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1997 DIGILAW 120 (GAU)

Chandra Pal Rathore v. State of Arunachal Pradesh

1997-07-11

D.N.CHOWDHURY

body1997
This application has been directed against the order bearing No.SENC/Conf-Z (11)794-95/14 dated N/Lagun, the 5.5.94 passed by the Superintending Engineer Civil Circle Govt of Arunachlar Pradesh, respondent No.2 imposing penalty by withholding two future increments with immediate effect and the said penalty was to be treated as recurring effect. The aforesaid penalty was imposed under Rule 16 CSS (CCA) Rules, 1965. The materials facts of the case are as follows: The petitioner at all relevant time was working as a Junior Engineer (Planning) under the Executive Engineer, Ziro Division, PWD, Ziro, District Lower Subansiri. Arunachal Pradesh. The petitioner was holding the charge of execution of works 'C/0 Boa Simla Talley Valley Road' 02 to 5 Km (formation cutting)' during the period of August, 1990 as a Junior Engineer. Petitioner in course of his duty submitted ten numbers of first and final bills to the tune of Rs.3,52,4,22/- and the said bills were finally submitted after preparation of records. In connection with the aforesaid matter the petitioner was called upon to face the disciplinary proceeding and as a sequal thereto he was placed under suspension by order bearing No.SENC/Conf-Z (11)793-94/2240 dated 30.8.93. By order bearing No.SENC/Conf-Z (II)/93-94/2294 dated 13.10.93 (AnnexureC to the writ petition) The petitioner was served with article of charge along with statement of imputation of misconduct. The statement of article of charge which accompanied with the aforesaid notice are quoted below : xxxx  xxxxx xxxx The petitioner submitted his reply thereto. According to the petitioner no such enquiry was held as required under law as stated in the impugned order dated 5.5.94 was passed. The relevant portion of the order is extracted below : xxxx  xxxxx xxxx 2. The legality and validity of the aforesaid notice is assailed in this proceeding. 3. Mr. C. Baruah, learned counsel for the petitioner submitted-that he procedure for imposing penalties is prescribed in the Central Civil Services (Discipline, Control and Appeal) Rules. 1965 and the said Rules specifically provides for the measure by which the disciplinary proceeding are to be conducted. According to the learned counsel that provisions of the Rules are meaningful in content and those are to be sedulously followed. 1965 and the said Rules specifically provides for the measure by which the disciplinary proceeding are to be conducted. According to the learned counsel that provisions of the Rules are meaningful in content and those are to be sedulously followed. According to the learned counsel though the disciplinary authority proceeded under Rule 14 of tlie Rules i.e. the procedure in imposing the major penalty specified in clause 5 and Rule 9 and the Rule 11, the said procedure was not followed. No enquiry was made as contemplated under the Rules, and instead the authority passed the impugned order behind his back. Mr. Baruah, learned counsel for the petitioner in support of his contention particularly relied on decision of this Court reported in 1974 (10) StR 162 and 1980 (3) SLR 520. 4. Mr. DS Bhattacharjee, learned counsel appearing of behalf of the State of Arunachal Pradesh on the otherhand firstly questioned the maintainability of the petition. According to the learned counsel Central Civil Services (Classification Control and Appeal) Rules, 1965 is a complete Code by itself which provided appeal, revision etc. The petitioner instead of exhausting the statutory remedy provided by law rushed to this Court by a writ petition invoking questions of facts as well as law. Mr. Bhattacharjee alternately submitted that the Central Civil Services (Classification Control and Appeal) Rules, 1965 are the rules containing the procedure and in substances the requirement of law is to provide delinquent officer to the minimum opportunity to defend his case. In this case since there is substantial compliance, the same cannot be faulted in a writ proceeding. Before entering into the merit of the case it will be pertinent to survey the relevant provision of law which are quoted below : "11. Penalties : The following penalties may, for good and sufficient reasons and as hereinafter provided be imposed on a Government servant, namely : Minor penalties : (i) Censure; (ii) withholding of his promotion; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iv) withholding of increments of pay; 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 and 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. (3) Where it is proposed to hold an inquiry against a Govt servant under this rule and Rule 15, the disciplinary authority shall draw up or cause to be drawn up : (i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain - (a) a statement of all relevant facts including any admission or confession made by the Government servant; (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. (4) 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 a list of documents and witnesses by which each article of charged is proposed to be sustained and shall require the Government servant to submit, within such time as maybe specified, a written statement of his defence and state whether he desire to be heard in person. 16. 16. Procedure for imposing minor penalties : (1) Subject to the provisions of sub-rule (3) of Rule 15, no order imposing on a Govt servant any of the penalties specified in clause (i) to (iv) of Rule 11 shall be made except after - (a) informing the Govt servant in writing of the proposal to take action against him and of the imputation of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of Rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary; (c) taking the representation, if any, submitted by the Govt servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration. (d) recording a finding on each imputation of misconduct or misbehaviour; and (e) consulting the commissioner where such consultation is necessary..." From the records it does not transpire as to whether any inquiry as envisaged under Rule 14 was made on. The affidavit of respondents is also silent in this regard. The impugned order also shows that the delinquent officer was provided a personal hearing and his writing explanation was considered but it did not satisfy the officer. The impugned order is laconic and has not indicated as to how his explanation was dealt with. The authority while passing the impugned order acted on Rule 16 of the Rules which was already mentioned above. The language of the Rule is worded with both negative as well as affirmative language. Rule 16 conferred the authority with a power to impose minor penalty after compliance of clause (a), (b), (c), (d) and (e). The entire clause 16 is not mandatory in content and the nature of the rule itself provides indicating thereto. A provision whether directory or mandatory is to be gathered from the intendment of the Legislature or the rule making authority and not upon the language of the statute itself. The meaning and intent of the statute itself. The entire clause 16 is not mandatory in content and the nature of the rule itself provides indicating thereto. A provision whether directory or mandatory is to be gathered from the intendment of the Legislature or the rule making authority and not upon the language of the statute itself. The meaning and intent of the statute itself. The meaning and intent of the rule making authority as well as the extent of the rule can only be ascertained not from mere phraseology of the provision but also from the nature and design of the consequent of the provisions. Rule 16 as alluded earlier his counted both in a negative as well as in affirmative word. The negative wording as Rule 16(1) and the affirmative wording in Rule 16 (1) (d) itself is absolute, explicit and clear. Rule 16, in my view is mandatory in content. The rule making authority under the rule empowered the authority for imposing on a Govt servant in any of the penalty specified in clause (i) to (iv) of sub-clause (2) of Rule 16 except amongst others, recording a finding on each imputation of misconduct or misbehaviour, in such a matter action cannot be taken simply or being satisfied without recording the reasons of satisfaction. The reasons which imputed the authority to initiate action will show how the power was exercised, more so, when an authority passes an order in exercise of its quasi judicial power. In such situation it is more imperative on the part of the authority to record the reason in support of its decision and order. The respondents in the instant case did not deal with the matter as was required to be under the law. The prime duty is cast upon such authority not only to pass an order but also to spell out by a reasonable order to accord assurance to the delinquent officer that he received fair consideration. The requirement of giving reason has essential even in the administrative areas by spelling out the reason behind the order so that the delinquent officer knows where as stands. Considering the case, in the light of the aforesaid observation it thus appears that the Respondent authority while exercising its power fell into error in contraventing the mandatory provision of the law. Mr. Considering the case, in the light of the aforesaid observation it thus appears that the Respondent authority while exercising its power fell into error in contraventing the mandatory provision of the law. Mr. Bhattacharjee, the learned Govt Advocate, Arunachal Pradesh referred to the decision reported in (1996) 6 SCC 415 (SK Singh vs. Central Bank of India), (1996) 8 SCC 635 (State of Madhya Pradesh vs. RN Joshi, and (1996) 9 SCC 322 (State of Punjab vs. Dr. Harban Singh Greasy) and pleaded that the decision of this Court should not stand on the way for taking any further action in accordance with law. Suffice is to say that this Court has not in any way limited or constructed of the disciplinary authority to act in accordance with law. Subject to the observation made above, the writ petition is allowed.