Shri M.S. Gill, AEE vs Haryana State Electricity Board and Another

Dr. Bharat Bhushan Parsoon, J.—Working as Assistant Executive Engineer with respondent No. 1 at Faridabad (Haryana), the petitioner, on 18.1.1991 was issued show cause notice (Annexure P-1) calling upon him to explain his conduct which had allegedly resulted in a non-fatal accident on 31.10.1984 as a result of which one C.S. Kaushik, SA had sustained injuries. On 19.2.1991, he submitted his detailed reply (Annexure P-2) explaining his position making out a case for his innocence and non-dereliction of duty on his part. Being not satisfied with reply, two annual grade increments of the petitioner were stopped with cumulative effect vide order dated 28.1.1992 (Annexure P-3). It is this order (Annexure P-3) which is under challenge in this writ petition on the ground that not only it was arbitrary but was result of deliberate connivance, indicting the petitioner after a lapse of more than six years and that at such belated stage, it was the result of some mischief. It is further averred that record maintained by respondent No. 1 categorically establishes that allegations leveled against the petitioner are false and have no foundation in truth. It is averred that no inquiry was conducted, no opportunity of being heard was given, no inhouse probe was made, and even then the petitioner was indicted and without hearing, he was punished. It is also claimed that punishment of stoppage of two increments with cumulative effect being a major penalty, could not have been inflicted on the petitioner without affording an opportunity of being heard to him in a regular departmental inquiry. Seeking quashing of order Annexure P-3, acceptance of the petition has been prayed for.

At the time of admission, the parties to the litigation were duly represented. It was on 16.10.1992. An application for early hearing filed by the petitioner was dismissed on 26.2.1997.

When the case came up for regular hearing, though counsel for the petitioner made appearance, none came for and on behalf of the respondents despite information sent by the Registry to counsel for the respondent. Default in appearance was made by counsel for the respondents on three dates consecutively. It was in these circumstances that arguments of counsel for the petitioner were heard in absence of counsel for the respondents.

Perusal of written statement furnished by the respondents in correlation with the averments in the petition reveal that there is no dispute about factual matrix of the case. It is evident that:--

(i) show cause notice to the petitioner for his alleged acts of omission and commission in discharge of his duties was issued to him on 18/22.1.1991, i.e., more than after six years;

(ii) reply submitted by the petitioner in a bid to establish his innocence, giving details of facts and circumstances continued lying with the respondents without any action thereon;

(iii) only after gap of about 11 months, it was considered unsatisfactory and order of punishment of stoppage of two increments with cumulative effect, was passed against the petitioner.

There is no denying the fact that there was unfortunate accident on 31.10.1984 wherein one official of the respondents had received non-fatal injuries. When the parties were having full information with details thereof, they continued slumbering and after more than six years, issued a show cause notice accusing the petitioner of the lapse and that too without any report of a fact finding inquiry.

It is to be noticed further that even when the petitioner submitted his detailed reply (Annexure P-2) explaining therein the circumstance to prove his innocence, no steps were taken by the authorities to verify such facts as also the attending circumstances, so as to be clear about the chain of events vis-�-vis role of the petitioner.

Labelling his reply to be unsatisfactory, impugned order Annexure P-3 was passed stopping two annual grade increments with cumulative effect. Relevant extract of the impugned order, for ready reference, is appended as below:--

HARYANA STATE ELECTRICITY BOARD

Office order No. 39/CONF-1833 Dated: 28-1-1992 -

The reply submitted by Sh. M.S. Gill, AEE vide his memo No. MSG-91 dated 19.2.1991 in response to the show cause notice served upon him vide this office memo No. CH-2/Conf-1833 dated 22.1.1992 has been considered in the context of the comments offered by the CE (OP) South, Delhi vide his memo No. Ch-76/AC/GC-321 dated 6.9.90 and found unsatisfactory. The competent authority, has, therefore, decided to stop his two annual increments with cumulative effect.

As such two annual increments of Sh. M.S. Gill, AEE are hereby stopped with cumulative effect.

Concededly, the petitioner is governed by HSEB Employees (Punishment and Appeal) Regulations, 1990. It is noteworthy that under which Regulation this punishment was imposed on the petitioner, had not been specified by the respondents.

In State of Punjab and Others Vs. Chaman Lal Goyal, , delayed starting of departmental proceedings had been adversely commented upon. Relevant portion of para 10 of the judgment is appended as below:--

Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the fact-, of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted.

Delay of more than six years, when record was available, facts were clear and circumstances were discernible, is completely unexplained long delay. It is no less than a Kumbhkarna slumber. In this respect, reference may also be made to State of Punjab and Others Vs. Gurdev Singh, and The State of Madhya Pradesh Vs. Bani Singh and another, . There is no explanation or justification for such a long delay causing not only strain and stress to the petitioner but also giving room for harassment, bias, misuse of power and mala fides against the petitioner.

Not only this, the respondents took almost a year to decide the fate of the petitioner in this matter and reply furnished by him remained unattended even though it had inputs of facts of verifiable nature and could lead to the truth. No effort was made by the respondents to reach the truth before punishing the petitioner. Impugned order Annexure P-3 was passed after unexplained long delay which is also a circumstance militating against fairness on the part of the respondents.

Viewed from another angle, punishment of stoppage of two increments cumulatively, though mentioned as minor punishment in the relevant regulations applicable to the employees of respondents, in fact is a major penalty and thus, necessarily required conducting of a regular departmental inquiry. In support of this proposition, reference may be made to Full Bench judgment of this Court in Dr. K.G. Tiwari v. State of Haryana, 2002(4) S.L.R. 329 (F.B.) and Single Bench judgments in Haryana State Electricity Board, Chandigarh v. Chander Bhan, Driver, 2005(1) R.S.J. 204 and Hari Singh Driver v. The State of Punjab and another 1992(1) S.L.R. 20.

Further viewed from yet another pedestal, action of the respondents in passing of impugned order Annexure P-3 finds no justification either on facts or in law. Neither this order is self speaking nor is backed by any indictment of the petitioner in some departmental inquiry held against him. Reply submitted by him was not even considered in its merits and thus, it was also denial of effective opportunity of hearing resulting in clear violation of principles of natural justice as well. Resultantly, this writ petition is allowed and the impugned order (Annexure P-3) is set aside. The petitioner is held entitled to all consequential benefits. Arrears would be paid with interest @ 9% per annum within two months. If the payment is not made within two months, interest would be charged @ 12% per annum.