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2020 DIGILAW 612 (HP)

Ramesh Chandra Verma v. State of Himachal Pradesh

2020-09-17

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has, inter alia, prayed for the following relief: - (b) "Impugned orders contained in Annexure P-2 dated 27.11.2009 passed by respondent and Annexure P-3 dated 27.2.2010 passed by respondent No.2 be quashed and set aside and the petitioner may be held entitled to the pensionary benefit sanctioned in his favour as far back as on 9.11.98 alongwith interest @18% per annum from the date when it was sanctioned till the actual payment to the petitioner." 2. Brief facts necessary for the adjudication of present petition are as under; The petitioner was serving as Junior Engineer with the respondent-Department. He superannuated, as such, on 31.07.1995. Departmental inquiry stood initiated against the petitioner, vide charge sheet dated 19.07.1995. However, the charge sheet in issue for the reasons best known to the respondent-Department, was not served upon the petitioner, in person, but the same was sent to him through post. The charge sheet actually was served upon the petitioner on 08.01.1996, as is evident from the record itself, which on the direction of this Court, was produced by the learned Additional Advocate General. Petitioner submitted his response to the same. An Inquiry Officer was appointed, who submitted his inquiry report, which is appended with the petition as Annexure P-1. On the basis of said inquiry report, vide Annexure P-2, the Disciplinary Authority imposed penalty of recovery of Rs.60,047.23 upon the petitioner. 3. Feeling aggrieved, the petitioner has filed this writ petition. It is an admitted position that petition stood filed without exhausting statutory remedy of filing an appeal. However, taking into consideration the fact that petition was filed in the year, 2010, now, this Court is not relegating the petitioner back to avail the statutory remedy of filing the appeal, because, as would be evident from the subsequent paras of the judgment, the very initiation of enquiry against the petitioner was void ab-initio. 4. However, taking into consideration the fact that petition was filed in the year, 2010, now, this Court is not relegating the petitioner back to avail the statutory remedy of filing the appeal, because, as would be evident from the subsequent paras of the judgment, the very initiation of enquiry against the petitioner was void ab-initio. 4. Learned counsel for the petitioner has primarily argued that as no departmental inquiry, in fact, stood initiated against the petitioner taking into consideration the fact that charge sheet was never served upon him till the time he was in service of the respondent-Department, therefore, the departmental inquiry which stood initiated against the petitioner is a nullity and so is the penalty imposed upon him because the procedure which is required to be followed for initiating departmental inquiry in case the incumbent has superannuated from service before the charge sheet is issued, has not been followed in the present case. He has relied upon the law laid down by Hon'ble Supreme Court to substantiate his contentions in Union of India and others Versus Dinanath Shantaram Karekar and others, (1998) AIR SC 2722 . 5. Learned Additional Advocate General while resisting the claim of the petitioner has argued that as the charge sheet was framed before retirement of the petitioner, the petitioner cannot be permitted to take advantage of the fact that this charge sheet was not served upon him upto the time, he superannuated from service on 31.07.1995, because this possibility cannot be ruled out that petitioner himself evaded the service of charge sheet upon him. 6. By relying upon the judgments of Hon'ble Supreme Court in State of U.P. and others Versus R.C. Misra, (2007) 9 SCC 698 and U.P. State Sugar Corporation Ltd. and others Versus Kamal Swaroop Tondon, (2008) 2 SCC 41 , learned Additional Advocate General submits that there is nothing wrong either in initiation of departmental proceedings or in the order of imposition of major penalty upon the petitioner on these grounds. Learned Additional Advocate General submits that the petition being devoid of any merit, be dismissed. 7. I have heard learned counsel for the parties and gone through the pleadings as well documents appended therewith. 8. It is clearly borne out from the record of the case that the charge sheet dated 19.07.1995, was, in fact, served upon the petitioner only on 08.01.1996. 7. I have heard learned counsel for the parties and gone through the pleadings as well documents appended therewith. 8. It is clearly borne out from the record of the case that the charge sheet dated 19.07.1995, was, in fact, served upon the petitioner only on 08.01.1996. This is evident from the postal receipts, which are on record of the writ file also as well as the original record of the respondent-Department, which was perused by the Court. As far as contention of the learned Additional Advocate General that this possibility cannot be ruled out that the petitioner deliberately avoided or evaded service of charge sheet upon him as till the date of his superannuation is concerned, the contention so made by the learned Additional Advocate General has no merit as there is neither any assertion of this fact in the reply supported by any evidence nor the original record produced by the respondent-Department, substantiates or supports the said version of the State. Therefore, it is held that the record clearly suggests that memo. dated 19.07.1995 was actually received by the petitioner only on 08.01.1996, i.e., after the date of his superannuation, because it is not in dispute that petitioner, in fact, superannuated on 31.07.1995 and as on that date, no charge sheet stood served upon him. 9. Another fact which requires to be mentioned at this stage is that it is not understood as to what prevented the respondent-Department from serving charge sheet upon the petitioner despite the fact when it was aware of the fact that petitioner superannuated on 31.07.1995. 10. Be that as it may, the fact of the matter remains that as on the date when the petitioner superannuated from service, there was no departmental enquiry pending against him, because no charge sheet qua initiation of departmental inquiry stood served upon the petitioner as on the said date. 11. Now, I will refer to the judgment relied upon by the learned counsel for the petitioner. Hon'ble Supreme Court in Union of India and others Versus Dinanath Shantaram Karekar and others, (1998) AIR SC 2722 , was dealing with the case of the disciplinary proceedings where neither charge sheet nor show cause notice was served upon the delinquent employee, though stand of the employer was that the same was duly sent through registered post. Hon'ble Supreme Court in Union of India and others Versus Dinanath Shantaram Karekar and others, (1998) AIR SC 2722 , was dealing with the case of the disciplinary proceedings where neither charge sheet nor show cause notice was served upon the delinquent employee, though stand of the employer was that the same was duly sent through registered post. In this background, Hon'ble Supreme Court in the said judgment has been pleased to hold as under: - 3. "Respondent was an employee of the appellant. His personal file was and the entire service record was available in which his home address also had been mentioned. The charge-sheet which was sent to the respondent was returned with the postal endorsement "not found." This indicates that the charge sheet was not tendered to him even by the postal authorities. A document sent by registered post can be treated to have been served only when it is established that it was tendered to the addressee. Where the addressee was not available even to the postal authorities, and the registered cover was returned to the sender with the endorsement "not found," it cannot be legally treated to have been served. The appellant should have made further efforts to serve the charge sheet on the respondent. Single effort, in the circumstances of the case, cannot be treated as sufficient. That being so, the very initiation of the departmental proceedings was bad. It was ex-parte even from the stage of charge sheet which, at no stage, was served upon the respondent. 4. So far as the service of show cause notice is concerned, it also cannot be treated to have been served. Service of this notice was sought to be effected on the respondent by publication in a newspaper without making any earlier effort to serve him personally by tendering the show cause notice either through the office peon or by registered post. There is nothing on record to indicate that the newspaper in which the show cause notice was published was a popular newspaper which was expected to be read by the public in general or that it had wide circulation in the area or locality where the respondent lived. The show cause notice cannot, therefore, in these circumstances, be held to have been served on the respondent. The show cause notice cannot, therefore, in these circumstances, be held to have been served on the respondent. In any case, since the very initiation of the disciplinary proceedings was bad for the reason that the charge sheet was not served, all subsequent steps and stages, including the issuance of the show cause notice would be bad. 10. Where the disciplinary proceedings are intended to be initiated by issuing a charge sheet, its actual service is essential as the person to whom the charge sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "Communication" cannot invoked and actual service must be proved and established. It has already been found that neither the charge sheet nor the show cause notice were ever served upon the original respondent, Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated." 12. Thus, it is evident from the judgment so relied upon by the learned counsel for the petitioner that the charge sheet is said to be served upon the delinquent employee as on the date when the actual service is established. In this case, though, the charge sheet was issued on 19.07.1995, yet, its actual service as per record is established upon the petitioner only on 08.01.1996, i.e., after his superannuation. 13. In terms of the provisions of Rule 9(2)(b) of the Central Civil Services (Pension) Rules, 1972, in the event of departmental proceedings not having been instituted against the Government servant during his service career, the same can thereafter also be instituted only with the sanction of the Governor. 13. In terms of the provisions of Rule 9(2)(b) of the Central Civil Services (Pension) Rules, 1972, in the event of departmental proceedings not having been instituted against the Government servant during his service career, the same can thereafter also be instituted only with the sanction of the Governor. In this case, the charge sheet in issue for initiation of departmental enquiry was served upon the petitioner after his superannuation, therefore, in terms of the law laid by the Hon'ble Supreme Court, referred to supra, there was no departmental enquiry initiated against the petitioner as on the date when he superannuated from service as charge sheet was not served till then, and therefore, for the purpose of initiation of departmental enquiry, now, after superannuation, it was necessary for respondent-Department to have had follow the provisions of Rule 9(2)(b) of the Central Civil Services (Pension) Rules, 1972. In fact, the Department of Personnel of the Government of Himachal Pradesh has also issued letter No.Ka(Ni-II) (Ka)1/74-Vol.II, dated 11.1.1980- Annexure-29.6, regarding initiation of disciplinary proceedings against a retired Government Servant, which is reproduced herein-below:- "According to the provisions of Rule 9(2) (b) of the Central Civil Services (Pension) Rules, 1972, if departmental proceedings have not been instituted against a Govt. servant during his service period, then the same can subsequently be instituted only with the sanction of the Governor and that too can-not be in respect of an event which took place more than four years before such institution. Certain cases have come to the notice of the Government in which the Department continued inquiring whether disciplinary proceedings should be started or not and in the mean-time period of four years from the date of retirement of the Government servant passed away. In fact, the Departments should not delay so much in taking a final decision in such matters. If any case comes to the notice of the Department at the time of retirement or immediately after the retirement of the Government servant, then the Department should accord high priority to that matter and it should be kept in view that delay should not occur in that matter at any level. In any case if there is the need to start disciplinary proceedings, then the same should be started within the aforesaid period after following proper procedure. In any case if there is the need to start disciplinary proceedings, then the same should be started within the aforesaid period after following proper procedure. It should be remembered that in such cases financial loss can be caused to the Government because of slight delay which can, otherwise, be recouped by starting disciplinary proceeding. These instructions should be strictly implemented and should be brought to the notice of all concerned." 14. A perusal of the said instructions also clearly demonstrates that even as per respondent-State, in the event of departmental proceedings not having been instituted against the Government Servant during his service period, then the same subsequently can be instituted only with the sanction of the Governor. However, in the present case, for initiation of departmental inquiry against the petitioner, there being no such sanction of the Governor. The departmental proceedings which were initiated against the petitioner, though were based on the charge sheet, which was issued before his superannuation, but was served upon him much after his superannuation. Therefore, charge sheet dated 19.07.1995, never stood served upon the petitioner before his superannuation, the same could not have been pressed into effect by the Disciplinary Authority to proceed against the petitioner after the same stood served upon the petitioner post his superannuation. The correct course for the Disciplinary Authority was, in case it still intended to carry out disciplinary proceedings against the petitioner, to have had obtained necessary permission from the Governor, as is envisaged under Rule 9(2)(b) of the Central Civil Services (Pension) Rules, 1972, and thereafter, it should have had initiated fresh disciplinary proceedings against the petitioner, which admittedly has not been done in the present case. Therefore, the disciplinary proceedings which were continued against the petitioner after his superannuation on the basis of charge sheet, which was never served upon him till his superannuation, were non est in the eyes of law and the order on the basis of said disciplinary proceedings by the Disciplinary Authority, is also void ab-initio. 15. Therefore, the disciplinary proceedings which were continued against the petitioner after his superannuation on the basis of charge sheet, which was never served upon him till his superannuation, were non est in the eyes of law and the order on the basis of said disciplinary proceedings by the Disciplinary Authority, is also void ab-initio. 15. Coming to the judgments relied upon by the learned Additional Advocate General reported in State of U.P. and others Versus R.C. Misra, (2007) 9 SCC 698 and U.P. State Sugar Corporation Ltd. and others Versus Kamal Swaroop Tondon, (2008) 2 SCC 41 suffice to say that these two judgments have no bearing on the factual matrix involved in the present case, because the issue involved in the said judgments was with regard to continuation of disciplinary proceedings which admittedly stood commenced before superannuation of the delinquent employee and there was no dispute as to whether the charge sheet stood served upon the delinquent employee before his superannuation. Therein the issue was that the disciplinary proceedings which stood commenced before superannuation of delinquent employee could be continued after his retirement or not and the same is answered in affirmative by the Hon'ble Supreme Court. 16. In view of the discussion held hereinabove, as it is evident from the record of the case that no charge sheet was served upon the petitioner before his superannuation, therefore, this Court holds that the departmental inquiry which was initiated against the petitioner on the basis of charge sheet dated 19.07.1995 and the order of imposition of penalty, which stood imposed, vide Annexure P-2, are bad in law and the same are ordered to be quashed and set aside. Petition is disposed of in the above terms. Pending miscellaneous application(s), if any, also stand disposed of.