IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 4314 of 2011-E Date of Decision : December 20, 2011 Shri Prem Lal son of Shri Jamit Singh, Resident of Village Bhrian, P.O. Kupara, Tehsil & District Chamba, Himachal Pradesh. Petitioner Versus 1. State of Himachal Pradesh through Secretary (Education) to the Govt. of Himachal Pradesh, Shimla. 2. The Director of Higher Education to the Govt. of Himachal Pradesh, Shimla. Respondents Civil Writ Petition under Article 226 of Constitution of India for issuance of writ in the nature of certiorari and mandamus or any other order in favour of the petitioner keeping in view the factual matrix narrated in the body of the Civil Writ Petition. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Sanjeev Bhushan, Advocate. For the respondents : Mr. Vinod Thakur, Dy. Advocate General. Justice Sanjay Karol, J. (Oral) Reply/affidavit filed by the State is taken on record. Whether reports of Local Papers may be allowed to see the judgment? 2 2. Petitioner has prayed for the following reliefs:- (i) A writ in the nature of certiorari may very kindly be issued and impugned Annexure P-6 dated 6.1.2010 and Annexure P-9 dated 26.4.2011 may very kindly be quashed and set aside. (ii) That a writ in the nature of mandamus may very kindly be issued directing the respondents to promote the present petitioner to the post of Principal w.e.f. the year 2001 with all consequential benefits of pay, arrears, seniority etc. etc. (iii) The respondents may very kindly be ordered to be directed to produce the entire record pertaining to the present case before this Hon’ble Court for the kind perusal of this Hon’ble Court. (iv) Or any other relief as this Hon’ble Court deems fit and proper in the facts and circumstances of the case may also kindly be passed in favour of the petitioner and against the respondents in the interest of justice and fair play.” 3. It is not in dispute that disciplinary proceedings were initiated against the petitioner who was working as a lecturer in the subject of Political Science at G.S.S.S. Bathri, Distt. Chamba, H.P. 4. The same pertained to the following two charges:- “Article of charge-I That Sh. Prem Lal Thakur Lect. while functioning as Offig. Principal in GSSS Bathri, Distt. Chamba has reportedly misused the DDO Powers and harassed Smt. Kiran Mala, Contract Lecturer, Sh. Ramesh Kumar peon and other staff on the said institution etc. Then the said Sh. Prem Lal Thakur, Offig. Principal has violated the 3 Provisions of the 3(1) ii and iii of CCS Conduct Rule 1964. Article of Charge-II: That the said Sh. Prem Lal Thakur while functioning as Offig. Principal has done prima facie embezzlement/misappropriation of Public Money of Rs. 28000/- out of the school Building fund Rs. 2570/- out of Scout and Guide fund on 17.10.2002 and 22.10.2002 in the said institution. Whereas regular Principal had already joined on 11.10.2002 in the said institution and ceased to be the DDO from 11.10.2002 onwards. Moreover, no formalities were completed by him for carrying out the ceiling works of School Building. It is suspected that the amount withdrawn out of the above funds was used by him for the vested interest. The following witness have been examined in order to substantiate these charges against Sh. Prem Lal Thakur.” 5. Inquiry officer appointed by the disciplinary authority submitted his report (Annexure P-2) by giving the following findings:- “I have gone through the whole record of the day to day proceedings/written defence statement of the charged official & the written brief filed by the Presenting Officer & as well as by the Defence Counsel of the Charged official and have come to the conclusion that the charge No. 1 regarding the misuse of DDO Powers was done by the charged official but the then regular Principal did not object to it and did not file any complaint with the higher officials there and then. Regarding charge of Article –II embezzlement of Rs. 28000/- out of building fund & Rs. 2570/- from Scout 4 and Guide fund was not proved Because the payment was …….. (sic) to the concerned quarters & that is attested by the regular DDO. In the end it is concluded that there is no evidence of misappropriation of funds and harassment to Smt. Kiran Mala Lecturer Contract and Sh. Ramesh Kumar Peon. However the co marked ½ day C.L. of Smt. Kiran Mala without following the proper procedure. Now it is for the disciplinary authority to take suitable action under the provision of Rules.” [Emphasis supplied] 6. Quite apparently the inquiry officer, to a large extent, absolved the petitioner of the charges. It appears that inquiry report was in fact accepted by the authorities that is why no consequential action taken by the disciplinary authority for more than three years. Apparently the disciplinary authority did not act on the inquiry report, which was submitted in the year 2006, till the year 2009. 7. It was only in terms of memorandum dated Nil, June, 2009 (Annexure P-3) petitioner was issued show cause notice, proposing to initiate action and that too under Rule 16 of CCS (CCA) Rules, 1965. The disciplinary authority undisputedly did not assign any reasons for disagreeing with the findings of the inquiry officer. Petitioner replied to the same (Annexure P-5) clearly bringing out findings of the inquiry officer to the notice of the disciplinary authority. 8. Surprisingly vide impugned order dated 6.1.2010 (Annexure P- 6), disciplinary authority, without even referring to the findings returned by the inquiry officer or assigning any reasons for 5 disagreeing with the same, in a cryptic and unreasoned order imposed penalty to the effect that “next one increment be withheld with cumulative effect”, which is also termed to be a minor penalty. 9. Rule 11 of the CCS (CCA) Rules, 1965 prescribes withholding of increment of pay to a major penalty. The action contemplated by the disciplinary authority in Annexure P-3 was with regard to minor penalty and not major penalty. As such no major penalty could have been imposed. It appears that the disciplinary authority, unmindful of the Rules passed the impugned order (Annexure P-6) in utter haste and only with the object of denying the petitioner benefit of being considered for promotion to the next higher post. The procedure adopted by the disciplinary authority is totally illegal. In notice (Annexure P-3), there ought to have been reference of the inquiry report. In any event while passing the impugned order (Annexure P-6) the disciplinary authority ought to have dealt with the submissions/contentions raised by the petitioner in response to Annexure P-3. As such the impugned order (Annexure P-6) and subsequent order dated 26.4.2011 (Annexure P-9) passed by the appellate authority are quashed. 10. Mr. Vinod Thakur, learned Deputy Advocate General submits that in any event petitioner cannot be considered for promotion to the next higher post in view of other disciplinary proceedings pending against him. 11. Insofar as petitioner’s prayer for promotion is concerned, it is held that the date on which petitioner was to be otherwise 6 considered for promotion to the next higher post and there being no other impediment, apart from the instant inquiry proceedings, his case for promotion, shall be considered in accordance with law. Consequential action shall be taken within a period of three months from the date of receipt of certified copy of the judgment. With the aforesaid observations, present petition stands disposed of, so also the pending application(s), if any. (Justice Sanjay Karol), Judge. December 20 , 2011 (PK)