1 . c g' hraugh thgisteary t e¢t aW-w‘m ‘lifa Bha'va. I 'Qepa-rtmaqt :A r State g m‘ E *Babh‘ ‘h ggmL . 7 \bLK Ma £ : \ ., \ (3) Learned counsel for the petitioners submitted that the order of recovery from the pay of the petitioner is in the nature of a minor penalty specified under Rule 10 of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (ln short “the Rules of 1966"), and therefore, the procedure as \ \ HIGH COURT OF CHHATTISGARH : BILASPUR Sinqle Bench: Hon’b'le Shri Manindra Mohan Shrivasmva, J. Present: - Shri Anil Pandey. counsel for the petitioners. Shri Satish Gupta, Govt. Advocate for the State. ORDER (ORAL) (Passed on 20‘“day or July, 2010) Though in this petition. originally tiled before the State Administrative Tribunal at Jabalpur in the year 1999, several relief were claimed. learned counsel for the petitioner fairly submits that by lapse of time, now only relief as prayed in Clause-(iii) survives for consideration. (2) Facts necessary for adjudication of controversy involved and sun/iving for consideration in the present writ petition are that while petitioner No.2 was working as Assistant Professor in Govt. Pandit Jawahar Lal Nehru Arts and Science College. Bemetara, District Durg, certain audit objections were raised. On the basis of those audit objections, queries were made by the Principal, which were replied. Ultimately, impugned order of recovery dated 28-08-1998 (Annexure A-8) was passed by the Principal-respondent No.2, by which, an amount 'of Rs.7,467/- was directed to be recovered from the salary of the petitioner No.2 for the month of August, 1998. \ \ \ WRIT PETITION (3.) No.1 78412005 PETITIONERS: Dr. Rajendra Prasad Tripathi and Another Versus RESPONDENTS: State of M. P. and Others prescribed under Rule 16 of the Rules of 1966 ought to be followed. It is submitted that there was no notice as required under Rule 16 of the Rules of 1966. and therefore, the order of recovery in the form of deduction from pay, is in excess of authority under the law. a a? (4) On the other hand, submission of learned counsel for the respondents/State is that there has been substantial compliance of the provisions contained in Rule 16 of the Rules of 1966 inasmuch as petitioner was given a show cause notice. The petitioner had an opportunity to submit his comments on the disputed purchases made. After receipt of the reply of the petitioner, the order of deduction from the salary of petitioner No.2 was made. ult is submitted that the aforesaid procedure adopted by the Principal fulfills the requirement of principles of natural justice. Further submission of learned counsel for the respondentslState is that there are no specific pleadings either in the petition or in the rejoinder affidavit of the petitioner No.2 to the effect that no show cause notice as required under Rule 16 of the Rules of.1966 was issued, before issuing the impugned order, by which. deduction from salary was made. Learned counsel for the respondents/State refers to Annexure R-lV (a) (b) (c) and (d) to contend that ample opportunity of hearing was afforded to the petitioner before ordering deduction. lt is also submitted that petitioner No.2 submitted her reply, and therefore, it cannot be submitted that no opportunity of hearing was afforded to the petitioner. a (5) The impugned order dated 28-08-1998 (Annexure A-8) records that certain purchases, which were made by the petitioner No.2, were doubtful, and therefore, the petitioner was directed to deposit the amount which was paid towards such purchases. The aforesaid order records that as it was a case of doubt as to whether purchases were made or not, it was not accepted, and therefore, deduction from salary of petitioner No.2 was ordered. A perusal of averments made in para 9 of the return clearly revealed that the aforesaid deduction was ordered on an opinion that the petitioner committed fraud. and therefore, recovery has been made. it is thus clear that the recovery by making deduction from the saiary'of petitioner No.2, was result of a opinion) regarding misconduct on the part of the petitioner No.2. The nature, effect and impact of the order, is therefore, clearly punitive in nature. As the recovery is punitive in nature, the question which arises for consideration is whether, while imposing such penalty of recovery, procedure prescribed in the Rules of 1966 has been followed or not. The respondents/State have averred in para 3 & 9 of their return that a show cause notice was issued to the petitioner and reply was obtained, which was found unsatisfactory. A perusal of so-called show cause notice dated 10-07-1998 placed on record as Annexure R-4(a) along with return shows that petitioner was informed that certain audit objections were raised and the petitioner is required to give his reply, so that, objections may be disposed of. The document dated 12-02-1997 (Annexure R-4(b) shows that certain irregularities based on examination of records were communicated to the petitioner. The document (Annexure R—4(c) dated 17-07-1998 requires the petitioner to submit records. The other document (Annexure R-4 (d) dated 23-07- 1998 required the petitioner to submit certain information. (6) fower to impose penalty on a government servant is derived from the statutory provisions contained in the Rules of 1966. The power has to be exercised by the competent authority as specified under the rules and by following the procedure prescribed under those rules. ln sofar as imposition of penalty in the nature of minor penalty is concerned, Rule 16 of the Rules of 1966 tequires that no order imposing on a govemment servant any of the penalties specified in clause (i) to (iv) of Rule -10 and Rule 11 of the Rules of 1966 shall be made except after informing the government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour, on which, it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposai. The aforesaid requirement of the rule, in addition to other procedurai safeguard embodied under other clause of Rule 16 of the Rules of 1966, clearly postulates , issuance of notice informing the government servant in writing the proposal to take action against him. The‘notice therefore, in order to be a notice under Rule - 16. ought to propose departmental action against the petitioner by clearly stating the imputations of misconduct and misbehaviour on which it is proposed to be taken. lf the notices [Annexure R-4(a)] to (d) are scrutinized in the light of the aforesaid statutory provisions, the same cannot be said to be notice in terms of Rule 16 of the Rules of 1966. Firstly, because it does not contain specific imputations of misconduct or misbehaviour and secondly, it does not propose any action as contemplated under Rule 16 Sub Rule 1 (a) of the Rules of 1966. There was no occasion for the petitioner to submit any reply as there was no notice proposing departmental action or penalty against the petitioner. The so- called notice as referred in [Annexure R-4(a)] to (d) made communications requiring the petitioner to submit certain details and even petitioner‘s own version on audit objection, yet that would not satisfy the requirement of issuing notice as contemplated in Rule-16 of the Rules of 1966. (7) Moreover, impugned ,order also does not specify the necessary requirement of recording a finding as contemplated under Rule-16 Sub Rule-1 Clause (d). The petitioner No.2 ha'd submitted her own reply to the notice issued. 5 The impugned order does not show any application of mind to the submissions made by the petitioners in her reply, which have been placed on record by the respondents along with their return. Therefore. even for the sake of argument, the notice issued by the respondents are treated to be notice in accordance with the provisions contained in Rule-16, the impuned order is liable to be set aside on account of non-compliance of mandatory provisions contained in Rule-16 Sub Rule-1 (d) of the Rules of 1966. /\ go (8) Consequently, the petition is aiiowed. The impugned order of recovery by making deduation from petitioner‘s salary cannot be sustained in the eye of law, and is therefore, set aside. There shall be no orders as to cost. Tumane W- ; Manlndra Mohan Shrlvashva Judge ?