairman of
the U.P. Power Corporation Limited, in
exercise of his revisional powers under
Section 13(c) of the Uttar Pradesh Power
Corporation
Limited
Employees
(Discipline and Appeal) Regulations, 2020
(for short, 'the Regulations'), enhanced the
penalty by the impugned order dated
24.01.2023 and demoted the petitioner
from the post of an Assistant Engineer to
that of a Junior Engineer. The petitioner
pleads that the impugned order dated
21.04.2023 was passed by the Director of
the Power Corporation, who acting on his
own motion under Regulation 13 and
finding it a fit case for enhancement of
penalty, after calling for the petitioner's
representation
vide
his
notice
dated
28.09.2022, enhanced the punishment. The
petitioner has averred in Paragraph No.27
of the writ petition that the aforesaid letter
dated 28.09.2022 was never served upon
the petitioner, but when he went to appear
in a case in Court at Varanasi, the said
letter was handed over to the petitioner on
27.04.2023 in the office of the Electricity
Test Division, Varanasi. It is averred in
Paragraph No.28 that since the petitioner
was transferred to Pratapgarh, he could not
receive the letter dated 28.09.2022 issued
by the Director of the Power Corporation
within time and represent his case against
the proposed enhancement of penalty.

10. In the counter affidavit, the
respondents have refuted the petitioner's
allegations,
where
the
necessity
of
witnesses has been denied for a proposition
of law in Paragraph No. 4(vi) of the
affidavit last mentioned. It is averred in
Paragraph Nos.4(ix), 4(xii) and 4(xiii):

"4. ix. Further the petitioner
himself in his reply had admitted the fact of
travelling on the air ticket provided by the
firm. However, in reply to the said charge,
he was not able to give any cogent
evidence of refunding the said amount of
Air Ticket to the representative of the firm.

xii. Further when the matter of
the petitioner was duly examined by
Respondent authority after taking into
account the material evidence on record
along with enquiry report and reply given
by
the
petitioner,
a
situation
of
enhancement in punishment was found and
a show cause notice was issued on
28.9.2022 to the petitioner to submit his
reply within 15 days in regard to the fact as
to why the punishment should not be
enhanced and said show cause notice was
duly served upon the petitioner which was
also confirmed from the petitioner on his
Mobile Number. Copy of proof of service
of show cause notice dated 28.9.2022
provided to the petitioner is being annexed
herewith and marked as Annexure- CA-4
to this counter affidavit.

xiii. Further when the petitioner
had not submitted a reply to the show cause
notice dated 28.9.2022, the Respondent
No.2 had passed a detailed, reasoned and
speaking order dated 21.4.2023 enhancing
the punishment and had awarded the
2 All. Arbind Kumar Vs. State of U.P. & Ors.
875
censure entry along with demotion of the
petitioner to the post of Junior Engineer."

11. Heard Mr. Ritesh Srivastava and
Ms. Shweta Singh, learned Counsel for the
petitioner, Mr. Ujjwal Srivastava, Advocate
holding brief of Mr. Abhishek Srivastava,
learned Counsel appearing on behalf of the
Power Corporation and Mr. Girijesh Kumar
Tripathi, learned Additional Chief Standing
Counsel for the State.

12. It is, no doubt, true that the
Corporation, once again in this case, as
often noticed, have failed to adhere to the
salutary procedure of examining witnesses
in support of the charge before their Inquiry
Officer, as laid down by preponderant
authority to be the requirement of a valid
inquiry in a disciplinary case, which may
result in the imposition of a major penalty.
But, the facts here are slightly different.
The charge against the petitioner is about
travelling on a ticket purchased by the
Firm, from whom the electricity meters
were to be procured by the Distribution
Corporation and whose establishment the
petitioner was to visit in order to inspect
the quality of those meters. The charge
labels this conduct as one contrary to rules
of the Corporation.

13. It is also mentioned in the charge
that the petitioner's behaviour, conduct and
method of work does not show him to be a
responsible officer of the rank of an
Executive Engineer. The forged (described
as 'कूटरनचत' in Hindi) conduct could have a
possible impact on the quality of the
materials
purchased.
The
inference,
therefore, is that he did the act, subject
matter of charge, with a view to extend
undue favour to the manufacturer. For one,
the charge appears to be rather casually
worded, in that, that the petitioner was
never an Executive Engineer. He was an
Assistant Engineer. Even if that be
regarded as a mere irregularity, not
impacting the proceedings, the same is true
of the choice of words for the charge,
where the petitioner's conduct has been
described as forged, said in Hindi by the
words 'कूट रनचत आचरण'. Possibly, there
cannot be any kind of a 'forgery of
conduct', which is an act associated with
tampering of documents or electronic
record. Nevertheless, reading the charge to
be that it was improper conduct on the
petitioner's part, this Court has proceeded
to understand the matter, the way it has
been dealt with by the Disciplinary
Authority and the Revisional Authority.

14. So far as the submission of the
learned Counsel for the petitioner, that in
support of the charge, no witnesses were
examined
by
the
establishment,
is
concerned, it is true for a fact that the
aforesaid salutary procedure to be adhered
to in all inquiries, where a major penalty
may be imposed, has not been followed.
This is against the settled authority of the
law. In this connection, reference may be
made to the decisions of the Supreme Court
in State of Uttar Pradesh and others v.
Saroj Kumar Sinha, (2010) 2 SCC 772,
Roop Singh Negi v. Punjab National
Bank and others, (2009) 2 SCC 570,
State of Uttaranchal and others v.
Kharak Singh, (2008) 8 SCC 236 and the
Bench decision of this Court in State of
U.P. and another v. Kishori Lal and
another, 2018 (9) ADJ 397 (DB)(LB),
Smt. Karuna Jaiswal v. State of U.P.,
2018 (9) ADJ 107 (DB) (LB) and State of
U.P. v. Aditya Prasad Srivastava and
another, 2017 (2) ADJ 554 (DB)(LB).

15.

The
aforesaid
salutary
requirement is attracted to a case, where the
876 INDIAN LAW REPORTS ALLAHABAD SERIES
delinquent denies the charge or so much
material part of it, which the employer has
to establish. Here, the charge is about the
conduct of the petitioner in travelling on a
ticket purchased by the Firm, whose meters
he was going to inspect for their quality,
and the charge further is that the conduct of
the petitioner aforesaid, leads to the
possibility of the quality of material
purchased being compromised, as the
petitioner might have favoured the Firm.
The petitioner has no doubt denied the fact
that he has compromised his position in any
manner, affecting the quality of the
material purchased after his inspection,
which in any case was held in the presence
of another Officer of higher rank. The
charge is, therefore, reduced to the
propriety of the petitioner's conduct in
travelling on a ticket purchased by the
Firm, whose materials he was going to
inspect. This part of the charge about the
fact of purchasing the ticket, the petitioner
does not deny. Rather, he says that on
reaching
destination,
he
paid
the
representative of the Firm the money spent
on purchasing the ticket.

16. The petitioner has also
explained the circumstances in which he
had to purchase the ticket through the
Firm's representative. Therefore, so far as
the petitioner's conduct in travelling on a
ticket
purchased
through
the
Firm's
representative is concerned, the said act is
admitted. The entire charge, if understood,
is only about the propriety of the
petitioner's conduct in purchasing a ticket
through the Firm's representative. There is
no imputation that, in fact, the quality of
the
meters
was
compromised,
in
consequence of the petitioner's act. If that
were the charge, the employer would have
to establish it by leading oral evidence in
support of the charge. But, that is not at all
the case. The case is only about the
propriety of the petitioner's conduct in
travelling on a ticket purchased by a
representative of the Firm, where he was
going to inspect.

17. The petitioner's defence that on
arrival at destination, he paid the Firm's
representative, has not been accepted by the
Disciplinary Authority, because there was
no evidence aliunde to show that the
petitioner, in fact, paid the Firm, such as a
cash receipt or payment in account. The
letter written by the Firm about receiving
the entire price of the air ticket and the
arrangements for lodging made with the
hotel has not been accepted as reliable
evidence. This view of the Disciplinary
Authority cannot be said to be manifestly
illegal or perverse, that may be interfered
with in the exercise of our jurisdiction
under Article 226 of the Constitution.

18.

The
Revisional
Authority,
however,
has
enhanced
the
penalty,
exercising power suo motu on a revision
under Regulation 13(c) of the Regulations.
The Revisional Authority, no doubt, has
that jurisdiction under the Regulations, but
two questions do arise in this case. The first
is that the petitioner says that he was never
served with the notice for enhancement by
the Revisional Authority, as he has pleaded
in Paragraph Nos.27 and 28 of the writ
petition. He has, particularly, said that he
could not be served with the Revisional
Authority's
notice
dated
28.09.2022
proposing enhancement, because by that
time, he had been transferred to Pratapgarh.

19. In the counter affidavit, a copy of
the notice for the proposed enhancement
has been annexed, as also a photostat copy
of the registered postal receipt, which
shows the petitioner to be posted as an
2 All. Arbind Kumar Vs. State of U.P. & Ors.
877
Assistant Engineer with the Distribution
Corporation at Varanasi. The petitioner
says that at the relevant time, he was posted
at Pratapgarh and not Varanasi. There is
nothing said or shown in the counter
affidavit, which may establish that the
notice, in fact, was directed to the
petitioner's correct place of posting or
residence at the relevant time. The assertion
in Paragraph No.28 of the writ petition that
he was posted at Pratapgarh, and, therefore,
never received the notice for enhancement,
remains undisputed. The petitioner's case in
Paragraph No.27 that he received the notice
of enhancement much later on 27.04.2023,
when he went to Court to appear in a case
there and while visiting the Electricity Test
Division, Varanasi, too has not been
denied. Rather, it appears that the notice
sent to the Assistant Engineer (Meter) of
the Distribution Corporation, was served
upon the petitioner, as he says, on
27.04.2023. The order was passed by the
Revisional Authority on 24.01.2023.

20. This Court is, therefore, of
opinion that the petitioner was never served
with the notice of enhancement by the
Revisional Authority in good time to
enable him to answer. The requirement to
serve a notice before enhancement of
punishment is also a requirement under the
Regulations, and, in any case, its nonservice would be a violation of the
principles of natural justice. For the said
reason alone, the revisional order impugned
cannot be sustained.

21. There is another reason, which
has been spoken of as the second to merit
consideration. While this Court has opined
that the finding of the Disciplinary
Authority is not bad, based on the
petitioner's admission about his impropriety
of conduct or the misconduct in travelling
on a ticket purchased by the Firm's
representative, where he was going to
inspect, as also the finding in not believing
the evidence about paying off the Firm's
representative upon arrival at destination,
the quantum of punishment imposed, may
still be the subject matter of some scrutiny
by this Court on settled parameters. This
Court is mindful of the fact that the
quantum of punishment is a matter that
primarily lies within the domain of the
Disciplinary Authority and a fortiori the
Revisional Authority. We cannot substitute
our view simply because we think that the
punishment imposed is disproportionate or
excessive. We can interfere with the
quantum of punishment only if we find it to
be shockingly disproportionate; something
revolting to the Court's conscience given
the charge, the evidence and the entirely of
circumstances
appearing
against
the
delinquent. In this regard, reference may be
made to the decision of the Supreme Court
in Union of India and others v. Subrata
Nath, 2022 SCC OnLine SC 1617, where
it has been held:

"21. To sum up the legal position,
being fact finding authorities, both the
Disciplinary Authority and the Appellate
Authority are 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, the Disciplinary
Authority has the discretion to impose
appropriate punishment on the delinquent
employee keeping in mind the gravity of
the misconduct. However, in exercise of
powers of judicial review, the High Court
or for that matter, the Tribunal cannot
ordinarily reappreciate the evidence to
arrive at its own conclusion in respect of
the penalty imposed unless and until the
punishment imposed is so disproportionate
878 INDIAN LAW REPORTS ALLAHABAD SERIES
to the offence that it would shock the
conscience of the High Court/Tribunal 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
shocks
the
conscience of the High Court or the
Tribunal, then the Disciplinary/Appellate
Authority may be called upon to reconsider the penalty imposed. Only in
exceptional circumstances, which need to
be
mentioned,
should
the
High
Court/Tribunal
decide
to
impose
appropriate punishment by itself, on
offering cogent reasons therefor."

22.

Upon
a
perusal
of
the
circumstances here, what this Court finds is
that though the petitioner may be guilty of
the impropriety of travelling on a ticket
purchased by the representative of a Firm,
where he was going to inspect quality,
there is some explanation about the
circumstances
how
the
indiscretion
happened. The petitioner had booked an air
ticket for himself from Varanasi, but the
flight
was
cancelled. The
petitioner,
mindful of his duties to reach destination
and
inspect
as
an
Officer
of
the
Corporation, where another superior was
joining him, committed the indiscretion of
securing
the
ticket
through
the
representative of the Firm. While it is true
that there is no evidence aliunde that he
repaid, there is also no reason to believe
that he was saying falsehood altogether.
The Disciplinary Authority has thought it
fit not to believe him and we do not
interfere with that finding, as already said.
But, the fact remains that there is no
charge, let alone a finding, that the
petitioner actually favoured the Firm in any
manner or compromised his employer's
interest. The Disciplinary Authority, on the
totality of circumstances, thought fit to
impose the major penalty of stopping one
increment with cumulative effect. This,
however, was enhanced by the Revisional
Authority, acting suo motu to a demotion to
the post of a Junior Engineer. The
punishment awarded by the Disciplinary
Authority is also a major penalty.

23.

Given
the
totality
of
circumstances, where the conduct of the
petitioner appears to be indiscreet and
highly irregular, but not dishonest, or one
that has caused any kind of a loss to the
Corporation, the punishment of demotion
by the Revisional Authority, to this Court's
conscience,
is
indeed
shockingly
disproportionate. Nevertheless, going by
the settled law, this Court refrains from
reducing the punishment ourselves and
instead think that it would be appropriate to
send back the matter to the Revisional
Authority, the Chairman of the Power
Corporation Limited, Lucknow, who would
be under a command to pass a fresh order,
in accordance law, bearing in mind the
guidance in this judgment.

24. Quite apart from the remand to
the Chairman of the Power Corporation on
the issue of quantum, the matter, in any
case, has to go back to the Chairman,
because we have held that the petitioner
was not given any opportunity of hearing.
Therefore, the Chairman has to take a
decision
afresh
after
providing
the
petitioner adequate opportunity of hearing
in the manner hereinafter directed by this
Court.

25. In the result, this petition succeeds
and is allowed in part. The impugned
order dated 21.04.2023 passed by the
Chairman,
U.P.
Power
Corporation
Limited, Lucknow is hereby quashed. The
Chairman of the Power Corporation is
2 All. Urvashi Vs. State of U.P. & Ors.
879
commanded to pass fresh orders in the
exercise of his revisional jurisdiction. After
furnishing the petitioner time to submit his reply
to the notice of enhancement, which shall be
three weeks from the date of receipt of a copy
of this judgment, the Chairman shall pass his
orders within six weeks of receipt of the
petitioner's reply. The order passed by the
Chairman shall be communicated to the
petitioner at his current place of posting within
a week of the orders being recorded. Needles to
say that the impugned order being quashed, in
the interregnum, the consequences shall follow
and the petitioner reinstated to his position
forthwith as an Assistant Engineer and paid his
current salary accordingly. The question of
consequential benefits, pecuniary and otherwise
shall abide by the decision of the Revisional
Authority.

26. There shall be no order as to costs.
----------
(2024) 2 ILRA 879
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ - A No. 15229 of 2019
Connected with
Writ - A No. 4223 of 2022
and other connected cases

Urvashi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mushir Khan, Sri Amit Saxena (Senior
Adv.), Sri Ashok Khare (Senior Adv.), Sri
Himanshu Singh

Counsel for the Respondents:
C.S.C., Sri Akhilesh Kumar Singh, Sri
Amaresh Yadava, Sri Chheda Lal Verma, Sri
Nand Kishore Singh, Sri Shivendu Ojha, Sri
Sunil Kumar Srivastava, Sri Vishnu Kumar

A. Service Law - Post of Assistant Teacher
- Cancellation of appointment - Revaluation of answer booklets - It was
found that the petitioners were granted
more marks above than their merit, i.e.,
marks granted on basis of their answer
booklets - Authority of re-valuation was
challenged
-
Held,
petitioners
were
granted benefit and were awarded more
marks than their merit in tabulation chart,
i.e., fairness and merit was compromised
- Less meritorious candidates are not
allowed to continue in service at the cost
of meritorious candidates and in order to
maintain fairness, the procedure adopted
by respondents could not be said to be
illegal - High Court imposed cost of Rs,
5000/- for each petitioners. (Para 14, 15,
18 and 20)

Writ petition dismissed. (E-1)

List of cases cited :-

1. Omveer Singh & ors. Vs St. of U.P. & ors.;
2016:AHC:9510-DB

2. Ram Naresh Singh & ors. Vs St. of U.P. &
ors.; 2017:AHC:185314

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Fairness is the soul of any
competitive examination. Any compromise
of merit would betray confidence and trust
of meritorious candidates on examination
system and in case some irregularity is
detected during process of examination and
there is a scope to cure it, in the interest of
justice and to maintain fairness, an
endeavour has to be taken to cure it. This is
what happened in facts and circumstances
of present cases.