Between:­ vs Union Of India
2022 Latest Caselaw 8 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
              ON THE 3rd DAY OF JANUARY, 2022
                        BEFORE
         HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN




                                                      .
                           &





     HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
         CIVIL WRIT PETITION NO. 8272 OF 2021





    Between:­
    SHRI PREM LAL, S/O SHRI INDER
    SINGH, R/O VILLAGE KATHWARI,
    POST    OFFICE  BIR   TUNGAL,
    TEHSIL SADAR, DISTRICT MANDI,





    H.P. PRESENTLY WORKING AS
    CONDUCTOR, HIMACHAL ROAD
    TRANSPORT        CORPORATION
    MANDI, DISTRICT MANDI, H.P.
    175001.


                                            ......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
    17501, H.P.
    3.     REGIONAL      MANAGER,
    HIMACHAL     ROAD  TRANSPORT
    CORPORATION, RECKONG PEO,
    DISTRICT KINNAUR, H.P.
    4.     REGIONAL      MANAGER,
    HIMACHAL     ROAD  TRANSPORT
    CORPORATION,         REGIONAL
    OFFICE, MANDI, DISTRICT MANDI­
    175001, H.P.




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                                         2


                                                  .....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 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 stoppage of two annual increments with cumulative

effect by respondent No.3­Regional Manager. Aggrieved thereby,

the petitioner filed an appeal before respondent No.2­Divisional

Manager, who disposed of the same vide order dated

22.11.2021, which reads as under:­

"Whereas Sh. Prem Lal, Conductor, HRTC, Mandi unit

has preferred an appeal against office order No. HRTC­ MD­ESTT/PFE­/Prem Lal Singh Cond./2020­496 dated 06.05.2021 passed by the Regional Manager, HRTC, Mandi, imposed therein the penalty of stoppage of his two annual increments with cumulative effect. And whereas, Sh. Prem Pal, Conductor was charge sheeted UR­14 of CCS (CC&A) Rules, 1965 for embezzlement of Rs. 414/­ by was of not issuing tickets to 6 passengers.

And whereas, the case was entrusted to Enquiry Officer, HRTC, D/O Mandi for conducting inquiry in to the charges leveled against him and the Enquiry Officer submitted her inquiry report to the Discliplinary

.

Authority i.e. Regional Manager, HRTC, Mandi, vide

letter No. 4581 dated 23.02.2021 in which charges leveled against him have been fully proved.

And whereas, a show cause notice was served to Sh. Prem Pal, Conductor by Regional Manager, HRTC, Mandi vide memo, 6939 dated 04.03.2021. And whereas, the said Sh. Prem Pal, Conductor,

submitted his reply to the above mentioned show cause notice on 15.03.2021. The Regional Manager, HRTC, Mandi was not satisfied with the reply of the said

Conductor and imposed the penalty of stoppage of his

two annual increments with cumulative effect vide order No. 496 dated 06.05.2021.

Now, therefore, the undersigned after careful

consideration of the whole case as well as relevant records of the appeal and in exercise of the powers vested in him under CCS (CC&A) Rules, 1965 and all

other powers enabling him in this behalf came to the conclusion that there is no need to interfere with the

orders of Regional Manager, HRTC Mandi. Hence, the appeal of Sh. Prem Pal, Conductor, is hereby considered

and rejected being devoid of merits."

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 being 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 rorders 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

22.11.2021 (Annexure P­9) passed by respondent No.2 is

quashed and set aside and respondent No.2 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 3rd January, 2022 (raman)