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2002 DIGILAW 42 (HP)

SUMAN KUMAR v. STATE OF HP

2002-03-05

NARINDER SINGH THAKUR, V.K.BHATNAGAR

body2002
JUDGMENT Mr. V.K. Bhatnagar, Honble Member (Adm.):- The facts of this case in brief as pleaded are that the applicant joined the department as Junior Engineer on 30.11.1997 and was working as such when FIR N.1/89 dated 3.3.1989 under Section 409 IPC and 13(2) of the Prevention of Corruption Act was registered against the applicant and the applicant was sentenced to undergo one year imprisonment and a fine of Rs. 2000/- was also imposed by the learned session Judge, Kinnaur vide his order dated 30.6.2001. The applicant challenged this judgment in the Honble High Court by filing criminal appeal No. 387/2001 (Annexure-A5) and the sentence imposed by the District and Session Judge was suspended by the Honble high Court by its orders dated 27.7.2001 (Annexure-A6). As a result, the sentence awarded to the applicant stands suspended. The applicant was thereafter suspended on 19.9.2001 vide order contained in Annexure-A9. The applicant made a representation against this order but to no avail, thereafter, the applicant was dismissed from service by an order passed by the Superintending engineer on 11.3.2002 as per copy placed as Annexure-AII, brought on record through Misc. application No. 96/2002. Prior to this order, respondent No.1 had issued directions to respondent No.2 vide Annexure-A1 and Annexure-A2 dated 14.2.2002 and 5.3.2002 to the effect that it had been decided that the applicant be dismissed from service in a time bound manner within a month under Rule 19 of CCS & CCA Rules, 1965 (Annexure-A1) and again to the effect that respondent No.2 should " ensure that order of dismissal from service is issued and compliance reported by 7.3.2002 at 5.00 P.M." (Annexure-A2). In this background the present original application has been filed with the following prayer: 1. To quash the impugned orders Annexure-A1 and Annexure -A2 issued arbitrarily and illegal. 2. To direct the respondent No.3 not to act upon the Annexures-A1 and A 2. 2. During the pendency of this original application order contained in Annexure-A-II had been passed dismissing the applicant from service under Rule 19(1) (2) of the CCS CCA Rules, 1965 which was placed on record by Misc. application No. 5I9672002 with prayer that Annexure-AII may also be quashed. 3. This original application has been opposed by the respondents with the prayer that original application may be dismissed. 4. The learned counsel for the parties have been heard and pleadings have been gone into. 5. application No. 5I9672002 with prayer that Annexure-AII may also be quashed. 3. This original application has been opposed by the respondents with the prayer that original application may be dismissed. 4. The learned counsel for the parties have been heard and pleadings have been gone into. 5. The main contention of the learned counsel for the applicant is that in the case of the applicant, respondent No.3 is the disciplinary authority as is clear from Annexure-A-II and it was the Disciplinary Authority who had to take an independent decision on merits of the case as to whether proceedings under Rule 19 of the CCS CCA Rules had to be initiated in the circumstances of the case and, if so, he could take further action accordingly. However by issuing directions to respondent No.2, respondent No.1 has prejudiced in mind of respondent No.3 who is an authority subordinate to respondent No.2. The learned counsel has invited attention to Annexure-A1 dated 14.2.2002 which reads as under: "...that the matter regarding the Junior Engineer has been examined at Government level in consultation with the law Department and decided to take further action for his dismissal from service in a time bound manner within a month under rule 19 of CCS CCA Rules, 1965. You are, therefore, requested to take further necessary action accordingly under intimation to this Department. This may please be treated as time Bound" 6. The learned counsel further invited attention to Annexure-A2 dated 5.3.2002 which reads as under; ".... And to say that the Government has taken a very serious view for not taking necessary action against Shri Suman Kumar, Junior Engineer as per decision conveyed vide this Department letter of even number dated 14.2.2002. You are, therefore, directed to ensure that orders of dismissal from service are issued and compliance reported by 7.3.2002 at 5.00 P.M. positively..." 7. On the basis of the above two annexure the learned counsel has argued that a decision has been imposed on respondent No.3 to dismiss the applicant whereas it was for respondent No.3 to decide as to whether in the circumstances of the case proceedings under this rule were required to be initiated or not and further, if the proceedings were initiated, what major punishment out of the major penalties contemplated under rule 14 read with Rule 11 of CCS CCA Rules, 1965 was to be imposed. In this connection, the learned counsel invited attention to Government of Indias decision at Sr. No.3 below Rule 19 as given in the 23rd edition, 1997 of the swam/s compilation of CCS CCA Rules. Under Government of Indias decision No.3 it has been mentioned that it had come to notice that punishment of dismissal from service was awarded to a Government servant without indicating that this was a result of delebrate consideration on the part of the disciplinary authority. According to para 4 of Govt. of Indias decision No.3 all disciplinary authorities are required to ensure strict compliance with these instructions and further to take specific decision whether one of the extreme penalties is to be imposed as a result of conviction in the court of Law. The learned counsel argued that by issuing Annexure-A1 and Annexure-A2 respondent No.1 has left no alternative with respondent No.3 who is disciplinary authority to comply with Rule 19 of CCS CCA Rules, 1965 and instructions issued under this rule which required him to consider the circumstances of this case before resorting to provisions of rules 19 and further to take a specific decision as to which one of the extreme penalties (dismissal in the present case was required to be impose on the applicant as a result of conviction in the court of law. The learned counsel in this connection referred to the judgment of the Honble Apex Court in the case of Anirudha Singh ji Karansinhji Jadeja & Another vs. State of Gujraj, 1995 (v) SCC-302 wherein the Honble Apex Court referred to Administrative law written by Wade and Forsyth which under the heading "surrender, Abdication, Dictation" and sub-heading "power in the wrong hands" reads as under: "Closely akin to delegation, and scarely distinguishable from it in some cases is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to act or without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra virus and void. The effect then is that the discretion conferred by parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra virus and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seen quite natural and proper to those who make them." and had held that the D.S.P. had not exercised the jurisdiction vested in him by the statute and did not grant approval to the recording of information under TADA in exercise of his discretion and the State Government had given sanction without even discussing the matter with the Investigating Officer and without assessing the situation independently. For those two reasons the appeal had been allowed. 8. Similar view was taken by the Honble Delhi High Court in case of S.P. Aggarwal -vs- Delhi Municipal Corporation reported in 1997 (1) SCT-631 and the Honble High Court held that the Disciplinary authority, in any case, is supposed to make up its own mind by appreciation of facts and evidence on record which may be co-related to the advice of Central Vigilance commission. 9. The learned counsel therefore, argued that Annexure-A1 and Annexure-A2 by which the discretion of Disciplinary Authority had been extinguished with refer (sic-reference) to the applicant and which ultimately lead to the passing of the order dated 11.3.2002 dismissing the applicant from service vide Annexure-AII, were illegal and against the law. Was argued that Annexure- A-1 Annexue-A-2 and Annexure-deserve to be quashed on that account. 10. The learned Addl. Advocate General however reiterated the submission made in the reply of the respondents which is to the effect that action under Rule 19 had been taken after conviction of the applicant by a Court of law and no inquiry or disciplinary proceedings were required to be initiated against the applicant. That the applicant could be dismissed from service on being convicted by the trial court without waiting for the decision of the first appeal. 11. The point raised by the learned counsel for the applicant is not that action under Rule 19 of the CS CCA Rules, 1965 could not be taken against the applicant. The learned counsel referring to the judgments of the Honble Apex Court and the Government of Indias decision No.3 below rule 19 of the CCS CCA Rules, 1965 has made out two pints. The learned counsel referring to the judgments of the Honble Apex Court and the Government of Indias decision No.3 below rule 19 of the CCS CCA Rules, 1965 has made out two pints. Firstly, the competent authority in the present case to decide the matter was the disciplinary authority namely respondent namely respondent No.3 who is working under respondent No.2. Respondent No.1 by issuing Annexure -A-1 .and Annexure- A-2 has restrained respondent No.3 from considering the mater on merits and has forced him to issue an order of dismissal (Annexure-A-11) whereas, as it was for respondent No.3 to decide as to whether the proceedings in the circumstances of the case, under Rule 19 were required to be initiated and, if so, what punishment should have been awarded to the applicant. That by usurping of the discretion from respondent No.3 makes Annexure-A-1, Annexure- A-2 and Annexure –A-11 illegal. The second argument is that the Government of Indias decision No.3 below Rule 19 clearly provides that the punishment of dismissal has to be result of delebrate consideration on the part of Disciplinary Authority who is further required to consider whether one o the extreme penalties has to be imposed as a result of conviction in the Court of Law. In the present case, the Disciplinary Authority has not complied with the requirements. 12. It is evident from the above discussion that action taken is against the law and the instructions referred to above. The disciplinary authority in compliance to Annexure-A1, Annexure-A2, has passed the order of dismissal as per Annexure-AII as he had not opportunity to consider the case on merits and decide the nature of punishment to be awarded to the applicant. This makes Annexure-A1, Annexure-A2 and Annexure-AII illegal and un-sustainable. Accordingly, Annexure-AII, Annexure-A2 and Annexure-AII are quashed and set-aside. As a result, the applicant will be treated to be in continuous service of the respondents and will be entitled to all the consequential benefits. The parties are left to bear their own costs.