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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
JYOTSNA REWAL DUA, J.
Harish Kumar - Appellant
Versus
HRTC & Anr. - Respondents.
CWP No. 15190 of 2024
Decided on : 04-01-2025
(A) Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rules 14, 25, 29, and 29-A - Disciplinary proceedings - Show cause notice issued by Appellate Authority for enhancing penalty while appeal against original penalty was pending - Court held that the Appellate Authority could not exercise review powers without new evidence and before the appeal period lapsed - Issuance of show cause notice quashed. (Paras 2, 5, 5(i), 5(iii), 5(v))
Facts of the case:
The petitioner, a driver, faced disciplinary action resulting in a penalty of stopping one increment. Before he could appeal, the Appellate Authority issued a show cause notice to enhance the penalty, claiming it was not commensurate with the charges.
Findings of Court:
The issuance of the show cause notice was improper as the appeal period had not expired, and no new evidence justified the review.
Issues: Whether the Appellate Authority could issue a show cause notice for enhancing the penalty while the appeal against the original penalty was pending.
Ratio Decidendi: The court ruled that the Appellate Authority's action was premature and reflected prejudgment, as the appeal period had not lapsed and no new evidence was presented.
Result: The impugned show cause notice was quashed and set aside.
JUDGMENT :
Jyotsna Rewal Dua, J.
During pendency of petitioner’s appeal against the penalty imposed upon him by the disciplinary authority, a show cause has been issued to him by the appellate authority as to why the penalty should not be enhanced. The said show cause notice has been impugned herein
2. Petitioner was appointed as Driver in the respondent- corporation. On 21.10.2015, his services were regularized but on probation. In July 2019, he was confirmed in service.
On 29.09.2023, a memorandum of charge-sheet was issued to the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) [CCS(CCA) in short] Rules, 1965. On the basis of report of the Inquiry Officer, the Regional Manager HRTC, Rampur Unit-Disciplinary Authority passed office order on 13.11.2024 (Annexure P-2) imposing penalty of stopping one increment with cumulative effect. 19 days later i.e. on 02.12.2024, the Appellate Authority/Divisional Manager HRTC Shimla Division issued a show cause notice (Annexure P-3) to the petitioner that it being the Reviewing Authority, intended to enhance the penalty imposed by the Disciplinary Authority and therefore he was given an opportunity to make representation on the enhanced penalty proposed by the Appellate Authority. Petitioner feels aggrieved against the show cause notice dated 02.12.2024 issued by the Divisional Manager HRTC.
3. Following order was passed in this petition on 12.12.2024:-
“Notice. Mr. Rahul Gathania, Advocate, appears and waives service of notice on behalf of the respondents.
2. The petitioner’s grievance, as projected by the learned Senior Counsel, is that pursuant to disciplinary proceedings initiated against the petitioner, a penalty was imposed upon him by the disciplinary authority on 13.11.2024, whereby petitioner’s one increment was stopped with cumulative effect, and the period of his suspension w.e.f. 15.09.2023 to 19.10.2023 (35 days) was not to be counted for pension and gratuity.
3. The learned Senior Counsel submits that before the petitioner could prefer appeal against the imposition of the aforesaid penalty, the Appellate Authority issued a show-cause notice to the petitioner on 02.12.2024, as to why the penalty imposed upon him should not be enhanced on the ground that the same was not commensurate with the gravity of the charges proved against the petitioner.
4. Inviting attention to Rule 29(A) of the CCS (CCA) Rules, 1965, learned Senior Counsel submits that the Appellate Authority, could not have exercised power of review as there was no new material or evidence that was not produced or available at the time of passing the order imposing the penalty upon the petitioner.
5. Let the learned counsel for the respondents file/obtain reply/instructions by the next date of hearing.
List on 26.12.2024.
In the meanwhile, respondent though may proceed further with the show cause notice (Annexure P3), however, final decision thereupon shall not be taken without the leave of the Court.”
Learned counsel for the respondent did not dispute the facts pleaded by the petitioner, did not file reply but placed on record a letter dated 28.07.2023 from the respondent No.1 addressed to respondent No.2 justifying the issuance of impugned show cause notice as under:-
“As you are aware, that a Standard Operating Procedure (SOP) has been formulated to deal with all the ticketless travelling cases, which had been detected by the checking officials.
A number of ticketless travelling cases have been found ranging from Rs. 1 to Rs. 10,000/- in the recent past. The cases of embezzlement are to be dealt strictly without any partiality. For dealing such cases of embezzlement a yard stick has to be followed by the officer, but it has been found that the officers at unit level are neither maintaining the yard stick nor following the SOP adopted by the HRTC.
Analysis has been done for the embezzlement cases in the corporation, and found that the penalty imposed was not commensurate with the embezzl
The Appellate Authority cannot enhance a penalty while an appeal against the original penalty is pending, absent new evidence or after the appeal period has expired.
A higher authority cannot enhance disciplinary penalties without an appeal from the employee, as procedural safeguards must be observed to ensure justice.
The court affirmed that a penalty classified as minor does not require a full inquiry, and the procedural requirements for imposing such penalties were adequately met.
The principle of double jeopardy prohibits imposing a second punishment on the same charge after the conclusion of the criminal case.
The doctrine of constructive res-judicata applies when a party fails to challenge certain findings in a previous petition, and the court cannot interfere with the disciplinary authority's decision if....
It is well settled, by a series of rulings of Apex Court and various High Courts including Court, that in a case where disciplinary authority and enquiry authority are two different functionaries, th....
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