Chimahnu vs Union Of India
2022 Latest Caselaw 72 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
              ON THE 4th DAY OF JANUARY, 2022
                        BEFORE
         HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN




                                                        .
                           &





     HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
                CIVIL WRIT PETITION NO. 49 OF 2022





    Between:­
    SHRI KHEM SINGH, S/O LATE
    SHRI GOVERDHAN RAM ALIAS
    RAM    LAL,    R/O    VILLAGE
    DABREHAL,     POST     OFFICE





    CHIMAHNU, TEHSIL JOGINDER
    NAGAR, DISTRICT MANDI, H.P.
                   r                          ......PETITIONER

    (BY RAKESH      KUMAR     DOGRA,

    ADVOCATE)
    AND

    1. HIMACHAL PRADESH ROAD
    TRANSPORT        CORPORATION



    THROUGH      ITS    MANAGING
    DIRECTOR, SHIMLA­171003, H.P.




    2.     DIVISIONAL     MANAGER,
    HIMACHAL     ROAD    TRANSPORT





    CORPORATION,         DIVISIONAL
    OFFICE, MANDI, DISTRICT MANDI­
    175001, H.P.





    3. DEPUTY DIVISIONAL MANAGER,
    HIMACHAL     ROAD    TRANSPORT
    CORPORATION,         DIVISIONAL
    WORKSHOP      MANDI,   DISTRICT
    MANDI­175001, H.P.
    4.     REGIONAL       MANAGER,
    HIMACHAL     ROAD    TRANSPORT
    CORPORATION, KULLU, DISTRICT
    KULLU­175101, H.P.
    5.    INQUIRY     OFFICER­CUM­
    SUPERINTENDENT         GRADE­1,
    HIMACHAL     ROAD    TRANSPORT
    CORPORATION,         DIVISIONAL




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    OFFICE, MANDI, DISTRICT MANDI­
    175001, H.P.

                                           .....RESPONDENTS




                                                             .
    (BY MS.   SHUBH          MAHAJAN,





    ADVOCATE)





                 This petition coming on for admission before notice
    this day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed
    the following:

                                   ORDER

Notice.

Ms. Shubh Mahajan, Advocate, appears

and waives service of notice on behalf of the respondents.

2 With the consent of the parties, the instant petition

is taken up for final hearing and is being disposed of as such.

3 It is not in dispute that the petitioner was imposed

penalty of reduction to a lower grade/post from Senior Store

Keeper to Petrol Pump Attendant, by respondent No. 2­

Divisional Manager. Aggrieved thereby, the petitioner filed an

appeal before respondent No. 1­Managing Director, who

disposed of the same vide order dated 17.12.2021, relevant

portion whereof reads as under:­

"This is with reference to your appeal dated 11.06.2021, on the subject cited above.

In this behalf, it is to inform you that your appeal has duly been considered by the undersigned and found that no new/additional evidence/facts have come to the notice of undersigned. Hence there is no reason to interfere with the orders passed by the Divisional Manager, HRTC, Mandi, on dated 05 th May, 2021, as such the appeal is hereby rejected.

­sd­ (Sandeep Kumar, IAS) Managing Director, Himachal Road Transport Corporation, Shimla­171003."

.

4 A bare reading of the aforesaid order would reveal

that the same is cryptic and non­speaking one.

5 It is no longer res integra that the appellate

authority must not only give hearing to the government servant

concerned, but also pass a reasoned order dealing with the

contentions raised by him in the appeal.

6 Reference in this regard can conveniently be made

to the judgment of the Hon'ble Supreme Court in Ram Chander

vs. Union of India, AIR 1986 SC 1173, relevant portion

whereof reads as under:­

"24. Professor de Smith at pp. 242­43 refers to the

recent greater readiness of the Courts to find a breach of natural justice 'cured' by a subsequent hearing before

an appellate tribunal. In Swadeahi Cotton Mills v. Union of India, [1981] 2 S.C.R. 533 although the majority held

that the rule of audi alteram partem was not excluded from s.18A(1)(a) of the Industrial Undertakings (Development and Regulation) Act, 1951, Chinnappa Reddy, J. dissented with the view and expressed that the expression 'immediate action' may in certain situations mean exclusion of the application of the rules of natural justice and a post­decisional hearing provided by the statute itself may be a sufficient substitute. It is not necessary for our purposes to go into the vexed question whether a post­decisional hearing is a

substitute of the denial of a right of hearing at the initial stage or the observance of the rules of natural justice since the majority in Tulsiram Patel's case unequivocally lays down that the only stage at which a Government

.

servant gets 'a reasonable opportunity of showing cause

against the action proposed to be taken in regard to him' i.e. an opportunity to exonerate himself from the charge

by showing that the evidence adduced at the inquiry is not worthy of credence or consideration or that the charge proved against him are not of such a character as to merit the extreme penalty of dismissal or removal

or reduction in rank and that any of the lesser punishments ought to have been sufficient in his case, is at the stage of hearing of a departmental appeal. Such rbeing the legal position, it is of utmost importance after

the Forty­Second Amendment as interpreted by the majority in Tulsiram Patel's case that the Appellate Authority must not only give a hearing to the

Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. We wish to emphasize that reasoned decisions

by tribunals, such as the Railway Board in the present case, will promote public confidence in the

administrative process. An objective consideration is possible only if the delinquent servant is heard and give

a chance to satisfy the Authority regarding the final orders that may be passed on his appeal. Considerations of fairplay and justice also require that such a personal hearing should be given."

7 In view of aforesaid exposition of law, the writ

petition is allowed and consequently, the order, dated

17.12.2021 (Annexure P­26) passed by respondent No.1 is

quashed and set aside and respondent No.1 is directed to

reconsider the appeal of the petitioner and decide the same in

accordance with law within a period of six weeks from the date

.

of receipt of a copy of this judgment. Pending application(s), if

any, also stands disposed of.

(Tarlok Singh Chauhan) Judge

(Chander Bhusan Barowalia)

Judge 4th January, 2022 (raman) r