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2009 DIGILAW 1580 (PNJ)

Kashmir Singh Dalal v. State Of Haryana

2009-09-07

RANJIT SINGH

body2009
Judgment Ranjit Singh, J. 1. The petitioner is a doctor and had joined the service of the State as a Medical Officer on 22.4.1993. In the year 1996, the petitioner was posted as Medical Officer at C.H.C., Sampla, Rohtak. He was served a charge sheet for various allegations for being absent from duty. The petitioner filed reply, disputing the allegations made against him. Considering the nature of allegations made, the petitioner pointed out that there are two types of duties, one roster duty and second duty on call. He accordingly contested the charges made against him for absence while he statedly was present at his house for which he could not attend the some case. The explanation furnished by the petitioner was not accepted and Enquiry Officer was detailed. The petitioner pleads that there was violation of certain provisions inasmuch as he was not allowed to cross-examine the witnesses. Ultimately, the petitioner was held guilty of the charges made against him. A show cause notice was served upon the petitioner, proposing the penalty of stoppage of three annual increments with cumulative effect. The petitioner filed reply to this show cause notice. Ultimately, the order stopping three annual increments with cumulative effect was passed on 3.12.2002. Against the impugned order, the petitioner submitted his appeal/memorial. Since the order was passed by the Financial Commissioner on behalf of the Government, as per the petitioner, he was entitled to maintain the memorial against the said order. Through a communication dated 19.7.2006, the petitioner was called for personal hearing. The appeal/memorial was dismissed on 28.8.2006, stating that he was called for hearing on 5.7.2006 but did not appear and hence, the memorial was dismissed. 2. Counsel for the petitioner would term this order to be arbitrary on the face of it on the ground that he was intimated through communication dated 19.7.2006 to appear for hearing on 5.7.2006. This, according to the petitioner, was no opportunity of hearing as the intimation was given and received by him after the date had gone pass. 3. In the reply filed, however, the claim of the petitioner is contested. It is stated that the petitioner is not entitled to invoke the jurisdiction of this Court. This, according to the petitioner, was no opportunity of hearing as the intimation was given and received by him after the date had gone pass. 3. In the reply filed, however, the claim of the petitioner is contested. It is stated that the petitioner is not entitled to invoke the jurisdiction of this Court. It is pointed out that the petitioner was granted opportunity of hearing at the time of deciding his appeal/memorandum but the petitioner did not turn up and hence, he now can not complain that he has been denied opportunity of hearing while deciding the memorial. 4. As per Rule 9 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (for short, `the Rules), the orders passed by the Government apparently are not appealable. However, Rule 14(2) of the rules makes a provision for power of superior authority to revise the proceedings of an inferior authority. As per this Rule, Government or the Head of Department may call for and examine the records of any case in which a subordinate authority passed any order under Rule 9 or has inflicted any of the penalties specified in rule 4 or in which no order has been passed or penalty inflicted and after making further investigation, if any, may confirm, remit reduce to any or subject to provisions of Sub-rule (1) of Rule 11, increase the penalty etc. Rule 14(2) makes a provision that at the time of consideration of memorial submitted under its general or special instructions published from time to time by the Government, an employee to whom a penalty is imposed, the Government may review any order passed by the Government under these rules. Thus, against the orders, which are passed by or on behalf of the Government, memorials can certainly be submitted. It is in exercise of these powers available under the rules, which are further been expanded by issuing instructions that the petitioner had submitted this memorial. Once the memorial submitted by the petitioner is legally maintainable and was considered, the petitioner was entitled to an opportunity of hearing. Indeed the respondent-Government had decided to hear the petitioner before passing any order on the memorial. The opportunity of hearing as granted can not be termed as effective opportunity. The petitioner could not appear for submitting his case as he was informed about the date late. 5. Indeed the respondent-Government had decided to hear the petitioner before passing any order on the memorial. The opportunity of hearing as granted can not be termed as effective opportunity. The petitioner could not appear for submitting his case as he was informed about the date late. 5. The impugned order, rejecting the memorial, therefore, can not be sustained. The same is set-aside. The case will go back to the competent authority, who will decide the memorial filed by the petitioner after affording an opportunity of hearing to him, which should be an effective hearing this time. This Court has not considered the case on merits. The authorities concerned would be at liberty to pass any order in accordance with law but after granting due opportunity of hearing. 6. The writ petition is allowed in the above terms. Petition allowed.