Himachal Pradesh High Court
Jaswant Singh vs State Of H.P. & Others on 25 May, 2016
Author: Sandeep Sharma
Bench: Mansoor Ahmad Mir, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL
PRADESH SHIMLA
LPA No.122 of 2015
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Judgment Reserved on: 11.05.2016
Date of decision: 25.05.2016
Jaswant Singh ....Appellant
Versus
State of H.P. & Others ....Respondents
of
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
rt
Whether approved for reporting ?1 Yes.
For the Appellant: Mr.Ajay Sharma, Advocate.
For Respondent No.1: Mr.Shrawan Dogra, Advocate General
with Mr.Anup Rattan & Mr.Romesh
Verma, Additional Advocate General
and Mr.J.K. Verma & Mr.Kush
Sharma, Deputy Advocate General.
For Respondents No.2: Mr.K.D. Sood, Senior Advocate with
and 3. Mr.Ankit Aggarwal, Advocate.
Sandeep Sharma,J.:
Present appeal is directed against the judgment dated 27.05.2015, passed by the learned Single Judge of this Court in CWP No.4927 of 2010, whereby the writ petition filed 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 2by the petitioner (appellant herein) was disposed of, (for short 'impugned judgment').
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2. Petitioner by way of Civil Writ Petition prayed for the following relief(s):
"(i) That impugned acts of the respondents above stated may very kindly be quashed and set aside and so also Annexures P-3 and P-4 with directions to the respondents to grant all 4 increments to the petitioner of from the date when the same fell due and calculate and pay the arrears of salary alongwith interest @ 9% per annum.
(ii) rt That in the alternative, respondents may be directed to grant two increments illegally having not been given with respect to the suspension period with further directions to calculate and pay the arrears alongwith interest @ 9% per annum.
(iii) That directions may be issued to the respondents to issue correct seniority list, thereby assigning the petitioner seniority from the date of his joining i.e. December, 1989 and treat him in service from the said date for all intends and purposes.
(iv) Call for records."
3. Briefly stated, the facts of the case are that petitioner joined Baba Balaknath Temple Trust, Deot Sidh, Badsar (in short `Trust') in December, 1989, and subsequently, when temple was taken over by the ::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 3 Government of Himachal Pradesh, his services were also taken over.
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4. It also emerges from the pleadings of the parties that disciplinary proceedings were initiated against the petitioner on account of some embezzlement allegedly having been committed by him. Subsequently, vide Annexure P-2, Memorandum/Charge sheet was served upon the petitioner, of whereby it was proposed to hold an inquiry against him under Rule 19 of the Baba Balak Nath Temple rt Employees (Terms of Employment and Working Conditions) Rules, 1991, (hereinafter referred to as the `Rules,1991').
Perusal of the articles of charge annexed with the reply as Annexure R-2/1 suggests that the petitioner, while functioning as Reception Clerk in Sarai Nos.7, 4 & 6, embezzled donation money amounting to Rs.10,810/- and by doing so he committed sheer violation of Rules, 1991 and made himself liable for such action. Since 11 receipt books were issued in the name of the petitioner but he made available only 3 receipt books to the Temple Office and remaining 8 receipt books were kept by him in his possession, as such, disciplinary proceedings were initiated against him. Apart from this, the petitioner remained on ::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 4 willful absence from his duty from 19.9.1999 which affected the Trust. It was specific charge against the petitioner that .
he was habitual to embezzle Trust money and to remain on willful absence from his duty. In this connection several letters were issued to him by the Trust.
5. Record of the case further reveals that vide letter dated 9.12.1999, Annexure P-1, Appointing Authority i.e. Sub of Divisional Officer (C)-cum-Chairman, Trust BBN Temple, Deotsidh at Barsar, District Hamirpur, H.P., (in short rt `Appointing Authority'), in exercise of powers conferred upon him under the provisions of Rules, placed the present petitioner under suspension with immediate effect and ordered that during the period of suspension, Headquarter of the petitioner would be at Deotsidh and he would not leave the headquarter without obtaining the prior permission of the Temple Officer, Temple Trust, Deotsidh. Record further reveals that the petitioner filed reply to the Memorandum/ Charge-sheet, admitted his guilt and deposited a sum of Rs.10,810/-, which he allegedly embezzled.
6. It appears that respondent-Trust, being not satisfied with the reply filed by the petitioner, came to the conclusion, vide order dated 17.3.2001 (in short `impugned ::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 5 order'), that major penalty was required to be inflicted upon the official, but lenient view was taken while keeping in view .
the admission made by the petitioner read with his domestic condition and penalty of stoppage of two increments with cumulative effect was ordered to be imposed upon the petitioner after reinstating him with immediate effect. It was also ordered that his absence period be treated as extra of ordinary leave. After passing of aforesaid impugned order, petitioner remained silent for good seven years and thereafter rt filed one representation i.e. Annexure P-4 praying therein that his case may be considered sympathetically and stopped four increments may be released.
7. Temple Officer, in turn, vide communication dated 18.10.2008, recommended his case to the Appointing Authority, specifically pointing out that conduct of petitioner has been found good during this period and requested that two increments, which were not paid to him during suspension period as well as two increments which were stopped due to punishment imposed upon him, be restored and his case be considered sympathetically.
8. Petitioner instead of filing appeal before the Appellate Authority, which remedy was available to him ::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 6 under Rule 30 of the Baba Balak Nath Temple Employees Service Rules, 2001 (in short `Rules, 2001'), approached this .
Court by way of filing Civil Writ Petition in the year 2010 i.e. after nine years of passing of the impugned order by the Appointing Authority and prayed that Annexure P-3, impugned order dated 17.3.2001 be quashed and set aside with further directions to the respondents to grant four of increments to the petitioner from the date when the same fell due and to pay arrears of salary alongwith interest at the rate rt of 9% per annum.
9. Respondents, by way of reply to the writ petition, specifically took objection with regard to the delay and latches. It was stated that petitioner was served with the charge-sheet through communication dated 22.12.1999, but he did not reply to the charge-sheet and when he was called by the Appointing Authority on 6.1.2001 for personal hearing with regard to misconduct committed by him, he admitted the charges leveled against him. He also deposited a sum of Rs.10,810/- which he had mis-appropriated. Accordingly, a lenient view was taken in the matter and his two increments with cumulative effect were stopped after reinstating him with immediate effect. It is specifically averred in the reply that ::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 7 since the petitioner has accepted the order and has not availed the remedy of appeal provided to him under Rule 30 .
of Rules, 2001, now at this stage, present petition is totally misconceived as the same has been filed after gross and inordinate delay of more than 10 years and, as such, the petitioner is not entitled to any indulgence from this Court and same deserves to be dismissed.
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10. Hon'ble Single Judge, after hearing the parties and having gone through the record, dismissed the petition rt preferred by the petitioner. However, respondents were directed to consider the case of the petitioner for correction in the seniority list i.e. Annexure P-6, wherein inadvertently joining date of the petitioner in the Department has been shown in the year 1991 instead of 1989, and treat him in service with effect from the said date for all intents and purposes.
11. On the aforesaid background, petitioner has filed this appeal assailing the impugned judgment passed by the Hon'ble Single Judge.
12. We have heard learned counsel for the parties and have gone through the record of the case.
::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 813. Mr.Ajay Sharma, learned counsel appearing on behalf of the appellant, stated that the impugned orders .
passed by the respondents are against the principle of natural justice and contrary to basics of the service jurisprudence and same deserve to be quashed and set aside.
It is also contended that in the present case the appellant had been held guilty without holding any regular inquiry, rather, of he was awarded punishment without affording any opportunity of being heard. Mr.Sharma vehemently argued rt that decision with regard to imposing of the penalty, as has been done in the present case, came to the knowledge of the petitioner-appellant only when he requested for the release of withheld increments and, in turn, he was informed that the same have been stopped with cumulative effect vide impugned order.
14. On the other hand, Mr.K.D. Sood, learned Senior Counsel representing the respondents, stated that impugned order, as passed by the authority, is based on the correct appreciation of the material available on the record. He forcefully stated that writ petition is barred by delay and latches as the petitioner approached this Court by way of writ petition after ten years and no explanation to that effect has ::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 9 been rendered. Mr.Sood stated that it stands proved on record that the petitioner has embezzled an amount of .
Rs.10,810/- while working as a Reception Clerk in the Trust.
He further stated that though the petitioner had committed very serious irregularities and major punishment was required to be awarded to him, however, respondent Trust took a lenient view and only two increments with cumulative of effect were stopped after reinstating him with immediate effect. He prayed that the judgment passed by the Hon'ble rt Single Judge calls for no interference.
15. Admittedly, in the present case the petitioner has approached this Court after ten years of the passing of the impugned order, whereby his two increments with cumulative effect were ordered to be stopped after reinstating him.
Material available on the record clearly suggests that the petitioner acquiesced and did not rake up this issue till filing of the present petition, save and except, two representations Annexure P-4, whereby he prayed that his case with regard to stopping of four increments may be considered sympathetically. Rather, the representation dated nil suggests that the petitioner did not avail the remedy of appeal under the provisions of Rules, 2001, by assailing the orders ::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 10 passed by the Appointing Authority, before the Appellate Authority and filed the present petition after inordinate delay .
of ten years which has not been explained in any manner.
Only explanation rendered by the petitioner for approaching this Court after such a long period is that the factum with regard to imposing the penalty came to his knowledge only when he requested for the release of increments, but he was of informed that the same have been stopped with cumulative effect vide impugned order. Thus, the aforesaid explanation rt rendered by Mr.Ajay Sharma is totally fallacious and cannot be accepted for the reasons that the impugned order was passed by the respondents after giving due opportunity of being heard and petitioner had admitted his guilt and, as a result of which, deposited an amount of Rs.10,810/-.
16. In view of the aforesaid discussion, it cannot be accepted that the petitioner remained unaware of the passing of the impugned order, rather, it can be safely concluded that the petitioner acquiesced the impugned order and continued to work as such but suddenly in the year 2010 preferred the present writ petition for quashing of Annexure P-3 which was admittedly passed on 17.3.2001 with the directions to the respondents to grant four increments from the date when the ::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 11 same fell due alongwith arrears of salary. Petitioner also prayed that respondents may be directed to grant two .
increments illegally having not been given to him with respect to the suspension period with further directions to calculate and pay the arrears alongwith interest @ 9% per annum.
17. In the totality of the facts and circumstances narrated hereinabove, we are of the considered opinion that of the impugned judgment does not suffer from any illegality and merits to be upheld so far as it relates to first prayer rt made in the writ petition.
18. As far as second prayer of the petitioner - "that the respondents may be directed to give two increments wrongly withheld with respect to suspension period of the appellant and to fix his pay accordingly and to calculate and grant arrears @ 9% p.a. in the interest of law and justice', is concerned, the same is to be granted for the following reasons.
19. In this regard, while dealing with the penalties under Rule 11 of CCS(CCA) Rules, 1965, the Government of India has issued various instructions. The relevant instruction in this regard reads as follows:-
::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 12"16. Withholding of increment effective on increment accruing after date of punishment order.- The penalty of withholding an increment takes effect .
from the date of increment accruing to the officer after the issue of the punishment orders. It cannot affect the increment which was due prior to the issue of the punishment orders even though if may not have actually been drawn due to the officer being on leave or other administrative reasons."
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20. In view of the above quoted instructions, we are of the considered view that petitioner was entitled for grant of rt two increments, which have been allegedly accrued to him during his suspension period, because as per CCS(CCA) Rules, 1965 the penalty of withholding of two increments takes effect from the date of increment accruing to the officer/official after the issuance of punishment order, meaning thereby that two increments, which had accrued to the petitioner after passing of impugned order, were required to be stopped and petitioner was entitled to increments, if any, accrued to him during the suspension period.
21. In the present case, admittedly, final punishment was awarded to the petitioner vide impugned order, whereby two increments with cumulative effect were ordered to be stopped, but fact remains that petitioner remained under ::: Downloaded on - 15/04/2017 20:26:44 :::HCHP 13 suspension w.e.f. 9th December, 1999 till 17th March, 2001.
We are of the opinion that the petitioner was entitled to .
increments, if any, accrued to him during suspension period, and decision of the respondents in withholding the increments, which were actually due to him during suspension period, does not appear to be in accordance with law.
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22. In view of the aforesaid discussion, the impugned judgment is modified with a command to the respondents to rt release two increments to the petitioner, which had accrued to him during his suspension period, as indicated above. The appeal stands disposed of accordingly alongwith pending CMPs, if any.
(Mansoor Ahmad Mir)
Chief Justice
May 25, 2016 (Sandeep Sharma)
(aks) Judge
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