IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Restoration Application No.479/2011 Delay Condonation Application No.6548 of 2011 IN WPSB No.230 of 2007 (Old No.47802 of 2000) Rajiv Jaiswal … Petitioner Versus National Hydroelectric Power Corporation Ltd. & others … Respondent Mr. Pankaj Purohit, Advocate holding brief of Mr. H.V. Shah, Advocate for the petitioner Mr. Alok Mehra, Advocate for the respondents Dated: July 6, 2011 Coram Hon’ble Barin Ghosh, C.J. Hon’ble Servesh Kumar Gupta, J. Barin Ghosh, C.J. (Oral) Writ petitioner seeks to challenge an order passed on a disciplinary proceeding. The order concluding the disciplinary proceedings was passed on 9.2.1999. Petitioner preferred an appeal against that order and the said appeal was dismissed on 15.4.1999. On 27.4.1999, despite their being no scope of filing a review application, petitioner filed the review application before the appellate authority and thereafter, filed the present writ petition on 30.10.2000 before the Hon’ble Allahabad High Court and thereupon the writ petition was transferred to this Court. On 13.2.2008, writ petition was dismissed for default of appearance. On 20.5.2008, the order, dismissing the writ petition passed on 13.2.2008, was recalled. On 9.12.2010, the writ petition was again permitted to be dismissed for default. Accordingly, an application has been made on 30.6.2011 for recalling the order dismissing the writ petition for default. In that, it has been stated that the counsel of the petitioner, by mistake, could not mark the writ petition in the list and as a result, could not attend the writ petition when the same was called on for hearing. In the said application, it has further been stated that the petitioner contacted his counsel on 30.6.2011 and only then he came to learn that the writ petition has been dismissed for default. Inasmuch as, there was some delay in filing the restoration application, an application for condonation of delay in filing the restoration application has also been filed. In that too, 2 similar reasons have been furnished, as have been furnished in the application for restoration. If the counsel for the petitioner could not mark the matter in the list, it should be deemed that he was unaware that the writ petition was dismissed for default. If that be so, no sooner the client contacts the counsel, by what magic the counsel comes to know or the client comes to know that the writ petition has been dismissed for default, has not been explained in the body of the applications. We are of the view that there was no reason for permitting the writ petition to be dismissed for default and there was also no just reason in filing the application for restoration after the expiry of the period prescribed therefor. 2. However, inasmuch as the learned counsel for the petitioner submitted that he would argue the writ petition on its merit today itself, we permit the application for condonation of delay as well as the application for restoration to be allowed upon payment of cost of Rs.2,000/- with the High Court Legal Services Authority, as a condition precedent. In the event, such cost is not paid within 15 days from today, it shall be deemed that the application for condonation as well as the application for restoration, stand dismissed. 3. As was assured by the learned counsel, he argued the writ petition on merit. He has highlighted two major grievances of the petitioner, namely, the punishment is disproportionate and (2) the disciplinary authority, having had decided that the case as found to be proved do not warrant a major punishment, has awarded the major punishment. 4. There is no dispute that a charge sheet was issued to the petitioner, which was replied to by him, whereupon, the charges were enquired when evidence in the form of documentary evidence and oral evidence was submitted. There is also no dispute that subsequent thereto, the Enquiry Officer prepared a report and the said report was submitted to the petitioner and thereupon, the disciplinary authority passed the order in question, which was affirmed by the appellate authority. The Rules governing the field do not permit a review by the appellate authority of its order and, accordingly, the request for review could not be acceded to. 5. It is the contention of the petitioner that the charges against him were in regard to acceptance of materials under a contract and since the final payment of the contractor had not been made, even at the time of conclusion 3 of the disciplinary proceedings, the loss highlighted in the chargesheet could be easily recovered from the contractor and, accordingly, the petitioner should not have been punished and even if punished, should have been punished with only a minor punishment and not a major punishment, as that of lowering the petitioner to a stage in his timescale. The charges in the chargesheet were, as would be evident from a bare reading thereof, that the petitioner purported to accept supplies under a contract which had not been contracted to. It is true that in the chargesheet, it was indicated that the value of the materials accepted was less than the value contracted for and, accordingly, the loss could be recovered while settling final payment of the contractor, but the fact remains that the materials contracted for, were not received and the materials received were not materials contracted for, as in the circumstances, by the actions on the part of the petitioner, as it appears to us, the petitioner permitted the contract to be altered to the detriment of the employer of the petitioner. Posted with those facts, it appears to us that a prudent person could do, what has been done in the instant case, i.e. award a major punishment of lowering the petitioner to a stage in his timescale. In other words, it cannot be said that the materials, those were available before the disciplinary authority and the appellate authority, they could not, on the basis therefor, award punishment, as awarded. 6. In terms of the Rules, punishment of lowering to a stage in a timescale, as was awarded in the instant case, is a major penalty. It is at the same time true that the disciplinary authority deliberated upon the enquiry report, vis-à-vis his obligation to award punishment on the basis of the findings recorded in the enquiry report and opinioned at that stage that the case as proved, does not call for a major punishment. However, while awarding the punishment, the selfsame person awarded a major penalty by lowering the petitioner to a stage in a timescale. The question is whether the deliberations of the disciplinary authority, relied by the petitioner in his rejoinder, have any legal effect or not? There is no requirement of law that the disciplinary authority is required to do what has been done in such deliberations. It is certainly a requirement that a disciplinary authority has to make up his mind upon consideration of the enquiry report and the reply thereto, as to what punishment, if any, should be awarded to the delinquent and, accordingly, he must deliberate upon the same. There is, however no 4 requirement that such deliberation must be recorded. If on the basis of such mental exercise, a decision is taken that one course would be the best course and later, the same is changed, in law, it must be deemed that in course of further deliberation, the disciplinary authority thought that the better course would be what has been done later. We, accordingly, find no merit in the writ petition. The same is dismissed. (Servesh Kumar Gupta, J.) (Barin Ghosh, C.J.) 06.07.2011 Rdang