S/S) Susheel Dangwal v. Uttarakhand Public Service Commission and others

Mr. Sandeep Kothari, learned counsel with Mr. Bhagwat Mehra, learned counsel for the petitioners. Mr. Pradeep Hairiya, learned Standing Counsel with Mr. Tarun Mohan, learned Brief Holder for the State. Mr. Ashish Joshi, learned counsel for the Uttarakhand 1 Public Service Commission through V.C. (Hon'ble Rakesh Thapliyal, J.)

1. All these petitions have been preferred with same cause of action, and, as such, are being decided together by the common order. Since, facts are identical, therefore, WPSS No. 302 of 2017 is being treated as leading one and facts of the same are taken into consideration.

2. The petitioners in the above bunch of petitions are praying for following reliefs:- (i) Issue a writ order or direction in the nature of certiorari to quash the order dated 11.04.2016 passed by the respondent no. 4, Principal Secretary, Department Personnel, Government Uttarakhand, Dehradun whereby revision petition preferred by the petition has been dismissed, filed as Annexure No. 18. (ii) Issue a writ order or direction in the nature of certiorari to quash the order dated 31.03.2015 passed by the respondent no. 2, Chairman/Head of the Department, Uttarakhand Public Service Commission, Haridwar whereby the appeal preferred by the petitioner had been dismissed, filed as Annexure No. 15 (iii) Issue a writ, order or direction in the nature of certiorari to quash the order date 07.10.2014 passed by respondent no. 3 Secretary, Uttarakhand Public Service Commission, Haridwar whereby the punishment has been awarded to the petitioner of stoppage of two increments for two years and censure entry has been awarded for the 2 year 2013-14.

3. Now, brief facts of the case are that there is an Association of employees registered under the societies Registration Act, namely, “Association of employees in Uttarakhand Public Service Commission” and all the petitioners are the office bearers of the said Association. There were some general demands of the employees and the Association requested the Authorities to consider their demands but there was no response from the Authorities, consequently, various representations were made by the office bearers of the Association, i.e. on 12.07.2013,

25.09.2013, 29.10.2013, 30.10.2013, 25.11.2013,

26.11.2023 and 29.11.2023 but the officials of the Commission have not responded on their representations and the grievance were not redressed, Consequently, the Association passed a Resolution on 28.11.2013 decided to go on strike from 04.12.2013 to 18.12.2013.

4. Since, the office bearers and the employees were on strike in respect of several demands, the respondent proceeded with the departmental proceedings by issuing separate charge sheet to each of the officer bearer of the Association, and the Inquiry Officer was appointed and disciplinary proceedings were concluded and on the recommendation of the Inquiry Officer, the Disciplinary Authority passed an order punishing each of the office bearers by order dated 07.10.2024 by stopping two increments for two years and censure entry for the year 2013-14.

5. Being aggrieved with the disciplinary proceeding against the office bearers, all the employees submitted a representation the Commission and Commission constituted a Committee and reconsider the 3 matter and on 16.10.2014, passed an order giving warning to all the employees including all the office bearer of the Association by treating strike period as earned leave. There is no dispute that the order dated 16.10.2024 pertains to all the employees including officer bearers wherein warning was given by converting the period of strike to earned leave.

6. The petitioners herein, who are in fact office bearer of the Association, preferred departmental appeal against the order dated 07.10.2014, however, their departmental appeal is rejected on 26.03.2015 against which revision was filed that too was also rejected on 11.04.2016 and now being aggrieved with the order dated 07.10.2014,

26.03.2015 and 11.04.2016, the petitioners approached to this Court.

7. Counter affidavit has been filed on behalf of the respondents.

8. Learned counsel for the petitioners Mr. Sandeep Kothari and Mr. Bhagwat Mahra argued that in fact the order of punishment dated 07.10.2014 was merged into the subsequent order dated 16.10.2014, therefore, earlier order dated 07.10.2014 cannot be enforced against the petitioners who are the office bearers of the Association. He further submits that their departmental appeal was dismissed on wrong premise without considering the subsequent order dated 16.10.2014.

9. It is argued by the learned counsel for the petitioners that so far as demands of the Association are concerned, all these demands were in fact genuine demand of all the employees of the Commission and it 4 was a general demands and no individual.

10. At this juncture, the demands, as raised by the Association are being reproduced herein as under:- (i) Reorganization of the cadre structure of the UKPSC. (ii) Promotion of class IV employees. (iii) Service rules for security guards and the promotional avenues be provided. (iv) Service rules for persons working in library, facility of portable water, construction of shed and garage for parking, construction of additional residences for the employees and maintenance of residential premises, construction of separate toilets for females, allotment of room for the office of the Association, grant of ACP to the drivers, the facility of crèche service, construction of sever line in the residential premises, established of misc. section, and initiating the process for filling up the vacancies in the Public Service Commission, removal of anomalies of computer staff service rules and timely payment of TA and DA claims.

11. It is argued that there was no occasion for the Commission to initiate departmental proceeding against the office bearers, since, the resolution was passed by the Association to go on strike to fulfill their genuine general demands and the initiation of disciplinary proceeding is thoroughly misconceived, particularly when no such disciplinary proceedings were initiated against the employees who also go on strike with the office bearer of the Association and the disciplinary proceeding is only confined to office bearers. He further submits that 5 the office bearers of the Association cannot be treated unequal with other employees who also go on strike on the Resolution passed by the Association, and, as such, they cannot be discriminated from other employees, merely only on the ground that they are the office bearers of the Association. Apart from this, it is further submitted that after the order passed on 07.10.2014, a joint representation was made and the Commission itself reconsider the matter and decided to give warning to all employees by treating the period of strike on earned leave, therefore, there was no occasion to the Appellate Authority as well as to the Revisional Authority to reject the appeal and revision, particularly when Commission took conscious decision by giving common punishment by order dated 16.10.2014, therefore, the order passed by the Appellate Authority

26.03.2015 as well as by the Revisional Authority dated

11.04.2016 cannot sustain. It is further submitted that even otherwise the Commission itself passed an order on

16.10.2024 after reconsidering the matter, therefore, the earlier order dated 07.10.2014 automatically merged into the order dated 16.10.2014, therefore, there is no justification on the part of the Commission to enforce the earlier order dated 07.10.2014 in respect of the officer bearers of the Association particularly when order dated

07.10.2014 merged into the order dated 16.10.2014.

12. Apart from this, learned counsel for the petitioners further argued that the office bearers of the Association cannot be held to be responsible for demands which was made on behalf of the Union, therefore, punishing each of the office bearers of the Association in respect of an issue, which in fact relates to the general demands 6 cannot be sustain and this aspect has been dealt with by the Division Bench in WPSB No. 318 of 2005, Govind Singh Patwal vs. Managing Director and others, decided on 12.05.2011 wherein it has been held that individual office bearer of the Union cannot be held guilty for having expressed views, and, therefore, the office bearer of the Association cannot be punished for the action of third party. The relevant extract of the aforesaid judgment is also being reproduced herein as under:- “Therefore, a prudent person, circumstances, could only conclude that the views expressed in those letters were the views of the recognized Union and that the letters were of Union. Petitioner could not be held guilty for having expressed views as contained in those letters or for writing them. In the inquiry report, proceeding on the basis, contrary to the evidence on record, that those letters were personal letters of the petitioner, it was opined that the petitioner may be warned. Warning is not one of the punishments awardable under the rules. The Disciplinary Authority felt that for what has been reported by the Inquiry Officer, a punishment of censure, which is a permissible punishment under the Rules, can be awarded and he awarded the same. As aforesaid, petitioner could not be punished for the action of a third party. Petitioner may be signatory to the letters, but those having been written by the recognized Union, the views expressed therein, the words used for expressing such views and the matter complained of therein were that of the recognized Union and, accordingly, was or a third party and the petitioner, accordingly, could not be made responsible therefore. We 7 accordingly, quash the punishment order pertaining to charge Nos. 3 and 4. The aforesaid judgment subsequent affirmed by the Hon’ble Apex court in Special Leave to Appeal (Civil) No. 24412 of 2011 on 10.05.2012.

13. On the other side, Mr. Ashish Joshi, learned counsel who appears for the Commission submits that petitioners herein being office bearers were individually responsible for the strike, therefore, their attempt to call upon strike amounts to misconduct, and this is the reason only office bearers have been charge sheeted and the Inquiry Officer proved all the charges against them, and, therefore, they have been rightly punished by the order dated

07.10.2014. He also submits that Appellate Authority and the revisional Authority after gone through with the Inquiry report also rightly dismissed their appeal as well as revision.

14. I perused the counter affidavit of the Commission. Surprisingly, in the counter affidavit there is no assertion why only office bearers were charge sheeted. The office bearers raised the demand on behalf of the Association in the interest of all the employees and they have not raised any individual demand, therefore, raising demand for others, how these office bearers can be held to be responsible.

15. I also perused the inquiry report but the inquiry officer has also not dealt with this aspect and treats all these officer bearers of the Association to be held responsible individually. There is no averment in the affidavit that after 07.10.2014, another order was passed 8 on 16.10.2014 whereby the decision was taken to award common punishment to all giving warning to treat the strike period on earned leave.

16. Grievance of the petitioners are that the petitioners cannot be discriminated with other employees merely on the ground that they are the office bearers of the Association, and, such discrimination is not permissible, therefore, the action of the respondents awarding punishment only to office bearers appears to be arbitrary, unjustified and completely in violation of Article 14 and 16 of the Constitution of India. Not only this, even the counter affidavit is also silent on a specific averment that once by subsequent decision dated 16.10.2014 has been issued awarding common punishment of warning by treating period of strike as earned leave how the earlier order dated 07.10.2014 can be enforced. The Commission while taking decision on 16.10.2014 were fully conversant with the order dated 07.10.2014 then in such a situation when subsequent decision has been passed earlier, order cannot be enforced.

17. At this juncture, Mr. Ashish Joshi submits that there is no reference of the order dated 07.10.2014 in the subsequent order dated 16.10.2014, therefore, earlier order dated 07.10.2014 cannot be treated to be merged in the subsequent order dated 16.10.2014.

18. The submission, as advanced by Mr. Joshi is completely misconceived and is out rightly rejected for the simple reason that when the Commission itself took a decision by awarding common punishment to each of the employees who were on strike including office bearers 9 which itself reflected from the order dated 16.10.2014 earlier decision

07.10.2014 would automatically be merged into the subsequent order, therefore, the Commission cannot take such a stand. Once the subsequent decision has been taken awarding common punishment to all the employees including office bearers then earlier order dated 07.10.2024 awarding separate punishment to the office bearers of the Association cannot sustain. Thus, this Court is of the view that the order dated 07.10.2014 cannot sustain in view of the subsequent order dated 16.10.2014.

19. In view of the aforesaid discussion, the orders impugned, challenged in all the petitions are hereby quashed. The writ petitions are allowed. The respondents are directed to give all the consequential benefits, including fixation of salary, increment, time scale, selection grade, promotion etc, to the petitioners within a period of two months from the date of receipt of this order. Parul (Rakesh Thapliyal, J.) 10