Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 932 (HP)

Mohinder Pal Grover v. State of H. P

2012-12-05

R.B.MISRA, V.K.SHARMA

body2012
JUDGMENT R.B. Misra, Judge The present Letters Patent Appeal has been preferred against the judgment dated 7.1.2011 passed in CWP (T) No. 6155 of 2008, (Mohinder Singh Vs. State of H.P. and others), whereby learned Single Judge of this Court has dismissed the writ petition, approving the order dated 31st August, 1999 (Annexure A-15), imposing the penalty of compulsory retirement of the writ petitioner/appellant, who had challenged the order dated 29th July, 1999 (Annexure A13), whereby, the Deputy Commissioner (Disciplinary Authority) has endorsed the report of the Departmental Inquiry, directing the appellant to make representation within ten days on the findings of the Inquiry Officer. 2. For adjudicating the present appeal, it is necessary to give factual background of the case, emerging from the records. The appellant was initially appointed as Clerk on 28.12.1979 and while working as Ahlmad in the office of Sub Divisional Officer (C), Shimla (U), he was also assigned the work of District Red Cross Society. Appellant was transferred from office of the Sub Divisional Officer (C), Shimla to Misc. Branch, District Head Quarter on 4.2.1997 and he was directed to handover the charge of Red Cross Society to P.A. of the Deputy Commissioner, Shimla. While giving the charge on 17.2.1997, the appellant did not handover the cash book and other relevant account papers. In the meantime the appellant was promoted on 1.5.1998 as Senior Assistant and was posted as Training Assistant at District Headquarter, but the appellant did not join the said post and remained absent from duty without any intimation despite repeated notices, reminders and show cause notice. The appellant remained absent from 1.7.1998 to 13.9.1998 (78 days), however, appellant produced medical certificate only for 65 days i.e. from 9.7.1998 to 11.9.1998, as such charge sheet dated 28.9.1998 containing four charges was served upon the appellant. The charges framed against the appellant read as below:- “I. That Shri Mohinder Pal Grover, on his promotion as Sr. Assistant was appointed as Training Assistant in Planning and Development Branch vide this office order No. SML-EA(20MISC-1292-94, dated 2.5.98, but he did not comply with the orders, did not join there till 17.9.98, disobeyed the orders of his superiors and failed to maintain absolute devotion to duty in contravention of Rule 3(1)(ii) of the CCS(Conduct) Rules, 1964. II. That Shri Mohinder Pal Grover, Sr. II. That Shri Mohinder Pal Grover, Sr. Assistant, Headquarter, absented himself willfully from duty w.e.f. 9.7.98 to 11.9.98 (65 days) without any intimation, application for leave to the office and failed to maintain absolute devotion to duty in contravention of Rule 3(I)(ii) of the CCS (Conduct) Rules, 1964. III. That Shri Mohinder Pal Grover, Sr. Assistant while working as Ahalmad to S.D.M. Shimla (Urban) was dealing with the cash and accounts of the District Red Cross Society did not hand over the cash book and relevant accounts papers on transfer of this subject to PA to DC Brach on 17.2.97 and failed to maintain integrity, absolute devotion to duty in contravention of Rule 3(I)(i)(ii) of the CCS(Conduct) Rules, 1964. IV. That Shri Mohinder Pal Grover, Sr. Assistant while handing over the charge of the District Red Cross Society to PA to DC Branch was directed by the then Deputy Commissioner-cum-Chairman(DRCS), Shimla to get the accounts of District Red Cross Society pertaining to his dealing period audited through the Accounts Officer, D.C’s Office, Shimla, but he did not comply with the instructions and deliberately derelicted to duty entrusted to him and failed to maintain absolute devotion to duty in contravention of Rule 3(I)(i)(ii)(iii) of the CCS(Conduct) Rules, 1964.” 3. It appears that on 25.9.1998, the appellant was transferred to Sub Tehsil Kupvi and was relieved from duties on 28.9.1998. In reference to said order, the appellant had not joined his duties at Kupvi and had also not chosen to give reply to the charge sheet, therefore, for conducting the disciplinary enquiry, Sh. J.R. Katwal, Additional District Magistrate (P), Shimla was appointed as Enquiry Officer on 4.12.1998, who issued notice to the appellant, on whose notice, the appellant neither filed any reply nor was present in person, therefore, the enquiry was adjourned for 27.1.1999. The appellant was served through registered post as well as Process Serving agency, which were duly served on the appellant, however, on 27.1.1999, the appellant submitted a representation to the Deputy Commissioner, Shimla with a copy of the same to Enquiry Officer, seeking permission to engage Sh. S.R. Sharma, retired Deputy Secretary HPPSC as defence assistant. Such representation of the appellant was dealt with on 27.1.1999 itself in the office of Deputy Commissioner, Shimla and the request of the appellant was turned down on the ground that Sh. S.R. Sharma, retired Deputy Secretary HPPSC as defence assistant. Such representation of the appellant was dealt with on 27.1.1999 itself in the office of Deputy Commissioner, Shimla and the request of the appellant was turned down on the ground that Sh. S.R. Sharma being a legal practitioner, as such, as per provisions of Classification, Control and Appeal (Central Civil Service) Rules, 1965 (in short called CCS (CCA) Rules, as application in State of Himachal Pradesh could not have been appointed as defence assistant. The intimation to that effect was conveyed to the appellant vide letter dated 1.2.1999. It appears that during the course of disciplinary proceedings corrigendum charge sheet dated 9.4.1999 issued to the appellant, reads as under:- “Please read 01/07/1998 to 16/09/1998 (78) days in Annexure I & II in third line after word instead of 09/07/1998 to 11/09/1998 (65) days in the charge sheet.” The enquiry completed ex-parte on 26.9.1999, was served upon the appellant in the form of show cause notice vide office order dated 29.7.1999 (Annexure A-13) and after considering the reply, the Deputy Commissioner as a Disciplinary Authority has passed an order dated 31.8.1999 (Annexure A-15), compulsorily retireing the appellant. 4. Being aggrieved, the appellant preferred an Original Application being OA No. 2855 of 1999 before the State Administrative Tribunal, which on transfer was numbered as CWP (T) No. 6155 of 2008 and was adjudicated by the learned Single Judge of this Court, in which, the impugned judgment, appeal against has been passed. 5. For and on behalf of the appellant, following main submissions have been made:- (i) The appointment of Sh. Shyam Lal (Superintendent) was made as Presenting Officer before the Enquiry Officer, whereas, the request of the appellant vide his application dated 27.1.1999 to the Deputy Commissioner, (with a copy endorsed to Enquiry Officer) to engaging Sh. S.R. Sharma, (a retired Deputy Secretary) as defence assistant, was not allowed. (ii) The Enquiry Officer by virtue of non-availability of the appellant on 27.1.1999 was not supposed to conduct and proceed with the enquiry on that date in question. (iii) The appellant was not allowed to give response to the corrigendum, as in original charge sheet, in reference to charge No. 2, appellant, was shown to be allegedly absent from duties w.e.f. 9.7.98 to 11.9.98 (65 days), whereas in corrigendum dated 9.4.1999, he was shown to be absent w.e.f. 01.07.1998 to 16.09.1998 (78 days). (iii) The appellant was not allowed to give response to the corrigendum, as in original charge sheet, in reference to charge No. 2, appellant, was shown to be allegedly absent from duties w.e.f. 9.7.98 to 11.9.98 (65 days), whereas in corrigendum dated 9.4.1999, he was shown to be absent w.e.f. 01.07.1998 to 16.09.1998 (78 days). The Enquiry Officer has submitted his report on the additional charge issued to appellant by way of corrigendum behind him back and without affording him the opportunity of hearing. For this purpose, learned counsel for the appellant has referred and relied upon the decision of Delhi High Court (DB) in M.G. Aggarwal Vs. Municipal Corporation of Delhi & others, 1987 (4) SLR 545 , wherein enquiry proceedings were said to be bad in law, when the representation of the delinquent official was not permitted to file to meet the amended charges by way of corrigendum. (iv) Sufficient time has not been given to give response to the charge sheet as well as to the enquiry report, in view of the observations of Hon’ble Supreme Court in State of Punjab Vs. V.K. Khanna and others, (2001) 2 Supreme Court Cases 330. (v) Appointment of Sh. Shyam Lal (Superintendent Grade-II) as presenting officer was illegal, as he was included in the list of witnesses. Whereas, in view of the procedure indicated in CCS (CCA) Rules, 1965 an official who may appear as a witness in disciplinary enquiry should not be appointed as presenting officer. (vi) The procedure prescribed for conducting disciplinary enquiry, more particularly Rule 14, 11(14) 18, 14(20) of the CCS (CCA) Rules and procedure for holding ex-parte disciplinary enquiry has not been observed. Learned counsel for the appellant has referred and relied upon the decision of Delhi High Court in Shri H.L. Sonar Vs. Kendriya Vidyalya Sangathan and Another, ILR 1987 Delhi 55. Relying upon para 15 of the H.L. Sonar (supra), learned counsel for the appellant has submitted that since the observance of provision 14(11) of the CCS (CCA) Rues are mandatory, as such, non-compliance of the same would be fatal to the enquiry proceedings. The relevant paragraphs of H.L. Sonar (supra) are extracted below for convenience. “15. The weight of the Judicial Authority, therefore, seems to be for the view that the provisions of Rule 14(11) are mandatory and non-compliance with the same would be fatal to the enquiry proceedings. The relevant paragraphs of H.L. Sonar (supra) are extracted below for convenience. “15. The weight of the Judicial Authority, therefore, seems to be for the view that the provisions of Rule 14(11) are mandatory and non-compliance with the same would be fatal to the enquiry proceedings. It has been held by the Supreme Court in the case of S.L. Kapoor V. Jagmohan and others, AIR 1981 S.C. 138(7) as follows: “In our view the principles of natural justice known of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person has been denied justice is not prejudiced.” In fact the various sub-rules of Rule 14 contain different principles of natural justice which are required to be followed in the conduct of a proper enquiry. It is true that the petitioner has been acting as a defending officer in some cases on behalf f other Government servants. It may be that he was aware of the provisions of Rule 14(11) but this does not mean that the Enquiry Officer was absolved of his responsibility of passing an order under Rule 14(11). Under Rule 14(11) not only is the Government servant to be given an opportunity of inspecting the documents on which reliance is placed by the disciplinary authority but the Government servant is also asked to submit his list of witnesses. In the present case this opportunity was denied. Furthermore, under Rule 14(11)(iii) the Government servant can send a requisition for discovery of some documents which may be in the possession of the Government. Opportunity to this effect has, therefore, to be provided. The effect of passing an order under Rule 14(11) is that all these opportunities as contemplated by the said sub-rule have to be afforded to the Government servant. I am in complete agreement with the observations of the Assam High Court that the provisions of Rule 14(11) are mandatory, Admittedly these mandatory provisions have not been followed in the present case. Merely because the petitioner has deliberately not attended the enquiry proceedings does not absolve the Enquiry Officer of her duties under Rule 14(11). I am in complete agreement with the observations of the Assam High Court that the provisions of Rule 14(11) are mandatory, Admittedly these mandatory provisions have not been followed in the present case. Merely because the petitioner has deliberately not attended the enquiry proceedings does not absolve the Enquiry Officer of her duties under Rule 14(11). If the Enquiry Officer had passed an order under Rule 14(11) and the petitioner had continued to stay away from the enquiry proceedings, then no fault could have been found if the enquiry proceedings had concluded in a verdict against the petitioner. The Enquiry Officer is under an obligation to see that the principles of natural justice are fully complied with and the mandatory provisions of Rule 54 are followed. The Enquiry Officer is to guard the interest of the delinquent officer who may not be represented by any person an contemplated by Rule 14(8)(b). Substantial compliance with the rule is not enough. Where the rule is mandatory it is no argument to urge that other provisions of the rule have been followed and there has been substantial compliance with the principles of natural justice. The mandatory provisions of Rule 14(11) not having been followed in the present case, the only result which must follow, therefore, is that the entire enquiry proceedings and the consequential orders passed thereon are vitiated. 16. It is contended by the learned counsel for the respondents that when an ex parte order is passed under Sub-rule (20) of Rule 14 then Rule 14(11) has not to be complied with. I am unable to agree this contention. Rule 14(11) comes into play at an earlier stage, namely, before any evidence on behalf of the presenting officer is even recorded. Rule 14(11) comes into play at the time when, the officer is supposed to appear before the inquiring authority for the first time after the receipt of the statements of allegations and charges. Sub-rule (20), on the other hand, will come into play at any point of time. The scheme of the Rule 14 is such that order under Sub-rule (11) will have to be passed first before any ex parte order can be passed against the petitioner. No ex parte order under Rule 14(20) can possibly be passed at a stage when order is required to be passed under Rule 14(11). The scheme of the Rule 14 is such that order under Sub-rule (11) will have to be passed first before any ex parte order can be passed against the petitioner. No ex parte order under Rule 14(20) can possibly be passed at a stage when order is required to be passed under Rule 14(11). Order under Rule 14(11) is required to be passed, in a sense, at the very first hearing before the inquiring authority when the Government servant absents himself. Rule 14(11) clearly provides that in the absence of the Government servant at such a hearing, order is required to be passed in terms of the said sub-rule. It would not be proper or expected at that point of time for the Enquiry Officer to direct that the proceedings against the Government servant would be taken ex parte. This order, as contemplated by Rule 14(2), can only be passed at a later point of time, say when the stage is reached for recording of evidence, under Rule 14(14) or even at a later stage. The Assam High Court in Anil Kumar’s case (Supra) has clearly observed that “On the other hand, there is a particular sub-rule, namely sub-rule (2), regard to ex-parte enquiry, and sub-rule (11) cannot be given a go-by even in such an ex parte enquiry”. I am in complete agreement with these observations and, therefore, it will not be correct to conclude that where art ex parte order is passed under sub-rule (20) it is not necessary to comply with the provisions of Sub-rule (11).” (viii) Though the appellant has not availed the alternative remedy for redressal of his grievance against the order dated 31.8.1999 (Annexure A-15) but when appellant prima-facie was proceeded with against the principles of natural justice, as such, filing of the appeal/writ petition and after adjudication of the same by the learned Single Judge, the State should not be allowed to say that the LPA is to be dismissed on the ground of alternative remedy. (ix) The norms and procedure prescribed in the CCS (CCA) Rules for conducting the disciplinary enquiry has not been adhered to and the appellant has not been afforded opportunity to explain circumstances appearing against him, in view of the observations of Hon’ble Supreme Court in Moni Shankar Vs. Union of India and another, (2008) 3 Supreme Court Cases 484. (ix) The norms and procedure prescribed in the CCS (CCA) Rules for conducting the disciplinary enquiry has not been adhered to and the appellant has not been afforded opportunity to explain circumstances appearing against him, in view of the observations of Hon’ble Supreme Court in Moni Shankar Vs. Union of India and another, (2008) 3 Supreme Court Cases 484. (x) There is apparent violation of Sub-rules 16 and 18 of Rule 14 of the CCS (CCA) Rules on the part of the respondents, so much so, as the appellant was not afforded opportunity to lead evidence after closure of the evidence of presenting side, making the disciplinary proceedings fatal in view of the judgment of this Court (DB) in State of H.P. and others Vs. Raj Kanwar Singh, Latest HLJ 2009 (HP) 280. The relevant paragraph 6 is quoted herein below:- “6. View taken by the learned Tribunal that Conservator of forests was not competent to initiate the disciplinary proceedings against the respondent, may not be correct because under Rule 13 Sub Rule (2), authority competent to impost penalty specified in Clauses (i) to (iv) of Rule 11 (i.e. minor penalties) may institute disciplinary proceedings against any government servant for imposition of any of the penalties specified in Clauses (v) to (ix) of Rule 11 (i.e. the major penalties). The Government of Himachal Pradesh has prescribed appointing authorities, authorities competent to impose penalties under Clauses (i) to (iv) of Rule 11, authorities competent to impose major penalties specified in clauses (v) to (ix) Rule 11, as also the Appellate Authorities, both in respect of the minor penalties and major penalties and the detail of such authorities is given in Appendix 29.11 of Volume-III of handbook of personal matters published by Government of Himachal Pradesh, Department of Personnel. According to this Appendix, head of the office is the prescribed authority for imposition of penalties specified in Clauses (i) to (iv) of Rule 11 of CCS (CCA) Rues, while Head of the Department is the authority prescribed for imposition of major penalties specified in Clauses (v) to (ix) of Rule 11 of the aforesaid Rules. Admittedly, Conservator of Forests is the Head of Office of Range Officers and Principal Conservator of Forests is the Head of the Department. Admittedly, Conservator of Forests is the Head of Office of Range Officers and Principal Conservator of Forests is the Head of the Department. Therefore, by virtue of the provision of Rule 13 sub Rule (2), Conservator of Forest was competent to initiate disciplinary proceedings for major penalty specified in Clauses (v) to (ix) of Rule 11 in respect of the respondent. However, we find no fault with the order of the learned Tribunal insofar as it says that there was violation of sub rules (16) and (18) of Rule 14 of the CCS (CCA) Rules, 1965. IN the writ petition, the petitioners have challenged the finding of the Tribunal only to the extent that Conservator of Forests was not competent to initiate the disciplinary proceedings for major penalty. Findings of the learned Tribunal that there was violation of sub rules (16) and (18) of Rule 14 inasmuch as the respondent was not afforded an opportunity to lead evidence after the close of the evidence of presenting side and was also not questioned with regard to the evidence adduced against him by the presenting side in the course of inquiry, has not been assailed in the writ petition, meaning thereby that the petitioners do not deny that sub rules (16) and (18) of Rule 14 had not been complied with. There can be no denial that non compliance of sub rules (1^) and (18) of Rule 14 of the aforesaid rules have prejudiced the respondent, inasmuch he could not lead defence evidence and also he could not explain the evidence adduced against him by the presenting side. Therefore, the final order of learned Tribunal, allowing the original application of the respondent, does not call for any interference, in exercise of power of judicial review, under Article 227 of the Constitution of India. Consequently, the writ petition is dismissed.” 6. On the other hand, learned counsel for the respondent/State has vehemently argued that in view of the judgment of this Court (DB) in Ranjeet Singh Vs. Union of India & Ors. Latest HLJ 2010 (2) H.P. 1210, the writ petition as well as the Letters Patent Appeal are liable to be dismissed on the sole ground of non availing the alternative remedy for redressal of the grievances of the appellant in respect of the order dated 31.8.1999 (Annexure A-15) passed by Deputy Commissioner, Shimla. Union of India & Ors. Latest HLJ 2010 (2) H.P. 1210, the writ petition as well as the Letters Patent Appeal are liable to be dismissed on the sole ground of non availing the alternative remedy for redressal of the grievances of the appellant in respect of the order dated 31.8.1999 (Annexure A-15) passed by Deputy Commissioner, Shimla. According to the learned counsel for the respondent-State, the judgment of this Court in Ranjeet Singh’s case (supra) has referred and relied upon the decisions of Whirpool Corporation versus Registrar of Trade Marks, Mumbai and others, (1998)8 SCC 1 , Thansingh Nathmal versus The Superintendent of Taxes, Dhubri and others, AIR 1964 SC 1419 , Mafatlal Industries Ltd. And others versus Union of India and others, (1997) 5 SCC 536 , U.P. State Bridge Corporation Limited and others versus U.P. Rajya Setu Nigam S. Karamchari Sangh, (2004) 4 SCC 794 , U.P. State Spinning Company limited versus R.S. Pandey, (2005) 8 SCC 264 and Committee of Management and another versus Vice Chancellor and others (2009) 2 SCCC 630. Learned counsel for the respondent/State has further submitted that under Rule 24 (1) (ii) of CCS (CCA) Rules, 1965, the appellant/writ petition has alternative remedy by filing appeal before the Divisional Commissioner. Such stand has already been taken by the State-respondent while filing reply in the Original Application No. 2855 of 1999 at the very initial stage by way of preliminary submissions itself. Learned counsel for the respondent has also submitted that when charge sheet dated 28.9.1998 along with memo was served to the appellant on 29.9.1998, the appellant was required to furnish reply within ten days, but despite such directions, the appellant, did not file any reply. It reveals that the appellant was not interested to context his case in the disciplinary proceedings. Sh. J.R. Katwal, ADM (P) was appointed as Enquiry Officer vide order dated 4.12.1998 and the Enquiry Officer issued notice to the appellant for 4.1.1999, however, on that date the enquiry proceedings were adjourned for 27.1.1999 due to non presence of the appellant. It reveals that the appellant was not interested to context his case in the disciplinary proceedings. Sh. J.R. Katwal, ADM (P) was appointed as Enquiry Officer vide order dated 4.12.1998 and the Enquiry Officer issued notice to the appellant for 4.1.1999, however, on that date the enquiry proceedings were adjourned for 27.1.1999 due to non presence of the appellant. Thereafter notice was served by registered post as well as process serving agency, which was duly served to the appellant and on 27.1.1999 the case was called firstly at 11.05 A.M., thereafter at 2.30 P.M. and lastly on 4.30 P.M., but the appellant willfully and intentionally did not appear before the Enquiry Officer, as such the enquiry was rightly proceeded ex-parte. In order to delay the proceedings, the appellant has submitted an application dated 27.1.1999 for appointment of Sh. S.R. Sharma as defence assistant and preferred such application before the Deputy Commissioner, despite the advice to submit the same before the Enquiry Officer. The appellant left the letter in the office of Additional District Magistrate (P)/Enquiry Officer, as such, the request of the appellant was rightly turned down as Sh. S.R. Sharma is legal practitioner and could be permitted as defence assistant to the appellant. Such decision taken on 27.1.1999 itself was conveyed to the appellant vide letter dated 1.2.1999, but the same was received back undelivered. The appellant for the reasons best known to him kept silent up to 7.4.1999 and again filed a letter dated 7.4.1999, requesting for appointment of Sh. S.R. Sharma as defence assistant. However, the enquiry was completed on 26.6.1999, which was served to the appellant on 29.7.1999 and after receipt of the enquiry report, the appellant presented a letter dated 27.9.1999 requesting for engaging Sh. B.L. Agarwal as defence assistant. Such request was rightly not considered, as the enquiry was already completed on 26.9.1999. The appellant had already served about 19 years and was well acquainted with all the official procedure and has intentionally tried to create technical lacunas in the proceedings and endeavoured to delay the proceedings, therefore, in the facts and circumstances, the ex-parte disciplinary proceedings were conducted against the appellant by the Enquiry Officer, in view of the observations made by Hon’ble Supreme Court in Pepsu Road Transport Corporation Vs. Rawal Singh, (2008) 4 SCC page 42. Mr. R.K. Sharma, Senior Additional Advocate also argued that the appointment of Sh. Rawal Singh, (2008) 4 SCC page 42. Mr. R.K. Sharma, Senior Additional Advocate also argued that the appointment of Sh. Shyam Lal (Superintendent) as presenting officer, cannot be said to be illegal merely that he was examined as a witness, as Sh. Shyam Lal Bhardwaj has not stated anything in respect of the charges framed against the appellant, as he has merely made a statement with respect to joining of the appellant in his branch on 18.9.1998 and Mr.Shyam Lal Bhardwaj has no connection with the charges framed against the appellant, as such no prejudice is said to be caused to the appellant. 7. It has further been argued for State that the charge sheet amended on 9.4.1999 by way of corrigendum was sent to the appellant on his home address and the amended charge sheet was in consonance to the matter on record, as the appellant had absented from duty for a period of 78 days, as such, only by not allowing to give response to the amended charges, cannot be said to vitiate the enquiry report, as the appellant has already failed to satisfy the Enquiry Officer even about his absence from duty of 65 days, as indicated in the original charge sheet dated 28th September, 1998. Representation of the appellant in respect of the proposed imposition of penalty in respect of the office order dated 29th July, 1999 of Deputy Commissioner was considered by the Deputy Commissioner/Disciplinary Authority and appropriate order has been passed on 31.8.1999 (Annexure A-15), as such the order of the disciplinary authority is in consonance to the CCS (CCA) Rules and judicial review of the same is not to be made in view of observations of Hon’ble Supreme Court in (2005) 7 SCC 597 , para 13. 8. We have heard the learned counsel for the parties and have perused the records. Undisputedly, the appellant has not availed the alternative remedy available to him under Rule 24 (1)(II) of the CCS (CCA) Rules, 1965. Since the appellant has approached way back in the year, 1999 before the State Administrative Tribunal and thereafter the writ petition of the appellant was adjudicated by this Court, as such at this belated stage the Letters Patent Appeal cannot be thrown away on the ground of non-availing the alternative remedy. Further Mr. Since the appellant has approached way back in the year, 1999 before the State Administrative Tribunal and thereafter the writ petition of the appellant was adjudicated by this Court, as such at this belated stage the Letters Patent Appeal cannot be thrown away on the ground of non-availing the alternative remedy. Further Mr. Shyam Lal Bhardwaj has been named as witness in the disciplinary proceedings, as such his appointment as presenting officer was not justified, in view of the Government instructions available in the CCS (CCA) Rules, which are in the form of executive instructions, though not binding, but violation of the same could be taken into consideration along with other factors to determine objectivity in respect of providing of charges, in view of the observations of Hon’ble Supreme Court in Moni Shankar Vs. Union of India and Another (2008) 3 SCC 848. There is a prescribed procedure for holding disciplinary enquiry under the CCS (CCA) Rules, 1965, which has been admitted in reference to Rule 14, which are extracted herein below:- “(4) Procedure for holding ex parte enquiry- Whenever an official continues to remain absent from duty or overstays leave without permission and his movements are not known, or he fails to reply to official communications, the Disciplinary Authority may initiate action under Rule 14 of the CCS (CCA) Rules, 1965. In all such cases, the Competent Authority should, by a Registered A.D. letter addressed to the official at his last known address, issues a charge-sheet in the form prescribed for the purpose and call upon the official to submit a written statement of defence within a reasonable period to be specified by that authority. If the letter is received undelivered or if the letter having been delivered, the official does not submit a written statement of defence on or before the specified date or at a subsequent stage does not appear in person before the Inquiry Officer or otherwise, fails or refuses to comply with the provisions of CCS (CCA) Rules, the Inquiring Authority may hold an ex parte inquiry. The notices of all hearings should be served on the account or communicated to him unless the first notice says that the inquiry will continue from day to day. In ex parte proceedings, the entire gamut of the enquiry has to be gone through. The notices of all hearings should be served on the account or communicated to him unless the first notice says that the inquiry will continue from day to day. In ex parte proceedings, the entire gamut of the enquiry has to be gone through. The notices to witnesses should be sent, the documentary evidences should be produced and marked, the Presenting Officer should examine the prosecution witnesses and the Inquiring Authority may put such questions to the witnesses as it thinks to be fit. The Enquiring Authority should record the reasons why he is proceedings ex parte and what steps he had taken to ask the accused official to take part in the enquiry and avail of all the opportunities available under the provisions of Rule 14 of the CCS (CCA) Rules. In such a case, the details of what has transpired in his absence, including depositions, should be furnished to the accused officer. During the course of enquiry, the accused is free to put in appearance and participate in the enquiry. If the accused appears in the enquiry when some business has already been transacted, it is not necessary to transact the same business again unless the accused official is able to give justification to the satisfaction of the Inquiry Officer for not participation in the enquiry earlier. The Competent Authority may, thereafter proceed to pass the final orders dismissing or removing the official from service after following the prescribed procedure.” 9. In our respectful consideration, in the facts and circumstances, even the procedure for holding ex-parte enquiry has not been followed, as the observance of procedure prescribed under Rule 14(11) of the CCS (CCA) Rules are mandatory and compliance of the same are necessary to be made in the disciplinary proceedings. Learned Single Judge, though has found that the appellant has not given cooperation in the disciplinary enquiry and despite notice and knowledge of date 27.1.1999, the appellant has not been able to give proper explanation for his silence from 27.1.1999 till 7.4.1999 in this respect, we also found force in the observations of the learned Single Judge that the appellant has made false allegations that the disciplinary enquiry is false. 10. 10. In the totality of the facts and circumstances, we find that the appellant was necessarily to be given opportunity to give proper reply to the amended charges issued to him by way of corrigendum, moreso, defence assistant was also to be provided to him and Sh. Shyam Lal Bhardwaj was not to act upon as presenting officer, as he was a witness in the disciplinary enquiry. Therefore, we are also of considered view that the procedure prescribed under the CCS (CCA) Rules for holding ex-parte enquiry has not been followed. As such, the enquiry report dated 29th July, 1999 and the order in that respect passed on 31st August, 1999 by Deputy Commissioner, Shimla, legally not sustainable are set aside and the impugned judgment dated 7.1.2011 passed by learned Single Judge is also set aside. However, in the facts and circumstances, to sub serve the interest of justice, we further direct that in respect of original charge sheet and corrigendum, the petitioner be given fresh opportunity to give his proper reply and the Enquiry Officer be appointed for the purpose and enquiry is allowed to proceed against the petitioner, a fresh, strictly in consonance to the procedure prescribed under the CCS (CCA) Rules, 1965 however, the appellant is expected to render all cooperation in the disciplinary proceedings, and all endeavour shall be made to conclude the proceedings within six months from the date of communication of this judgment by the appellant to the respondents. On completion of enquiry, report shall have to be considered by the Disciplinary Authority within a further period of one month from the submission of the same and appropriate order shall be passed. In case the appellant is still aggrieved against such order passed by the Disciplinary Authority, he shall have to resort to the alternative remedy available under the Rules. It is made clear, that during such proceedings, the appellant shall not be re-instated. With these observations, the Letters Patent Appeal is disposed of.