IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 2393 of 2008. Decided on: 18.03.2009. Tarawati and others. … … … Petitioner. Versus Himachal Pradesh State Electricity Board. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?No1. For the petitioners: Mr. Subhash Sharma, Advocate. For the Respondent: Mr. Shashi Shirshoo, Advocate. Rajiv Sharma, Judge (Oral): The petitioner was working as Assistant Store Keeper in the Shimla Electric Division. A charge sheet was served on him on 27.10.1978 to the following effect:- “(1) that while functioning as Assistant Storekeeper during the period 1977-78, he performed his duties negligently causing shortage and surplus of store articles, (2) intentional and deliberate delay in handing over store articles and (3) disobedience of various Whether reporters of local papers may be allowed to see the judgment?No - 2 - instructions/directions/orders conveyed to him from time to time.” Shri Gian Swaroop Kaushal (now deceased) requested for the supply of the copies of the documents. The Inquiry officer was appointed by the disciplinary authority on 8.1.1979. It appears that these disciplinary proceedings were dropped. However, vide order dated 13.1.1986, the disciplinary proceedings were again initiated against Shri Gian Swaroop Kaushal under Rule 9(2)(b) of Central Civil Services (Classification, Conduct and Appeal) Rules, 1972. The Inquiry Officer was appointed. He submitted the inquiry report to the disciplinary authority. The conclusion drawn by the Inquiry Officer-cum-Under Secretary (Vigilance), Himachal Pradesh State Electricity Board reads thus:- “After going through the prosecution exhibits, statements of witnesses and defence, I have come to the conclusion that these shortages/excesses have occurred due to the negligence not only on the part of Shri Gian Swaroop, but also on the part of other concerned officers/officials handling with the store, reasons can be so many i.e. mismanagement, unfamiliarity of handling store by the delinquent and lack of guidance to him and that the store was also kept at different places and no watch and ward arrangement was there. It is apparent from the record that there was sufficient staff posted in the store, but due to lack of supervision, the JE/SDO/XEN failed to maintain/handle the store properly. In my opinion other officers/officials posted in the store cannot escape from the responsibility. It cannot be denied that the delinquent official was not handling the store. He was getting special pay from the Board for this purpose, therefore, he cannot be observed from the responsibility.” - 3 - In sequel to the inquiry report furnished by the inquiry officer, order dated 9.2.1987 was issued, whereby a penalty of recovery of Rs.9,369.75 was imposed upon the petitioner. He preferred an appeal before the Appellate Authority against this order. The same was rejected by the Appellate Authority on 6.10.1987. It appears from the record that he approached the learned Tribunal against his termination and rejection of appeal by way of O.A. No.8/1988. The learned Tribunal on 13.5.1993 directed the respondent-Board to consider and decide the appeal preferred by the petitioner on merits. The same was however rejected on 4.6.1994. It is in these circumstances that the present petition has been filed. It is also borne out from the record that Shri Gian Swaroop Kaushal died during the pendency of the petition and his wife was substituted as petitioner. The incident took place between 1977-78. The Inquiry Officer has come to the conclusion that shortages/excesses have occurred due to the negligence not only on the part of the petitioner, but also on the part of other officers/officials handling the stores. He has further concluded that there was sufficient staff posted in the store, but due to lack of supervision, the JE/SDO/XEN failed to handle the store properly. He finally opined that other officers/officials posted in the store cannot escape from the responsibility. However, the fact of the matter is that no disciplinary proceedings were initiated against these persons. A penalty of recovery of Rs.9369.75 was imposed. He had preferred a detailed appeal as Annexure A-9. Besides making preliminary submissions, he has raised as many as 20 grounds in his appeal. However, the appeal preferred by the petitioner was initially rejected on the ground of delay, as - 4 - per Annexure A-10, dated 6.10.1987. It was only on the basis of the intervention by the learned Tribunal in O.A. No.8/1988 that the appeal was heard on merits by the competent authority. The fact of the matter is that the appeal preferred by the petitioner was again rejected vide Annexure A-2, dated 4.6.1994. The petitioner had retired on 31.12.1984. He also died during the pendency of this petition. The present case is being pursued by his wife. It is not disputed by the learned counsel appearing on behalf of the Board that substance of the charges levelled against the petitioner in both the memorandums was the same. There is no explanation, why the second inquiry was initiated which has led to imposition of penalty upon the petitioner since the first inquiry was dropped, based on same and similar charges. The Inquiry Officer had also opined that the other officers/officials were also remiss in discharge of their duties since they have failed to have proper superintendence. It has also come on record that the stores were spread over at 11 different places. The Court is of the opinion that once the inquiry had been initiated and dropped, the institution of second enquiry was not permissible on the same and similar charges without valid reasons. Accordingly, the decision of the respondent-Board to initiate second inquiry on same and similar charges as contained in earlier inquiry was arbitrary. The petitioner had preferred detailed appeal as noticed above by taking as many as 20 grounds therein. The same has now been rejected after the intervention of the learned Tribunal on 4.6.1994 without a speaking order. It is settled law by now that the appellate order must be a speaking order, as has repeatedly been held by their Lordships of the - 5 - Hon’ble Supreme Court in Narinder Mohan Arya versus United India Insurance Co. Ltd. and Others, (2006) 4 SCC 713, State of Uttaranchal and Others versus Kharak Singh (2008) 8 SCC 236 and in latest judgment rendered in Roop Singh Negi versus Punjab National Bank and others, 2009 (1) Scale, 284. It was necessary for the Appellate Authority to take into consideration all the grounds mentioned in Annexure A-9. He has given the detailed explanation in the manner in which he had been looking after the store and he had not been afforded reasonable opportunity of being heard by the Inquiry officer. The appellate order on the face of it is non-speaking. Accordingly, the writ petition is allowed and Annexure A-8, dated 9.2.1987 and Annexure A-2, dated 4.6.1994 are quashed and set aside. In normal circumstances, the Board could be directed to pass a speaking order in the appeal preferred by deceased Gopal Swaroop Kaushal. However, Shri Gopal Swaroop Kaushal had expired during the pendency of petition and no useful purpose would be served by keeping the matter alive. The present petition is being pursued by his wife. It is further clarified that the petitioner shall be held entitled for all the consequential benefits including any retrial benefits accruing after the death of Shri Gopal Swaroop Kaushal. No costs. March 18, 2009. (Rajiv Sharma) (rkv). Judge. - 6 -