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2023 Supreme(HP) 223
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Jyotsna Rewal Dua, J.
Jagbandhu - Petitioner
Vs.
State of H.P. & Ors. - Respondents
CWPOA No.629 of 2020
Decided On : 20-04-2023
Advocate Appeared:
For the Petitioner:Mr. Sanjeev Bhushan, Senior Advocate with Mr. Rakesh Chauhan, Advocate.
For the Respondents:Mr. Navlesh Verma, Additional Advocate General.
Point of Law: In an appeal against any other order specified in rule 23, appellate authority shall consider all circumstances of case and make such orders as it may deem just and equitable.
Headnote:
Central Civil Services (Classification, Control and Appeal) Rule, 1965 - Rule 14, 11(viii), 23, (ii), 27(2) and (3), 16 - Disciplinary Authority - Penalty of removal from service - Petitioner was imposed penalty of removal from service by Disciplinary Authority vide order - Aggrieved, petitioner has preferred this petition – Appellate Authority observed that it has gone through submissions of petitioner vis-à-vis findings of Inquiry Officer and then came to conclusion that there was no merit in appeal - Para 5.
Finding of the Court :
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.
Result: Petition allowed.
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.
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 su
