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Himachal Pradesh High Court · body

2007 DIGILAW 34 (HP)

SWARAN SINGH v. H. P. S. E. B.

2007-03-02

B.S.CHAUHAN, NARINDER SINGH THAKUR

body2007
JUDGEMENT Narinder Thakur, Vice Chairman:-The applicant in the present OA has prayed for the following reliefs:- "(a) the impugned orders Annexure-A-10, A -11 and A-15 may kindly be quashed and set aside; (b) Directions may kindly be issued to the respondent to absolute the applicant from the charges leveled against him honorably as if no offence has been committed by him; (c) Directions may also kindly be issued to the respondent to treat the period of his so called absence w.e.f. 9th February, 1989 to 30th September, 1992 as duty period, and the period from 16-10-1986 to 8.2.1989 when he was available for posting as period spent on duty and to pay him all the arrears of pay after regularizing his leave period as stated in preceding paras. (d) Directions may also kindly be issued to the respondent Board to regularize the period of his absence by granting him the leave of the kind due for the period from 16lh October 1986 to 8lh February, 1989 on the basis of the leave application duly supported by medical certificates as accepted to be genuine by the Inquiry Officer. Further, directions may also kindly be issued to the respondent to treat the period of duty w.e.f. 9.2.1989 to 30.9.1992 when he was available for service. (e) Directions may also kindly be issued to the respondent Board to the effect that the arrears of pay as due and admissible to the applicant for the period" from 6.10.1986 to 30.9.1992 may kindly be ordered to be paid to him with interest throughout. (f) Any other writ order or directions as this Honble Court may deem just and proper in the facts and circumstances of the case may also kindly be issued/passed and justice be done. (g) The cost of this writ application may also kindly be awarded in favour of the applicant and against the respondent Board and justice be done." 2. The relevant facts which emerges from the pleadings are that the applicant while serving as a Junior Engineer, in HPSEB at Kaza in Rongton Hydel Project at Rangrik during 1975 was continued under the same Head Quarter even after his promotion till October, 1986 at the height of 13000 ft. which caused him various health problem as he was made to exceed normal tenure of two winters and three summers. 3. which caused him various health problem as he was made to exceed normal tenure of two winters and three summers. 3. It is the case of the appellant that in the month of October 1986, he was deputed by his, XEN for procuring certain material from Chandigarh. The journey from Rangrik to Parwanoo / Chandigarh was performed by him with his Chief Engineer. The material was procured and handed over to the Junior Engineer (Store) at Parwanoo. At this point of time, he got information that his wife was seriously ill and as such he proceeded on leave oral permission of the accompanying Chief Engineer. Thereafter, he sought for extension of his leave from time to time due to illness of his wife, mother and self and medical certificates were also send by him. However, the leave was not extended. 4. It is averred that on 28.1.1999 a charge-sheet was issued on account of two charges, i.e absenting himself willfully without permission and failed to obey the directives issued to him through Press, Registered letter and telegram to resume duty. He submitted his written statement of defence to the charge. As his reply did not find favour with the respondent, the inquiry proceeded further. On conclusion of inquiry, the inquiry officer held first charge not proved. With respect to 2nd charge the inquiry officer was doubtful as he held:- "Proved to the extent that he did not resume duty. I am however, convinced that the circumstances under which he failed to resume the duty firstly because of ill health of family members and thereafter without posting order cannot be taken as absent from duty willfully." 5. In pursuance to the inquiry report, the disciplinary authority proceeded to impose the penalty vide Annexure-A-10 whereby penalty of reduction to the lowest stage in the time scale of 2200-4250 with immediate effect was imposed on the applicant. Later on the said penalty was modified suo motu vide Annexure-A-11 whereby the penalty imposed was the pay of Shri Swaran Singh, Assistant Engineer, (C/M) be reduced by seven stages from 3100 P.M. to 2400/- P.M. in the time scale of Rs. 2200-50-2400-60-2700-3000-100-4000-125-4250 with initial start of Rs. 2400/- P.M. for a period of seven years with immediate effect. During the period of penalty he will earn increments on the reduced pay. 2200-50-2400-60-2700-3000-100-4000-125-4250 with initial start of Rs. 2400/- P.M. for a period of seven years with immediate effect. During the period of penalty he will earn increments on the reduced pay. On the expiry of penalty period, the reduction will have the effect of postponing his future increments of pay and the penalty was thus enhanced. An appeal was filed by the applicant against the said penalty on 29.5.1993. (A-12) to the Chairman of respondent Board and the same was not decided. Thereafter, the applicant in the meantime filed CWP before the "Honble High Court where after only the appeal was decided by ordering that "the pay of Shri Swaran Singh, Assistant Engineer (C/M) be reduced from 3100 P.M. to 2400 P.M. (initial start) in the time scale of 2200-50-2400-60-2700-3000-100-4000-125-4250, for a period of four years w.e.f. 2.4.1993. During the period of penalty he will earn the increments on the reduced pay. On the expiry of penalty period, the reduction will have the effect of postponing "further increments of his pay." 6. In this factual backdrop, the applicant filed present Original Application challenging the impugned order contained in Annexure-A-10.A-11 and A-15 mainly on the grounds that the impugned orders are bad in law for improper appreciation of evidence brought on record, non-taking into account the medical certificate for regularization of leave period, double jeopady, violation of Rule 15 of CCS (CCA) Rules, non-supply of inquiry report, suo motu enhancement of penalty vide Annexure-A-1, disproportionate penalty etc. 7. In the reply filed by respondents it has been averred that there is no infirmity, legal or procedural, in the conduct of inquiry and imposing penalty. The impugned order Annexure-A-10, A-11 and A-15 have been passed by the competent authority with due application of mind and upon appreciation of evidence, consequently, this Court should decline to re-apprise the said orders and substitute the same with that of disciplinary authority. Therefore, the proceedings in the present form are not maintainable. It is also further averred that the applicant is not entitled to file and maintain the present application in view of his own acts of omission and commission, i.e. that the applicant while working in the Rongtong construction Sub Division No.4, Rangrik was deputed on tour to Parwanoo in the month of October, 1986 for procurement of certain materials required urgently for Rongtong Hydel Project scheduled to be commissioned by the end of October, 1986. The applicant did not return to the Head Quarter and sent a Wire less message from Parwanoo, requesting leave upto 31.10.1986 on account of wifes illness. The applicant did not join his duties on 31.10.1986, therefore, .on 18.11.1986, the Executive Engineer, Rongtong sent a telegram (RA-1) to the petitioner to join his duty immediately. On this telegram also the applicant did not join his duties, therefore, the applicant was directed through a telegram 12.12.1986 to join duties immediately failing which he will be treated absent form duty (AA-2). Subsequently, the applicant was informed by the Superintending Engineer, Rongtong project Crucial, Bhundar vide his letter dated 18.1.1987 (RA-III) and dated 6.2.1987 and dated 6.2.1987 (RA-IVO and dated 4.3.1987 (RA-V) and dated 13.3.1987 (RA-VI).the applicant was also informed through Press Notice (RA-Vil) to resume his duty immediately. Despite the repeated directions from his superiors, the applicant did not join duties and continued to remain on unauthorized leave. 8. It is averred that the was entrusted with an important and time bound work of the Project that the relevant time. He was not expected to run away form his responsibility especially at the time when his presence at the projected was most needed. 9. It is also averred in the reply that the leave applied by the applicant in medical grounds were on the basis of medical certificates issued by the private registered medical practitioner which were not acceptable in accordance with the provisions contained under Rule 19(1) (I) and Rule 19 (5) of CCS (Leave) Rules, 1972. 10. It is further averred that lenient view with regard to the imposing of the penalty on the applicant have been taken by the disciplinary authority. It is stated that the penalty imposed on 2.4.1993 (A-10) has not been enhanced by order dated 24.8.1993 (A-10) has not been enhanced by order dated 24.8.1993 (A-11), rather the earlier order was modified to elaborate the operation of penalty order as per the working in the form given under note (b)(ii) of the Govt. of India order Nos2, below FIR 29.Therefore, the question of hearing while issuing order A-11 does not arise. The appeal was heard by the Full board and after giving personal hearing to the applicant the penalty imposed was reduced. of India order Nos2, below FIR 29.Therefore, the question of hearing while issuing order A-11 does not arise. The appeal was heard by the Full board and after giving personal hearing to the applicant the penalty imposed was reduced. It is further averred that it is wrong that the applicant worked at Kaza till October 1986, rather the heard Quarter in which the applicant was working for six months of the year, i.e. November to April were fixed at Bhuntar. The applicant was transferred from Rongtong Store and mechanical Sub Division Rangrik to Rongtong construction Sub Division No./ VIII Parwanoo vide order dated 31.8.1982 (RA-VII1). the applicant was transferred from Rongtog Construction Sub Division No. VII Parwanoo to Rongtong Construction Division No.4 under Rongtong Construction Division No.1, Kaza, vide order dated 29.10.1985 (RA-IX). The applicant has not placed on record any authenticate proof with regard of himself illness or that of his family. The applicant being Gazetted Officer was reqru3id to submit the medical certificate of his bad health from an authorized medical attendant of the Board of Govt. Hospital as required under note below Rule 19 (2) of CCS (Leave) Rules 1972 read with Rue 2 of Medical Attendance Rules. The petitioner has reduced the medical certificate from private practitioner, which are not acceptable as per the provisions of rule ibid. The applicant has also not produced any proof which could establish that he had been continuously applying for his transfer from Spiti Valley. The petitioner instead of mentioned about his transfer from Parwanoo only on 5.4.1987 while submitting the reply of the charge sheet 9A-1) served upon him. Since disciplinary action was initiated against the applicant for unauthorized absence from the duty being treated as willful absence form duty, the subsequent request made by the applicant for his pasting at Parwanoo and elsewhere were not considered appropriate as already informed vide Annexure A-7. It is stated that the copy of the inquiry report was not supplied to the applicant before the imposition of penalty in terms of CCS(CCA Rules 1965 and the same was supplied to him on 7.5.1993. 11. It is further sat3ed in the reply in para 19 that as per the inquiry report submitted by the inquiry officer, charge No.(l) was not proved, while charge No.(ii) was roved tot he extent that the petitioner did not resume his duty. 11. It is further sat3ed in the reply in para 19 that as per the inquiry report submitted by the inquiry officer, charge No.(l) was not proved, while charge No.(ii) was roved tot he extent that the petitioner did not resume his duty. However, the disciplinary authority after perusal of the inquiry report and related record deduced that the petitioner proceeded on leave w.e.f. 16.10.1986 without prior written approval of sanctioning authority and remained continuously absent from duty till 30.9.1992. Besides this, he evaded the official directions to join back the duty on one pretext or the other. Therefore, one of the penalty for the charge sheet under Rule 14 of CCS (CCA) Rules, 1965 was imposed upon the petitioner provided under Rule 11 (v) of CCS(CCA) Rules, 1965. 12. The Rejoinder has also been field and the same has been perused by us. 13. We have heard the rival contention of the learned counsel for their respective parties and have gone through the pleadings, record, case law as well as the written arguments submitted additionally by the counsel. 14. Admittedly, the copy of inquiry was not supplied to the application by the respondent before the imposition of penalty vide Anenxure-A-10. The level position in this regard is well settled by the Honble Apex Court in the case titled as M.D.ECI vs. B. Karunakar 1992 (4) SLR 601 and 1991 (1) SLR 159 titled as Union of India vs. Mohamad Ramjan, 1992 (1) SLR 709 that it is essential to supply the copy of inquiry report notwithstanding the nature of punishment. In the instant case, when the inquiry officer has held, that the charge No.1 not proved, and shown his doubt about the proof of charge no.2.As such strict sense the second charge also cannot beheld to have been proved. It was thus more incumbent upon the disciplinary authority to have supplied the inquiry report alongwith the show cause notice before imposing the penalty, more so when the disciplinary authority, as per its own showing in the reply ahs based the imposition of penalty on chargeNo.1, which was held by the inquiry officer as not proved. Incase, disciplinary authority was to take different view, in that case the disciplinary authority should have afforded an opportunity to the application to have his say in the matter and explain his position. Incase, disciplinary authority was to take different view, in that case the disciplinary authority should have afforded an opportunity to the application to have his say in the matter and explain his position. In this regard our intention was drawn to the decision of Honble Apex Court titled as Narayan Misra vs. State of Orissa reported in 1969 SLR 657 in this case the Honble Apex Court has held in para 8 that. "8. Now if the conservator of Forests intended taking the charges on which he was acquitted into account, it was necessary that the attention of the appellant ought to have been drawn to this fact and this explanation, if any, called for. This does not appear to have been done. In other works, the Conservator of Forests used against him the charges of which he was acquitted without warning him that he was going to use them. This is against all principles offer play and natural justice. If the Conservator of the Forests wanted to use them, he should have apprised him of his won attitude and given him an adequate opportunity. Since that opportunity was not given, the order of the Conservator of Forest modified by the State Government cannot be upheld." 15. From the above decision of the Honble Apex Court the action of disciplinary authority in taking into account the charge which was not held proved against the application without affording an opportunity to the applicant to have his saying the matter, is vitiated. 16. In another case law of the Honble Apex Court titled as Punjab National Bank vs. Kunj Bihari Misra reported in 1998(3) SCT 833, the Honble Apex Court .has held that whenever the disciplinary authority disagree with the inquiry authority on any article of charge then before it records its won findings on such charge, it must record it tentative reasons for such disagreement and also it must give delinquent officer an opportunity to represent before it records its findings. The principle of nature justice required the authorities to give an opportunity to the officer charged of his conduct. 17. The principle of nature justice required the authorities to give an opportunity to the officer charged of his conduct. 17. The further case of the application is that there has been non-application of mind on the part of appellate authorities as they have also overlooked the fact that the inquiry officer has held first charge as having not been proved and about second charge the inquiry officer has cast his doubts. In this situation, when the disciplinary authority has based its decision on the first charge as well as, the appellate authority should have looked in to this aspect and legal position with regard to the same. Non-application of mind on the part of appellate authority is also writ large on the face of the order itself in the above factual as well as legal back drop. The impugned order is unsupported by reasons and as such not sustainable in the yes of law. The Honble Court in case titled as A.L. Kalra vs. Project and Equipment Corporation of India Ltd. Reported in 1984 92) SLJ 82 has held that: "29 The situation is further compounded by the fat that the disciplinary authority which is none other than Committee of management of the corporation while accepting the report of the inquiry officer which itself was defective did not assign any reasons for accepting the report of the inquiry officer. After reproducing the findings of the inquiry Officer, it is stated that the Committee of Management agrees with the same. It is even difficult ot make out how the Committee of management agreed with the observations of the inquiry officer because at one stage while recapitulating the evidence the inquiry officer unmistakably observed that appellant was subjected to double punishment and at other place, it was observed that granting extension of time and acceptance of documents and balance advance would tantamount to extending the time which would make the affair look wholly innocuous. This shows utter on-application of mind of the Disciplinary Authority and the order id vitiated." 18. Ordinarily the Courts are slow in interfering with the finding with et findings of the disciplinary authority. But when either the findings are perverse or based on no evidence or there is no application of mind by the disciplinary authority or where the punishment awarded is harsh and disproportionate, the Court are bound to interfere to preserve the majesty of law. But when either the findings are perverse or based on no evidence or there is no application of mind by the disciplinary authority or where the punishment awarded is harsh and disproportionate, the Court are bound to interfere to preserve the majesty of law. The disciplinary authority as well as the appellate authority has also not applied its own mind to the Rules an the settled legal position. 19.Admittedly, the applicant has made himself available for further posting on 9.2.1989.the reasons as given by the respondent Board in Anneuxre-A-7 that "your posting shall be decided immediately after the decision on the d disciplinary case is arrived at" is not legally sustainable. As per the Govt. of India order 20 contained under FR-9(6) the period of waiting or joining from leave for posting shall be considered as duty as in the case mentioned in FR-9(6) (b) (iv). Otherwise also the said period cannot be treated as not on duty, as there was no fault on the part of the applicant as he had joined and the respondents only not issued his posting order. As such the period from 9.2.1989 to 30.9.1992 is liable to be treated as on duty, for all purposes and intents. So far as the period from 16.10.1986 to 8.2.1989 is concerned, the same is to be treated as a period on medical leave. It is not the case of the respondents that they have rejected the medical certificates submitted by the application and it also not their case that they have directed the application to appear before the Board of Medical Authorities and he refuse to do so. As such, his medical certificate could not have been disbelieved in the given facts and circumstances. 20. In the above factual position, as well as the legal back gourd, the original application is allowed in the above terms and Annexure-A-10 and A-15 are quashed and as a result the appellant shall be entitled for all the consequential benefits. So for as the payment of interest on outstanding pensionary dues is concerned we allow the same on the analogy of Govt. charges from an individual in case of refund of pension. So for as the payment of interest on outstanding pensionary dues is concerned we allow the same on the analogy of Govt. charges from an individual in case of refund of pension. As per G.I. Department of Pension and PW OM No. F-7/1/93-P&PW (F) dated 25.8.1994 and 31.8.1995 published in Swamys Pension Compilation (14th Ed.) at page 40-41 wherein in it is laid down that it has been decided that whenever the employees are required to refund the pensionary benefit received by them for the service already rendered by them under the Central or State Govt. or Autonomous Bodies in order to avail of the benefit of counting of pasts service of pension purposes in terms of provisions of Rule 17-20 to CCS (Pension) Rules, 1972 and the department of Pension and Pensionary Welfare OM dated 29.8.1984 as amended from time to time, the rate of interest will be rate applicable on GPF accumulation from time to time, for the period from the date of receipt of pension benefits to the date of their refund to the Govt./Autonomies Body. The interest will be calculated in the same manner, as is done in the respect of GPF balances. Respondents are directed to comply with these directions within a period of two months from this order. With these aforesaid observation, the present application stands finally disposed of with no order as to costs.