Dismissed

Ramesh Singh Rawat v. Tehri Hydro Development Corporation India Ltd. and Others

Uttarakhand HC22 Nov 2019WPSB/263/2013

Case brief

AI extract

What is this about?

The court dismissed a review application seeking to challenge a division bench order that upheld the Appellate Authority's enhancement of punishment to removal from service. The court held that under the second limb of the proviso to Rule 35(ii), the Authority had power to impose such punishment when an inquiry had already been held.

What did the court decide?

The review application was dismissed and no costs were awarded.

Ramesh Singh Rawat Vs Tehri Hydro Development… — Service and Employment | Uttarakhand HC (2019)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Review Application No. 969 of 2017 Delay Condonation Application in Review No. 12575 of 2017 Correction Application No. 13253 of 2017

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Writ Petition S/B No.263 of 2013

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Ramesh Singh Rawat ..Petitioner

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Versus.

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Tehri Hydro Development Corporation India Ltd. and others. …..Respondents

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Present:

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Sri B. D. Upadhyaya, Senior Advocate assisted by Mr. Alok Mahra, Advocate for the petitioner/applicant. Sr. Shobhit Saharia, Advocate for the respondents.

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Dated: 22^nd November, 2019

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Coram: Hon’ble Ramesh Ranganathan, C.J. Hon’ble Alok Singh, J.

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Hon. Ramesh Ranganathan, C.J. (Oral)

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The application, seeking condonation of delay in filing the review application, is not opposed by Mr. Shobhit Saharia, Advocate for the respondent and the delay is, therefore, condonded. Correction application is also not opposed, and is ordered.

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This application is filed seeking review of the order passed by a Division Bench of this Court in WPSB No. 263 of 2013 dated 27.07.2017. On the ground that the petitioner had obtained a loan from the Bank, on the basis of a forged certificate which the petitioner had led the Bank to believe as having been issued by the respondent-Corporation, disciplinary proceedings were initiated against him which

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culminated in the punishment, of reduction in rank to the next lower stage, for a period of two years, being imposed on him. Aggrieved by the said order, the petitioner preferred an appeal to the Appellate Authority (Chairman-cum-Managing Director of the respondent-Corporation). The Appellate Authority, after issuance of a notice proposing to enhance the punishment and after giving the petitioner a reasonable opportunity of being heard, passed an order enhancing the punishment, from reduction in rank to the next lower stage, to that of removal from service.

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Questioning the said order of punishment imposed on him, the petitioner invoked the jurisdiction of this Court by way of the present writ petition in which the order under review was passed. A Division Bench of this Court, in the order under review dated 27.07.2017, held that there was no procedural impropriety or illegality; the quantum of evidence required to be established in disciplinary proceedings was not of the standard required in a criminal trial; and since the charge against the petitioner was held established, and the allegation of production of a forged document for the purpose of securing loan was proved, such findings could not be overturned in judicial review proceedings. After holding that no other contention was urged before the Division Bench, the writ petition was dismissed. Aggrieved thereby the present review petition.

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Sri B. D. Upadhyaya, learned Senior counsel appearing on behalf of the petitioner, would place reliance on the proviso to Rule 35 (ii) of the Tehri Hydro Development Corporation (CDA rules) to submit that the power of the Appellate Authority to enhance punishment is only with

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respect to the penalties specified in Clauses (e), (f), and (g) of Rule 26; the punishment of removal from service is not under Clause (e), (f), and (g), but under Clause (i) of Rule 26; and the Appellate Authority lacked jurisdiction to enhance the punishment to that of removal or dismissal from service under Clause (i) and (j) of Rule 26 of the Rules. Since the validity of this submission depends on the construction to be placed on Rule 35 (ii), it is useful to extract Rule 35 in its entirety:

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“Rule 35: Appeals.

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(i) An employee may appeal against an order imposing upon him any of the penalties specified in Rule 26 or against the order of suspension referred to in Rule 29. The appeal shall lie to the Appellate Authority as may be specified by the management.

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(ii) An appeal shall be preferred within one month from the date of communication of the order appealed against. The appeal shall be addressed to the Appellate Authority specified in the schedule and submitted to the authority whose order is appealed against. The Authority whose order is appealed against shall forward the appeal together with its comments and the records of the case to the Appellate Authority within 15 days. The Appellate Authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders within three months of the date of appeal. The Appellate Authority may pass order confirming enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case.

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Provided that if the enhanced penalty, which the Appellate Authority proposes to impose is a major penalty specified in clauses (e), (f), and (g) of Rule 26 and an enquiry as provided in Rule 26 has not already been held in the case, the Appellate Authority shall direct that such an inquiry be held in accordance with the provisions of Rule 28 and thereafter consider the record of the inquiry and pass such orders as it may deem proper. If the

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Appellate Authority decides to enhance the punishment but an inquiry has already been held as provided in Rule 28, the Appellate Authority shall give a show cause notice to the employee as to why the enhanced penalty should not be imposed upon him. The Appellate Authority shall pass final order after taking into account the representation, if any, submitted by the employee.”

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The proviso to Rule 35 (ii) is in two parts. The first limb of the proviso stipulates that if the enhanced penalty which the Appellate Authority proposes to impose is a major penalty specified in Clauses (e), (f) and (g), and an inquiry as provided in Rule 28 has not already been held, in that case the Appellate Authority shall direct that such an inquiry be held in accordance with the provisions of Rule 28 and, thereafter, consider the record of the inquiry and pass such orders as it may deem proper. Under the second limb of the proviso, if the Appellate Authority decides to enhance the punishment in cases where an inquiry has already been held as provided in Rule 28, the Appellate Authority shall give a notice to the employee to show cause why enhanced penalty should not be imposed upon him. The Appellate Authority is required to pass final orders after taking into account the representation, if any, submitted by the employee.

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Unlike the first limb of the proviso which specifically refers to Clauses (e), (f), (g) of Rule 26 in cases where an inquiry, as provided under Rule 28, has not been held, the second limb of the proviso refers to a situation where an inquiry has already been held, and the Appellate Authority decides to enhance the punishment. In such a situation, unlike in a situation falling under the first limb of the proviso which refers to Clauses (e), (f) and (g) of Rule 26, there is no such restriction on the nature of punishment to be imposed. The

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Appellate Authority’s power to impose punishment is not confined, under the second limb of the proviso, only to Clauses (e), (f) and (g) of Rule 26. Since an inquiry was held in the present case, it is the second limb of the proviso which is attracted. The punishment of removal from service, for producing forged documents before the Bank falsely claiming that it had been issued by respondent Corporation with a view to induce the Bank to sanction a loan, cannot be said to be grossly disproportionate to the charges held established, or one which shocks the conscience of this Court, for it is only in these two circumstances would this Court interfere with the order of punishment.

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While Mr. Shobhit Saharia, Advocate for respondent, would contend this contention was not even raised before the Division Bench when the matter was heard, and cannot therefore be raised in review, we are satisfied that, even otherwise, this contention does not merit acceptance necessitating review of the order passed in the Writ Petition. Review application fails and is, accordingly, dismissed. No costs.

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(Alok Singh, J.) (Ramesh Ranganathan, C.J.) 22.11.2019 22.11.2019

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pant

Ramesh Singh Rawat v. Tehri Hydro Development Corporation India Ltd. and Others

Case brief

What is this about?

What did the court decide?

Ramesh Singh Rawat v. Tehri Hydro Development Corporation India Ltd. and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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