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2004 DIGILAW 285 (HP)

S. D. SHARMA v. STATE OF HIMACHAL PRADESH

2004-10-19

DEEPAK GUPTA, LOKESHWAR SINGH PANTA

body2004
JUDGMENT Deepak Gupta, J.—This Petition under Article 226 of the Constitution of India is directed against the order of the learned H.P. State Administrative Tribunal dated 24.8.1999 passed in O.A. No.499/98 dismissing the application of the present petitioner whereby he had challenged the imposition of major penalty inflicted upon him. 2. The facts relevant for decision of the present case are that the petitioner at the relevant time was working as Junior Engineer in the Irrigation and Public Health Department, Sub Division, Nichar. The Executive Engineer, I&PH Division, Reckong Peo placed an order with one M/s. Sidharatha Sales Pvt. Ltd., Asaf Aali Road, New Delhi for supply of 2.1 M.T of Bleaching Powder on 3.7.1987. Out of this, 0.7 M.T. Bleaching Powder was to be supplied to I&PH Sub-Division, Nichar. 90% payment for supply of Bleaching Powder was to be made through Bank against despatch documents and proof of supply and balance 10% to be released after actual receipt of consignment. 3. It appears that M/s. Sidharatha Sales Pvt. Ltd. despatched 28 bags of Bleaching Powder weighing 0.7 M.T. However, instead of being dispatched to Nichar, the GR for the same was prepared for Reckong Peo. The material was actually unloaded at Sungra, which is about 5 Kms. from Nichar. It further appears that M/s. Amar Lal and Brothers Sungra who had unloaded the consignment at Sungra gave some intimation of receipt of consignment to the office of the Assistant Engineer, I&PH Sub Division, Nichar. On the basis of the said intimation the petitioner on instructions of the Assistant Engineer got the despatch documents released from the Bank on payment of 90% amount i.e. Rs. 2,503/- and bank charges of Rs.20/-. The material kept lying at Sungra and was not lifted from there for considerable period of time. The petitioner cLalms that the same could not be lifted since the Executive Engineer did not provide truck for transporting the same. A preliminary inquiry was conducted and thereafter disciplinary proceedings were initiated against the petitioner and Assistant Engineer Sh. S.C. Modgil for imposition of major penalty. The petitioner cLalms that the same could not be lifted since the Executive Engineer did not provide truck for transporting the same. A preliminary inquiry was conducted and thereafter disciplinary proceedings were initiated against the petitioner and Assistant Engineer Sh. S.C. Modgil for imposition of major penalty. The Article of Charge against the petitioner reads as follows : "ARTICLE OF CHARGE : That the said Shri Sukh Dev Sharma, while functioning as Junior Engineer in I&PH Sub-Division Nichar, District Kinnaur during the period 29.7.1985 to 3.2.1988 is responsible for gross mis-conduct and dereliction of duty in as much as he failed to ensure taking delivery of the material for which he had caused to be made 90% advance payment against dispatch documents through another Bank, which was not in conformity with the condition of the relevant supply order. He is also responsible for allocating the advance payment under reference direct to the relevant final head of A/C instead of charging the same to the suspense Sub-Head "Misc. PW-Advances" so as to ensure watch on the actual receipt and accountal of the material by the Department. These failures on the part of the said Shri Sukh Dev Sharma, Junior Engineer have put the Government to a loss of Rs, 2523/-. The said Shri Sukh Dev Sharma, Junior Engineer thus failed to maintain absolute integrity and devotion to duty and behaved in a manner unbecoming of a responsible/Government Servant, thereby causing a loss of Rs. 2,523/- to the Government and thus he is responsible for contravention of Rule-3(i) (ii) (iii) of CCS (Conduct) Rules, 1964. 4. The petitioner filed reply to the charge-sheet and denied the charges. His case was that the entire responsibility was of the Assistant Engineer and that he had only got the despatch documents released by payment of 90% of the amount in H.P. State Co-operative Bank, Nichar since there was no Branch of the UCO Bank at Nichar. He also stated that 10% payment was released after he had been transferred. His further case was that the documents had been prepared under the instructions of the Assistant Engineer Sh. S.C. Modgil. The Inquiry Officer after going through the relevant record and the evidence led before him gave the Inquiry Report Annexure P-7. The two relevant paragraphs of the Inquiry report read as follows: "20. His further case was that the documents had been prepared under the instructions of the Assistant Engineer Sh. S.C. Modgil. The Inquiry Officer after going through the relevant record and the evidence led before him gave the Inquiry Report Annexure P-7. The two relevant paragraphs of the Inquiry report read as follows: "20. I have carefully considered the arguments advanced by the learned counsels, the evidence recorded and the documents produced, at the very outset, I will have to say that neither preliminary enquiry by Shri M.K. Subehia, nor the charge sheet and the imputation of misconduct have been drawn up very carefully. Accordingly nor the evidence is direct, cogent and clear, the evidence does not show nor has clarified how the bleaching powder booked for Reckong Peo was unloaded at Sungrah which is at a considerable distance from Reckong Peo. Again it is not very clear as to who intimated the charged Officer to the fact that it has been received at Sungrah. One version is that they came to know about it from the Executive Engineer whereas the other effort is that the transporter Shri Amar Lal and Bros at Sungrah intimated. Again there is no definite evidence that the consignment of bleaching powder was received at Sungrah and actually when it was lifted. Further who released the 10% of the amount and who is responsible for this. The Divisional Accountant who appeared as witness was also not very sure about this. 21. Leaving side all this question, the fact is very clear that the documents were obtained by the Charged Officer, they made the payment through UCO Bank, Nichar and then got the documents released and on the basis of these documents they were to take the delivery of the consignment of bleaching powder. In fact, once payment had been made and the documents obtained they should have made earnest efforts to locate the consignment and get it transported or if they were not sure then they should have taken up the matter with the Sidhartha Sales Corporation Pvt. Ltd. Better still it would have been if they be even first ensured that the consignment has been received and only then they should have made the payment and got the documents to obtain the delivery of the consignment but this was not done and the behaviour was casual. Even the conduct of the Executive Engineer, Sh. Even the conduct of the Executive Engineer, Sh. Aggarwal is not above board because he should have taken up this mater not only with his subordinates but also with the Sidhartha Sales Corporation Pvt. Ltd. as to why the consignment ordered for Nichar was sent to Reckong Peo but unloaded at Sungrah. Again knowing fully well that the bleaching powder is a substance which loses its potency with the lapse of time, that it is to be transported and used immediately because it involved the supply of safe drinking water, affecting the health of people in general but nothing of the sort appears to have been done. The conduct of the charged officers in first requesting for a truck for only 28 bags of bleaching powder and then its refusal and then considerable delay in carriage shows complete negligence on their part and they did not take into consideration this fact that since the payment has been made so it becomes Government property and has to be taken care but instead doing this they made a fictitious paper entry in the MB to facilitate passing of the bill knowing fully well that it has not been actually received. Thus from all this I have no hesitation in coming to the conclusion that both the delinquent Officers are fully responsible and the charge against them is fully proved." 5. The petitioner represented against the Inquiry Report of the Disciplinary Authority and the Disciplinary Authority (Financial Commissioner-cum-Secretary, IPH to the Government of Himachal Pradesh) vide order dated 23.7.1997, Annexure P-9, imposed penalty of reduction to lower stage in the time scale of pay to Rs. 1800-3200 for a period not exceeding 3 years upon the petitioner. 6. Aggrieved against the said order of imposing penalty the petitioner filed a detailed appeal, copy of which has been attached as Annexure P-10 to the petition. The same has been rejected by a cryptic order without any reasons on 9.1.1998 vide Annexure P-ll. The petitioner thereafter filed O.A. No, 499/1998 challenging the imposition of penalty upon him. This O.A. was dismissed by the learned H.P. State Administrative Tribunal vide order dated 24.8.1999, This is the subject matter of challenge in the present writ petition. 7. We have heard learned Senior Counsel for the petitioner, learned Advocate General for the respondent and have also perused the record. 8. Sh. This O.A. was dismissed by the learned H.P. State Administrative Tribunal vide order dated 24.8.1999, This is the subject matter of challenge in the present writ petition. 7. We have heard learned Senior Counsel for the petitioner, learned Advocate General for the respondent and have also perused the record. 8. Sh. Rajiv Sharma, learned Senior Counsel appearing for the petitioner has vehemently contended that the order passed against his client is totally illegal and that the report of the Inquiry Officer is self contradictory and his client has wrongly been held guilty of the charge leveled against him. However, we need not go into this question since we propose to decide the present writ petition on the second argument of the learned Senipr Counsel for the petitioner. The second argument of Sh. Rajiv Sharma is that the order of the appellate authority is a non-speaking order giving no reasons for rejection of his appeal and therefore, the same is liable to be set-aside. 9. In support of this contention Sh. Rajiv Sharma, learned Senior Counsel has drawn our attention to Rule 27 of the Central Civil Services (Classification, Control and Appeal) Rules especially to sub-rule (2) thereof, relevant portion of which reads as follows : "27. Consideration of appeal: (1)................................................................................................................ (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said rules, the appellate authority shall consider— (a) whether the procedure Laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; He has also drawn out attention to the instructions issued from time to time wherein it is stated that the Rule requires that even if the appellant has not brought out any new points in the appeal, it is obligatory on the part of the appellate authority to discuss how there has been no procedural of law or denial of opportunity of defence and the findings of the disciplinary authority are based on evidence and are just. As per these instructions reasoned orders should be passed discussing all the points raised in the appeal. 10. Sh. Rajiv Sharma, learned Senior Counsel has cited at the Bar the following judgments in support of his contention: In case R.P. Bhatt v. Union of India and others, 1986 LAB.I.C. 790, the Honble Supreme Court while interpreting Rule 27(2) of the CCS (CCA) Rules, 1965 observed as follows: "4. The word consider in Rule 27(2) implies due application of mind7. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure Laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in Clauses (a), (b) and (c) thereof. 5. There is no indication in the impugned order that the Director-General was satisfied as to whether the procedure Lald down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director-General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of Cl. (c) of Rule 27(2), viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside.’ The Honble Apex Court held that the word consider in Rule 27(2) of the Rules implies due application of mind. The Honble Supreme Court emphasizes that the appellate authority discharging quasi-judicial functions in accordance with natural justice must give reasons for its decisions. The Honble Supreme Court emphasizes that the appellate authority discharging quasi-judicial functions in accordance with natural justice must give reasons for its decisions. It has further been observed that the appellate authority in that case had not recorded any findings on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. 11. The Honble Supreme Court in case Ram Chander v. Union of India and others, AIR 1986 SC 1173, while considering Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 which is para meteria with Rule 27(2) of the CCS (CCA) Rules, observed as under : "9..........Here, Rule 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements under Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, Rule 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider as to the matters indicated therein. The word consider has different shades of meaning and must in Rule 22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision." 12. In case T.N. Govindarajan v. The Management of Indian Overseas Bank and others, 1992 LAB.I.C. 1832, a single Judge of the Madras High Court held that a perusal of the order of the appellate authority shows that the appellate authority has not applied its mind at all with reference to the points raised by the appellant. The order of the appellate authority being a laconic order and not giving any reasons was quashed. 13. In case Anjali v. State Bank of India and others, 1994 (2) Lab.L.J. 312, a Division Bench of the Madhya Pradesh High Court has held that the appellate order must be a speaking order based on due application of mind to the points raised in the memo of appeal. 14. 13. In case Anjali v. State Bank of India and others, 1994 (2) Lab.L.J. 312, a Division Bench of the Madhya Pradesh High Court has held that the appellate order must be a speaking order based on due application of mind to the points raised in the memo of appeal. 14. In case T. Venkatesh v. Mysore Electrical Industries Ltd., 1996 (1) LAB.L.J. 266, it was held by a Single Judge of the Karnataka High Court as under: "5................This duty is not to be loosely construed nor will court be justified in upholding a situation where an Appellate Authority passes a stereo-typed order which mechanically states that the record has been looked at and examined or for that matter where the usual phrase appears "having carefully applied my mind". A recital of the requirements of law and reproduction of facts will not be sufficient for a Court to hold that in fact the Appellate Authority has done what is merely stated in that order. It is not required of me to reproduce in elaborate detail the string of cases decided by the Supreme Court and the various High Courts of this Country because the position in law is now very clear namely, that the order passed by the Appellate Authority is a complete and independent order which must be capable of being sustained on its own footing and not by virtue of the earlier orders or by subsequent padding up that may be done in the course of the filing of Affidavits in Judicial Proceedings........," 15. In case I. Sundaram v. The Assistant Executive Engineer (Civil), Tamil Nadu Electricity Board, Periyar Project, Madurai Dt., 1997 (1) LAB.L.J. 317, a Single Judge of the Madras High Court has held as under: "6. The Appellate Authority is bound to apply his mind to an appeal preferred by a delinquent official. When the rules provided for an appeal before the Appellate Authority, the Appellate Authority must indicate his considered opinion of the memorandum of appeal......" 16. In view of the clear provision of Rule 27(2) of the CCS (CCA) Rules and the law cited hereinabove it is clear that the order of the appellate authority must be a reasoned order. The appellate authority while deciding the appeal must consider and decide all the grounds raised in the memo of appeal. In view of the clear provision of Rule 27(2) of the CCS (CCA) Rules and the law cited hereinabove it is clear that the order of the appellate authority must be a reasoned order. The appellate authority while deciding the appeal must consider and decide all the grounds raised in the memo of appeal. The order of the appellate authority should be a complete and self-contained order so that there is no necessity of referring to any other order to find out the reasoning of the appellate authority. In the present case the appellate order conveyed to the petitioner vide Annexure P-11 is absolutely laconic and cryptic and it only informs the petitioner that his appeal has been considered by the Government and rejected. No reasons are given in the order. We had asked the learned Advocate General to produce the record to enable us to see if there was any reasoning on the file. A perusal of the record shows that the appeal by the petitioner was made to His Excellency the Government of Himachal Pradesh, which was forwarded to the Department. The Dealing Assistant made a noting on the same. The S.O. recommended that lenient view be taken. Thereafter, the Additional Secretary, I&PH made the following observations: "Appeal submitted by the official to His Excellency the Governor of Himachal Pradesh from pages 248 to 282 may kindly be perused. The official has nowhere pointed out/raised the issue that he has not been provided opportunity to defend himself before the Inquiring Authority i.e. Commissioner, Departmental Inquiry, Himachal Pradesh. As such there is no merit in the appeal and be rejected. Submitted for consideration and for approval please. Sd/- Addl. Secretary(IPH) to the Govt. of Himachal Pradesh. (16.12.1997)" 17. It is interesting to note that the initial order of imposition of penalty had been passed by the Financial Commissioner-cum-Secretary (I&PH) to the Government of Himachal Pradesh. The appellate order has been virtually passed by the Additional Secretary, I&PH, to the Government of Himachal Pradesh. The same has only been approved by the Financial Commissioner-cum-Secretary, I&PH and the Honble I&PH Minister. The appellate authority on its own has not applied its mind to the facts and circumstances of the case. 18. According to the Hand Book on Personnel Matters (Vol. The same has only been approved by the Financial Commissioner-cum-Secretary, I&PH and the Honble I&PH Minister. The appellate authority on its own has not applied its mind to the facts and circumstances of the case. 18. According to the Hand Book on Personnel Matters (Vol. III), 2nd Edition, the State of Himachal Pradesh vide notification dated 18.5.1974 has declared the disciplinary and appellate authorities under Rule 12 and Rule 24 of the CCS (CCA) Rules. In cases where the disciplinary authority is the Secretary of the Department concerned the appeal lies to the State Government. In the present case the appeal has virtually been decided by the Additional Secretary sitting over the order of the Financial Commissioner-cum-Secretary and that too without giving any reasons therefor. A junior authority could not have sat in judgment over the orders of the higher authority. The order of the appellate authority is, therefore, liable to be set-aside on the ground that it had no jurisdiction since it was not the appellate authority and also that the order is totally devoid of reasoning and the contentions raised in the memo of appeal have not been considered or decided in the appeal. 19. In view of the above discussion we accept the present writ petition, set-aside the order of the learned H.R Administrative Tribunal dated 24.8.1999 passed in O.A. No. 499/98 as well as the appellate order dated 9.1.1998 Annexure P-ll and remit the case to the appellate authority i.e. the State Government to decide the same afresh keeping in view the law Lald down by the Honble Supreme Court referred to above. The appellate authority may also take into consideration the fact that the incident in question is about 17 years old and the amount involved was only about Rs. 2,500, while deciding the appeal. The Writ Petition is accordingly allowed in the aforesaid terms with no order as to costs.