Himachal Pradesh High Court
Sandeep Sood vs Himachal Road Transport Corporation ... on 19 December, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No. 4521 of 2020
Decided on: December 19, 2022
________________________________________________________
.
Sandeep Sood .........Petitioner
Versus
Himachal Road Transport Corporation and others
...Respondents
________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
________________________________________________________
For the petitioner: Mr. Balwant Singh Thakur, Advocate.
For the respondents: Mr. Vikas Rajput, Advocate, for
respondents Nos.1 to 4.
Mr. Sudhir Bhatnagar and Mr. Narinder
Guleria, Additional Advocates General
with Ms. Svaneel Jaswal, Deputy
r Advocate General & Mr. Sunny Dhatwalia,
Assistant Advocate General, for
respondent No.5.
________________________________________________________
Sandeep Sharma, J.
Being aggrieved and dissatisfied with order dated 3.5.2017, passed by Managing Director, Himachal Road Transport Corporation, Shimla, whereby an appeal having been filed by the petitioner laying therein challenge to order dated 6.7.2016, passed by Deputy Divisional Manager, Himachal Road Transport Corporation, Tara Devi, thereby retiring the petitioner compulsorily from service, petitioner approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 3097 of 2018 titled Sandeep Sood v. Himachal Road Transport Corporation, which now stands transferred to this court and re-
Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 23/12/2022 20:31:33 :::CIS -2-registered as CWPOA No. 4521 of 2020 , praying therein for following reliefs:
.
"I. That the impugned penalty order dated 06-07- 2016 Annexure A-14 and rejection order dated 03-05-17 Annexure A-17 being contrary to law may kindly be quashed and set aside in the interest of justice.
II. That respondent corporation may kindly be directed to take back the applicant in service from the date 10.05.2017 with all consequential service benefits."
2. For having bird's eye view of the matter, facts relevant for adjudication of the present petition are that the petitioner initially was appointed as Clerk-Typist on part time basis with the respondent Corporation on 1.12.1991. In 1995, petitioner was posted in the office of Regional Manager, Himachal Road Transport Corporation, Solan, and subsequently brought on contract basis. His services were regularized as clerk in the year 1996 and since then he had been serving in the aforesaid capacity with the respondent Corporation. Vide office order dated 9.9.2003, petitioner was sent on secondment basis to respondent No.5 i.e. Director Transport. Petitioner joined with respondent No.5 on 29.9.2003 at Shimla and continued till 2008 when he was transferred to the office of Regional Transport Officer, Solan.
During posting in Regional Transport Officer Solan, with effect from 25.7.2008 to 30.3.2009, petitioner looked after work of maintaining ::: Downloaded on - 23/12/2022 20:31:33 :::CIS -3- record of Special Road Tax, assessment/compilation of SRT, monthly statements of vehicles, monthly statement of vehicle etc. .
3. Since, while rendering work in the office of Regional Transport Officer Solan, certain discrepancies were found in the working of the petitioner, he was placed under suspension vide order dated 19.5.2009 (Annexure A-1) respondent No.5, who subsequently also ordered for initiation of disciplinary proceedings. Vide office order dated 31.10.2009, respondent No.4 issued memorandum alongwith Articles of Charge to the petitioner. (Annexure A-2 and A-3).
Petitioner was charge sheeted for following 5 charges as per statement of Articles of Charge:
"ARTICLE-I That the said Sh. Sandeep Sud, while discharging his duties as Clerk, in the office or RTO Solan, has failed to bring the facts regarding penalty due amounting to Rs.3,07,382/- in respect of vehicle No. HP-64-3205 into the knowledge of Supdt./RTO and got the NOC signed and the relevant noting of the concerned file was later on tampered which amounts to misconduct and proves his malafide intention.
ARTICLE-II Sh. Sandeep Sud, clerk, while discharging his duties in the office of RTO Solan has not deposited 118 No. of Bank drafts on account of SRT amounting to Rs.63.53 Lakh into govt. account received from other State Transport Corporations/ Undertakings due to which govt. has suffered a loss of revenue as well as of interest.::: Downloaded on - 23/12/2022 20:31:33 :::CIS -4-
Out of 118 bank drafts, 83 bank drafts were deposited late in a period of 2 to 6 months amounting to Rs.47.71 lakh and 35 bank drafts amounting to Rs.15.82 lakh were .
sent for revalidation after the lapse of 10 months, out of which only 4 bank drafts are yet to be received back for credit into govt. account, which shows his careless and ir-
responsibility towards officials duties causing revenue loss to the state ex-chequer.
ARTICLE-III Sh. Sandeep Sud, while discharging his duties as Clerk, in the office of RTO Solan has made fake entries of SRT amount in respect of 54 buses against the actual amounts received in the office thereby giving undue advantage to the operators on one hand and loss of revenue to the State-Ex-chequer on the other, which is a clear cut malafide intention. Further posting of receipts in the account of vehicles to which they do not pertain is also a forgery. The non-posting of SRT receipt in respect of 12 buses has also been noticed which proves his negligence of duty and amounts to misconduct.
ARTICLE-IV Sh. Sandeep Sud, while discharging his duties as Clerk, in eh office of RTO Solan, the 1692 bank drafts received because of renewal/issue of National Permits pertaining to other states have not been sent in time and were kept by him at his residence, which were handed over to RTO Solan by his wife which also proves his negligence and malafide intention towards official duties.::: Downloaded on - 23/12/2022 20:31:33 :::CIS -5-
The whereabouts of 172 bank drafts amounting to Rs.7.50 lakhs received on account of National Permits are not known and not recorded which amounts to .
dereliction of duties.
ARTICLE-V Sh. Sandeep Sud, while discharging his duties as Clerk, in the office of RTO Solan, the 25 number of bank drafts have been recycled by him and used on more than one vehicle, thereby causing loss of revenue to the other States/Union Territories to the tune of Rs.1.03,200/-. The permit number/vehicle number on the back side of the bank draft were not mentioned. The bank drafts received r were required to be kept in safe custody. Since these have been re-used proves his connivance and malafide intension."
4. Besides above, FIR No. 9 of 2010 dated 10.6.2010 also came to be lodged against petitioner under Ss. 409, 420, 468, 477A and 120B IPC and S. 132 of Prevention of Corruption Act at Solan, (Annexure A-7). After receipt of afore charge sheet, as detailed above, petitioner filed detailed reply to the same, vide annexure A-8 denying all the charges leveled against him and prayed to drop disciplinary proceedings against him. However, respondent No.5 being not satisfied with the reply, decided to hold disciplinary inquiry and appointed Shri GC Negi, Joint Commissioner Transport as Inquiry Officer and Shri Naresh Sharma as Presenting Officer. To defend himself, petitioner appointed Shri Sant Ram Sharma, as Defence ::: Downloaded on - 23/12/2022 20:31:33 :::CIS -6- Counsel. Inquiry Officer sought written reply, if any, from the petitioner, which was duly submitted on 1.9.2011 (Annexure A-9). Subsequently .
after recording evidence led on record by respective parties, Inquiry Officer concluded enquiry proceedings on 1.9.2011. While submitting Inquiry Report, Inquiry Officer concluded that out of 5 charges, article of charge Nos. I and II stand proved against the petitioner and article of charge Nos. III to V are not proved. Copy of Inquiry Report is Annexure A-10. Inquiry Officer submitted Inquiry Report to respondent 13.12.2012, r petitioner No.1 for taking further necessary action. Vide communication was given fifteen days time to representation on the basis of evidence adduced during inquiry make (Annexure A-11. In response to same, petitioner filed detailed representation to respondent No.2 and highlighted all aspects and averred that there is no evidence to prove charges (Annexure A-12).
5. Interestingly, respondent No.2 kept on sleeping over the mater for more than three years i.e. from 2013 to 2016 and then suddenly vide order dated 23.3.2016, respondent No.5 requested respondent No.2 to impose penalty as specified under Clauses (v) to
(ix) of Rule-11 of the Central Civil Services (Control, Classification and Appeal) Rules, 1965 (hereinafter, 'Rules') (Annexure A-13). After this, Divisional Manager, after an inordinate delay of three years and nine months, imposed major penalty of compulsory retirement from service ::: Downloaded on - 23/12/2022 20:31:33 :::CIS -7- upon the petitioner vide Annexure A-14, that too, without issuing show cause notice to the petitioner.
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6. Being aggrieved and dissatisfied with the aforesaid order imposing major penalty, petitioner preferred an OA No. 3380 of 2016 before erstwhile Himachal Pradesh Administrative Tribunal, which having taken note of availability of alternative remedy of departmental appeal, permitted petitioner to withdraw the Original Application with liberty to file appeal to the competent authority (Annexure A-15).
However, during aforesaid period, petitioner was allowed to work. In the aforesaid background, petitioner filed an appeal before the respondent No.1, who rejected the same vide order dated 3.5.2017 (Annexure A-17). In the aforesaid background, petitioner approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 3098 of 2018, which now stands converted into CWPOA No. 4521 of 2020, praying therein for reliefs as reproduced above,
7. Pursuant to notices issued in the proceedings, respondents Nos. 1 to 4 have filed reply, perusal whereof clearly reveals that facts as reproduced herein above, are not in dispute rather stand admitted.
Precisely, the grouse of the petitioner as highlighted in petition and canvassed by Mr. Balwant Singh Thakur, Advocate for the petitioner is that no proper procedure, as is prescribed under the Rules, ever came to be followed by Disciplinary Authority as well as Inquiry Officer while initiating/conducting disciplinary proceedings against the petitioner.
::: Downloaded on - 23/12/2022 20:31:33 :::CIS -8-8. Mr. Balwant Singh Thakur, Advocate, while inviting attention of this court to Rule-20 of the Rules, submitted that though borrowing .
department is competent to initiate disciplinary proceedings against an employee lent by another department but before doing so, it is required to inform parent department. He submitted that in the case at hand, procedure as provided under rule 20 never came to be complied, rather, intimation with regard to initiation of disciplinary proceedings came to be given to the parent department at the stage of imposition of penalty. Apart from this, another ground raised by the petitioner in the instant proceedings is with regard to inordinate delay in concluding the disciplinary proceedings. Learned counsel for the petitioner, while inviting attention of this court to judgment of Hon'ble Apex Court in Prem Nath Bali v. Registrar, High Court of Delhi, (2015) 16 SCC 415, argued that in any eventuality, disciplinary proceedings are required to be concluded within a period of one year, but in the case at hand, Inquiry Report was submitted in the year 2013, but action on the same came to be taken after three years and nine months in 2016 and as such, same is not sustainable in the eye of law. He further submitted that inquiry was initiated on 13.1.2010 and was completed on 1.9.2011, after delay of more than one years, whereas as per Rules, inquiry is/was to be concluded within six months. Learned counsel for the petitioner, while inviting attention of this court to order dated 6.7.2016 (Annexure A-14), whereby major penalty of compulsory ::: Downloaded on - 23/12/2022 20:31:33 :::CIS -9- retirement from service, came to be imposed upon the petitioner, contended that before imposition of penalty, no opportunity of filing .
representation ever came to be afforded to the petitioner as such, there is violation of principles of natural justice. Lastly, while making this court peruse the conclusion of Inquiry Report, learned counsel for the petitioner vehemently argued that no reasoning ever came to be adduced on record, while holding the petitioner guilty of articles of charge Nos. I and II He submitted that record clearly reveals that after initiation of disciplinary proceedings, record with regard to issuance of NOC was audited by Audit Officer and there was no report, if any, of Audit Officer, with regard to discrepancy, if any, on the part of the petitioner, with regard to issuance of NOC, despite there being liability of a person concerned, to pay the road tax. He further submitted that otherwise also, NOC, which is the subject matter of the article of charge No. I, was withdrawn within a period of four days of issuance and no liability if any of the person, to whom NOC was issued was found. Learned counsel for the petitioner further submitted that there is ample evidence adduced on record suggestive of the fact that cheques/demand drafts allegedly deposited late, were actually not received by the petitioner, because, at that time, seat in question was being dealt by some other employee.
9. Mr. Vikas Rajput, learned counsel for the respondents Nos. 1 to 4, while supporting the action of the respondents, vehemently ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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argued that there is overwhelming evidence on record suggestive of the fact that the petitioner firstly wrongly issued NOC to a person who .
was under liability to pay huge amount on account of road tax to the department, and thereafter failed to deposit various cheques/demand drafts in government account for so many months, as a result of which huge financial loss was caused to public exchequer as such, no illegality can be said to have been committed by respondents, while imposing major penalty of compulsory retirement upon the petitioner.
Mr. Vikas Rajput, Advocate, while referring to the record of inquiry brought by official of the Himachal Road Transport Corporation, though admitted that no prior intimation was given by borrowing department to parent department, before initiation of disciplinary proceedings against the petitioner, who was working on secondment basis with borrowing department but contended that penalty of compulsory retirement was imposed by parent department i.e. Divisional Manager, as such, it cannot be said that disciplinary proceedings have not been conducted in accordance with the Rules. He further submitted that the judgment relied upon by learned counsel for the petitioner in Prem Nath Bali supra is not applicable to the present case, because in the case at hand, inquiry was initiated and concluded well within time. He submitted that once, inquiry proceedings were concluded well within time, imposition of penalty on the basis of same cannot set aside on the ground of delay, which admittedly in the case at hand came to be ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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imposed after three years and nine months from the date of submission of Inquiry Report.
.
10. Before ascertaining rival contentions of the parties, it would be apt to elaborate on the scope of judicial review in Departmental proceedings.
11. Recently, Hon'ble Apex Court in Allahaband Bank v.
Krishna Narayan Tewari, (2017) 2 SCC 308, while elaborating upon the scope of High Court to interfere in departmental enquiry, has held that the writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-
application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. Hon'ble Apex Court held in the judgment supra as under:
"4. The High Court came to the conclusion that neither the Disciplinary Authority nor the Appellate Authority had applied their mind or recorded reasons in support of their conclusions. Relying upon the decisions of this court in Roop Singh Negi v. Punjab National Bank & Ors. (2009) 2 SCC 570, Kuldeep Singh v. Commissioner of Police & Ors. (1999) 2 SCC 10, Nand Kishore v. State of Bihar (1978) 3 SCC 366, Kailash Nath Gupta v. Enquiry Officer, Allahabad Bank & Ors. (2003) 9 ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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SCC 480, State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya (2011) 4 SCC 584 and Mohd. Yunus Khan v. State of U.P. & Ors. (2010) 10 SCC 539, the High Court held that the .
order passed by the disciplinary authority and the appellate authority were unsustainable in law. The High Court found that the findings recorded by the Disciplinary Authority and affirmed by the Appellate Authority were perverse and were based on no evidence whatsoever. The High Court observed that the Appellate Authority had not applied its mind independently and simply cut and pasted the findings of the Disciplinary Authority while dismissing the appeal.
5. On behalf of the appellant-bank it was contended before us that the High Court had exceeded its jurisdiction in re- appreciating the evidence and holding the respondent not guilty. It was argued that so long as there was some evidence on which the Disciplinary Authority could rest its findings, sufficiency or insufficiency of such evidence could not be gone into by a Writ Court. Alternatively, it was submitted that even if there was any infirmity in the orders passed by the Disciplinary Authority or the Appellate Authority, on account of absence or insufficiency of the reasons in support of the findings recorded by them, the proper course for the High Court was to remand the matter back to the Appellate Authority or the Disciplinary Authority as the case may be for doing the needful afresh. The High Court could not, on account of absence of reasons or unsatisfactory appraisal of the evidence by them, quash the order of punishment and direct release of the service benefits due to the respondent.
6. On behalf of the respondent it was on the other hand contended that the enquiry conducted against the respondent and the conclusion arrived at by the Enquiry Officer, Disciplinary Authority and the Appellate Authority suffered from ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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fatal defects. Firstly, because the enquiry conducted by the Enquiry Officer was unfair and had resulted in gross miscarriage of justice on account of the failure of the Enquiry .
Officer to provide a reasonable opportunity to the respondent to lead evidence in his defense. In the second place the findings recorded by the Enquiry Officer and so also the Disciplinary Authority were unsupported by any evidence whatsoever and were perverse to say the least. In the third place, the orders were unsustainable also for the reason that the same did not disclose due and proper application of mind by the Disciplinary Authority and the Appellate Authority. The order passed by the Appellate Authority was, in particular, bad in law as the same did not examine the material on record independently and had simply relied upon the findings of the Disciplinary Authority without adverting to the points which the respondent had raised in support of his challenge. It was lastly submitted that the respondent has since superannuated and was a physical wreck having suffered a heart attack and a debilitating stroke which had confined him to bed. Any remand of the proceedings to the Appellate Authority to pass a fresh order or the Disciplinary Authority for re-examination and fresh determination of the respondent's guilt would not only be harsh but would tantamount to denial of justice to him. The High Court was in that view justified in taking a pragmatic view of the matter and in directing continuity of service to the respondent and release of all service and retiral benefits to him upto the date of his superannuation.
7. We have given our anxious consideration to the submissions at the bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a Departmental Authority on the basis of evidence available on record. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. The writ court will .
certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the Disciplinary Authority and the Appellate Authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defense has not been effectively rebutted by the appellant. More importantly the Disciplinary Authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the Appellate Authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the Disciplinary Authority. All told the Enquiry Officer, the Disciplinary Authority and the Appellate Authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the Appellate Authority.
8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient either procedurally or otherwise the proper course always is to remand the matter back to the concerned authority to redo the same afresh. That course could have been followed even in the present case.::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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The matter could be remanded back to the Disciplinary Authority or to the Enquiry Officer for a proper enquiry and a fresh report and order. But that course may not have been the .
only course open in a given situation. There may be situations where because of a long time lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand. The High Court has taken note of the fact that the respondent had been placed under suspension in the year 2004 and dismissed in the year 2005.
The dismissal order was challenged in the High Court in the year 2006 but the writ petition remained pending in the High Court for nearly seven years till 2013. During the intervening rperiod the respondent superannuated on 30th November, 2011. Not only that he had suffered a heart attack and a stroke that has rendered him physically disabled and confined to bed. The respondent may by now have turned 65 years of age. Any remand either to the Enquiry Officer for a fresh enquiry or to the Disciplinary Authority for a fresh order or even to the Appellate Authority would thus be very harsh and would practically deny to the respondent any relief whatsoever.
Superadded to all this is the fact that the High Court has found, that there was no allegation nor any evidence to show the extent of loss, if any, suffered by the bank on account of the alleged misconduct of the respondent. The discretion vested in the High Court in not remanding the matter back was, therefore, properly exercised.
12. Having heard learned counsel for the parties and perused the material available on record this court finds that though the petitioner was initially appointed as Clerk in the office of respondent ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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Corporation but was sent to the office of respondent No.5 on secondment basis. On 3.3.2009 he was assigned work of maintaining .
Special Road Tax and during this period, certain discrepancies were found with regard to deposit of cheques and demand drafts in Government treasury and issuance of No Objection Certificate to the owners of the various transport vehicles, despite there being liability to pay tax.
13. In the instant case, though 5 charges were famed against the petitioner but only charge Nos. I and II could be proved against him. As per article of charge-I, petitioner while discharging his duties as Clerk, in the office or RTO Solan, failed to bring the facts regarding penalty due amounting to Rs.3,07,382/- in respect of vehicle No. HP-
64-3205 into the knowledge of Supdt./RTO and got the NOC signed and the relevant noting of the concerned file was later on tampered, which amounts to misconduct and proves his malafide intention.
Another charge against the petitioner, which was proved is that while discharging his duties in the office of RTO Solan, he failed to deposit 118 of Bank drafts on account of SRT amounting to Rs.63.53 Lakh into govt. account received from other State Transport Corporations/ Undertakings, due to which govt. has suffered a loss of revenue as well as of interest. Out of 118 bank drafts, 83 bank drafts were deposited late in a period of 2 to 6 months amounting to Rs.47.71 Lakh and 35 bank drafts amounting to Rs.15.82 Lakh were sent for revalidation after ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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the lapse of 10 months, out of which only 4 bank drafts are yet to be received back for credit into govt. account, which shows his careless .
and irresponsibility towards officials duties causing revenue loss to the state ex-chequer.
14. Having perused Inquiry Report, Annexure A-10, this court finds that Shri Narender Sharma, Section Officer conducted audit of RTO Solan. During his cross-examination, this witness stated that he did not conduct audit of vehicle No. HP-64-3205 and feigned r to ignorance about the facts mentioned in article of charge I. Petitioner, while admitting that he joined RTO Solan on 22.6.2008, claimed that payment with respect to vehicle No. HP-64-3205 was being made every month regularly by owner of vehicle. Owner of vehicle requested for NOC and his case was processed by him for issuance of NOC in his favour. In support of his claim, he presented DW-4 Krishan Chand, Senior Assistant, office of Regional Transport Officer, Solan, who submitted that assessment of SRT of vehicle No. HP-64-3205 was done by him according to the Notification of the year 2005, which is correct as per his knowledge.
15. As per record of dealing assistant of RTO Solan, assessment was Rs.3,07,382/- and against which, Rs.1,50,000/- was deposited by owner of said vehicle. Inquiry report further reveals that DW-4 deposited Rs.1,85,689/- as SRT against said bus.
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16. Interestingly despite there being aforesaid evidence led on record by by petitioner, Inquiry Officer concluded that it stands proved .
to the extent that case of NOC of vehicle No. HP-64-3205 , was processed by the petitioner on prescribed proforma and while doing so, he omitted to bring full facts to the knowledge of the authority.
17. Since in the case at hand, DW-4, Kishan Chand Senior Assistant office of RTO Solan, categorically submitted that assessment of SRT of vehicle No. HP-64-3205 was done by him according to the Notification of the year 2005, which is correct as per his knowledge as per record, made available to Inquiry Officer, assessment was made to the tune of Rs.3,07,382 and Rs.1.50 lakh was depoisetd by owner of said vehicle, then it is not understood, how and on what basis, Inquiry Officer proceeded to hold petitioner guilty of charge No. I as discussed herein above.
18. Similarly, this court finds that while proving article of charge II, Mr. Narender Sharma, PW-1 deposed that work of SRT with regard to office of RTO Solan, was entrusted to the petitioner, who failed to deposit 118 bank drafts in time. During his cross-examination, however, this witness admitted that audit was conducted by him of RTO Solan and Haminder Bhardwaj, Section Officer, however, report was signed by PW-1.
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19. Petitioner stated that besides SRT, he was assigned work of registration of vehicles, NOC, hypothecation, token tax assessment of .
SRT of new vehicles of HRTC and other roadways vehicles.
20. If the reply filed by petitioner to article of charge II is perused (Pp. 30-31), he categorically stated that with effect from April 2009, work of SRT was assigned to Kishan Kumar, Junior Assistant, as such, delay in depositing the bank drafts is not attributable to him in any manner. However, interestingly, Inquiry Officer failed to take note of aforesaid defence set up by petitioner while, returning Articles of Charge II. Having perused findings returned by Inquiry Officer qua the charges framed against the petitioner, this court is finding on persuaded to agree with learned counsel for the petitioner that Inquiry Officer miserably failed to appreciate the evidence be it ocular or documentary led on record by the petitioner in its right perspective, as a result of which, findings to the detriment of petitioner came to the fore.
21. Leaving everything aside, this court finds that in the case at hand, though, in terms of rule 20 of the Rules, Director Transport being borrowing department was competent to initiate disciplinary proceedings against employee sent on secondment basis but before initiating same, it was incumbent upon him to inform authority, which lent service of the Government servant. It would be apt to take note of provision of rule 20 of the rules.
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"20. Provisions regarding officers lent to State Governments, etc. (1) Where the services of a Government servant are lent by one .
department to another department or to a State Government or an authority subordinate thereto or to a local or other authority (hereinafter in this rule referred to as " the borrowing authority"), the borrowing authority shall have the powers of the appointing authority for the purpose of placing such Government servant under suspension and of the disciplinary authority for the purpose of conducting a disciplinary proceeding against him:
Provided that the borrowing authority shall forthwith inform the authority which lent the services of the Government servant (hereinafter in this rule referred to as "the lending authority") of the circumstances leading to the order of suspension of such Government servant or the commencement of the disciplinary proceeding, as the case may be.
(2) In the light of the findings in the disciplinary proceeding conducted against the Government servant-
(i) if the borrowing authority is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 11 should be imposed on the Government servant, it may, after consultation with the lending authority, make such orders on the case as it deems necessary:
Provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of the Government servant shall be replaced at the disposal of the lending authority;
(ii) if the borrowing authority is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 11 should be imposed on the Government servant, it shall replace his services at the disposal of the lending authority and transmit to it the proceedings of the inquiry and thereupon the lending authority may, if it is the disciplinary authority, pass such order thereon as it may deem necessary, or, if it is not the disciplinary authority, submit the case to the disciplinary authority which shall pass such orders on the case as it may deem necessary :
Provided that before passing any such order the disciplinary authority shall comply with the provisions of sub-rules (3) and (4) of rule 15.::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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EXPLANATION - The disciplinary authority may make an order under this clause on the record of the inquiry transmitted to it by the borrowing authority or after holding such further inquiry as it may .
deem necessary, as far as may be, in accordance with rule 14."
22. Careful perusal of aforesaid provision clearly reveals that before initiating disciplinary proceedings, borrowing authority is under obligation to apprise the parent department which lent service of Government of the circumstances leading to order of suspension of such Government servant and commencement of the disciplinary proceedings as the case may be.
23. In the case at hand, careful perusal of record of disciplinary proceedings reveals that that no prior intimation, if any, ever came to be given by the borrowing department to the parent department with respect to initiation of disciplinary proceedings against the petitioner rather, borrowing department, after having concluded inquiry, forwarded Inquiry Report to the Deputy Divisional Manager, i.e. appointing authority of the petitioner for imposition of penalty. Since there is no compliance of clause 1 of Rule 20 of the rules, disciplinary proceedings initiated by borrowing department against petitioner are not sustainable in the eye of law.
24. This court further finds from record that inquiry against the petitioner was initiated on 13.1.2010, and Inquiry Report was submitted on 26.11.2011 i.e. after expiry of six months. Apart from above, this court finds that though Inquiry Report was submitted in 2013 to the ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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Divisional Manager, Himachal Road Transport Corporation, on 23.3.2016 (Annexure A-13), but action on the same in the shape of .
imposition of major penalty came to be taken after inordinate delay of three years and nine months, that too without issuing show cause notice to the petitioner.
25. Hon'ble Apex Court in Prem Nath Bali supra, has held that every employer must make sincere endeavor to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year. Hon'ble Apex Court has held in judgment supra, as under:
"25. We are constrained to observe as to why the departmental proceeding, which involved only one charge and that too uncomplicated, have taken more than 9 years to conclude the departmental inquiry. No justification was forthcoming from the respondents' side to explain the undue delay in completion of the departmental inquiry except to throw blame on the appellant's conduct which we feel, was not fully justified.
26. Time and again, this Court has emphasized that it is the duty of the employer to ensure that the departmental inquiry initiated against the delinquent employee is concluded within the shortest ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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possible time by taking priority measures. In cases where the delinquent is placed under suspension during the pendency of such inquiry then it becomes all the more imperative for the employer to .
ensure that the inquiry is concluded in the shortest possible time to avoid any inconvenience, loss and prejudice to the rights of the delinquent employee.
27. As a matter of experience, we often notice that after completion of the inquiry, the issue involved therein does not come to an end because if the findings of the inquiry proceedings have gone against the delinquent employee, he invariably pursues the issue in Court to ventilate his grievance, which again consumes time for its final conclusion.
28. Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavor to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year."
26. In the case at hand, firstly there was delay on the part of Inquiry Officer to complete the inquiry because admittedly inquiry was initiated on 13.1.2010 but Inquiry Officer submitted report on 26.11.2011 i.e. after more than one year but thereafter penalty on the basis of enquiry was imposed after inordinate delay of three years and nine months.
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27. Though record reveals that after conclusion of inquiry, Inquiry Report was submitted to Divisional Manager, Himachal Road .
Transport Corporation on 25.11.2011, but he kept on sleeping over the matter and vide communication dated 15.12.2012, called upon the petitioner to make representation, if any on the basis of evidence produced during the course of inquiry. (Annexure A-11).
28. Petitioner though submitted reply to aforesaid Office Memorandum but the Divisional Manager, Himachal Road Transport slumber, when it Corporation, Shimla Division, again slept over the matter for more than three years and nine months. Aforesaid authority woke up from deep was reminded by respondent No.5 vide communication dated 23.3.2016 (Annexure A-13). In the said communication, Transport Commissioner apprised Managing Director, Himachal Road Transport Corporation, that more than three years nine months have elapsed after submission of Inquiry Report but till date no action has been taken. After receipt of aforesaid communication, Divisional Manager, in a hot haste manner, imposed major penalty of compulsory retirement vide office order dated 26.7.2016. Interestingly, before imposing major penalty of compulsory retirement, said authority nowhere afforded opportunity of hearing, if any, to the petitioner as such, learned counsel for the petitioner is right in contending that there is complete violation of principles of natural justice.
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29. A Co-ordinate Bench of this Court in Heera Devi v. State of Himachal Pradesh, CWP No. 3153 of 2021, decided on 16.8.2021, .
has held that the disciplinary inquiry being quasi-judicial in nature, has to be held in accordance with principles of natural justice and fair play.
It has been observed in the order supra, as under:
"6 It is well settled that disciplinary inquiry being quasijudicial in nature has to be held in accordance with the principles of natural justice and fair play.
7 Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform the appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system.
8 The necessity of assigning reason has been repeatedly emphasized by the Hon'ble Supreme Court and reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Kranti Associates Pvt. Ltd. and another versus Masood Ahmed Khan and Others (2010) 9 SSC 496, wherein after taking into consideration the entire law on the subject, the position of law was summarized as under:-
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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(b) A quasi¬judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve .
the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi¬judicial or even administrative power.
(e)Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
(f)Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi¬judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior Courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts.
This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi¬judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
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(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber¬stamp reasons" is not to be equated with a valid decision making process.
.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731¬37).
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v.Spain (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
9 In Ravi Yashwant Bhoir Vs. District Collector, Raigad and others (2012) 4 SCC 407, the Hon'ble Supreme Court held as under:¬ "38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order.
39. In Shrilekha Vidyarthi Vs. U.P. (1991) 1 SCC 212 this Court has observed as under: (SCC p. 243, para 36).
"36......Every State action may be informed by reason and it follows that an act uninformed by reason, is arbitrary. The rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is the trite law that 'be you ever so high, the laws are above you'. This is what men in power must remember, always."::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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40. In LIC Vs. Consumer Education and Research Centre (1995) 5 SCC 482 this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision.
.
"Duty to act fairly" is part of fair procedure envisaged under Articles 14 and
21. Every activity of the public authority or those under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India Vs. Mohan Lal Capoor (1973) 2 SCC 836 and Mahesh Chandra Vs. U.P. Financial Corpn.(1993) 2 SCC 279.
41. In State of W.B. Vs. Atul Krishna Shaw 1991 Supp (1) SCC 414, this Court observed that : (SCC p. 421, para 7) "7....Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."
42. In S.N. Mukherjee Vs. Union of India(1990) 4 SCC 594, it r has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as to it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
43. In Krishna Swami Vs. Union of India (1992) 4 SCC 605, this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne out from the record. The Court further observed: (SCC p. 637, para 47).
"47......Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21".
44. This Court while deciding the issue in Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd.(2010) 13 SCC 336, placing reliance on its various earlier judgments held as under:
(SCC pp. 345-46, para 27).::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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"27. It is a settled legal proposition that not only administrative but also judicial orders must be supported by reasons recorded in it. Thus, while deciding an issue, the court is bound to give reasons .
for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice.
'3....The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind'.
The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity.
The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before the higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected."
45. In Institute of Chartered Accountants of India Vs. L.K. Ratna (1986) 4 SCC 537, this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held: (SCC p. 558, para 30).
"30.....In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover,the member has been given a right of appeal to the High Court under Section 22-A of the Act. To exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilty of the member. It ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy thestatus of a 'finding'.
Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or .
may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding."
46. The emphasis on recording reason is that if the decision reveals the "inscrutable face of the sphinx", it can by its silence render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out the reasons for the order made, in other words, a speaking r out. The inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance."
10 Earlier to the aforesaid decisions, a Constitution Bench of the Hon'ble Supreme Court, in S. N. Mukherjee vs. Union of India, (1990) 4 SCC 594, after an exhaustive review of its earlier pronouncements as also the views expressed in other jurisdictions and by expert committees, summarized and explained the law as under:-
The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimize chances of arbitrariness in decision making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the .
ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive fficer generally looks at things from the standpoint of policy and expediency.
Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the re- cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasi-judicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donoughmore Committee observed that it may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. The committee expressed the opinion that "there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise" and that "where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial .
Tribunal should deprive them of the opportunity." (P 80) Prof. H.W.R. Wade has also expressed the view that "natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man's sense of justice." (See Wade, Administrative Law, 6th Edn. P. 548)."
11 Arbitrariness in making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. Application of mind is best demonstrated by disclosure of mind by the authority making the rorder and disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority is clearly suggestive of the order being arbitrary hence legally unsustainable.
12 Adverting to the instant case, it would be noticed that what weighed with the appellate authority to reject the appeal is not at all forthcoming. Consequently, this order is clearly arbitrary and cannot, therefore, withstand judicial scrutiny, more particularly, when even the order passed by the disciplinary authority is also totally devoid of reasons.
13 It is well settled that the orders made by the appellate authority must contain reasons for the conclusions reached. Reference in this regard can conveniently be made to the judgments rendered by the Hon'ble Supreme Court in R.P. Bhat vs. Union of India, AIR 1986 SC 1040 and Ram Chander vs. Union of India, AIR 1986 SC 1173.
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14 In S.D. Sharma vs. State of H.P., 2005 Labour Industrial Cases 696, this Court has held that the appellate authority must consider and decide all the grounds raised in the .
appeal and issue a complete and self-contained order.
15 As observed earlier, it is no more res integra that the orders passed by the appellate authority and disciplinary authority must be reasoned and speaking."
30. Though learned counsel for the respondent Corporation attempted to argue that after receipt of Inquiry Report from respondent No.5, vide communication dated 15.12.2012, petitioner was afforded an opportunity to make representation but careful perusal of communication dated 15.12.2012 nowhere suggest that opportunity, if any, was ever afforded to the petitioner to file representation, if any against proposed penalty of compulsory retirement rather opportunity was given to make representation if any on the basis of evidence adduced during course of inquiry. Though petitioner filed representation but that never came to be responded. Order imposing major penalty (annexure A-14), if read in its entirety, nowhere suggests that the Divisional Manager, Himachal Road Transport Corporation took note of grounds raised in the representation filed by the petitioner in response to Office Memorandum dated 15.12.2012. Divisional Manager, Himachal Road Transport Corporation merely on the basis of inquiry report proceeded to impose major penalty of compulsory ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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retirement, which in the given facts of case was not warranted.
31. At this stage, it would apt to take note of rule 13(2) and 14 of .
the rules, which are reproduced herein below:
"13. Authority to institute proceedings (1) The President or any other authority empowered by him by general or special order may -
(a) institute disciplinary proceedings against any Government servant;
(b) direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in rule
11. (2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses (v) to (ix) of rule 11 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties. "14. Procedure for imposing major penalties (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.
Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the complaints Committee established in each ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
.
EXPLANATION - Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the disciplinary authority.
32. Perusal of the aforesaid rules clearly reveals that Disciplinary Authority is only competent to issue charge sheet to a delinquent official and no order can be passed by such authority, If inquiry is not conducted as per Rule 14.
33. No doubt in the case at hand, borrowing department, could initiate disciplinary proceedings in terms of rule 20 of the rules, but that too after informing the parent department, but definitely penalty could only be imposed by Disciplinary Authority which in the case at hand, was Divisional Manager, Himachal Road Transport Corporation.
34. Though as per rule 20 of the Rules if the borrowing authority is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 11 should be imposed on the Government servant, it may, after consultation with the lending authority, make such orders on the case as it deems necessary. However, in the event of a difference of opinion between the borrowing authority and the lending authority, the services of the Government servant shall be replaced at the disposal of the lending authority.
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35. Bare reading of Rule 14 of CCS(CCA) Rules clearly provides that whenever departmental proceedings are held against the .
Government servant under Rule 14 and Rule 15, Disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) clearly mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. Procedure as provided under Article 14 of CCS(CCA) Rules is strictly in conformity with the provisions contained under Article 311 (2) of the Constitution of India and as such, if same is not followed, it would be violative of provisions contained under Section 311 (2) of the Constitution of India, which clearly provides that no public servant is dismissed, removed or suspended without following fair procedure in which he/she is to be given a reasonable opportunity to meet the allegations contained in the charge sheet.
36. No doubt in case at hand, borrowing department in terms of rule-20 of the Rules was competent to serve charge sheet upon the petitioner and he was delivered a copy of Articles of Charge, statement of imputation of misconduct and misbehaviour and supporting documents including list of witnesses, but as has been discussed herein above, no ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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proper procedure was followed as envisaged under rule-20 of the rules.
.
37. Though, after having scanned, entire material available on record, this court finds that teg findings returned by Inquiry Officer qua Articles of Charge Nos. I and II are not sustainable, but even if same are presumed to be correct and based upon proper appreciation of material available on record, disciplinary proceedings as well as order imposing penalty of compulsory retirement, are not sustainable on two grounds viz. firstly borrowing department before initiating disciplinary proceedings, failed to inform the parent department, factum with regard to initiation of disciplinary proceedings and secondly, there is inordinate delay in conclusion of the inquiry proceedings. Major penalty of compulsory retirement was imposed after inordinate delay of three years and nine months of submission of inquiry report. Hon'ble Apex Court in Prem Nath Bali supra has categorically held that in any eventuality, disciplinary proceedings should be concluded within one year. In the case at hand, inquiry was initiated in 2010 and penalty of compulsory retirement came to be imposed in the year 2016, after six years of date of initiation of proceedings. There is no explanation rendered on record qua delay in taking action after submission of Inquiry Report by the Disciplinary Authority. Moreover, this court having perused entire record is of the view that penalty of compulsory ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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retirement imposed upon the petitioner is not commensurate with the offence alleged to have been committed by him.
.
38. Though careful perusal of evidence led on record by petitioner reveals that the petitioner successfully attempted to prove that there was no lapse, if any, on his part, while making report to higher official, enabling him to issue NOC, but yet Inquiry Officer proceeded to decide charge against him. Similarly, this court finds that with effect from April 2009 work of SRT was handed over to Kishan Kumar, Junior Assistant, but yet entire responsibility of not depositing bank drafts/cheques within time, came to be saddled upon the petitioner.
39. Leaving everything aside, Disciplinary Authority before imposing major penalty, never issued notice to the petitioner putting thereby proposal to impose penalty of compulsory retirement as such, order of major penalty is not sustainable. Penalty imposed by Disciplinary Authority cannot be said to be justified, rather, the same is conscious shocking, as such, deserves to be interfered with.
40. In State of Punjab v. Parkash Chand, Constable (1992)1 SLR 174, court has held that the punishment of dismissal of service should be awarded for gravest act of misconduct. However in the case at hand material available on record reveals that the charge Nos. I and II were not proved against the petitioner beyond reasonable doubt, but yet Disciplinary authority proceeded to award gravest punishment of ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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compulsory retirement from the service, which by no stretch of imagination can be said to be justifiable, rather same being conscious .
shocking deserves to be quashed and setaside. Hon'ble Apex Court as well as this Court in catena of cases have repeatedly held that where punishment awarded by Disciplinary authority appears to be conscious shocking, it can interfere and quash the same. It would be profitable to reproduce relevant para of aforesaid judgment herein:-
"11. This court has in a number of cases gone into the matter in order to find as to what would really constitute a gravest act of misconduct. A number of cases have been, cited before us but we have chosen to pick up only one which deals with the question of absence without leave. In Darshan Singh's case (supra), the learned single Judge has held that absence without rleave for almost 13 months would not in the circumstances of that case amount to the gravest act of misconduct."
41. Reliance is also placed upon the judgment rendered by Hon'ble Apex Court in Civil Appeal No. 6723 of 2021, titled Union of India and others versus Ex. Constable Ram Karan, decided on 11th November, 2021, wherein it has been held as under:-
"Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/ appellate authority to take a call and it is not for the Court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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42. The principles have been culled out by a three Judge Bench of this Court way back in B.C. Chaturvedi vs. Union of India and .
Others, 1995(6) SCC 749 ,wherein it was observed as under:-
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/ Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/ Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support r thereof."
43. It has been further examined by Hon'ble Apex Court in Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) and Another vs. Rajendra Singh,(2013)12 SCC 372 as under:-
19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.
19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If .
the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable."
44. Interestingly, it is not only Disciplinary Authority, which failed to apply mind, rather, appellate Authority in a stereotyped manner passed impugned order without taking into consideration grounds of appeal and rejected the appeal upholding the order of compulsory retirement passed by Disciplinary Authority.
45. Hon'ble Apex Court in Roop Singh Negi v. Punjab National Bank and others (2009)2 SCC 570, has categorically held that departmental enquiry is a quasi-judicial proceedings. The Enquiry Officer performs a quasi judicial function and as such, it has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. If the orders passed by the Appellate authority and disciplinary authority are read juxtaposing each other there is nothing to suggest that both the authorities, while considering the representation and appeal filed by the petitioner made an attempt, if any, to look into the legal grounds raised by the petitioner, especially with regard to procedure followed by inquiry officer, while conducting disciplinary proceedings. In the aforesaid judgment, it has been categorically held that it is duty of Disciplinary authority/Appointing authority to record reasons while passing order but as has been ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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discussed hereinabove, there is no cogent and convincing reasons assigned by disciplinary authority as well as appellate authority, while .
imposing punishment of compulsory retirement from service against the petitioner. Hon'ble Apex Court in R.P. Bhat v. Union of India, AIR 1986 SC 1040, Ram Chander v. Union of India, AIR 1986 SC 1173, and Chairman, Disciplinary Authority Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney, (2009) 4 SCC 240, it has been held that where an appellate authority agrees with the disciplinary authority, the order passed by it "must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority."
Besides above, this Court in S.D. Sharma v. State of Himachal Pradesh, 2005 Labour Industrial Cases, 696 has held that appellate authority must consider and decide all the grounds raised in the appeal and issue a complete and self-contained order.
46. In view of the detailed discussion made herein above, the present petition is allowed. Impugned penalty order dated 6.7.2016 Annexure A-14 and order dated 3.5.2017 passed by the appellate authority, Annexure A-17 are quashed and set aside. Petitioner is ordered to be reinstated in service, forthwith from the date, he was compulsorily retired. The petitioner shall be entitled to all consequential benefits of pay, seniority, continuity in service etc. etc. ::: Downloaded on - 23/12/2022 20:31:33 :::CIS
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47. Petition stands disposed of in the afore terms, alongwith all pending applications.
.
(Sandeep Sharma)
Judge
December 19, 2022
(Vikrant)
r to
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