2013 (12) TMI 1077 - HC - Indian Laws

Non-observance of evidences led by the petitioner punishment of withholding two annual increments permanently of the petitioner - Action against officer of Sales Tax U.P. at Lucknow - Held that - The petitioner in reply to the show cause notice has clearly mentioned that these registers are available in the office of Deputy Commissioner Sales Tax Gonda and it may be verified by any officer - But the Disciplinary Authority has not taken any step to get the fact verified from the office of Deputy Commissioner Sales Tax Gonda - the charges are required to be proved by positive evidence led by the department and negative burden cannot be shifted upon the delinquent employee to prove contrary - the petitioner was making a request for verifying the fact relating to maintenance of the register - It was bounden duty of the Disciplinary Authority to get it verified before holding the petitioner as guilty but nothing has been done in this respect - The findings are based upon conjectures and surmises and not on any material evidence on record - the matter was related to the period of 01.01.1999 to 31.12.1999 of the office of Deputy Commissioner (Karya Palak) Sales Tax Gonda and the petitioner was posted in that office from 01.04.1998 to 31.12.1998. The words have been written in the context of the petitioner himself in the representation and not against any superior officer - But these words have been taken as indecent words against the superior officer - At the most these words can be said to be expression of the feelings of the petitioner and not an overt act of misconduct - These word are not indecent words - Awarding major punishment for these words was not warranted Decided in favour of Petitioner.

Summary

Issues:
Challenge to order awarding punishment of withholding increments and censure entry.

Analysis:
The petitioner, a Clerk in the Sales Tax Department, was suspended and faced various charges, including not maintaining duty registers and using indecent language. The Inquiry Officer found charges 1, 2, 5, and 8 proved, leading to punishment of withholding increments and censure entry. The petitioner argued that registers were in another office, information was provided by another clerk, and the language used was not indecent. The Additional Commissioner upheld the charges, leading to dismissal of the petitioner's appeal.

The High Court analyzed each charge in detail. Regarding charges 1 and 2, the petitioner had requested verification of registers' location, which the Disciplinary Authority failed to do. The court emphasized that the burden of proof lies with the department, not the employee. For charge 5, the petitioner's explanation regarding the information related to another period was accepted, and the court found no falsehood in his statement. As for charge 8, the court noted that the language used was not indecent and did not warrant major punishment. The court found the findings based on conjectures and surmises, lacking material evidence.

Ultimately, the High Court allowed the writ petition, setting aside the orders of punishment. The petitioner, who had already retired, was entitled to arrears within three months of the order. The judgment emphasized the importance of proper verification of facts and the burden of proof in disciplinary proceedings, ensuring fair treatment of employees.