C I'2/a/ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR €37 ‘1/2007 WRIT PETITION (S) N0. /// Nageshwar Prasad Tripathi, aged about 59 years, S/o—Ganganand Tripathi,R/ o Newari Post Shivpurwa Via Amar Patan Distt. Satna M.P. PETITIONER VERSUS L, The State of Chhattisgarh,Through Secretary Home Department /D.K. S. Bhawan Ralpur (CGJ 2‘ Director General, Jail, D.K. S. Bhawan Rajpur / 3. Inspector General Of Prison /Raipur k 4. The Superintendent, Central Jail, RESPONDENTS 1. Raipur / 1 5. The Superintendent 1 St. class _ /District Jail, Jagdalpur, Bastar 6. State of Madhya Pradesh Through Secretary Ministry of Home, Vallabh Bhawan Bhopal WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA 1 Particular of the Petitioner :- As mentioned above in the cause title. Particulars of the resgondents :- lE° rg e As mentioned in the cause title. Q Am HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION 182 No. 6372 0f2007 PETITIONF‘R : Nageshwar Prasad Tripathi. VERSUS RESPONDENTg : The State of Chhattisgarh. \m » Post for pronouncement ofjudgment on 14 7% .- day of March, 2010. T sal- ‘2 g Satish Judge K. Agnihotri 92f HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0. 6372 of 2007 ' Nageshwar Prasad Tripathi. VERSUS RESPONDENTS : The State of Chhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF ‘ INDIA SB: Hon’ble Shfi Satish K. Agnihotri, J. \x v _--_ __ __-_ Present : Shri Parag Kotecha, Advocate for the petitioner. Shri A.V.Shridhar, Panel Lawyer for the State/respondents l to 5. JUDGMENT (Delivered on .jéf‘day of March, 2010) By this petition, the petitioner seeks a writ in the nature of certiorari to quash the order dated 16.09.1982 (Annexure P/9) passed by the Superintendent, District Jail, Class I, Jagdalpur, District Bastar, whereby the petitioner has been dismissed from service and the order dated 12.09.2007 (Annexure P/12) passed by the Director General, Jail, Chhattisgarh, whereby the appeal preferred by the petitioner against the order dated 16.09.1982, has been rejected. e The facts, in brief, as projected by the petitioner are that the petitioner was appointed as Jail Warder in the year 1967 by the Superintendent, Central Jail, Raipur. On 8.12.1980 (Annexure P/1), the petitioner made a complaint to the Director General, Jail, against one Shri Harwani, the then Superintendent, District Jail, Jagdalpur in respect of some corrupt practices. According to the petitioner, as a sequel, he was suspended on Rxk‘ 9’5 the very next day i.e. 09.12.1980 (Annexure P/2). Thereafter, a charge sheet was issued to the petitioner on 15.12.1980. The petitioner was ordered to be attached to the District Jail, Ambikapur by order dated 24.01.1981 (Annexure P/3) and a second charge sheet was also issued on 21.12.1981. Later on, the petitioner was transferred to the Central Jail, Raipur by order dated 27.5.1982 (Annexure P/4). During the period of suspension, the petitioner was not paid any subsistence allowance. The petitioner tiled his reply on 7.7.1982 (Annexure P/6) stating that due to non-payment of subsistence allowance, it was difficult for him to attend the departmental proceedings. Further, on 28.7.1982 (Annexure P/7), the petitioner made an application for change of the Enquiry Officer. For grant of subsistence allowance, the petitioner preferred a writ petition, being W.P. No. 1388 of 1982. On 17.12.1982 (Annexure P/8), during the course of hearing of the writ petition, the State counsel handed over an amount of Rs. 3190/- t0 the counsel appearing for the petitioner therein and accordingly, the said writ petition was dismissed. Subsequently, the authorities, without affording proper opportunities to the petitioner to put forward his case, concluded the enquiry proceedings and the petitioner was removed from service vide order dated 16.09.1982 (Annexure P/9) passed by the Superintendent, District Jail, First Class, Jagdalpur, who according to the petitioner, is not competent to pass the removal order. Being aggrieved by the said order, the petitioner preferred an appeal before the Inspector General of Police on 30.12.1982. The same was not decided for a long period by the appellate authority. Thus, the petitioner was made to file second writ petition before this Court, being W.P. No. gé 532 of 2005, which was disposed of by this Court Vide order dated 12.04.2007 (Annexure P/10) with a direction to the petitioner to file a fresh appeal within a period of 15 days and the respondent authorities therein, were directed to decide the same in accordance with law within a period of three months from the date of receipt of the appeal, if any. Pursuant to the said order, the petitioner preferred a fresh appeal before the Inspector General, Jail, which is evident from Annexure P/ll. The said appeal was dismissed by the Director General, Jail, Chhattisgarh Raipur by order dated 12.09.2007 (Annexure P/12). Thus, this petition. 5. Shri Kotecha, learned counsel appearing for the petitioner would submit that before concluding the departmental enquiry proceedings, no opportunity of hearing was afforded to the petitioner. The Enquiry Officer has acted contrary to well-settled norms of procedure of the departmental enquiry, on the whims and fancies of the Superintendent of Jail, against whom the petitioner had made complaints. The petitioner has been suspended only on the ground that he has made complaints against the corrupt practice made by the jail authorities. 6. Shri Kotecha would further submit that the petitioner has not attended the enquiry proceedings regularly as he was under suspension and no subsistence allowance as per his entitlement was granted, inspite of his frantic efforts to get the same, which is contrary to the provisions of service rules. The impugned order has been passed by the Superintendent, District Jail, who is not the appointing authority in respect of the petitioner. 7. On the other hand, leamed counsel appearing for the State/respondents would submit that the impugned removal order was passed after l 9'7 following the due process of law. From time to time, notices were served to the petitioner to attend the departmental enquiry proceedings but he did not tum up, therefore, the authority had no option except to proceed ex parte against the petitioner. Further, the petitioner was suspended on the ground that he was a habitual absentee from the duties and he was not sincere towards his duties, misbehaved with his superior officers, and also submitted fake travelling allowance bills etc. Against the petitioner at the time of his posting at Raigarh, a case under the Gambling Act was registered and he was punished with a fine of Rs. 25/—. The petitioner was paid the subsistence allowance from December, 1980 to January, 1981 in Jagdalpur Jail. Even the petitioner was also granted some amount for travelling expenses to attend the departmental enquiry proceedings. Even the jail authorities of Ambikapur had given the subsistence allowance to the petitioner. Thus, the contention of the petitioner is not sustainable. The Director General, Jail, after considering all the aspects of the matter, in its true perspective, and after considering the material available on record, rightly rejected the appeal of the petitioner. Thus, the petitioner is not entitled to any relief. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. A detailed imputation of charges was given to the petitioner alongwith the list of witnesses on 15.12.1980 (Annexure P/5), showing cause to the petitioner. It was directed to submit list of documents so that the same can be made available to him. The charges leveled against the petitioner reads as under: “W— q?! i§6ff§HuE§1$i1mwm $WWWW $hHF?Wummswaav¥W21—7—79@uw$ wwwi$mmmmm§ W I (2)&?n'$ 28.11.3oa7}€‘q\é11¥aq‘vfwmi¥mwm@m Wwuwm$wmw$ml (1) W 6.11.1980 § 9.11.80 a3; m tggtFE Fm;% $ zigLaIi‘ (30W 1.12.1930 1% 7.12.80Wm @WW mm wm‘ai'mmqwmml (4)1%:n'$ 6.12.8oa0m0mam$maimmml (5)mwa1§€mwmm§mi?m (6)$ET§W&000WWWWW€10001%HWW WHMWI WEWW‘WWQH'WWH§1&U&1¥ amh§l V3V— W. 15/2 swim? m U131 yam $1111, Emmy.” 10. Thereafter, a second charge sheet was issued against the petitioner on 28.12.1981 which reads as under: "uahardmm(hét§e)$mmndm —11a $Wmuw®6fm)$mwad WWWwmmma‘mwehw Wwdmmwdmdmwurw Wwwmmmmitl W591 /— 31w, 23/12 Wm WWumdut’t mg? (w) Houo” 11. The sole contention of the petitioner is that the petitioner was not given » subsistence allowance therefore, the enquiry was Vitiated. On perusal, it was found that by letter dated 07.07.1982 (Annexure P/6), the petitioner has demanded subsistence allowance. Since the same was not granted to the petitioner in time, a sum of Rs. 3190/- was paid to the petitioner by / / / 9} order dated 17.12.1982 passed in M.P. NQ. 1388/1982, by the High Court. Thereafter, the petitioner was granted subsistence allowance alongwith traveling expenses. There is no other document indicating the fact the petitioner was thereafter, at any point of time, was not paid subsistence allowance which prevented the petitioner from attending the enqulry. 12. There is no dispute, as it is not the case of the petitioner, that the petitioner was restrained on account of any other reason from attending the enquiry proceedings and the case of the respondents is that despite several notices, the petitioner at will, sometimes attended and sometimes, without information, remained absent from the enquiry. The petitioner has not pointed out any other perversity in the enquiry or that the findings recorded was based on no evidence. The appellate authority, in his order, has dealt in detail and has considered the grounds raised in appeal and has discussed the payment of subsistence allowance and refusal to accept some of the amounts sent by the answering respondents to the petitioner. In View of the fact that there was fault on the part of the petitioner to receive the amount on some occasions, the petitioner cannot be permitted to raise the issue of non-payment of subsistence allowance seeking a writ to hold that the departmental enquiry was vitiated. l3. Reliance of learned counsel appearing for the petitioner on the decision of the Supreme Court rendered in Ghanshyam Das Shrivastava v. State of Madhya Pradeshl and State ofPunjab & Others v. K.K.Sharma2 are not of any help, as in the case on hand the subsistence allowance during the period of suspension was paid to the petitioner. Remsal by the petitioner l AIR 1973 SC 1183 2 2003 AIR SCW 2793 100 to accept the amount of subsistence allowance granted by the respondents does not come within the purview of non-payment of subsistence \ allowance. 14. So far as the quantum of punishment awarded to the petitioner is concerned, the Supreme Court, in State of UP. v. Jaikaran Singh3 held that if the charges are established and there is no lacuna in the procedure of departmental enquiry, normally the court in exercise of its jurisdiction under Article 226 does not interfere with the quantum of punishment. In U.P.S.R.T.C. v. Ram Kishan Arora", the Supreme Court observed as under: '15. “7. The High Court has not arrived at the conclusion that the quantum of punishment imposed upon the respondent was disproportionate to the gravity of his misconduct. Even in such a situation, the course which would have been ordinarily been open to the High Court was to remit the matter to the employer for consideration of the question in regard to the quantum of punishment. The High Court without assigning any reason could not have substituted its opinion to that of the disciplinary authority. ” l 16. In Uttar Pradesh State Road Transport Corporation v. Nanhe La Kushwaha5, the Supreme Court observed as under: “7. This Court, times without number has deprecated the practice adopted by the High Courts in disposing of the writ petitions without assigning any reason. It is well settled that Industrial Tribunal or a Labour Court may interfere with a quantum of punishment awarded by the employer in exercise of its power under Section ll-A of the U.P. Industrial Disputes Act, 1947 but ordinarily, the discretion exercised by the employer should not be interfered wit . ” 3 4 (2003) 9 scc 228 (2007) 4 scc 627 5 2009) 8 SCC 772 ’0' 17. A man in uniform does not deserve any sympathy when he was in the habit of remaining absent from duties, misbehaving with his senior officers which has been found proved and claiming the amount on the basis of forged bills, thus the punishment awarded to the petitioner is proportionate. In re: contention of the petitioner that the .order of removal was not passed by the competent authority, this issue was raised before the appellate authority. The appellate authority while rejecting the ground held that under the provisions of M.P./C.G. Civil Services (Classification, Control & Appeal) Rules, 1966, the Superintendent of Jail is competent to impose maj or penalty on Jail Warder. l8. Under schedule to the Rules, 1966 (See Rule 8 and 24), the appointing / authority of the Jail Warder is the Superintendent 0f Jail and he is competent to impose all types of punishment, including major punishment of removal from service. Note appended to the schedule clarifies that the Superintendent of Jail mentioned in columns (2) and (3) includes Superintendent of Central, District and sub-jails. The petitioner was appointed by the Superintendent, Central Jail, and the order of removal was passed by the Superintendent, District Jail. The Superintendent, Jail does not mean Superintendent of Central Jail alone. Thus, this contention of the petitioner does not merit acceptance. l9. 20. In View of the foregoing and for the reasons stated hereinabove, the writ petition is devoid of merit and is accordingly dismissed. / There shall be no order as to costs. Sdl— Satish K. Agnihotri Judge