Anil Kumar v. Dakshin Haryana Bijli Vitran Nigam Limited & Anr.

Mr. Dinesh Kumar Jangra, Advocate for the petitioner(s). Rakesh Kumar Garg, J.(Oral) As per the averments made in this writ petition, the petitioner was working as Assistant Lineman with the respondent-Corporation. A criminal case i.e. FIR No.694 dated 23.11.2000 under Sections 420, 483, 484, 485 IPC read with Sections 39, 40, 44 of the Electricity Act was registered against the petitioner and on the basis of the aforesaid FIR, the petitioner was suspended on 24.11.2000 and thereafter, without holding any proper and legal enquiry and without granting any opportunity of hearing, he was ordered to be dismissed vide office order No.242 dated

14.12.2001 (Annexure P-3). It is the further case of the petitioner that he was acquitted of the charges levelled against him, on the basis of the aforesaid FIR, vide judgment dated 18.11.2009 passed by the Judicial Magistrate, 1st Class, Hisar (Annexure P-5). Thereafter, he made a representation to respondent No.2 which was further forwarded to the Headquarters but till date no decision has been taken on the said representation of the petitioner, for reinstating him in service. CWP No.22961 of 2012 2 By filing this writ petition, the petitioner has challenged the order of his termination (Annexure P-3) seeking further consequential relief. Learned counsel for the petitioner has vehemently argued that similarly situated persons have already been reinstated vide Annexure P-7. Counsel for the petitioner has further relied upon a decision dated

22.10.2008 passed in CWP No.19211 of 2001, attached as Annexure P-4 with the writ petition, to contend that some of the similarly situated persons whose services were terminated and who had approached this Court, the termination orders against them have been set aside by this Court vide aforesaid judgment. He has further relied upon by a judgment of this Court in Sushil Kumar versus Food Corporation of India & ors. 2003(1) SCT 920 wherein it has been held that the if the criminal charge and the charge sheet issued departmentally are based on the same facts and have to be proved by the same witnesses, acquittal in the criminal proceedings will by itself put an end to and nullify the proceedings of the Department and such departmental enquiry in a case will effectively abate. I have heard learned counsel for the petitioner and perused the impugned order and other documents placed on record of the case. The argument raised before this Court on behalf of the petitioner is misconceived. Admittedly, before terminating the services of the petitioner vide Annexure P-3, a charge-sheet was served upon him vide office memo No.8906 dated 12.6.2001 and thereafter, a departmental enquiry was held against him. The enquiry Officer submitted his enquiry report vide memo No.6144 dated 14.12.2001 stating that despite due notice and attending the enquiry proceedings, the petitioner failed to submit his reply to the charge-sheet. In the end, the Enquiry Officer CWP No.22961 of 2012 3 concluded that the allegations levelled against the petitioner stand proved. On the basis of the aforesaid findings of the enqiry report, the Punishing Authority dismissed the services of the petitioner under Regulation 7(2)(d) (ii) of the erstwhile HSEB Employees (P&A) Regulations, 1990. It may be noticed at this stage that no argument has been raised on behalf of the petitioner against the procedure adopted for dismissal of his service except that the enquiry was held ex parte. Even the said argument is without any basis as the petitioner was served notice and had attended the enquiry proceedings. Despite granting many opportunities, the petitioner failed to file any reply and in these circumstances, no exception can be taken to the procedure adopted. It may further be noticed that the judgment in Sushil Kumar's case (supra) is not applicable in the facts and circumstances of the case. In the aforesaid case, the departmental enquiry was still pending against the delinquent officer whereas he was acquitted in criminal proceedings and which was based upon the same facts and the same was to be proved by the same witnesses and in these circumstances, this Court held that acquittal in the criminal proceedings will by itself put an end to the departmental proceedings. The judgment Annexure P-4 is again of no help to the petitioner as in that case, no enquiry was held and the same was dispensed with. Moreover, the impugned termination order was passed on

14.12.2001(Annexure P-3) and the same has been challenged by the petitioner after a lapse of more than 11 years by filing the instant writ petition. At this stage, it may further be noticed that the petitioner has made the following averments in para No.13 of the writ petition: CWP No.22961 of 2012 4 “That there is no other equally efficacious speedy, alternative or statutory remedy of appeal or revision available to the petitioner because the punishment order has been drafted by the Managing Director and got vested from the Legal Remembrancer and thereafter conveyed to the punishing authority and punishing authority in a cyclostyle manner has passed the order. So in these circumstances the petitioner has no other remedy of appeal/revision available because the impugned order has been passed with the approval of Appellate/Revisional Authority, except to approach this Hon'ble Court by way of the present writ petition under Article 226 of the Constitution of India.” During the course of hearing, counsel for the petitioner could not dispute the fact that the petitioner had a remedy of filing an appeal against the order of his termination. The said remedy has not been availed by the petitioner. The reason as mentioned in paragraph No.13 of the writ petition, as noticed above, is not supported from any evidence/document on record. No other argument has been raised. Thus, this Court finds no merit in this petition. Dismissed. November 21, 2012 (RAKESH KUMAR GARG) JUDGE