Yashwant Singh vs Himachal Pradesh State ...
2022 Latest Caselaw 9313 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                  CWP No. 2283 of 2022




                                                                       .
                                                  Decided on: 15.11.2022





      Yashwant Singh                                               ....Petitioner.

                   Versus





      Himachal Pradesh State Electricity Board
      Limited and another                                          ...Respondents.
      Coram





      The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
      Whether approved for reporting?1 Yes
      For the petitioner
                      r     :    Mr. J.L. Bhardwaj, Advocate.
      For the respondents         :       Mr. Tara Singh Chauhan, Advocate.
      Ajay Mohan Goel, Judge (Oral)

By way of this petition, the petitioner has prayed

for the following reliefs:-

i) That a writ in the nature of certiorari may

kindly be issued for quashing the impugned

order dated 06.12.2021 issued by Respondent-

Board vide Annexure P-15.

ii) That a writ in the nature of mandamus may

kindly be issued directing the Respondent-

Board to refund the amount of recovery made

from the salary of the petitioner in pursuance of

the impugned order dated 06.12.2021

alongwith interest @ 12% per annum from the

1 Whether reporters of the local papers may be allowed to see the judgment?

date the amount has been started recovering

that is w.e.f. January, 2022, till actual refund

.

made to the petitioner and justice be done."

2. Brief facts necessary of the adjudication of the

present petition are that the petitioner is stated to be serving

as Junior Engineer with the respondent-Board. A

memorandum was issued to the petitioner dated 15.03.2019,

Annexure P-11, on behalf of the disciplinary authority by the

Executive Director (Personnel) of the respondent-Board, in

which it was mentioned that the respondent-Board proposed

to hold an enquiry against the petitioner under Rule 14 of the

CCS (CC&A) Rules, 1965. It was further mentioned in the

said memorandum that a statement of imputations of

misconduct or misbehavior in support of each article of

charge was also enclosed, as well as a list of documents and a

list of witnesses, on the strength of which articles of charge

were to be proved, was also enclosed. The petitioner was

called upon by the respondent-Board to submit his reply

within 10 days and he was also instructed that if he does not

submits his written statement of defence on or before the

specified time period, or does not appear in person with his

defence or otherwise fails or refuse to comply with the

provisions of Rule-14 of the CCS (CC&A) Rules, 1965, the

enquiring authority may hold the enquiry against him ex

parte. In brief, misconduct alleged against the petitioner was

.

that while working as Junior Engineer, Electrical Sub

Division No. III, HPSEBL, Solan, he failed to maintain

absolute integrity and devotion to duty as he allowed

unauthorized installment of energy meters on the works of

M/s G.R. Infra Project Ltd., on 05.06.2017, without valid SCO

by the Assistant Engineer. Further, as per the statement of

imputation of misconduct or misbehavior, the petitioner was

alleged to have exceeded his authority by releasing the

connection to M/s G.R. Infra Private Limited and he also

committed dereliction in performance of official duty by not

conducting timely inspection of the energy meter

consumption.

3. Reply to the memorandum of article of charges

was filed by the petitioner in terms of the Annexure P-12

denying the charges. As the disciplinary authority was not

satisfied with the reply which was filed to the memorandum

by the petitioner, accordingly, Enquiry Officer was appointed

and enquiry was held in the matter. The enquiry report

which was submitted by the Enquiry Officer was forwarded to

the petitioner vide Annexure P-13, dated 09.09.2021, in

terms whereof the petitioner was given an opportunity to

make his representation, if any, against the inquiry report,

.

within a period of 15 days as from the date of issuance of the

notice. According to the petitioner, he submitted his response

to this notice vide Annexure P-14, dated 7th October, 2021. It

was mentioned in the opening paragraph of Annexure P-14

that the petitioner acknowledges the receipt of notice dated

9th September, 2021, received by him on 24th September,

2021 and he accordingly, submitted his reply thereto dated

7th October, 2021. This was followed by issuance of Annexure

P-15 i.e. order dated 6th December, 2021, in terms whereof

the disciplinary authority has imposed penalty of reduction of

pay of the petitioner by five stages from Rs.14,240/- to

Rs.12,100/- + Rs.4350/- grade pay in the pay band of

Rs.10,900-34800 for a period of five years from the date of

issuance of orders with the direction that during the period of

reduction, he will not earn increments and reduction will

have the effect of postponing future increments.

4. Feeling aggrieved, the petitioner has approached

this Court by way of present writ petition.

5. Mr. Jia Lal Bhardwaj, learned counsel for the

petitioner, has submitted that the impugned order which has

been passed by the disciplinary authority is liable to be set

aside on the short count that this order was passed by the

.

disciplinary authority without taking into consideration the

response which was filed by the petitioner to the enquiry

report, which has resulted in grave miscarriage of justice to

the petitioner, as his contentions against the enquiry report

were not considered by the disciplinary authority despite the

fact that the response was available with the disciplinary

authority at the time when the impugned order was passed.

6. Learned counsel for the petitioner has argued that

a perusal of the impugned order (Annexure P-15) itself

demonstrates that it is self speaking that despite the response

to the enquiry report being available with the disciplinary

authority, yet, the same was ignored by it on the ground that

the same was not submitted by the petitioner within the

stipulated time period. Learned counsel submitted that as

the notice itself was received by the petitioner on 24th

September, 2021, therefore, but natural, the time for

submitting the response has to be construed from the said

date and not from the date of issuance of the memorandum.

He further submitted that de hors this fact, once the

disciplinary authority was having the response which was

filed by the petitioner to the enquiry report, ignoring the same

and that too, on a hyper technical ground that the same was

.

not filed within the time prescribed in it, itself has smacks of

legal mala fides because under the provisions of CCS (CC&A)

Rules, there is no bar that if the response is not received by

the disciplinary authority within the prescribed time period,

then the disciplinary authority cannot consider the same at

the time of passing the order in the disciplinary proceedings.

On this count, learned counsel has submitted that the

present petition be allowed and the impugned order be

quashed and set aside.

7. The petition is opposed by the respondent-Board

inter alia on the ground that the plea of the petitioner on the

basis of which the petition has been filed is totally baseless as

the reply which was filed by the petitioner to the enquiry

report was duly appreciated and considered by the

disciplinary authority at the time of passing of the final order.

8. Leaned counsel for the respondent has taken the

Court through order Annexure P-15 and after relying upon

the same, he has submitted that the second page of the order,

which has been passed by the disciplinary authority, is self

speaking that the written statement of defence which was

filed by the delinquent employee, was considered by the

disciplinary authority and as per the learned counsel, this

.

averment finds mention in the impugned order on more than

one occasion. Accordingly, it has been argued that it is

incorrect on the part of the petitioner to suggest that the

response filed to the enquiry report was not considered by the

disciplinary authority at the time of passing of impugned

order Annexure P-15. On these bases, a prayer for dismissal

of the petition has been made.

9. I have heard learned counsel for the parties and

also carefully gone through the pleadings as well as

documents appended therewith.

10. The moot issue before this Court is twofold, (a)

whether the disciplinary authority could have had ignored the

response which was filed by the petitioner to the inquiry

report, even if it is assumed for the sake of arguments that

the same was not filed by the petitioner within the period

contemplated in the show cause notice and (b) whether the

contention of the respondent-Board that the response which

was filed by the petitioner to the inquiry report, was duly

considered by the disciplinary authority, is correct or contrary

to the record.

11. The Court will first answer the first issue. As

already mentioned hereinabove, after the issuance of the

.

memorandum and after receipt of the reply of the petitioner

thereto, as the disciplinary authority was not satisfied with

the response of the petitioner, accordingly, it decided to

initiate disciplinary proceedings against the petitioner. An

Enquiry Officer was appointed and inquiry was conducted.

The Enquiry Officer after completion of enquiry, submitted

his report and this report was forwarded by the disciplinary

authority, in terms of provisions of Rule 15 of the CCS

(CC&A) Rules, to the petitioner, calling upon him to submit

his response thereto. This notice is appended with the

petition as Annexure P-13. It is dated 9th September, 2021. A

perusal of this notice demonstrates that it was mentioned

therein that after holding the enquiry against the petitioner,

the enquiry report stood submitted by the enquiry officer and

the same was being forwarded to the petitioner alongwith the

notice, with an opportunity being afforded to him to submit

his response thereto within a period of 15 days from the date

of issuance of this notice, failing which it shall be presumed

that the petitioner has nothing to state in his defence and

appropriate action, as deemed fit, shall follow. The response

which was filed by the petitioner to the enquiry report is

appended with the petition as Annexure P-14. This response

.

is dated 7th October, 2021 and as already mentioned

hereinabove also in the very opening paragraph of this

particular Annexure, it was mentioned that the petitioner had

received notice Annexure P-13, dated 9th September 2021, on

24th September, 2021, and as the enquiry report submitted

by the officer was not maintainable, he was submitting

response thereto parawise.

12. The reference to Annexure P-14 is made in para-

21 of the writ petition and therein the petitioner has expressly

mentioned that the petitioner received the copy of notice

dated 9.9.2021, alongwith which an enquiry was enclosed,

only on 24th September, 2021, and as per the notice,

representation to the enquiry report was to be furnished by

the petitioner within a period of 15 days as from the date of

issuance of notice which admittedly was received by the

petitioner on 24th September, 2021 and he submitted a

detailed response thereto in terms of Annexure P-14 dated

07.10.2021. A perusal of para-21 of the reply which has been

filed by the respondent-Board demonstrates that the factum

of notice dated 09.09.2021, having been received by the

petitioner on 24.09.2021, has not been denied. That being the

case, this Court is of the considered view that the myopic

.

construction of the notice by the respondent-Board that

response thereto had to be filed by the petitioner within the

period of 15 days as provided in the show cause notice is not

sustainable in law. Assuming that the notice was received by

the petitioner after 15 days as from the date of issuance

thereof, then, it is to be presumed that the petitioner in fact

had lost the right to file reply thereto? The answer obviously

has to be in the negative. Now in the backdrop of what has

been discussed, this Court has no hesitation in holding that

as notice dated 9th September, 2021, was received by the

petitioner on 24th September, 2021 and admittedly the

response to the enquiry report thereafter was filed within 15

days as from the date of receipt of said notice, the disciplinary

authority was duty bound to have had considered the

response so filed and thereafter, taken a view with regard to

punishment, if any, to be imposed upon the petitioner or not.

At this stage, this Court would like to make an observation

that in the larger interest of justice, even if the disciplinary

authority had received the response to the enquiry report

after the lapse of time mentioned in the notice, but before the

decision was taken on the issue by the disciplinary authority,

then also, interest of justice demanded that the response

.

should have been to be taken into consideration by the

disciplinary authority before passing the final order in the

matter because there is no bar in terms of the provisions of

CCS (CC&A) Rules in general and Rule 15 thereof in

particular that reply to the enquiry report, if filed after the

lapse of time prescribed in the notice, cannot be taken into

consideration by the disciplinary authority. Therefore,

passing of the impugned order by the disciplinary authority

by ignoring the response which was filed by the delinquent

employee to the enquiry report is not sustainable in the eyes

of law and the impugned order is liable to be set aside on this

count alone.

13. Now this Court will answer the second issue which

has been framed by this Court, i.e. whether the contention of

the respondent-Board that the response which was filed by the

petitioner to the inquiry report was duly considered by the

disciplinary authority, is correct or not. The Court is shocked

and surprised that this contention was made before the

Court, which is contrary to the contents of the impugned

order Annexure P-15. The relevant extract of the order, which

expressly states that the reply filed by the petitioner to the

enquiry report was not considered by the disciplinary

.

authority as it was received after the date prescribed in the

same, is quoted herein below:-

"And whereas, Sh. Yashwant Thakur, Junior

Engineer, has not submitted the reply against inquiry

report within stipulated period as per condition of

notice."

14. In the teeth of contents of the impugned order

which have been quoted hereinabove, the contention of the

respondent-Board that the reply which was filed by the

petitioner to the enquiry report was considered by it, does not

holds any water. The Court reiterates that it is not as if it is

mentioned in the impugned order that though the reply which

was filed to the enquiry report was not received within the

prescribed period, yet it was considered. The language is

explicit and very very clear that the petitioner had not

submitted the reply against the enquiry report within

stipulated period as per condition of the notice. Thereafter,

there is nothing in the impugned order from which it could be

inferred that indeed the reply, which was filed by the

petitioner to the enquiry report, was in fact considered by the

disciplinary authority while passing the impugned order. The

reference of learned Counsel for the petitioner to the portion

of the impugned order wherein it is mentioned that the

.

written statement of defence filed by the petitioner was taken

into consideration is misleading as statement of defence is no

substitute for the response which was filed by the petitioner

to the enquiry report for the reasons that this written

statement of defence etc. are of pre-enquiry stages and after

the enquiry report was filed by the Enquiring Officer, the

provisions of Rule 15 of the CCS (CC&A) Rules, 1965, come

into application. The right to file response to the enquiry

report is a right which is enshrined under CCS(CC&A) Rules

and this right cannot be infringed in the mode and manner in

which it was done by the respondent-Board in the present

case and this Court in fact concurs with the contention which

has been raised by learned Counsel for the petitioner that

there are smacks of legal mala fides in the present case.

15. Accordingly, this petition succeeds and the

impugned order is quashed and set aside on the ground that

the response which was filed by the petitioner to the enquiry

report was not considered by the disciplinary authority at the

time of passing of the impugned order, which has resulted in

grave miscarriage of justice to the petitioner because

technically he has been condemned unheard by the

disciplinary authority. The disciplinary authority shall pass a

.

fresh order in the case, after taking into consideration the

response filed by the petitioner. Cost of Rs.2.00 Lac is

imposed upon the respondent-Board for trying to mislead the

Court and raising arguments against the record. Out of the

same, Rs.1.00 Lac shall be deposited with Himachal Pradesh

High Court Bar Association and Rs. 1.00 Lac be paid to the

petitioner.

It goes without saying that the order, which shall

be passed by the disciplinary authority, has to be a reasoned

and speaking order. Pending miscellaneous application(s), if

any, also stand disposed of accordingly.

                                          (Ajay Mohan Goel)
    November 15, 2022                               Judge





       (narender)