IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.14534 of 2008 Date of decision : August 5, 2011 Sushil Kumar Dogra …Petitioner. Versus State of H.P. and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Ranjan Sharma, Advocate. For the Respondents : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge(Oral) Petitioner, who had been working as Clerk in Agriculture Department, at Palampur, is aggrieved by the order dated 4th September, 2002, Annexure A-14, whereby he has been compulsorily retired from service, as a measure of punishment, after holding inquiry, under Rule 14 of the CCS (CCA) Rules. 2. Petitioner had been working as Clerk, in Agriculture Department, in the year 1997, when he was transferred from Palampur to Shimla. He did not join at Shimla. Notices were issued to him to join immediately. When he did not join, he was suspended and ultimately chargesheeted for willful absence from duty. It appears that no inquiry was held, but he was visited with the penalty of ‘censure’ and the period of his absence was Whether reporters of the local papers may be allowed to see the judgment? …2… ordered to be treated as leave of the kind due, vide order Annexure A-4, dated 5th October, 1999. He was issued an order, Annexure A-5, calling upon him to join at Shimla, immediately. He submitted application, Annexure A-6, alleging that he was sick and be granted leave till recovery. His request did not find favour with his employers, i.e. the respondents, herein. He was chargesheeted with misconduct of willful absence from duty. Regular inquiry was conducted. Inquiry Officer found him guilty, vide report Annexure A-15, which is dated 17th August, 2002. On receipt of that report, the Appointing Authority of the petitioner, i.e. Director of Agriculture (respondent No2, herein), passed the impugned order Annexure A-14, on 4th September, 2002. Order was received by the petitioner on 8th September, 2002. On 19th October, 2002, he filed appeal to the Secretary (Agriculture), respondent No.1, herein. The said appeal has been dismissed, vide order Annexure A-20, dated 6th June, 2005, on the grounds that the same was filed after expiry of 45 days, limitation prescribed, under Rule 25 of the CCS (CCA) Rules and also the finding of the Inquiry Officer called for no interference. 3. Petitioner has challenged the order of punishment, as passed by Director of Agriculture, respondent No.2, as also by the order of dismissal of his appeal, passed by respondent No.1. Various grounds …3… have been stated in the petition to challenge the legality of the aforesaid orders. The grounds, among others, are that the order of penalty was imposed, without supplying copy of the inquiry report to the petitioner and this omission to supply copy of the inquiry report has resulted in material prejudice to the petitioner. Another ground, which is stated, is that the appeal has been dismissed by respondent No.1, without assigning any reason and that the view taken by the Appellate Authority that the appeal was barred by time is incorrect. Reference has been made only to these grounds, herein, because learned counsel representing the petitioner confines his submissions, for the time being, only to these two grounds. 4. Respondents, in their reply, have stated that the petitioner had been absent from duty since 1997, when he was transferred and that he did not join even after he was visited with the penalty of ‘censure’, which penalty was never challenged by him. 5. I have heard learned counsel for the parties and gone through the record. 6. It is made out from the record that the copy of inquiry report was not supplied to the petitioner, before the passing of order of penalty Annexure A-14. There is nothing on record, showing that the copy of inquiry report was supplied to the petitioner, before the passing of the …4… aforesaid order. It was only with the copy of the order of penalty, which was endorsed to the petitioner, that the copy of the inquiry report was supplied to him. 7. Learned counsel, representing the petitioner, submits that the petitioner has been materially prejudiced, on account of non-supply of copy of the inquiry report, inasmuch as the Inquiry Officer, in his report, has not considered petitioner’s plea that he was sick and unable to join duty at Shimla, as also the evidence led by him, in support of that plea. It is submitted that had the copy of inquiry report been supplied to the petitioner and had he been afforded an opportunity to make representation against the findings in the inquiry report, as per Rule 15(2)(2-A) of the CCS (CCA) Rules, he would have brought the aforesaid failure on the part of the Inquiry Officer to the notice of the Punishing Authority. 8. Petitioner, during the course of inquiry, had submitted medical papers issued in his favour by an Ayurvedic doctor, who was a registered medical practitioner. He also examined the said Ayurvedic doctor as his witness. Also, he adduced evidence to the effect that he had been intimating respondent No.2 about his inability to join, because of sickness. Report of the Inquiry Officer, particularly the conclusion part of it, reads that the petitioner had been willfully absent from duty, …5… without any intimation and without submitting any leave application. Petitioner submitted written submissions to the Inquiry Officer, copy Annexure A-13/A and alongwith these submissions he submitted Annexures A-6, A-21 and A-22, whereby respondent No.2 had been intimated that he was unable to join duty, on account of his being sick. 9. It is despite the aforesaid written submissions by the petitioner that the Inquiry Officer concluded that the petitioner had been willfully absent, without any intimation. Had the petitioner been supplied copy of the inquiry report, before the passing of the order of penalty, he could have had the opportunity to bring these facts to the notice of the Punishing Authority. Thus, he has been materially prejudiced, on account of non-supply of copy of inquiry report. 10. Also, it is made out from the record that the petitioner received the copy of order of penalty Annexure A-14 on 8th September, 2002. Limitation for filing the appeal is 45 days, from the date of receipt of order of penalty, per Rule-25 of the CCS (CCA) Rules. Limitation was to be counted from 9th September, 2002, i.e. the day next following the date of the receipt of the copy of the order of penalty. 45 days limitation was to expire on 23rd October, 2002. Petitioner filed the appeal on 19th October, 2002 or say within limitation. Therefore, the view taken by the Appellate Authority that the appeal was …6… barred by time is not correct. Further, the Appellate Authority, i.e. respondent No.1 did not give any reasons for dismissing the appeal on merits. It did not say, in its order, even this much that he was satisfied with the reasoning given by the Punishing Authority, for passing the order of penalty, leave alone recording its own reasons for upholding the order of penalty. 11. Hon’ble Supreme Court, in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank versus Jagdish Sharan Varshney and others, (2009) 4 SCC 240, has held that the order of affirmation of penalty, in appeal, need not contain an elaborate reasoning, but it cannot be understood to mean that even brief reasons need not be given. For the foregoing reasons, present writ petition is allowed. Order of penalty Annexure A-14 and order of Appellate Authority, dismissing the appeal of the petitioner, Annexure A-20, are quashed. Punishing Authority shall pass appropriate orders, on the basis of inquiry report, after affording the petitioner an opportunity to make representation against the finding of the Inquiry Officer. Copy of report need not be supplied to the petitioner, afresh, as it was supplied with the copy of order of penalty. Pending application(s), if any, also stand disposed of. August 5, 2011(sd) ( Surjit Singh ), J