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Himachal Pradesh High Court · body

2023 DIGILAW 223 (HP)

Jagbandhu v. State of H. P.

2023-04-20

JYOTSNA REWAL DUA

body2023
JUDGMENT : Jyotsna Rewal Dua, J. The petitioner was imposed penalty of removal from the service by the Disciplinary Authority vide order dated 08.01.2016 (Annexure A-5). The appeal against this order was rejected by the Appellate Authority on 02.08.2016 (Annexure A-7). Aggrieved, the petitioner has preferred this petition. 2. Facts 2(i). The Director Higher Education, Himachal Pradesh-respondent No-2, issued a memorandum dated 29.06.2013 (Annexure A-1), proposing to hold an inquiry against the petitioner under Rule 14 of Central Civil Services (Classification, Control and Appeal) Rule, 1965 (CCS (CCA) Rules). The petitioner at that time was serving as Clerk in RKMC College, Shimla. Five articles of charges were framed against the petitioner. The disciplinary proceedings followed. The Inquiry Officer-cum-Additional Director, Higher Education, Himachal Pradesh, submitted his inquiry report with respect to the charges levelled against the petitioner on 16.01.2014 (Annexure A-2). Finally, vide order dated 08.01.2016 (Annexure A-5), Disciplinary Authority imposed major penalty of removal from services under Rule 11(viii) of CCS (CCA) Rules, upon the petitioner. 2(ii). The petitioner preferred an appeal on 05.02.2016 (Annexure A-6) in terms of Rule 23(ii) of CCS (CCA) Rules against the imposition of penalty of removal from service through respondent No.2 to the Principal Secretary (Education) to the Government of Himachal Pradesh. The appellate Authority vide order dated 02.08.2016 has rejected the appeal. 3. Heard learned counsel on both the sides and considered the case record. 4. Observations 4(i). It is seen from the record that the petitioner in his appeal preferred under Rule 23(ii) of CCS (CCA) Rules, had taken many grounds for challenging the penalty of removal from service imposed upon him by the Disciplinary Authority vide order dated 08.01.2016. The Appellate Authority in the impugned order dated 02.08.2016 has not dealt with the contentions raised by the petitioner. The only observations made therein by the Appellate Authority for rejecting the appeal preferred by the petitioner are as under:- “And whereas the CO was given opportunity of personal hearing on 2/7/2016 by the undersigned to defend his appeal. And Whereas, undersigned after carefully going through all the submissions made by the appellate vis-a-vis findings of the Inquiry officer and comments of the disciplinary authority has come to the conclusion that there is no merit in the appeal. And Whereas, undersigned after carefully going through all the submissions made by the appellate vis-a-vis findings of the Inquiry officer and comments of the disciplinary authority has come to the conclusion that there is no merit in the appeal. Now therefore, keeping in view the facts and circumstances of the case as discussed above and after careful consideration of whole matter, the undersigned, in exercise of powers vested under Rule 27 read with Rule 11 of CCS(CCA) Rules, 1965, observed that appeal submitted under Rule 23 of CCS(CCA) Rules, 1965 against the penalty imposed is considered and is hereby rejected. The applicant be informed accordingly.” The above extract is clear indicator that the appellate Authority has not applied its independent mind to the facts and the evidence of the case. 4(ii) In a recent judgment rendered in 23.11.2022, in Civil Appeal Nos. 7939-7940 of 2022 (Union of India Vs. Subrata Nath) and 7941-7942 (Subrata Nath Vs. Union of India), the Hon’ble Apex Court considered the plethora of its previous authoritative pronouncements on the issue involved in the present case and held that both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of inquiry report. In exercise of powers of judicial review, the High Court or for the matter the Tribunal cannot ordinarily re-appreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would show the conscience of the High Court/Tribunal or is found to be flawed for other reasons as enumerated. Observations from the judgment relevant to the context are as under:- “22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily re-appreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.” Being the fact examining authority, it was incumbent upon the Appellate Authority to consider and decide the objections/grounds taken by the appellant (petitioner) in the appeal. This course was not adopted by the Appellate Authority. 4(iii) It will also be appropriate to refer to Rules 27(2) and (3) of the CCS(CCA) rules, which lay down the procedure for considering the appeal preferred against the order imposing any of the penalties specified in Rule 11. This course was not adopted by the Appellate Authority. 4(iii) It will also be appropriate to refer to Rules 27(2) and (3) of the CCS(CCA) rules, which lay down the procedure for considering the appeal preferred against the order imposing any of the penalties specified in Rule 11. These Rules read as under: - “27(2) In the case of an appeal against an order imposing any of the penalties specified in rule 11 or enhancing any penalty imposed under the said rules, the appellate authority shall consider- (a) whether the procedure laid down in these rules have been complied with and if not, whether such noncompliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders- (i) confirming, enhancing, reducing, or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case : provided that- (i) The Commission shall be consulted in all cases where such consultation is necessary; (ii) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of rule 11 and in inquiry under rule 14 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 19, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of rule 14 and thereafter, on a consideration of the proceedings of such inquiry and make such orders as it may deem fit: (i) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of rule 11 and an enquiry under rule 14 has been held in the case, the appellate authority shall make such orders as it may deem fit after the appellant has been given a reasonable opportunity of making a representation against the proposed penalty; and (ii) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be, in accordance with the provisions of rule 16, of making a representation against such enhanced penalty. (3) In an appeal against any other order specified in rule 23, the appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equitable.” A reading of the impugned order passed by the Appellate Authority makes it evident that the provisions of the above Rules were also not kept in view and the appeal preferred by the petitioner against imposition of penalty of removal from service had been dealt with mechanically. 5. Conclusion In the instant case, the Appellate Authority which was vested with the power to examine the evidence and to appreciate the facts has not performed its duty in accordance with law and settled procedure. The Appellate Authority only observed that it has gone through the submissions of the petitioner vis-à-vis findings of Inquiry Officer and then came to the conclusion that there was no merit in the appeal. No reason whatsoever has been assigned by the Appellate Authority for rejecting the appeal preferred by the petitioner. The grounds taken by the petitioner in his appeal were also not discussed. There was no independent application of mind by the Appellate Authority. Hence, for passing a non-speaking and unreasoned order by the Appellate Authority, this petition is allowed to that an extent. Order dated 02.08.20216 (Annexure A-7) is quashed and set aside. Respondent No.1-the Appellate Authority is directed to consider and decide the appeal preferred by the petitioner afresh, after affording him opportunity of hearing and by passing a reasoned and speaking order within a period of six weeks from today. The pending miscellaneous application(s), if any, also to stand dispose of.