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2024 Supreme(Online)(HP) 4853
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWPOA No.6827/2020
Reserved on: 20.5.2024
Decided on: 22.5.2024
Ashwani Kumar Joshi
…..Petitioner
Versus
General Industries Corporation Limited & anr. ….Respondents
[
Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 No
For the petitioner:
Mr. Sanjeev Bhushan, Sr. Advocate
with Sohail Khan, Advocate.
For the respondents:
Dr. Lalit K. Sharma, Advocate.
____________________________________________________________________
Justice Tarlok Singh Chauhan
The petitioner, though was working as Senior Scale
Stenographer, but vide office order dated 8.4.2013 was ordered
to look after the work of store department in addition to his
existing duties and one Krishan Dev Singh, worker, was also
deputed to assist him.
2
As per the petitioner, physical verification of store
and stock was not conducted at the end of financial year i.e. on
31.3.2013 as Madan Kumar, Junior Assistant did not join his
duties back and even did not hand over the charge.
1
Whether reporters of the local papers may be allowed to see the judgment? Yes.
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High Court of H.P.
2
Respondent No.2-country liquor bottling plant vide order dated
16.6.2013 constituted a committee of 7 persons including the
petitioner for conducting verification of stock and store.
3
During such inspection, packaging material
amounting to Rs.4,83,436/- was found short in the stock and
store of respondent No.2 and on the basis of such shortfall, the
respondent-Department issued charge sheet against Madan
Kumar, Ex-senior Assistant, and the petitioner herein.
4
The proceedings were initiated under Rules 14 and
18 of the Central Civil Services (Classification, Control and
Appeal) Rules, 1965 (for short, the CCS (CCA) Rules. In the
inquiry so conducted, charges against the petitioner stood
proved and accordingly, respondent No.1-disciplinary authority
held the petitioner to have been negligent in performing his
duties in the store section and ordered recovery of amount of
shortages detected in the stocks and stores to the extent of
25% (Rs.1,20,859/-) from his monthly salary @ 1/3 rd of his
basic pay while rest of the amount was directed to be recovered
from other delinquent i.e. Madan Kumar.
5
Aggrieved by the order passed by the disciplinary
authority, the petitioner filed an appeal before the Board of
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High Court of H.P.
3
Directors (for short, “the B.O.D.”) and the same was accepted on
28.9.2015 by according following reasons:-
The Board considered this Item and after detailed
discussions it was observed that the penalty has rightly
been imposed on Shri Madan Kumar, Ex-Store Keeper,
CLBP Mahatpur. Moreover, It was observed that penalty of
merely recovery of the loss caused has been imposed on
him whereas he has been also negligent in discharge of
duties. Disciplinary Authority has already taken lenient
view and accordingly BOD decided to dismiss the appeal
being devoid of merits and authorized the Managing
Director to pass Speaking Orders on this.
Further, the BOD after detailed discussions observed that
nothing is made out against Shri Ashwani Kumar Joshi.
Therefore, it was decided to exonerate him by setting
aside the order Imposing penalty of recovery on him.
Further, It was observed by the BOD that the then GM
CLBP Mehatpur erred and failed to discharge his duties
properly and in a responsible manner by not getting the
stores & stocks physically verified by constituting a
physical verification Committee before passing Office order
to Sh. Ashwani Kumar Joshi to take charge of the stock &
Store Items during the leave period of Shri Madan Kumar
Walia, Sr.Asstt. Store.
As such It was desired that disciplinary action may be
initiated against the then GM CLBP Mehatpur and the
matter be placed before the BOD in its next meeting to be
held in the month of December, 2015.
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4
"FURTHER RESOLVED that the Managing Director of the
Corporation be and is hereby authorized to take all steps
in this regard."
6
Thereafter show cause notice dated 7.12.2015 was
issued to one G.K. Lakhanpal, Ex. GM., but it appears that the
matter was again placed before the Board of Directors on
30.9.2016, wherein the B.O.D. dismissed the appeal filed by the
petitioner and maintained the order passed by respondent No.1.
Relevant portion of the decision taken by the B.O.D. reads as
under:-
“The Board considered this item and after detailed
discussions, dismissed the appeal filed by Shri Madan
Kumar, Ex- Sr.Asstt. (Store/Gen.) and Sh. Ashwani Kumar
Joshi, Sr. Scale Stenographer against the Order of
competent authority dated 24.07.2015 by passing the
following resolution:-
"RESOLVED that the appeal filed by of Shri Madan Kumar,
Ex-Sr. Asstt. (Store/Gen.) and Sh. Ashwani Kumar Joshi,
Sr. Scale Stenographer against the Order of competent
authority dated 24.07.2015 be and is hereby dismissed
and the order of Managing Director passed vide letter No.
PF-6/88-2015-829 dated 24.7.2015 will stand. "
"IT IS FURTHER RESOLVED that Managing Director of the
Corporation be and is hereby authorised to take all
necessary steps in this regard."
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High Court of H.P.
5
7
Aggrieved by the aforesaid order of the B.O.D., the
petitioner has filed the instant petition for grant of the following
substantive reliefs:-
“1.
That
impugned
The court held that the disciplinary proceedings were vitiated due to the blatant violation of the procedure prescribed under Rule 15 of the CCS (CCA) Rules, and the long delay of more than 9 years and the petitioner's impending retirement made it unfair to direct further inquiry.
Headnote:
Service Law - Disciplinary Proceedings - CCS (CCA) Rules 15
Fact of the Case:
The petitioner was subjected to disciplinary proceedings and recovery of Rs. 1,20,859/- was made from him. The petitioner challenged the various orders passed in the disciplinary proceedings.
Finding of the Court:
The court found that there was a blatant violation of Rule 15 of CCS (CCA) Rules by the disciplinary authority in not following the prescribed procedure. The court also found that the Board of Directors (BOD) rejected the petitioner's appeal without providing any reasons and without affording him an opportunity to defend his case. The court held that it would be extremely unfair, harsh and unnecessary to direct further inquiry, given the long delay of more than 9 years and the petitioner's impending retirement.
Issues: Whether the disciplinary proceedings and the recovery of amount from the petitioner were valid?
Ratio Decidendi: The court relied on the principles laid down in M.V. Bijlani v. Union of India and Allahabad Bank & Ors. v. Krishna Narayan Tewari, where the Supreme Court held that in cases of long delay and other supervening circumstances, the court may not remand the matter back to the disciplinary authority and can instead quash the orders and direct the refund of the recovered amount.
Final Decision: The court quashed the impugned orders and directed the respondents to refund the recovered amount of Rs. 1,20,859/- to the petitioner within four weeks, failing which the respondents shall be liable to pay interest at 6% per annum.
ORDER
(Annexure A-9) dated 15.11.2016, as also the decision on Item No. 201.12 taken in meeting of BOD on 30.09.2016 (Annexure A-8), also as the order dated 24.07.2015 (Annexure A-4) and the order dated 30.01.2019 (Annexure A-13) may very kindly be quashed and set aside in the interest of law and justice.
2. That respondents may very kindly directed to refund the entire amount be of recovery which has already been recovered from the applicant to the tune of Rs. 1,20,859/- with interest @9% per annum in the interest of law and justice.”
8 Since these are the admitted facts and the respondents have not controverted the same, therefore, we have proceeded to hear the matter.
9 Evidently, there has been blatant violation of Rule 15 of CCS (CCA) Rules when the disciplinary authority failed to follow the procedure as prescribed under sub Rules 1 and 2 thereof, which provide for as under:-
- “15. Action on inquiry report (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.
(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.”
10 What is more shocking is the manner in which the B.O.D. has taken the decision. Once the appeal filed by the petitioner had been accepted, the same could not have been rejected in absence of any reasons, that too, without affording an opportunity to the petitioner to defend his case.
11 In absence of there being any notice and further in absence of any adverse material made available to the petitioner, the B.O.D. could not have rejected the appeal filed by him.
It is well settled law that in a normal course, the matter would have to be remitted back to the authorities but the respondents cannot take advantage of such law by blatantly violating the same at every step or else that would be giving a licence to the respondents to arm twist its employees by leaving lacunas and prolonging departmental action indefinitely.
13 As observed above, the normal procedure adopted by the writ Court is to remand the matter to the departmental authority, but this is only one of the options before the Court and in appropriate cases the Court may refuse to direct the government employee to undergo the rigors of the departmental inquiry.
14 In M.V. Bijlani v. Union of India (2006) 5 SCC 88 the Hon'ble Supreme Court took a view that on account of a long lapse of time the matter was not required to be remitted to the disciplinary authority and the government employee was reinstated in service.
15 Similarly, in Allahabad Bank & Ors. v. Krishna Narayan Tewari (2017) 2 SCC 308 the Hon'ble Supreme Court held as under:
- "8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a
