Disciplinary authorities possess discretionary power to modify penalties; however, any administrative action resulting in the enhancement of an existing penalty or the reversal of a previous mitigation must comply with principles of natural justice by providing the affected individual a reasonable opportunity to be heard.

JUDGMENT :

MEENAKSHI MADAN RAI, J.

1. Whether the office order bearing no.1615/G/DOP, dated 25-09-2018, of the Govt. of Sikkim, Deptt. of Personnel, ADM. Reforms, Training and Public Grievances, Gangtok (hereinafter, “DOPART”), terminating the government service of the respondent could have been modified to one of compulsory retirement by the same department, vide office order bearing no.6001/G/DOP, dated 27-02-2019, sans consultation by the Governor with the Sikkim Public Service Commission (hereinafter, “SPSC”):

(i) On the heels of the above circumstance, whether the appellants, vide the order dated 14-02-2023, bearing no.820/G/DOP, could have withdrawn the aforementioned office order, bearing no.6001/G/DOP, dated 27-02-2019, citing non- compliance of Rule 11 of the Sikkim Government Servants’ (Discipline and Appeal) Rules, 1985 (hereinafter, “D&A Rules”) and restored the penalty of termination, imposed by the prior office order bearing no.1615/G/DOP, dated 25-09-2018, are the two questions that fall for determination in this intra-Court appeal.

2. Before delving into the merits of the matter, it is essential to put forth a brief summation of the facts that led to the discord between the parties herein:

(i) In 1994, the respondent was appointed as Assistant Engineer in the State Government and in 2004 promoted as Divisional Engineer.

(ii) On 09-07-2012, the Sikkim Vigilance Police Station registered an FIR, under the provisions of the Prevention of Corruption Act, 1988, against the respondent, alleging that he was in possession of disproportionate assets.

(iii) A few days later, vide letter dated 18-07-2012, addressed to the P.C.E.-cum-Secretary, Buildings and Housing Department, the respondent resigned from government service. He was instead placed on suspension, from 19-07-2012, vide office order no.967/G/DOP, and his resignation rejected, vide letter bearing no.9194/G/DOP, dated 13-08-2012, of the DOPART, on grounds of the pending vigilance case against him.

(iv) The respondent sought to withdraw his resignation letter dated 18-07-2012 and also requested for revocation of his suspension, by a letter dated 29-09- 2014, addressed to the Chief Minister of Sikkim. The suspension order, dated 19-07-2012, was revoked by office order of the DOPART, bearing no.2588/G/DOP, dated 04-11-2014.

(v) Subsequent thereto, on 04-11-2016, the Sikkim Vigilance Police sought initiation of departmental action against the respondent along with other engineers, on grounds of misconduct and failure to maintain absolute integrity.

(vi) This was followed by issuance of a Memorandum bearing no.5202/G/DOP, by the DOPART, dated 30-03- 2017, to the respondent for causing disappearance of GI pipes and passing false bills. The respondent was to submit his written statement within ten days of receipt of the charge. Instead, he applied for voluntary retirement, vide letter dated 28-07-2017, which was rejected on 14-10-2017.

(vii) In addition to the above circumstances, the respondent also remained incommunicado and was found to be absent unauthorizedly from work. On this count, the DOPART issued Memorandum no.10672/G/DOP, dated 27-06-2017, under Rule 5 of the D&A Rules requiring him to submit his defence within ten days.

(viii) The respondent filed two separate responses, both dated 23-07-2018, to the Memoranda (supra). Annexure R-8, denying charges of misappropriation and Annexure R-9, accepting charges of unauthorised absence from work.