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2002 DIGILAW 91 (HP)

SOM KUMAR v. DISTRICT AND SESSIONS JUDGE

2002-04-05

KAMLESH SHARMA, LOKESHWAR SINGH PANTA

body2002
JUDGMENT Ms. Kamlesh Sharma, J.—The petitioner who is an employee of Civil and Sessions Division of Shimla, is aggrieved by order dated 7.10.1998 (Annexure P-30) whereby he has been reduced to the rank of Process Server from the post of Criminal Ahlmad. 2. It is not in dispute that on the two charges (i) that while functioning as Criminal Ahlmad he had signed and issued duplicate summons in case titled as Sunehru v. Sunehru etc., which amounts to gross misconduct and (ii) when asked to explain his conduct he cooked up a false plea, the petitioner was served charge sheet under Rule 14 of CCS CCA Rules (hereianfter called as Rules of 1965). Finding the written statement filed by the petitioner as unsatisfactory, a departmental inquiry was held and the Inquiry Officer found both the charges proved by his inquiry report dated 20.9.1997, a copy of which was sent to the petitioner on 29.9.1997 along with a notice to show cause as to why the said inquiry report be not accepted and punishment as per the rule be imposed upon him. The petitioner submitted his reply to the notice to show cause. Finding that the Disciplinary Authority i.e. District and Sessions Judge, Shimla had himself conducted the preliminary inquiry on the basis of which charge sheet was served upon the petitioner; in order to avoid prejudice to him the District and Sessions Judge (Forests), Shimla was appointed as Ad-hoc Disciplinary Authority under Rule 15(1) of Rules of 1965 for conducting further inquiry. Ultimately, the Inquiry Officer submitted his report dated 18.6.1998, whereby charge No. (i) was held to be proved and charge No. (ii) not proved by giving benefit of doubt. A copy of the said report was supplied to the petitioner vide letter dated 30.6.1998 to enable him to make representation, if any. On receipt of the representation the Ad-hoc Disciplinary Authority while agreeing with the findings of the Inquiry Officer imposed the penalty of censure upon the petitioner vide letter dated 31.7.1998/1.8.1998. 3. It is stated in the writ petition that this order was received by the petitioner on 5.8.1998 and he could file appeal up to 5.9.1998 within a period of 30 days as prescribed under Rule 19 of the Himachal Pradesh Subordinate Courts Staff (Recruitment, Promotion and Conditions of Service) Rules, 1997 (hereinafter called the Rules of 1997). 3. It is stated in the writ petition that this order was received by the petitioner on 5.8.1998 and he could file appeal up to 5.9.1998 within a period of 30 days as prescribed under Rule 19 of the Himachal Pradesh Subordinate Courts Staff (Recruitment, Promotion and Conditions of Service) Rules, 1997 (hereinafter called the Rules of 1997). This Rule also provides for condonation of delay in filing the appeal. Further, as per this Rule, the appeal is to be filed through the respective District and Sessions Judge, who is to forward the same to the appellate authority along with his comments within 15 days from the date of filing such appeal. 4. It is not in dispute that before the petitioner could file appeal he was served with another notice to show cause dated 2.9.1998 (Annexure P-26) proposing major penalty of reduction in rank to lower time scale of pay, grade and post. On receipt of the reply of the petitioner penalty of reduction in rank was imposed upon him by the impugned order dated 7.10.1998 (Annexure P-30) which is under challenge in the present writ petition. 5. After hearing learned Counsel for the parties and going through the record we find that the impugned order is not sustainable on the short ground that notice to show cause dated 2.9.1998 for enhancement of the penalty in exercise of revisional powers could not be given before the expiry of period of limitation of 30 days for filing the appeal. The appeal is provided under Rule 19 of Rules of 1997. Rule 19 is as under: "Appeal. —(a) An appeal against the order of the Appointing Authority shall lie to the Chief Justice and the order passed by the appellate authority shall be final. (b) The period of limitation for filing an appeal against the order of the Appointing Authority shall be 30 days from the date on which the order appealed against is served upon employee, provided that, the delay may be condoned by the Honble Chief Justice. (c) A person filing an appeal under this rule shall do so by a petition which shall be filed through proper channel, that is, through the respective District and Sessions Judge with an advance copy to the Secretary to the Honble the Chief Justice. (c) A person filing an appeal under this rule shall do so by a petition which shall be filed through proper channel, that is, through the respective District and Sessions Judge with an advance copy to the Secretary to the Honble the Chief Justice. The District & Sessions Judge shall forward to the High Court the appeal along with his/ her comments within 15 days from the date of filing of such petition". Rules of 1997 do not provide for revsion and review for which we may refer to the Rules of 1965, as in addition to Rules of 1997 the members of the service in Class III and Class IV posts in the Courts Subordinate to the High Court are governed by the Rules of 1965 as provided under Rule 18 of Rules of 1997. The revision and review are provided under Rules 29 and 29-A of the Rules of 1965. Rule 29, inter alia provides that the revisional authority may call for the records of any inquiry and revise any order made under these rules from which no appeal is allowed and may pass the following orders: "(a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed or; (c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit." It is laid down under the first proviso of Rule 29 that no order enhancing any penalty shall be made by the revising authority unless a reasonable opportunity of making representation against the penalty proposed is given to the delinquent. 6. In the present case the revisional authority could enhance sno motu the penalty of censure imposed by the disciplinary authority by giving an opportunity of making representation but the proceedings for revision could not be commenced before the expiry of period of limitation for the appeal as provided under sub-rule (2) of Rule 29 of Rules of 1965. 6. In the present case the revisional authority could enhance sno motu the penalty of censure imposed by the disciplinary authority by giving an opportunity of making representation but the proceedings for revision could not be commenced before the expiry of period of limitation for the appeal as provided under sub-rule (2) of Rule 29 of Rules of 1965. Sub-ule (2) of Rule 29 is as under:— "No proceeding for revision shall be commenced until after— (i) the expiry of the period of limitation for #n appeal, or (ii) the disposal of the appeal, where any such appeal has been preferred." 7. The bare reading of this Rule shows that the proceedings for revision could not be initiated by the revsional authority before the expiry of period of limitation for appeal or the disposal of appeal where any such appeal has been preferred. Rule 19 of the Rules of 1997 provides 30 days as the period of limitation for the appeal, which in the present case was to expire on 5.9.1998 whereas notice to show cause for enhancement of the penalty was issued on 2.9.1998, which had pre-empted the petitioner from filing the appeal. Rule 19 of Rules of 1997 further provides that delay in filing the appeal may be condoned by the appellate authority and further that the District and Sessions Judge through whom the appeal is required to be filed will forward the appeal along with his comments within 15 days of its filing, which shows that the proceedings in revision could not be initiated by the revisional authority before the expiry of period of limitation and should not be initiated before 45 days during which period the appeal filed would reach the appelalte authority which is also the revisional authority from the respective District and Sessions Judge with his comments. The purpose of sub-rule (2) of Rule 29 of the Rules of 1965 and that of Rule 19 of Rules of 1997 is to give reasonable opportunity to the delinquent to assail an order against him, which the appellate authority may decide within a reasonable period. If the revisional authority suo motu initiates the proceedings for revision before the expiry of 45 days the delinquent is deprived of an opportunity to assail the order passed against him by filing appeal, which will be against the procedure laid down under the Rules. If the revisional authority suo motu initiates the proceedings for revision before the expiry of 45 days the delinquent is deprived of an opportunity to assail the order passed against him by filing appeal, which will be against the procedure laid down under the Rules. We may point out that even in the appeal the appellate authority may pass all those orders which can be passed in exercise of the revisional jurisdiction but the scope of appeal being larger than the scope of revision it will not be just and fair to the delinquent to deprive him of the right to file appeal by initiating the proceedings for revision before the expiry of the period of 45 days. Otherwise also, it will be in violation of sub-rule (2) of Rule 29 of Rules of 1965. 8. The result of above discussion is that we find merit in this writ petition and it is allowed and notice to show cause dated 2.9.1998 (Annexure P-26) as well as the order of punishment dated 7.10.1998 (Annexure P-30) is quashed and the petitioner is relegated to the position when he was awarded the punishment of censure by the Disciplinary Authority. He may prefer appeal against the penalty of censure within a period of 30 days from today and the appellate authority may pass order in accordance with law. If he does not prefer appeal against the censure order the revisional authority may take appropriate action, if it so desires. For taking this view we are supported by the judgment of Madhya Pradesh High Court in R.C. Satija v. Union of India and others, 1984 (2) SLR 397, wherein while dealing with the pari materia rules, the same view has been taken. Before parting this case we may observe that we have not examined the merits of the case on which the impugned order was passed. Petition allowed.