Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 341 (HP)

Bhuto Devi v. State of Himachal Pradesh

2020-06-15

AJAY MOHAN GOEL

body2020
JUDGMENT Ajay Mohan Goel, J. - Brief facts necessary for the adjudication of this petition are as under:- This petition was originally preferred by Shri Amin Chand, before the learned Erstwhile Himachal Pradesh Administrative Tribunal, primarily praying for the following relief:- "(i) That the impugned order dated 1-7-2002 (Annexure/A14) passed by the respondent No.2 may kindly be quashed and the applicant may please be ordered to be re-instead alongwith all consequential benefits". 2. During the pendency of the petition before the learned Tribunal, Shri Amin Chand died and present petitioners, who are legal representatives of Shri Amin Chand, were substituted as petitioners. The grievance of the original applicant was that a memorandum was issued to him by respondent No.2, dated 28.06.2000 (Annexure A-2), alongwith Charge Sheet, seeking his response to the article of charges, which were to the effect that the original applicant had gained the job on the basis of a false Scheduled Caste Certificate, as the original applicant did not belong to the Scheduled Caste category. 3. Record demonstrates that the original applicant refuted the allegations and submitted his response. However, as the Disciplinary Authority was not satisfied with his response, therefore, disciplinary proceedings stood initiated against original applicant for imposition of a major penalty upon him. An Inquiry Officer was appointed, who submitted his Inquiry Report, copy of which is appended with this petition as Annexure A-11. The Inquiry Officer came to the conclusion that the original applicant had not taken any undue gain of the Scheduled Caste Certificate and though he had submitted such certificates to the department concerned, however, he had not taken any benefit of the same. It was further the findings of the Inquiry Officer that an earlier certificate, which stood issued, was to be deemed to have been cancelled on account of the ambiguities attached therewith. It was further the findings of the Inquiry Officer that whatever had happened was a result of the ambiguity which existed in the Rules. 4. After the receipt of the said Inquiry Report, vide Annexure A-12, the Disciplinary Authority while not concurring with the conclusion of the Inquiry Officer, proceeded to impose penalty upon the original applicant and forwarded a copy of the Inquiry Report to the original applicant, calling upon him to make his representation thereto. 4. After the receipt of the said Inquiry Report, vide Annexure A-12, the Disciplinary Authority while not concurring with the conclusion of the Inquiry Officer, proceeded to impose penalty upon the original applicant and forwarded a copy of the Inquiry Report to the original applicant, calling upon him to make his representation thereto. The original applicant submitted his response vide Annexure A-13 and vide impugned order Annexure A-14, dated 08.07.2002, Disciplinary Authority imposed the punishment of compulsory retirement upon the original applicant. It is in this background that the original applicant filed the original application before the learned Himachal Pradesh Administrative Tribunal. 5. As I have already mentioned above, during the pendency of the original application, the original applicant died and the present petitioners, who are legal representatives of the original applicant, stood impleaded as petitioners. 6. I have heard learned counsel for the parties and also gone through the pleadings. 7. Before I proceed further, it is pertinent and relevant to state at this stage that what stood assailed by the original applicant was the order of compulsory retirement passed by the Disciplinary Authority and this was done without exhausting the remedy of appeal provided under the Central Services (Classification, Control & Appeal) Rules, 1965. 8. At this stage, in my considered view, it will be extremely harsh on the part of the Court to dismiss this petition, on the ground that the original application was filed without exhausting the remedy of appeal for the simple reason that original applicant is dead and the order of voluntarily retirement stood passed by the Disciplinary Authority as far back as in the month of July 2002. Therefore, the Court is proceeding to adjudicate the issue involved in this lis on merit. 9. A perusal of the order which has been passed by the Disciplinary Authority i.e. Annexure A-14, prima facie demonstrates that it is neither a speaking order nor a reasoned order. Contents of the said order for ready reference stand reproduced hereinbelow:- "Order:- Whereas Shri Amin Chand, Patwari was charge sheeted vide order No.Sa.Ka.246/2495 dated 26-6-2000 under Rule 14 of the CCS (CCA) Rules, 1963. And whereas the S.D.M. Jawali was appointed Inquiry Officer vide order No.Sa.Ka.(c) 246-4901-05 dated 29.12.2000. And whereas the Inquiry Officer submitted his report vide No.003/Steno/02 dated 1-1-2002. And whereas the S.D.M. Jawali was appointed Inquiry Officer vide order No.Sa.Ka.(c) 246-4901-05 dated 29.12.2000. And whereas the Inquiry Officer submitted his report vide No.003/Steno/02 dated 1-1-2002. And after carefully examining the inquiry report, the undersigned disagreed with the findings of Inquiry Officer and an order to this effect was passed under the provisions of Rule 15(2) of the CCS(CCA) Rules, 1965. And the copy of this order alongwith a copy of inquiry report was supplied to the charged official to afford him an opportunity to make representation if any. And whereas the said Shri Amin Chand has given written representation which has been duly and carefully considered by the undersigned. And the charge against Shri Amin Chand, Patwari stands proved beyond doubt. Now, therefore, in exercise of powers conferred by Rule 15(4) of the CCS(CCA) Rules, 1965, the undersigned directs that Shri Amin Chand, Patwari shall be compulsorily retired from services w.e.f.8.7.2002". 10. There is no reasoning given in the impugned order, as to why the punishment of compulsorily retirement stood imposed upon the original applicant by the Disciplinary Authority. Annexure A-14 stood passed by the Disciplinary Authority in its capacity as a Quasi-Judicial Authority. It has been held again and again by Hon'ble Supreme Court of India that whenever an Authority may be a Quasi-Judicial or even Administrative, passes an order, affecting the rights of an individual or an employee, then the order has to be a reasoned and a speaking one, so that from the contents of the order, it is borne out as to what was the genesis which lead to the conclusion, so contained in the order. In the impugned order, there is no discussion of the Charge Sheet, there is no discussion of the report of the Inquiry Officer, there is no discussion of the response given by the original applicant to communication dated 22.11.2002 (Annexure A-12), served upon by the Disciplinary Authority. All that the impugned order contains is that the Disciplinary Authority in exercise of powers conferred by Rule 15 (4) of the CCS (CCA) Rules, 1965, orders the compulsorily retirement of the delinquent officer. All that the impugned order contains is that the Disciplinary Authority in exercise of powers conferred by Rule 15 (4) of the CCS (CCA) Rules, 1965, orders the compulsorily retirement of the delinquent officer. This, I reiterate is not the mandate of law which requires that whenever an order is passed by a Quasi -Judicial Authority, the same has to be a reasoned and a speaking order, wherein discussion has to be there on the facts of the case as well as the stand of the respective parties viz-a-viz final conclusion contained in the order. 11. The impugned order, thus, being prima facie a nonspeaking order, is not sustainable in law and is, accordingly, quashed and set aside. 12. As the impugned order is being set aside by this Court on technical grounds, now the issue which this Court has to decide is as to what will be the effect thereof keeping in view the peculiar facts of this, wherein the original applicant i.e. the employee, is no more. 13. In this regard, it is also relevant to refer to the department of Personnel & Training OM No.11012/7/99-Estt.(A) dated 20th October, 1999, which reads as under:- "(2) Procedure regarding closing of disciplinary cases in the event of death of the charged official. This department has been receiving references seeking clarification whether disciplinary cases initiated against the Government Servant under CCS (CCA) Rules, 1965, would be closed in the event of death or the charged officer during pendency of the proceedings. After careful consideration of all the aspects, it has been decided that where a Government servant dies during the pendency of the inquiry i.e. without charges being proved against him, imposition of any of the penalties prescribed under the CCS(CCA) Rules, 1965, would not be justifiable. Therefore, disciplinary proceedings should be closed immediately on the death of the alleged Government servant". 14. Hon'ble Supreme Court of India in titled as Basudeo Tiwary Versus Sido Kanhu University and Others, (1998) 8 SCC 194 has held as under:- "14. the appellant has since demised during the pendency of these proceedings, no further direction either as to further inquiry or reinstatement can be given. We declare that the termination of the appellant by the respondent as per the notification referred to by us is invalid. Consequently, it would be deemed that the appellant had died in harness. the appellant has since demised during the pendency of these proceedings, no further direction either as to further inquiry or reinstatement can be given. We declare that the termination of the appellant by the respondent as per the notification referred to by us is invalid. Consequently, it would be deemed that the appellant had died in harness. Needless to say that the appellant would become entitled to the payment of arrears of salary from the date of termination of his services up to the date of his death on the basis of the last pay drawn by him. Let the respondent take action within a period of three months from today to work out the arrears due to the appellant from the date of his termination till his death and pay the same to his legal representatives". 15. In this case, the report of the Inquiry Officer is in favour of delinquent officer and as the order passed by the Disciplinary Authority has been quashed by this Court, therefore, the legal position is that the Government Servant has died during the pendency of the inquiry at a stage where definitely charges have not been proved against him and therefore, in these circumstances, imposition of any penalty prescribed under the CCS (CCA) Rules would not be justifiable in terms of the Personnel & Training OM No.11012/7/99-Estt.(A) dated 20th October, 1999 of the department of Personal & Training referred to hereinabove. 16. Accordingly, this petition is allowed by setting aside the order passed by the Collector, Kangra at Dharamshala, dated 01-07-2002 (Annexure/A-14) and by directing the State to release all the benefits which were accruable to the deceased original applicant, by treating him to be in service till the date of his death or the age of superannuation whichever was earlier. No order as to costs. Pending miscellaneous application, if any, stand disposed of. Interim order, if any, stands vacated.