IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 4581 OF 2001 (MS) Municipal Board ………..Petitioner. Versus Commissioner, Kumaon Region, Nainital and another. ……..Respondents. Mr. Harshvardhan Sah, Advocate for petitioner. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for State of Uttarakhand/respondent no.1. Mr. B.D. Upadhyay, Advocate for respondent no. 2 to 2/4. 26th November, 2009 Hon’ble Sudhanshu Dhulia, J. Heard Mr. Harshvardhan Sah, Advocate for petitioner, Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for State of Uttarakhand/respondent no.1, Mr. B.D. Upadhyay, Advocate for respondent no. 2 to 2/4. This writ petition has been filed by the Municipal Board, Almora (as it was known then) against an order of the Commissioner, which is an appellate authority in the present matter, by which the appeal of respondent no. 2 (since deceased) has been allowed, and the order of the appointing authority of respondent no. 2 dated 25.6.1976, whereby his services were terminated has been set aside. Brief facts of this case are that respondent no. 2 Sri Banshi Lal was a permanent employee in Nagar Palika, Almora, where he was working as Work “Munshi”. A disciplinary proceeding was initiated against respondent no. 2 in the year, 1975-76 and a charge sheet was given to him on 18.2.1976, thereafter, an inquiry was instituted under the departmental rules. The inquiry officer found respondent no. 2 guilty of ten charges. These charges by and large pertain to the inefficient work 2 of respondent no. 2, which were found to be correct. In addition to this what was also proved was the fact that respondent no. 2 in violation of the departmental rules had directly communicated to the Secretary (Home) of the then State of U.P. complaining against his superior officers. Out of ten charges, eight charges were established against respondent no. 2. Consequently, the District Magistrate, who was at the relevant time an Administrator of the Nagar Palika, Almora, gave a show cause notice to respondent no. 2, asking as to why on the established charges his services should not be terminated. After receiving the reply of respondent no. 2, as required under the law, the District Magistrate, Almora terminated the services of respondent no. 2 vide its order dated 25th June, 1976. Since an appeal was provided under the rules before the Divisional Commissioner, respondent no. 2 preferred an appeal before the Divisional Commissioner in the year, 1976. This appeal was finally decided in favour of respondent no. 2, in the year, 1988 i.e. after a period of 12 years. The appellate authority came to the conclusion that as per the inquiry report, only one charge was actually established against respondent no. 2 which is of making complaint to the superior authorities in violation of Departmental Rules, as he had directly written to the Home Secretary, instead of communicating through proper channel. However, rest of the charges, the appellate authority held, were not clearly established against respondent no.2 and the appellate authority was of the opinion that on the charges established, the punishment of termination was too severe. As such, he allowed the appeal of respondent no. 2, setting aside the order of the Administrator. The appellate authority 3 observed in the said appeal that the date of birth of respondent no. 2 is 15th May, 1921 and therefore, in normal course, he would have reached the age of superannuation in May, 1981. He therefore granted a notional reinstatement to respondent no. 2 from the date of suspension i.e. 16.12.1975 and also held that after his service period is completed, he would be deemed to have retired from service. It was further directed that respondent no. 2 will be given entire salary for the period, he remained suspended i.e. from 16.12.1971 till May, 1981 i.e. the age of his superannuation. It is this order of the appellate authority, which has been challenged by the Nagar Palike, Almora before this Court. It has also been stated at the bar that during the pendency of the writ petition, respondent no. 2 has passed away and his legal heirs have already been substituted. This Court after examining all the available document on record is of a considered view that there is no anomaly in the order of the appellate authority, which is both just and proper. The charges on which the disciplinary proceedings were initiated against respondent no. 2 are not so serious as to attract the severe punishment of removal or dismissal from service. All the charges relate to inefficiency of respondent no. 2’s work. There is no serious charge like that of embezzlement, misappropriation of public money or even misbehaviour with superior officers. Respondent no. 2 was a permanent employee, who had put in considerable period of service, when his services were terminated. Therefore, penalogically speaking, the punishment of removal from service on the respondent no. 2 appears to be unfair as it is not in proportion to the charges. 4 Moreover, the respondent no. 2 was suspended in the year, 1975 and though the Disciplinary authority had passed the order in the year, 1976, in appeal the matter remained pending till 1988, during this period the respondent no. 2 also reached his age of superannuation (in the year 1981). As such since 1975 the respondent no. 2 was not allowed to function on his post. He has therefore suffered enough. This is being said, presuming for the sake of arguments that respondent no. 2 deserved at least a lesser punishment, this punishment respondent no. 2 and his family have already suffered. Learned counsel for the petitioner Mr. Harshvardhan Sah states that the appellate authority has not passed a proper order, inasmuch as it was not done as per the Uttar Pradesh Municipal Servant’s Appeal Rules, 1967 wherein Rule 5 provides that the appellate authority shall consider all the material fact before giving any finding on the issue. This according to learned counsel for the petitioner has not been done. He further states that in case the punishment was not in proportion to the charges, he would have remitted the case back to Appointing Authority for looking afresh into the matter. This has not been done. This Court has examined Section 77-A of the Uttar Pradesh Municipalities Act, 1916, which reads as under: “77-A. Powers of Appellate Authority in disciplinary matters.—The Appellate Authority to which an appeal against an order of dismissal, removal or other punishment is preferred under this Act or the rules may— (a) set aside, reduce or confirm the penalty: or 5 (b) remit the case to the authority which imposed the penalty with such directions as it may deem fit.]” The aforesaid rule clearly shows that it is the discretion of the appellate authority whether to remand the case back or to decide the case himself. In any case remitting the case back to the lower authority is always an exception. Since the appellate authority has got all the powers of the appointing authority, it was only befitting that such an order was passed instead of remitting the case, that too after a period of twelve years. In any case, there is no anomaly with the procedure. This writ petition is, therefore, dismissed. The Executive Officer, Nagar Palika, Almora is hereby directed to calculate the entire dues of respondent no. 2 i.e. the salary between 1975-81 when he would reach the age of superannuation and the subsequent pension from 1981 to 1997 when he passed away and all the other service benefits including his gratuity. The Executive Officer shall also consider that in case after the death in the year, 1997, respondent no. 2 had left behind his wife then the family pension, which was liable to be given to his wife shall also be included in the dues and will be given to the heirs, who have been presently substituted. The Executive Officer shall, as directed by this Court, pass an order within a period of two months from the date a certified copy of this order is produced before him by the respondents. Writ Petition is dismissed. No order as to costs. (Sudhanshu Dhulia,J.) 26.11.2009 Rathour