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2013 Supreme(All) 3222
ALLAHABAD HIGH COURT
Devi Prasad Singh, Arvind Kumar Tripathi (II), JJ.
Dr Raj Veer Singh - Appellant
Versus
State of U.P. - Respondent
Service Bench No. - 1108 of 2008
Decided On : 17-04-2013
For the Petitioner:- Sharad Bahtnagar
For the Respondent:- C.S.C.
The central legal point established in the judgment is the binding nature of court judgments, the basic structure doctrine, and the definition of misconduct.
Headnote:
Constitutional Right - Disciplinary Proceeding - [Article 226, Basic Structure Doctrine] - The court discussed the petitioner's right to approach the court for justice, the basic structure doctrine, and the relevant chargesheet. Key legal provisions such as the definition of misconduct and the binding nature of court judgments were highlighted and influenced the court's decision.
Fact of the Case:
The petitioner filed a writ petition against a transfer order and was later served with a chargesheet for approaching the High Court. The Division Bench stayed the disciplinary proceeding. The chargesheet related to the petitioner's resumption of duty based on the interim order and non-compliance with the transfer policy.
Finding of the Court:
The court found that the State Government's objection to the petitioner's resumption of duty interfered with the administration of justice. It emphasized the binding nature of court judgments and criticized the Government's actions. The petitioner was awarded costs and the chargesheet was quashed.
Issues: The issues involved the petitioner's right to approach the court, the State Government's objection to the petitioner's resumption of duty, and the chargesheet served to the petitioner.
Ratio Decidendi: The court emphasized the binding nature of court judgments, the basic structure doctrine, and the definition of misconduct. It held that the State Government's objection to the petitioner's resumption of duty was unwarranted and awarded costs to the petitioner.
Final Decision: The writ petition was allowed with costs, the chargesheet was quashed, and the petitioner was awarded exemplary costs and interest on retiral dues.
1. Heard learned counsel for the petitioner and the learned standing counsel.
2. Instant writ petition under Article 226 of the Constitution of India, has been preferred against the impugned order dated 28.3.2008 initiating disciplinary proceeding against the petitioner broadly on the ground that he has approached High Court against the order of transfer passed by the State Government as an interim management. According to petitioner's counsel, the controversy is covered by the basic structure doctrine and the petitioner's right to approach the Court for justice cannot be treated adversely by the Government.
3. By an order dated 29.6.2007, the petitioner was transferred from Bareilly to Lucknow. In consequence thereof, he submitted his joining report on 7.7.2007. The order of transfer was modified by another transfer order dated 31.7.2007 which was the subject matter of dispute before this Court in Writ Petition No.977 (S/B) of 2007. A Division Bench of this Court had stayed the order of transfer dated 31.7.2007 to the extent it related to the petitioner. In consequence thereof, the petitioner continued at Lucknow.
4. It appears that the State Government was not pleased with the petitioner who had exercised his constitutional right in preferring the writ petition in High Court. In consequence thereof, the impugned chargesheet dated 28.3.2008 was served on the petitioner. He filed objection dated 3.5.2008 claiming his constitutional right of approaching High Court for judicial review of the order passed by the State Government. The copy of the impugned chargesheet dated 28.3.2008 is filed as Annexure No.1 to the writ petition. Reply to the chargesheet has been filed as Annexure No.3 to the writ petition. The Division Bench of this Court, after considering factual matrix on record, stayed the disciplinary proceeding against the petitioner by an order dated 19.8.2008.
5. Petitioner's counsel has invited attention to the Division Bench judgment of this Court reported in [ 2010 (28) LCD 1248 ]: Dhirendra Kumar Rai Vs. State of U.P. and others. In the case of Dhirendra Kumar Rai (supra), the Division Bench (judgment delivered by one of us Hon'ble Mr. Justice Devi Prasad Singh), while considering the controversy with regard to disciplinary proceeding, had considered and defined the misconduct. The relevant portion of the said judgment is reproduced as under: -
79. House of Lord in the case of Johnson Vs. Marshall, sons and Co. Ltd. reported in (1906) AC 409 (HL) where the issue was whether the workmen was guilty of serious and wilful misconduct their Lordships held that burden of proving guilt was on employer. Misconduct is reduced to the breach of rule, from which breach injuries actionable or otherwise could reasonably be anticipated is depend upon each case.
80. In the case of Rasik Lal Vaghaji Bhai Patel vs. Ahmedabad Municipal Corporation reported in (1985) 2 SCC 35 , (Para 5) Hon'ble Supreme Court has held that unless either in the certified standing order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and would not be comprehended in any of the enumerated misconduct.
81. In the case of Union of India versus J. Ahmed (1979)2 SCC 286, Hon'ble Supreme Court has held that, deficiency in personal character or personal ability do not constitute misconduct for taking disciplinary proceedings.
82. In the case of A.L. Kalara vs. Project & Equipment Corporation (1984) 3 SCC 316 : Hon'ble Supreme court has held that acts of misconduct must be precisely and specifically stated in rules or standing orders and can not be left to be interpreted ex-post facto by the management.
83. The case of Rasik Lal Vaghaji Bhai Patel vs. Ahmedabad Municipal Corporation, (1985) 2 SCC 35 , the apex court has held that it is well settled that unless either in the certified standing order or in the service regulations an act or omission is prescribed
