Himachal Pradesh High Court
Harish Chandra Joshi vs Union Of India And Others on 4 March, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
CWP No. 3801 of 2020
Decided on 4th March, 2024
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Harish Chandra Joshi ...Petitioner
Versus
Union of India and others ...Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
1
Whether approved for reporting? Yes
For the petitioner: Dr. Lalit Kumar Sharma, Advocate.
For the respondents: Mr. Shashi Shirshoo, Senior Panel
r Counsel.
Ajay Mohan Goel, Judge (Oral)
CWP No. 3801 of 2019 By way of this writ petition, the petitioner, inter-alia has prayed for the following reliefs:-
"It is, therefore, most respectfully prayed that this writ petition may kindly be allowed and order dated 27.02.2009 and 17.10.2008, passed by respondent No.2 and 3 filed as Annexure P-
12 and P-10 to the writ petition may kindly be quashed.
The respondents may kindly further be directed to treat the petitioner in service and pay all consequential benefit including arrear of salary to the petitioner w.e.f. 17.10.2008.::: Downloaded on - 15/03/2024 20:33:52 :::CIS 2
2. Brief facts necessary for the adjudication of this writ petition are that the petitioner, who was serving as Head Constable with the 17th Battalion of Indo Tibetan Border Police, .
was sent to the Transit Camp at Jeori on 27.04.2008, after lunch, with the platoon of C.M. of 17th battalion, selected for Karnataka Election Duty. The petitioner was found absent during the roll call before departure of platoon, which was a punishable offence. Another misconduct attributed to the petitioner was that on the morning of 18.05.2008, the petitioner was found wandering in drunken condition during State Election Duty (Active Duty) in District Badar, Karnataka. The above two omissions/misconduct in terms of order dated 17.10.2008 were punishable offences in terms of Section 21D and Section 29 of the ITBP Act, 1992 respectively. Vide order dated 17.10.2008, the petitioner was compulsorily retired from service. Feeling aggrieved by the said order, the petitioner preferred a statutory appeal, copy whereof, is appended with the petition as Annexure P-11. This appeal, as per the petitioner, was disposed of vide Annexure P-12, dated 27.02.2009 by the Appellate Authority by a completely non-speaking order.
::: Downloaded on - 15/03/2024 20:33:52 :::CIS 3Learned counsel has thus submitted that as the order passed by the Appellate Authority frustrates the very purpose of filing an appeal, being a non-speaking order, therefore, interest of .
justice would be served in case this writ petition is disposed of by setting aside order dated 27.02.2009 (Annexure P-12) and by directing the Appellate Authority to decide the appeal filed by the petitioner afresh after giving him an opportunity of being heard.
3. Learned counsel appearing for the respondents has submitted that the initial order dated 17.10.2008 is self-
speaking and in fact, there was no necessity for the Appellate Authority to give elaborate reasons while dismissing the appeal, because, the Appellate Authority was concurring with the view taken by the Disciplinary Authority. Accordingly, it has been submitted that as there is no merit in this petition and the same be dismissed.
4. I have heard learned counsel for the parties and I have also carefully gone through the pleadings as well as the documents appended therewith.
::: Downloaded on - 15/03/2024 20:33:52 :::CIS 45. Feeling aggrieved by order dated 17.10.2008 the petitioner had filed an appeal to the Appellate Authority, in which various grounds were raised against the impugned order.
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However, a perusal of the order passed by the Appellate Authority demonstrates that in this order not even a single ground raised by the petitioner stands dealt with and the order, in fact, on the face of it, appears to have been passed without any due application of judicial mind. There is no reference of the facts of the case; there is no reference of the order which was impugned before the Appellate Authority; there is no reference of the grounds taken in appeal by the aggrieved party; there is no reference of the respective contentions that might have been raised before the Appellate Authority by the parties concerned and there is no reasoning given in the impugned order as to why the Appellate Authority has chosen to concur with the order passed by the Disciplinary Authority.
Further, as the Appellate Authority happens to be the last Authority on facts, it was extremely important for this Authority to have had arrived at its reasoning after scrutinizing the material before it. This Court is not suggesting as to what ::: Downloaded on - 15/03/2024 20:33:52 :::CIS 5 decision should have been arrived at by the Appellate Authority, but what this Court is observing is that the final decision arrived at vide impugned order should have been substantiated by both .
facts and reasoning, which is remiss in the Appellate order.
6. Accordingly, this writ petition is allowed by setting aside order dated 27.02.2009 (Annexure P-12) on the ground that the same is a non-speaking order and the matter stands remanded back to the Appellate Authority with the direction that let the appeal be decided afresh within a period of three months from today after adhering to the principles of natural justice. It is made clear that this Court has not made any observation as far as the merits of the case are concerned, the Appellate Authority, of course shall adjudicate upon the appeal on its own merit.
CMP No.1709 of 2024In view of the fact that the main petition is being disposed of finally, no order is being passed in this application and the same is being closed.
(Ajay Mohan Goel) Judge March 04, 2024 (Vinod) ::: Downloaded on - 15/03/2024 20:33:52 :::CIS