IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 6696 of 2008 (OA No. 1843/2000) Judgment reserved on: 21.12.2009 Date of decision: 22.2.2010 Kashmir Chand …Petitioner. Versus H.R.T.C. and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. H. K. Paul, Advocate. For the Respondents : Mr. Adarsh Sharma, Advocate. Kuldip Singh, Judge The petitioner in the petition has prayed for quashing of memorandum dated 23.2.1993 Annexure A-2, memorandum dated 12.8.1996 Annexure A-4, office order dated 17.4.1998 Annexure A-6 and memorandum dated 5.9.1998 Annexure A-8. He has also prayed for reinstatement in service with all consequential benefits. In the alternative, he has prayed for a direction to the appellate authority to decide appeal dated 6.10.1998 Annexure A-9. 2. The case of the petitioner is that he was appointed as conductor by Regional Manager, Himachal Road Transport Corporation (for short ‘Corporation’) on 10.1.1983 w.e.f. 29.11.1982 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 as the petitioner was working as conductor on daily wages. The petitioner was regularized w.e.f. 1.8. 1983 by Regional Manager, who is the appointing and disciplinary authority of the petitioner. 3. The respondent No.3 issued memorandum dated 23.2.1993 proposing to hold inquiry against the petitioner under Rule 14 of the CCS (CCA) Rules, 1965 (for short ‘Rules’). The copies of documents mentioned in memorandum dated 23.2.1993 were not supplied to the petitioner. The inquiry officer was appointed and only one witness Karnail Singh, Inspector was examined during inquiry. The inquiry officer submitted his report Annexure A-3. 4. The Divisional Manager respondent No.2 expressed his dis-agreement with the findings recorded by the inquiry officer and issued a show cause notice to petitioner vide memo dated 12.8.1996. The petitioner submitted his reply on 19.2.1997 to the show cause dated 12.8.1996. He explained the entire case and denied the allegations. The petitioner was surprised to receive office order dated 17.4.1998 imposing penalty of “compulsory retired’ with the direction that during the period of suspension, the petitioner would get only subsistence allowance already paid and the suspension period will count for pension and gratuity only. The petitioner filed appeal but vide communication dated 5.9.1998 Annexure A-8 the petitioner was informed that his appeal was rejected. The reasons were not recorded in the order rejecting the appeal. The petitioner thereafter filed another statutory appeal dated 6.10.1998 Annexure A-9 which is still pending. 3 5. It has been submitted that the penalty imposed upon the petitioner is dis-proportionate. The inquiry report is in detail but respondent No.2 has not agreed with the inquiry report and no grounds were given for dis-agreement. The order imposing penalty is arbitrary, non-speaking and the statutory appeal was also rejected by a non-speaking order. The version of the petitioner has not been considered. The petitioner was not supplied with any document with the charge-sheet. The respondent No.2 was not competent to impose penalty, the impugned action is malafide. 6. The petition has been contested by the respondents by filing reply in which preliminary objection of delay and laches has been taken. On merits, it has been submitted that penalty of ‘compulsory retired’ from service was passed in accordance with rules after conducting regular inquiry and petitioner was afforded an opportunity of being heard. The statutory appeal filed by the petitioner has been rightly rejected by competent authority after due consideration. The pendency of appeal before Minister-cum- Chairman, Transport was denied for want of knowledge. The copies of documents were supplied to the petitioner. 7. At the time of appointment of the petitioner, the Regional Manager was his disciplinary authority but in the year 1996 new Recruitment and Promotion Rules of the Corporation came into force and Divisional Manager of the Corporation was made disciplinary authority of the petitioner. The Minister of Transport is not the appellate authority according to the rules and regulations of the 4 Corporation. The Corporation has taken a lenient view in compulsory retiring the petitioner. The respondents alongwith affidavit dated 3.12.2009 have placed on record Annexure R-1 order dated 22.8.1998 passed by the Managing Director of the Corporation in the appeal of petitioner. 8. I have heard the learned counsel for the parties. The petitioner was charge-sheeted (i) for embezzlement of Rs. 142.40 of the Corporation (ii) no improvement in the working despite repeated punishments (iii) mis-behaviour with the employees and officers of the Corporation and (iv) dis-obedience of duty. The inquiry officer vide Annexure A-3 held that charge No.(ii) is proved, other charges are not proved. The respondent No.2 issued memorandum dated 12.8.1996 Annexure A-4 to petitioner and dis-agreed with the inquiry report and observed that embezzlement of Rs. 142.40 has been established so also the charge No. (iii) and charge No. (iv) against the petitioner. The petitioner filed representation dated 19.2.1997 Annexure A-5 to the Divisional Manager. This representation, it appears, was filed against memorandum dated 12.8.1996. In the representation, petitioner has not alleged any procedural impropriety, irregularity and illegality in the inquiry nor he has alleged that Divisional Manager respondent No.2 was not competent authority of the petitioner to issue memorandum dated 12.8.1996 or he was not the disciplinary authority of the petitioner. The petitioner has not alleged that documents were not supplied to him alongwith the charge-sheet or he was in any manner prejudiced due to any alleged 5 irregularity committed during inquiry. The respondents have taken the plea that prior to 1996 Regional Manager was the disciplinary authority of the petitioner and after 1996, the Divisional Manager is the disciplinary authority of the petitioner. Therefore, it cannot be said that the penalty imposed by the Divisional Manager on the petitioner was illegal. 9. The petitioner has stated that the office order dated 17.4.1998 Annexure A-6 imposing penalty is not a speaking order. In the memorandum dated 12.8.1996 respondent No.2 had already indicated reasons of his dis-agreement with the inquiry report. The petitioner filed representation dated 19.2.1997 Annexure A-5 to the Divisional Manager. The representation of the petitioner was considered. He was also heard in person on 11.12.1997 and after examining the whole case, the Divisional Manager issued office order dated 17.4.1998 imposing penalty. The petitioner had filed appeal dated 4.5.1998 Annexure A-7 against the order dated 17.4.1998. In the grounds of appeal no procedural impropriety, irregularity and illegality during inquiry has been specifically pointed out nor it has been stated that Divisional Manager is not the disciplinary authority of the petitioner. In appeal, the petitioner has not taken the ground that the order imposing penalty dated 17.4.1998 is not a speaking order. The petitioner has not projected a case of prejudice during inquiry. The appeal was rejected by the Managing Director and rejection of the appeal was communicated to petitioner vide communication dated 5.9.1998 Annexure A-8. 6 10. On behalf of the petitioner, it has been submitted that grounds of rejection of appeal were not communicated to the petitioner. It has been submitted on behalf of the respondents that the petitioner was informed about the rejection of appeal vide communication dated 5.9.1998. The actual order of the rejection of the appeal has been placed by the respondents on record as Annexure R-1. The perusal of Annexure R-1 dated 22.8.1998 indicates that the Managing Director of the Corporation has dismissed the appeal of the petitioner after considering the entire case and, therefore, it cannot be said that the order dated 22.8.1998 is not a speaking order. 11. It has also been contended on behalf of the petitioner that penalty imposed on the petitioner is harsh keeping in view the alleged mis-conduct. It is for the disciplinary authority and the appellate authority to impose penalty. The petitioner has failed to make out a case that penalty imposed in the present case is of such nature which pricks the judicial conscious of the court. It was not an isolated case against the petitioner in which he was punished. The allegations against the petitioner are very serious like mis-behaviour with the employees and officers of the Corporation, dis-obedience in the performance of duty besides embezzlement of the Corporation amount and repeated punishments given to the petitioner earlier. All the charges have been proved against the petitioner. In these circumstances, it cannot be said that the punishment imposed is 7 harsh. The petitioner has failed to make out any case for interference. 12. No other point was urged. 13. The result of the above discussion, the petition fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), February 22, 2010. Judge. (GR)