IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.: 163/2008 alongwith COPC (T) No.1389/2008 Decided on:27.4.2011 _____________________________________________ CWP (T) No. 163/2008 Nirmal Raj. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. COPC (T) No. 1389/2008 Nirmal Raj. …Petitioner. Versus Narinder Jhauta. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. (in both the petitions) For the petitioner : Mr. Sanjeev Bhushan, Advocate. For the Respondents: Mr. Vikas Rathore, Dy. A.G. with Mr. R.P. Singh, Asstt. A.G. for respondents No.1 and 2 in CWP(T) No. 163 of 2008. None for respondent-Narinder Jhauta in both the petitions. _____________________________________________________ Rajiv Sharma, Judge (oral). CWP (T) No.: 163/2008 Petitioner was directed vide Annexure A-1 dated 3.12.2007 by the Principal, Government Senior Secondary 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 School, Rampur Bushahr to deposit a sum of ` 4,040/- for staying in the official accommodation allotted to the Principal. Petitioner filed reply to the same vide Annexure A-2 on 10.12.2007. He was called upon by the Principal to deposit a sum of ` 4,040/- and the same was to be recovered from the salary of the petitioner from the month of December, 2007 vide Annexure A-3 dated 14.12.2007. The operation of Annexure A-3 dated 14.12.2007 was stayed by the learned erstwhile Himachal Pradesh Administrative Tribunal on 3.1.2008. Surprisingly, the respondents without seeking permission of the Tribunal, decided to hold inquiry against the petitioner, as per communication dated 11.3.2008. Once the Tribunal had stayed the operation of Annexure A-3 dated 14.12.007, it was not open to the respondent-State to hold preliminary inquiry. Court deprecates this action of the respondent-State. 2. It appears from the record that Principal, Dr. Amar Dev, was appointed as Inquiry Officer to enquire into the charges against the petitioner. Petitioner was exonerated by the Inquiry Officer. However, the Disciplinary Authority again decided to proceed against the petitioner by issuing memorandum dated 13.7.2010 (Annexure A-6). The statement of imputation of misconduct was also filed 3 alongwith memorandum under rule 16 of the Central Civil Services Rules, 1965 (hereinafter referred to as “Rules” for convenience sake). Petitioner was granted ten days time to file reply to the memorandum dated 13.7.2010. Petitioner filed reply to the same on 22.7.2010. Respondent No.2 imposed penalty of withholding of two increments with cumulative effect for two years vide Annexure A-7. 3. Mr. Sanjeev Bhushan has strenuously argued that once the operation of Annexure A-3 dated 14.12.2007 was stayed by the learned Tribunal; it was not open to the respondents to proceed further in the matter. He further argued that his client though was exonerated by the Inquiry Officer, however, the Disciplinary Authority has disagreed with the findings recorded by the Inquiry Officer without recording tentative reasons. He further argued that the tentative reasons were required to be supplied to the petitioner to enable him to make a representation and only thereafter the action could be taken against the petitioner. He finally argued that though the Disciplinary Authority has proceeded against the petitioner under rule 16 of the Rules, however, major penalty of withholding of two increments with cumulative effect has been imposed and this could not be done without holding inquiry under rule 14 of the Rules. 4 4. Mr. Vikas Rathore, learned Deputy Advocate General has supported the orders passed by the respondent-State. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. Petitioner had been called upon, as noticed above, on 3.12.2007 and 14.12.2007 to deposit a sum of ` 4,040/-. Petitioner has not been served with any show cause notice before the issuance of Annexure A-1. Annexure A-1 has civil consequences since the petitioner had been called upon to deposit a sum of ` 4,040/-. Reply filed by the petitioner on 10.12.2007 has also not been taken into consideration while passing order dated 14.12.2007 whereby the petitioner has again been asked to deposit a sum of ` 4,040/-. Learned Tribunal had stayed the operation of Annexure A-3 on 3.1.2008. The respondent-State had not filed any application for modification of order dated 3.1.2008. In view of this, it was not open to the respondents to proceed with the matter. 7. The Disciplinary Authority had appointed Dr. Amar Dev, as Inquiry Officer. He has exonerated the petitioner. The conclusion drawn by Dr. Amar Dev reads thus: "The undersigned submits that the charges of unauthorized occupant of Government accommodation earmarked to the Principal as mentioned in article.-1; and misbehaviour and disobeyed the orders of superior as 5 mentioned in article-II are not proved. Contrary, Sh. Narinder Singh Jhouta, Principal has not followed the basis principle of justice, committed dereliction of duty and has acted in high headedness.” 8. The Disciplinary Authority, as is evident from the statement of imputation of misconduct filed with the memorandum dated 13.7.2010 has disagreed with the findings recorded by the Inquiry Officer. He has admittedly not recorded any tentative reasons at the time of disagreeing with the report of the Inquiry Officer. The law is well settled that after the receipt of the inquiry, if the Disciplinary Authority does not agree with the findings of the Inquiry Officer, he is required to record tentative reasons and the same are required to be supplied to the delinquent to enable him to make a representation. [See: (1998) 3 SCC 385 and (1998) 7 SCC 84]. Thus, the Disciplinary Authority has not followed the principles of natural justice while recording his disagreement with the findings of the Inquiry Officer. 9. Memorandum had been issued to the petitioner under rule 16. Rule 16 provides the procedure for imposing minor penalty. The minor penalty has been defined under rule 11 of the Rules. The Disciplinary Authority though has issued memorandum under rule 16 of the Rules, however, major penalty of withholding of two increments for two years with 6 cumulative effect has been imposed. It is settled law by now that imposition of withholding of two increments with cumulative effect amounts to major penalty. In case major penalty was to be imposed, detailed inquiry was required to be held against the petitioner under rule 14 of the Rules. Thus, the penalty imposed upon the petitioner as per Annexure A-7 issued in the month of August, 2010 is also illegal. 10. Order Annexure A-7 also suffers from another illegality since while passing this order, the reply filed by the petitioner to memorandum dated 13.7.2007 has not been taken into consideration. Once an incumbent has been issued notice and thereafter the reply is furnished, the same has to be taken into consideration before passing any order. Merely stating that the reply has been considered and not found satisfactory will not be the compliance of the principles of fairness and natural justice. 11. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure A-7 issued in the month of August, 2010 is quashed and set aside. No costs. 7 COPC (T) No. 1389/2008 12. In view of the orders passed in CWP No. 163/2008, this contempt petition is rendered infructuous and the same is dismissing having become infructuous. (Rajiv Sharma), Judge. 27.4.2011 *awasthi*