TMI Blog2013 (10) TMI 1578X X X X Extracts X X X X X X X X Extracts X X X X ..... have preferred this appeal by special leave. 3. The expose' of facts are that late Virendra Lal was posted as Assistant Engineer in Electricity Distribution Division, Sultanpur in the year 1984 and at that time he had released electricity to one consumer, namely, M/s. Arif Cement Industries, Jagdishpur, beyond the approved estimate as a consequence of which wrongful loss was caused to UPSEB. After the authorities of the UPSEB came to know about the same, the matter was forwarded to the inquiry committee on 27.9.1994 for initiation of a disciplinary proceeding on the basis of which on 23.2.1998, the inquiry committee framed charges against him and called for an explanation. The delinquent employee filed his reply on 16.4.1998 and thereafter the inquiry committee commenced the enquiry. On 30.6.1998, late Virendra Lal stood superannuated. On 28.1.1999 the inquiry report was served on him and he was granted opportunity to submit a representation pertaining to the inquiry report. On 21.3.1999 he filed his representation and considering the submissions put forth in the representation on 12.10.1999 the UPSEB passed the order of punishment as has been stated hereinbefore. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave heard Mr. Shiv Kumar Tripathi, learned Counsel for the Appellants. Despite service of notice on the legal heirs of the original Respondent, there has been no appearance. 8. Criticizing the order passed by the High Court it is submitted by Mr. Tripathi that the High Court has fallen into error by opining that even in respect of a retired employee the power should be exercised by the same authority who had been conferred power to act as the disciplinary authority under the Regulations. It is urged by him that if the higher authority initiates the disciplinary proceeding and imposes the punishment and no prejudice is caused the order of punishment cannot be annulled on that score. It is further canvassed by him that as the High Court has only addressed to a singular issue and arrived at the conclusion, the matter deserves to be remitted to the High Court for adjudication on other issues. 9. It is not in dispute that the disciplinary proceeding was initiated against the original Respondent while he was in service and thereafter the proceeding continued and, eventually, the Board passed the order of punishment. Learned Counsel for the Appellants has drawn our attention to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, as the case may be, from the orders of the Chairman passed under Sub-regulation (4) shall lie to the Board . 12. Thus, if an order is passed by the Chairman, an appeal or representation, as the case may be, lies to the Board. In any case it is subject to challenge in the hierarchical system of the UPSEB. Learned Counsel has commended us to the decision in State of Uttar Pradesh v. Brahm Datt Sharma and Anr. MANU/SC/0711/1987 : (1987) 2 SCC 179. The said decision only supports the proposition that if a disciplinary proceeding against an employee of the Government is initiated in respect of a misconduct committed by him and if he retires from service on attaining the age of superannuation before completion of the disciplinary proceedings and charges are of serious nature, then it is open to the Government to take proceedings against the Government servant in accordance with the rules for the reduction of pension and gratuity. 13. In Takhatray Shivadattray Mankad v. State of Gujarat MANU/SC/0599/1989 : 1989 Supp (2) SCC 110, the Appellant therein was compulsorily retired on January 12, 1962 in one of the departmental proceedings. Two other proceedings were instituted in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissal order. The said contention was combated by the employer contending, inter alia, that when the Deputy General Manager is higher in rank than the disciplinary authority and the order of punishment has been passed by the higher authority, no prejudice has been caused to the employee. A further contention was raised that in the facts and circumstances of the case it should be held that when the order of punishment is passed by higher authority, no appeal is available under the Regulations as it is not necessary to provide for the same. Repelling the said argument the Court opined that it is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. Thereafter, the learned Judges proceeded to state thus: The higher or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board and, in fact, an appeal was preferred to the Board. Regard being had to the said fact situation, this was Court declined to interfere. 17. Thus, from the aforesaid it is quite clear that in Balbir Chand (supra) though the Court approved the principles laid down in Surjit Ghosh (supra), yet distinguished the same keeping in view the rule position. Be it noted, the Court made a distinction between the non-availability of the appellate remedy in entirety and availability of a remedy or a revision with the higher authority and preservation and non-extinction of the said right. 18. In Electronics Corporation of India v. G. Muralidhar MANU/SC/1161/2001 : (2001) 10 SCC 43 the order of termination was not passed by the disciplinary authority but by the appellate authority and on that score the High Court had quashed the order of termination and directed reinstatement with back wages. After adverting to the facts of the case the learned Judges declined to accept the submission of the Appellant therein that the judgment rendered in Surjit Ghosh case (supra) should be limited to the facts of that case. The Court further took note of the fact that there was no general provision w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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