U.S.Daharwal vs State Of Chhattisgarh And Ors
2021 Latest Caselaw 1663 Chatt

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                                                              NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
               Writ Petition (S) No.2898 of 2013
    U.S.Daharwal Aged about 64 years, S/o Late Shri K.S.
    Daharwal (Retired Deputy Manager, R.G.M. Office, C.G.
    Rajya Van Vikas Nigam, Ramkrishna Colony, Mangla Road,
    Bilaspur), R/o Near Govt.Hr. Sec. School, Main Road,
    Ratanpur, Police Station Ratanpur, District­Bilaspur
    (CG)
                                                  ­­­­ Petitioner
                            Versus
  1. State of Chhattisgarh, through Secretary, Department of
     Forest, Mantralaya Bhawan, Naya Raipur, Police Station
     Naya Raipur, District­Raipur (CG)
  2. The Chairman, Chhattisgarh Rajya Van Vikas Nigam
     Limited, Lokash Plaza Shankar Nagar Road, Shankar Nagar,
     Police Station­Civil Lines, Raipur, District Raipur (CG)
  3. The Managing Director, Chhattisgarh Rajya Van Vikas
     Nigam Limited, Lokash Plaza Shankar Nagar Road, Shankar
     Nagar, Police Station­Civil Lines, Raipur, District­
     Raipur (CG)
  4. The Regional General Manager, Chhattisgarh Rajya Van
     Vikas   Nigam  Limited,   Police   Station­Civil  Lines,
     Bilaspur, Ramkrishna Colony, Mangla Road, Bilaspur (CG)
  5. The Managing Director, Madhya Pradesh Rajya Van Vikas
     Nigam Limited, Panchanan Bhavan, Pancham Tal, Malviya
     Nagar, Police Station­Civil Lines, Bhopal, District­
     Bhopal (CG)
                                                 ­­­­ Respondents

For Petitioner : Mr.Ashok Kumar Swarnakar, Advocate For Respondent No.1/State: Mr.Ravi Bhagat, Dy.G.A. For Respondents No.2 to 5: None present

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 10.8.2021

1. Proceedings of this matter have been taken­up through

video conferencing.

2. The petitioner herein calls in question legality,

validity and correctness of the order dated 27.8.2013

(Annexure P­12) passed by the Board of Directors by

which the said authority has dismissed the appeal of the

petitioner affirming the order dated 28.7.2009 (Annexure

P­8) passed by the disciplinary authority imposing

punishment of reduction in lower pay scale and imposing

recovery of Rs.42,41,693/­.

3. Mr.Ashok Kumar Swarnkar, learned counsel for the

petitioner, would submit that the appellate

authority/Board of Directors has dismissed the appeal

filed by the petitioner without assigning any reasons,

which is in teeth of the provisions contained in

Regulation 139 of the Chhattisgarh Van Vikas Nigam

Karmchari Sewa Adhiniyam, 1984 (hereinafter called as

'Regulation 1984'). Therefore, the order of the

appellate authority deserves to be set aside.

4. None present for respondents No.2 to 4 though served.

5. I have heard learned counsel for the petitioner,

considered his submission and also went through the

records with utmost circumspection.

6. Regulation 139 of the Regulations 1984 provides as

under:­

"139. Consideration of Appeal In the case of an appeal against an order imposing any of the penalties specified in regulation 125 or enhancing any penalty imposed under the said regulation, the appellate authority shall consider:

(A) The comments of the disciplinary authority on appeal, if any.

(B) Whether the procedure laid down in these regulations has been complied with, and if not,

whether such non­compliance has resulted in violation of any principle of natural justice, equity and good conscience/and consequent failure of justice.

(C) Whether the findings of the competent authority are warranted by the evidence on record; and (D) Whether the penalty or the enhanced penalty imposed the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case.

Provided that:

(a) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clause (v) to (ix) of regulation 125 and in inquiry under regulation has not already been held in the case, appellate authority, subject to the provisions of regulation may itself hold such enquiry and direct that such enquiry is held, thereafter, on a consideration of the report of such inquiry and after giving the appellant a reasonable opportunity, as for as may be of making a representation against the penalty proposed on the basis of the evidence adduced during the enquiry make such orders as it may deem fit;

(c) No order imposing an enhanced penalty shall be made in any case, unless the appellant has been given a reasonable opportunity, as for as may be, making representation against such enhanced penalty."

7. A careful perusal of the aforesaid provisions would show

that the appellate authority is required to consider

whether the findings of the disciplinary authority are

justified or not, whether the procedure in the rules has

been followed in departmental enquiry and whether the

punishment is justified or not, but the appellate

authority did not consider anything and in one line, it

has been held that the Board of Directors has decided

not to entertain the appeal, which is in teeth of the

provisions contained in Regulation 139 of the

Regulations 1984.

8. It is well settled position of law that the appellate

authority in disciplinary proceeding acts in quasi­

judicial capacity and order passed has to be reasoned

one and showing application of mind to the question

raised by the appellant and if it is not done, the

appellate order is vitiated. (See Divisional Forest

Officer, Kothagudem and others v. Madhusudhan Rao1).

9. The Supreme Court reiterated this principle of law by

observing that an appellate authority by deciding

statutory appeal is not only required to give hearing to

the Government servant, but pass a reasoned order

dealing with the contention raised in the appeal. (See

Deokinandan Sharma v. Union of India and others2).

10. Even if the appellate order is in agreement with

that of the disciplinary authority it may not be

speaking order, but the authority passing the same must

show that there had been proper application of mind in

compliance with the requirement of law while exercising

his jurisdiction particularly when the rules required

application of mind on several factors and several

contentions had been raised and he was bound to assign

reasons so as to enable the Court reviewing its decision

to ascertain as to whether he had applied his mind to

1 (2008) 3 SCC 469 2 (2001) 5 SCC 340

the relevant factors which the rule required to do. (See

Narinder Mohan Arya v. United India Insurance Co. Ltd.

and others3).

11. Reverting to the facts of the present case in the

light of the aforesaid provision and the judgments of

the Supreme Courts (supra), it is quite vivid that

appeal preferred by the petitioner has not been

considered by the appellate authority in the light of

Regulation 139 of the Regulations 1984 and dismissed the

appeal by unreasoned and non­speaking order on

27.8.2013, which ought to have been considered by the

appellate authority in the light of Regulation 139 of

the Regulations 1984.

12. As a fallout and consequence of the aforesaid

discussion, the impugned order dated 27.8.2013 (Annexure

P­12) passed by appellate authority is hereby set­aside.

Appeal filed by the petitioner herein is restored to the

file of appellate authority. The appellate authority is

directed to consider the appeal of the petitioner in

accordance with Regulation 139 of the Regulations 1984

within 60 days from the date of receipt of a copy of

this order and will decide the same after hearing the

petitioner and pass a reasoned and speaking order,

strictly in accordance with law. The petitioner is at

liberty to file additional submission before the

3 (2006) 4 SCC 713

appellate authority.

13. The writ petition is allowed to the extent

indicated hereinabove. No order as to cost(s).

Sd/­

(Sanjay K.Agrawal) Judge

B/­