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2019 DIGILAW 1059 (HP)

State of H. P. v. Suresh Sankhayan

2019-07-29

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. This appeal is directed against the judgment dated 3.1.2012 passed by learned Single Judge in CWP No. 7144 of 2011 quashing thereby Annexure P-8 the order retiring the respondent-writ petitioner compulsorily from service, of course with his entitlement to full pension and gratuity as admissible and order Annexure P-9 holding him thereby entitled to the subsistence allowance equal to 75% of the total leave salary in addition to dearness allowance after adjustment of the subsistence allowance released earlier in his favour vide order dated 28.4.2009 and 16.9.2010. 2. The respondent-writ petitioner was working as Principal in Dr. Rajender Prasad Government Medical College (hereinafter referred to as 'RPGMC' in short), Kangra at Tanda in the year 2009. The incident of ragging had taken place during the night intervening 6th and 7th March, 2009. One student namely Aman Satya Kachru, a first year MBBS student was killed by senior students in this incident. The death of the young student has brought lot of criticism for the management of the college and also the State government. The matter was agitated by the public from all walks. The appellant-respondent/State ordered a judicial inquiry in the matter. The inquiry was conducted by Additional District Magistrate, Kangra district at Dharamshala. Besides the Medical council of India also got the matter inquired into. The Raghvan committee also conducted inquiry into the causes leading to death of Aman Kachru and submitted its report. The competent authority i.e. the appellant-respondent on going through the reports submitted by the Additional District Magistrate, Medical Council of India and Raghvan Committee and taking a serious view of the matter placed the respondent-writ petitioner under suspension and also decided to hold inquiry against him for imposition of major penalty. The appellant-respondent vide Annexure P-2 to the writ petition proposed to hold inquiry under Rule 14 of the CCS(CCA) Rules 1965 against the respondent-writ petitioner. The article of charges framed against him are annexure R-1 to Annexure-P-2 whereas the imputations of misconduct/misbehavior in support of article of charges, Annexure-II and list of documents relied upon Annexure-III. Shri Ajay Sharma, the then Director Ayurveda to the Government of Himachal Pradesh was appointed as Inquiry Officer vide order Annexure P-4 to the writ petition whereas Shri Rajinder Negi as Presenting Officer. The inquiry was conducted. The Presenting Officer has submitted the written arguments Annexure P-3. Shri Ajay Sharma, the then Director Ayurveda to the Government of Himachal Pradesh was appointed as Inquiry Officer vide order Annexure P-4 to the writ petition whereas Shri Rajinder Negi as Presenting Officer. The inquiry was conducted. The Presenting Officer has submitted the written arguments Annexure P-3. The Inquiry Officer vide inquiry report Annexure P-5 has exonerated the delinquent, respondent-writ petitioner from all the charges on the ground that the same were not proved. The inquiry report was placed before the Disciplinary Authority, the appellant-respondent. The said Authority has, however, differed with the inquiry report and recorded the reasons of its dis-agreement Annexure P-6 and thereby called upon the respondent-writ petitioner to show cause as to why major penalty under Rule 14 of CCS (CCA) Rules, 1965 is not imposed upon him. He was given 15 days time to make representation or submissions, if any, to the show cause notice. Consequently, the respondent-writ petitioner has filed the replies Annexures P7-A and P7-B to the writ petition in response to the show cause notice, Annexure P-6. The appellant-respondent, however, considering the reply/submissions made by the respondent-writ petitioner and finding the same not satisfactory has ordered to retire the respondent-writ petitioner compulsorily from service vide impugned order Annexure P-8. At the same time vide impugned order Annexure P-9 of the same day held him entitled to the subsistence allowance equal to 75% of the total leave salary on adjustment of the subsistence allowance already paid to him vide order dated 28.4.2009 and 16.9.2010. 3. The respondent-writ petitioner has challenged the impugned order Annexures P-8 and P9 in this Court on the grounds, inter alia, that imposition of major penalty of compulsory retirement from service against him is arbitrary, illegal and void, abinitio being also not in violation of the procedure laid down under Rule 15 of CCS (CCA) Rules 1965. The report of the Inquiry Officer was stated to be well reasoned and as such, there was no occasion to the disciplinary authority to have disagreed therewith. The disciplinary proceedings being quasi judicial in nature, therefore, the requirement is that the disciplinary authority has to act in a just and fair manner. The report of the Inquiry Officer was stated to be well reasoned and as such, there was no occasion to the disciplinary authority to have disagreed therewith. The disciplinary proceedings being quasi judicial in nature, therefore, the requirement is that the disciplinary authority has to act in a just and fair manner. In the case in hand the opportunity of being heard allegedly was not given to the respondent-writ petitioner as the disciplinary authority has taken a final decision to retire him compulsorily from service at that very time when recorded the so called tentative reasons of its dis-agreement. Such an approach is stated to be not legally permissible. It is pointed out that the disciplinary authority is required to provide the tentative reasons of dis-agreement first and to decide finally qua such disagreement of taking into consideration the response of the delinquent officer thereon. The tentative reasons of dis-agreement recorded by the disciplinary authority are stated to be not based upon the evidence having come on record during the course of the inquiry conducted. Also that the impugned order annexure P-8 has been passed by the appellant-respondent in complete ignorance of the contentions raised by the writ petitioner in reply to the show cause notice he filed. 4. In response to the writ petition the stand of the respondent-appellant in a nut shell was that the Inquiry officer has not taken into consideration the inquiry report submitted by the Additional District Magistrate Kangra, by Raghavan Committee and also the Medical Council of India. The respondent-writ petitioner was allegedly negligent and careless throughout as he never taken the issue of ragging seriously. Such evidence having come on record was stated to be not appreciated by the Inquiry officer. This has led in recording its reasons of dis-agreement with Inquiry report by appellant-respondent. Since the reply to the notice, tentative reasons of dis-agreement Annexure P-6 filed by the respondent-writ petitioner was not found satisfactory, therefore, the disciplinary authority well within its competency has imposed the penalty of compulsory retirement upon the respondent-writ petitioner. It is also averred that the respondent-writ petitioner has straightway invoked the extra ordinary jurisdiction of this Court by filing the writ petition without exhausting the statutory remedy available to him under the provisions of CCS(CCA) Rules. It is also averred that the respondent-writ petitioner has straightway invoked the extra ordinary jurisdiction of this Court by filing the writ petition without exhausting the statutory remedy available to him under the provisions of CCS(CCA) Rules. The order Annexure P-8 and P-9 could have been challenged by filing the appeal before the appellate Authority under Rule 24 of the CCS (CCA) Rules. The writ petition as such, was sought to be dismissed. 5. Learned Single Judge on hearing the parties on both sides, taking into consideration the given facts and circumstances and also the law laid down by the Apex Court in Punjab National Bank and others versus Kunj Behari Misra, (1998) 7 SCC 84 and Yoginath D. Bagde versus State of Maharashtra and another, (1997) 7 SCC 739 has concluded that the disciplinary authority, the appellant-respondent, herein instead of recoding tentative reasons and supplying the same to the writ petitioner to enable him to make representation has straightway proposed the penalty to be imposed upon him. Such an approach has been held to be against the law laid down by the Apex Court. In view of the judgment again that of the Hon'ble Apex Court in SBI and others Versus Arvind K. Shukla, (2004) 13 SCC 797 it has been observed that the disciplinary authority taking a view different to that of the inquiry Officer is required to record its tentative reasons and made the same available to the delinquent and taking a final decision after affording the opportunity of being heard. The writ petition as such was allowed and the impugned order annexure P-8 and P-9 quashed and set aside. It has further been left open to the appellant-respondent to proceed in the matter in accordance with law. 6. The appellant-respondent aggrieved by the judgment passed by learned Single Judge has questioned the legality and validity thereof on the grounds, inter alia, that the same is not only against the facts of the case but also the law applicable. Learned Single Judge allegedly has not appreciated the facts of the case in its right perspective. The factum of the penalty of compulsory retirement imposed upon the petitioner after holding regular departmental inquiry and after affording him due opportunity of being heard has not been appreciated. Learned Single Judge allegedly has not appreciated the facts of the case in its right perspective. The factum of the penalty of compulsory retirement imposed upon the petitioner after holding regular departmental inquiry and after affording him due opportunity of being heard has not been appreciated. As per the settled proposition the disciplinary authority is not bound to accept the report submitted by the Inquiry officer and may disagree therewith by formulating its own opinion. The respondent-appellant, therefore, was well within its right to have recorded disagreement with the report submitted by the inquiry officer. The tentative reasons of dis-agreement as recorded were duly supplied to the respondent-writ petitioner after taking his response and considering the same. The order Annexure P-8 though has been passed imposing thereby the penalty of compulsory retirement upon the respondent-writ petitioner, however, while taking lenient view he has been held entitled to full pension and gratuity etc. Also that, he was due for retirement a day after the issuance of the impugned order annexure P-8 on 31st October 2010. On this ground also, the respondent-writ petitioner cannot be heard of any complaint against the impugned order Annexure P-8 to the writ petition. 7. We have heard Mr. Vikas Rathore, learned Additional Advocate General on behalf of the appellant-respondent and Mr. Sunil Mohan Goel, Advocate, representing the respondent-writ petitioner and also perused the record of the case. 8. The facts as discussed hereinabove are not in much controversy as admittedly in the month of March 2009 respondent-writ petitioner was officiating as Principal of RPGMC, Kangra at Tanda. One first year student Aman Satya Kachru was killed in an incident of ragging during the night intervening 6/7.3.2009. The inquiry into the incident of violation/ragging was conducted not only by the Additional District Magistrate, Kangra at Dharamshala but also the Medical Council of India got the matter inquired into. Besides, a committee namely Raghavan committee also inquired into the matter. All these reports anyhow or other implicates the administration of the college and held it responsible for the untoward incident of ragging taking away life of one of the students of the college. Obviously the respondent-writ petitioner being the Principal was at the helm of affairs so far as the administration and management of the college is concerned, hence, was prima facie held responsible for this incident. He, therefore, was placed under suspension. Obviously the respondent-writ petitioner being the Principal was at the helm of affairs so far as the administration and management of the college is concerned, hence, was prima facie held responsible for this incident. He, therefore, was placed under suspension. After holding inquiry initiated for imposition of major penalty upon him under Rule 15 of the CCS (CCA) Rules, the Inquiry officer, however, exonerated him of the charges framed. 9. There is again no dispute so as to the disciplinary authority may disagree with the report of the inquiry officer as provided under Rule 15(2) of the CCS(CCA) Rules. The only requirement, however, is that such authority must record in writing its reasons qua such disagreement tentatively and serve the delinquent therewith before taking a final decision. The delinquent officer is required to be given due opportunity of being heard before taking final decision in the matter. The short controversy which need adjudication in the present lis by us is, therefore, that the tentative reason of its disagreement Annexure P-6 to the writ petition recorded by the disciplinary authority is in accordance with law and that the respondent-writ petitioner has been provided with opportunity of being heard before imposition of the penalty of compulsory retirement from the service. 10. The answer to this poser in all fairness and in the ends of justice would in negative because tentative reasons of disagreement recorded by the disciplinary authority, respondent-appellant on the face of it are not based upon the material which was available before the Inquiry Officer and on appreciation whereof he has exonerated the respondent-writ petitioner from the charges framed against him. As a matter of fact, in a case where disciplinary authority disagrees with the report submitted by the Inquiry Officer on any article of charge is required to record its own findings on such charge, record its tentative reasons for such disagreement and give an opportunity to the charged officer and make a representation, if any, against tentative reasons for such disagreement and thereafter record its findings. The report of the Inquiry officer exonerating the charged Officer is also required to be served upon him so that he had an opportunity to persuade the disciplinary authority to accept the inquiry report submitted by the inquiry officer. In the case in hand, the tentative reasons of disagreement, Annexure P-6 on the face of it are not speaking one. The report of the Inquiry officer exonerating the charged Officer is also required to be served upon him so that he had an opportunity to persuade the disciplinary authority to accept the inquiry report submitted by the inquiry officer. In the case in hand, the tentative reasons of disagreement, Annexure P-6 on the face of it are not speaking one. The disciplinary authority, no doubt, has recorded the reasons of disagreement, however, without affording the opportunity of being heard to the charged officer, formed the opinion that the charges framed against him stand proved. The reasons recorded therefor are either the non-consideration of the inquiry report submitted by the Additional District Magistrate, the Medical Council of India and Raghavan Committee. Also that, the respondent-writ petitioner has failed to controvert the allegations and inaction and lack of care and caution in dealing with the issue of ragging in the college. The reasons/findings (Annexure P-6) as recorded by the disciplinary authority, however, are not based upon the evidence considered by the inquiry officer. Even if the reasons so recorded are held to be sufficient, in that event also, the respondent-writ petitioner was not called upon to file his response and make submissions nor the opportunity of being heard in order to persuade the disciplinary authority to take similar view of the matter as was taken by the inquiry officer. In Kunj Behari Misra's case cited supra, the Apex Court has held that in the event of the disciplinary authority disagrees with the inquiry officer on any article of charge before recording its own findings on such charge, it must record the tentative reasons for disagreement and give to the charged officer an opportunity to represent and also to make submissions before such findings are recorded by it. It has further been held in this judgment that the disciplinary authority which has to take a final decision in the matter and to impose penalty must give an opportunity to the charged officer to file representation before the findings on the charges framed are recorded by the disciplinary authority. It has further been held in this judgment that the disciplinary authority which has to take a final decision in the matter and to impose penalty must give an opportunity to the charged officer to file representation before the findings on the charges framed are recorded by the disciplinary authority. In the case in hand, as noticed supra, the disciplinary authority has recorded the reasons qua its disagreement with the inquiry officer, as is apparent from Annexure P-6, however, taken a final decision also that the charges stand established against the respondent-writ petition and also called upon him to show cause as to why penalty of compulsory retirement from Government service is not imposed upon him. Such an approach is without any legal sanctity as has been held by the Apex Court in Kunj Behari Misra's case, referred to hereinabove. Even in Yoginath D. Bagde, a case involving more or less similar facts as the disciplinary authority i.e. five senior most judges of the High Court including the chief justice, not only recorded its tentative reasons qua disagreement with the inquiry officer, however, the penalty was also proposed to be imposed upon him simultaneously without affording the opportunity of being heard. It is in this backdrop, the Apex Court has held as under:- 31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tenative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution. 32. Applying the above principles to the facts of this case, it would be noticed that in the instant case the District Judge (Enquiry Officer) had recorded the findings that the charges were not proved. These findings were submitted to the Disciplinary Committee which disagreed with those findings and issued a notice to the appellant requiring him to show-cause why he should not be dismissed from service. It is true that along with the show-cause notice, the reasons on the basis of which the Disciplinary Committee had disagreed with the findings of the District Judge were communicated to the appellant but the Disciplinary Committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established..... 34. It is true that along with the show-cause notice, the reasons on the basis of which the Disciplinary Committee had disagreed with the findings of the District Judge were communicated to the appellant but the Disciplinary Committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established..... 34. Along with the show-cause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show-cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee. 35. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to findings on the two charges framed against him, the principles of natural justice, as laid down by a Three-Judge Bench of this Court in Punjab National Bank and Ors. vs. Kunj Behari Mishra, (1998) 7 SCC 84 = AIR 1998 SC 2713 , referred to above, were violated. 11. Similar is the situation, in the case in hand, because the disciplinary authority which disagreed with the findings of inquiry officer had already taken a final decision at the stage of recording its tentative reasons qua disagreement with the report of the inquiry officer while observing that the charges against the charged officer were proved. No doubt, in show cause notice and the copy of findings recorded by the inquiry officer as well as the reasons, Annexure P-6 recorded by the disciplinary authority with respect to its disagreement were communicated to the respondent-writ petitioner, but of no avail as it was no-where indicated to the respondent-writ petitioner that the disciplinary authority had come only to a tentative decision and that he will have the opportunity to show cause thereto. It is for this reason the reply filed by the respondent-writ petitioner to the tentative reasons, Annexure P-6 does not find favour with the disciplinary authority as a final decision was already taken that the charges against him stand proved. This is not legally permissible in view of the legal principles discussed hereinabove. Learned Single Judge, therefore, has not committed any irregularity or illegality while arriving at a conclusion that the order, Annexure P-8 with respect to imposition of penalty of compulsory retirement is not legally sustainable. Consequently, the impugned order, Annexure P-9, whereby the respondent-writ petitioner was allowed to draw the subsistence allowance to the extent of 75% of his leave salary has also been quashed and set aside. The contention to the contrary in the present appeal, to our mind, therefore, are not only without any basis but also legally unsustainable. 12. It is worth mentioning here that while quashing the impugned orders, Annexure P-8 and P-9, learned Single Judge has left it open to the appellant-respondent to proceed in the matter against the respondent-writ petitioner further in accordance with law. Therefore, the appellant-respondent otherwise also cannot be heard to have any complaint against the impugned judgment. 13. For all the reasons discussed hereinabove, this appeal fails and the same is accordingly dismissed, so also the pending applications, if any.