IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 2390 of 2008. Decided on: 18.03.2009. Subhash Chand Dhiman. … … … Petitioner. Versus State of Himachal Pradesh … … … Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?Yes1. For the petitioners: Mr. Deepak Kaushal, Advocate. For the Respondents: Mr. R.K. Sharma, Senior Additional Advocate General with Shri Rajinder Dogra, Additional Advocate General and Shri Vikas Rathore, Deputy Advocate General. Rajiv Sharma, Judge (Oral): The petitioner was appointed as an Assistant Engineer in the year 1979. He remained posted as Assistant Engineer in the Sub Division No.II, Una of Himachal Pradesh Public Works Department with effect from May 1980 to June 1985. He was served with a memorandum, dated 1.1.1994 (Annexure A-1), proposing to take action against him under Rule 16 of Central Civil Services (Classification, Control and Appeal) Rules, Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - 1965. It was alleged in the memorandum that the petitioner has failed to exercise periodical check on muster rolls No.345 to 347. He filed the reply to the memorandum on 6.1.1994. Since no action was taken even after filing the reply by the petitioner to memorandum, he approached the learned Himachal Pradesh Administrative Tribunal by way of O.A. No.420 of 1994. The learned Tribunal directed, the Original Application to be treated as representation to the Secretary, Himachal Pradesh Public Works Department. He was directed to decide the matter within three months. The respondents were further directed to consider the case of the petitioner along with others for promotion to the post of Executive Engineer and to keep the proceedings in the sealed cover. In sequel to the directions of the learned Tribunal, the Commissioner-cum-Secretary, Himachal Pradesh Public Works Department passed order dated 26.10.1994, whereby he imposed the penalty of “Stoppage of one increment without cumulative effect” on the petitioner. He preferred a detailed appeal to the Commissioner-cum-Secretary Himachal Pradesh Public Works Department against the order dated 26.10.1994. The same was rejected by him on 28.12.1994. Mr. Deepak Kaushal, Advocate has strenuously argued that there was inordinate delay in issuing the memorandum to the petitioner of the alleged incident which occurred in the year 1981. His further contention is that order dated 26.10.1994 is actuated without legal malafides and it has been issued to deprive the petitioner to be considered for the higher post. He further contended that the petitioner has filed an appeal, assailing order dated 26.10.1994. However, the same was rejected by the appellate authority without considering the grounds mentioned in the - 3 - appeal on 28.12.1994. The learned Senior Additional Advocate General has supported the decision vide Annexures A-4 and A-7. I have heard learned counsel for the parties and gone through the record carefully. The petitioner was appointed in the year 1979. He remained posted as Assistant Engineer in Una, Sub Division-II with effect from May 1980 to June 1985. He was served with a memorandum, dated 1.1.1994 (Annexure A-1). He filed reply to the memorandum on 6.1.1994. Since no decision was being taken even after filing the reply by the petitioner, he approached the learned Tribunal as noticed above. The decision was taken by the Commissioner-cum-Secretary, Himachal Pradesh Public Works Department in the shape of order dated 26.10.1994. It is not disputed that the incident has taken place in the year 1981. The charges levelled against the petitioner were that he has failed to exercise periodical check of muster rolls No.345 to 347, however, the memorandum has been issued to the petitioner only in the month of 1.1.1994. The explanation given for inordinate delay in issuing Annexure A-1 is that the matter initially remained under investigation by the Vigilance Department and it was only in the year 1985 that the Vigilance Department advised the Engineer-in-chief to proceed departmentally against the petitioner. It is intriguing to note that despite the Vigilance Department requesting the Engineer-in-Chief to proceed departmentally against the petitioner in the year 1985, the respondents had chosen to serve a memorandum in the first week of January, 1994. The petitioner was due for promotion in the year 1994. In fact, persons junior to him were promoted to the post of Executive Engineers on 3.12.1994. The - 4 - petitioner was not promoted only on the pretext that penalty of “stoppage of one increment without cumulative effect” was imposed upon him. In these circumstances, the Court is left with no alternative, but to draw an inference that the entire exercise has been undertaken to issue memorandum against the petitioner after a gap of 13 years to defeat his legitimate right of consideration for promotion to the higher post. The respondents have failed to explain the delay satisfactorily, which has occurred between 1985 to 1994. The petitioner was served with a memorandum in the beginning of 1994. He filed the reply as per Annexure-A-2. The decision has been taken on the memorandum after a period of 10 months that too after the intervention of the Tribunal. The petitioner had filed reply to memorandum, dated 1.1.1994 on 6.1.1994. The reply filed by the petitioner has not been taken into consideration by the Commissioner-cum-Secretary, Himachal Pradesh Public Works Department in his order dated 26.10.1994. There is mechanical observation made by him that representation made by the petitioner was carefully considered by the Government. The explanation given by the petitioner in his representation was bound to be considered in right earnest. The petitioner had made a detailed appeal against the order, dated 26.10.1994. However, the same has been rejected by the appellate authority on 28.12.1994 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 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 - 5 - SCC 236 and in latest judgment rendered in Roop Singh Negi versus Punjab National Bank and others, 2009 (1) Scale, 284. It was incumbent upon the Appellate Authority to pass a speaking order after taking into consideration the grounds mentioned in the appeal. In the present case the order dated 28.12.1994 is vitiated due to non-compliance with the principles of natural justices. Accordingly, it is held that the memorandum, dated 1.1.1994 issued to the petitioner after a period of 13 years was actuated with legal malafides. This has been done only to deprive the petitioner from being considered to the higher post. The petitioner explanation has not been considered by the disciplinary authority. The appeal preferred by the petitioner has been rejected by a non-speaking order. There was inordinate delay of about 13 years in issuing the memorandum on the basis of which penalty was imposed upon the petitioner. The respondents have failed to explain this delay. Consequently, the writ petition is allowed, Annexure A-4, dated 26.10.1994 and Annexure A-7, dated 28.12.1994 are quashed and set aside. No costs. March 18, 2009. (Rajiv Sharma) (rkv). Judge. - 6 -