IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 12140/2008 Decided on:16.6.2011 _____________________________________________ Om Parkash. …Petitioner. Versus State of H.P. and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Neeraj K. Sharma, Advocate. For the Respondents: Mr. Mr. R.P. Singh, Asstt. A.G. _____________________________________________________ Justice Rajiv Sharma, Judge (oral). Disciplinary proceedings were initiated against the petitioner under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as ‘the Rules’ for brevity sake). Sh. Sanjeev Sahotra, Principal, I.T.I. Nadaun, was appointed as Inquiry Officer. Sh. Ram Chand, Superintendent Grade-II, I.T.I. Nadaun, was appointed as Presenting Officer in the case. Inquiry Officer conducted the inquiry and on the basis of the evidence produced came to a conclusion that the charge stood 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 proved. Thereafter, the Inquiry Officer submitted the report to the Disciplinary Authority. The Disciplinary Authority supplied the copy of inquiry report to the petitioner to enable him to make a representation on 17.10.2003. Petitioner made representation on 30.10.2003. The Disciplinary Authority, after taking into consideration the representation made by the petitioner to show cause notice dated 17.10.2003, imposed penalty of stoppage of two increments without cumulative effect on 28.1.2004. The charge levelled against the petitioner was that while working as Senior Assistant at I.T.I. Nadaun, he was transferred to I.T.I. Chamba on 12.8.2002. He was relieved on 26.8.2002, but he did not join his new place of posting and, thus, remained willfully absent from duty. The total period of absence was 243 days. It is evident from the order dated 23.4.2004 that the competent authority has sanctioned the leave in favour of the petitioner of 147 days with effect from 27.8.2002 to 20.1.2003, as a medical leave and earned leave of 96 days with effect from 21.1.2003 to 26.4.2003. Petitioner filed an appeal vide Annexure A-2 against the order dated 28.1.2004. The Appellate Authority rejected the appeal and ordered that the entire period of 243 days should be treated as 3 ‘dies non’ on the principle of ‘no work no pay’ and in case the petitioner has been paid, the entire amount be recovered from the salary in 12 equal installments. 2. Mr. Neeraj K. Sharma has strenuously argued that the order Annexure A-3 dated 23.4.2005 passed by the Appellate Authority is without jurisdiction. He then contended that a notice was required to be issued to the petitioner before the penalty was enhanced by the Appellate Authority, i.e. Principal Secretary (TE). 3. Mr. R.P. Singh, learned Assistant Advocate General has supported the order dated 23.4.2005. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. The petitioner has been imposed the penalty of withholding of two increments without cumulative effect as per order dated 28.1.2004. However, on the basis of representation made by the petitioner, the leave was duly sanctioned, as stated hereinabove, for the entire period on 23.4.2004. Petitioner was within his right to file an appeal against the order dated 28.1.2004 to the Appellate Authority. The Appellate Authority, in gross violation of rule 27 of the Rules, has enhanced the penalty by treating the entire period of 243 days as ‘dies 4 non’ and the recoveries have also been ordered from the salary of the petitioner in 12 equal installments. Petitioner was required to be given reasonable opportunity to make a representation against the enhanced penalty as per rule 27 of the Rules. Admittedly, no opportunity has been granted to the petitioner before the penalty was enhanced vide order dated 23.4.2005. Thus, there is violation of principles of natural justice and the order dated 23.4.2005 is a nullity. The Appellate Authority has also failed to take into consideration that the leave of the petitioner has been sanctioned as per Annexure A-1 dated 23.4.2004 of the entire period. This vital aspect of the matter has also been over looked by the Appellate Authority. 6. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure A-3 dated 23.4.2005 is quashed and set aside. However, liberty is reserved to the respondents to proceed with the matter in accordance with law. There shall, however, no order as to costs. (Justice Rajiv Sharma), Judge. 16.6.2011 *awasthi*