j m3 % Singie Bench @@ w“ (6"? rm; IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. mAé /2008 (S) / Krishna Kumar Kashyap S/o. Late Jeevan Lalji Kashyap Aged about 53 years Working as Asstt. Grade —-III, Krishi Upaj Mandi Samiti, Dhamtari, Distt.: Dhamtari (CG) PETITIONER VERSUS RESPONDENTS : 1. CG State Agriculture Marketing Society Through: The Managing Director, Beej Bhawan PO RaVIgram Tehbandha Ralpur" (CG Krishi Upaj Mandi Samiti Through: The President, Dhamtari, Distt.: Dhamtari (CG). 3. The Secretary, Krishi Upaj Mandi Sarniti Dhamtari, Distt’: (CG). Dham‘tari WRIT PETITION UNDER ARTICLE 226/ OF THE X CONSTITUTION OF INDIA v ) ma? ‘ < €75 V Am HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0. 6196 0f2008 Krishna Kumar Kashyap. VERSUS : CG State Agriculture Marketing Society &i RESPONDENTS others. Post for pronouncement ofjudgment and order on 1%(Tay of January, 2010. 7‘} Sdl- Satish K. Agnihotri‘ Judge HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 6196 of 2008 Krishna Kumar Kashyap. VERSUS RESPONDENTS CG State Agriculture Marketing Society & others. PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. Present : 'Shri P.S.Koshy, Advocate with Shri Sandeep Agrawal, Advocate for the petitioner‘ Shri Y.S.Thakur, Advocate for the respondent No. 1. Shri J.N.Nande, Advocate for the respondent No. 2 and 3. JUDGMENT & ORDER (Delivered on ....f.8‘.nday of January,£Q9-) 0/0 § Challenge in this petition is to the order dated 01.05.2008 (Annexure P/l) passed by the Managing Director, C.G. State Agriculture Marketing Board, Raipur, whereby the application of the petitioner dated 03.11.2004 (Annexure P/9), against the order 14.08.2004 (Annexure P/8) passed by the Secretary, Krishi Upaj Mandi Samiti, Dhamtari, was rej ected. The brief relevant facts, as proj ected by the petitioner, are that the petitioner was appointed as Assistant Grade III on 01.01 .1974 with the respondent No. 2 and posted at Dhamtari. On 14.11.1990, a notice was served showing cause to the petitioner to file reply to the proposed punishment ,of withholding .two increments with cumulative effect. Thereafter, the petitioner was placed under suspension Vide order dated 16.11.1990 (Annexure P/2). An enquiry was conducted by the respondent authorities and by order dated 27.12.1991 (Annexure P/3), the petitioner was removed it a ‘ from service for financial embezzlement with a direction to recover a sum of Rs. 22803.98 from the petitioner. Being aggrieved by the order of removal, the petitioner preferred an appeal before the Joint Director, Mandi, Bhopal. The appellate authority, by order dated 09.01.1995 (Annexure P/4) allowed the appeal to the extent of reconsidering the imposition of punishment of removal from service and further.recovery of Rs. 22,803.98. The petitioner was reinstated in service without backwages. As a sequel, the petitioner applied for joining the post on 25.01.1995 (Annexure P/5). Thereafter, on 11.02.1995 (Annexure P/6) the petitioner entered into an agreement with the respondents furnishing an undertaking that he would not challenge the order of reinstatement Without backwages. The petitioner was . reinstated in service on 16.02.1995 (Annexure P/7). After a period of 9 years, pursuant to the order of the Joint Director, Mandi, dated 09.01.1995 (Annexure P/4) to consider the imposition of other punishment, the respondent No. 3 passed an order of withholding of promotion for the next five years and further directed to recover a sum of Rs. 17,931.26 on 14.08.2004 (Annexure P/8). Thereagainst, the petitioner preferred - an appeal on 3.11.2004 (Annexure P/9) before the Appellate Authority, Managing Director, Chhattisgarh State Agriculture Marketing Board, Raipur. The appellate authority, by order dated 01.05.2008 (Annexure P/l) dismissed the appeal holding that the grievance of the petitioner has already been examined by the Joint Director, Mandi, Bhopal, by order dated 09.01.1995 (Annexure P/4) and as such, the appeal, treating the same as review of the order dated 09.01.1995 (Annexure P/4) was dismissed by the impugned order. Thus, this petition, Shri RS. Koshy with Shri Sandeep Agrawal, learned counsel appearing for the petitioner would submit that the Joint Director, Mandi, Bhopal, while deciding the the appeal of the petitioner, by order dated‘09.01.1995 (Annexure P/4) found that the petitioner had not committed any irregularity and as such, the order of removal was set aside and the order to recover a sum of Rs. 22803.98 was also set aside directing the authorities below to reconsider the imposition of punishment as removal from service was disproportionate and mrther reassess the amount of recovery. It was further argued that it was an obligation on the authorities to consider the case within a reasonable time and pass appropriate order. The respondent No. 3 had taken almost about 9 years after the order dated 09.01.1995 (Annexure P/4) to reconsider his case. The respondents 2 & 3-authorities should have afforded an opportunity of hearing by holding an enquiry afresh before passing the order of withholding promotions for the next five years and further directing recovery of Rs. 17,93 l .26. Shri Koshy would next contend that the impugned order dated 01.05.2008 (Annexure P/l) passed in appeal is unjust and improper as the cause of action arose when the punishment order was passed on {14.08.2004 (Annexure P/8) withholding promotion for the next five years and further recovery to the extent of Rs. 17,93 1.26, as directed. The delay of 9 years would amount to acquiescence and waiver. Shri Koshy would further submit that the agreement dated 11.02.1995 (Annexure P/7) which was executed by the petitioner under duress not to challenge the order of reinstatement without backwages, is also contrary to the legal right of the petitioner and the same is not a valid and legal agreement. Imposition of withholding promotion for the next five years in fact arose from the fact that the petitioner made a representation dated . 3.3.2008 (Annexure P/ 10) to consider him for grant of time bound promotion ‘ .‘ i.e. Kramonnati as he had already completed 34 years of service, the same mam?» ‘z @ was rejected. Withholding ofpromotion for flve years is a major penalty and that cannot have been passed Without even affording opportunity of hearing before passing the impugned order ofpunishment. 6. On the other hand, Shri J.N.Nande,' learned counsel appearing for the respondent No. 2 and 3 would submit that the impugned order was passed after providing full opportunity of hearing to the petitioner. The order was neither illegal, arbitrary nor non-speaking. The petitioner has not come out with clean hands before the appellate authority as it was not disclosed by the petitioner that the earlier appeal was dismissed by reasoned order on 09.01.1995 (Annexure P/4) whereby the order of removal was set aside granting liberty to the respondent No. 3 to reconsider the penalty of imposition of punishment of removal being disproportionate and further reassess the recovery of the amount. No new cause of action arose thereafter and as such, no hearing was necessary. There was no inordinate delay. The petitioner was found guilty of negligence and indiscipline in the disciplinary enquiry on‘the basis of documentary evidence and examination of witnesses. Shri Y.S.Thakur, learned counsel appearing for the respondent No. l while adopting the submissions made by the respondent No. 2 and 3 would submit that the order passed by the Joint Director, Mandi, Bhopal (Annexure P/4) became final and no notice or hearing was necessary at the time of reconsideration and imposition ofpunishment. I have heard learned counsel appearing for the parties, perused the pleadings and. documents appended thereto. There is no dispute that the appeal of the petitioner against the removal order and recovery of Rs. 22,803.98 was allowed by the Joint Director, Mandi, Bhopal vide order dated 09.01.1995. Further, before imposition of punishment of removal from service, a show Wm“ c u cause notice was given, charges were framed and proper enquiry was held The appellate authonty c0ns1dered all the aspects of the matter upholdmg that the frndlngs recorded by the enqulry cormmttee that the charges 1 4 5 6 7 lO ll 17 and 19 were found fully proved and charge No 3 9 12 and 15 were found partly proved However 1t was observed that the pun1shment of removal from serv1ce was dlsproportionate, accordingly, the authorities should consider substitution of punishment of removal by other punishment. It was further directed that the imposition of recovery of Rs. 22,803.98 should be reassessed and actual loss may be recovered from the petitioner on 09.01.1995 (Annexure P/4). This is also not in dispute that no opportunity of hearing was afforded to the petitioner before imposition of withholding of promotion for the next five years which is a major penalty imposed on the petitioner after a period of 9 years. It is not necessary to deal with execution of agreement between the petitiOner and the respondents not to challenge the order of reinstatement Without backwages, as this is not the issue involved herein. The Managing Director, Chhattisgarh State Agriculture Marketing Board, dismissed the appeal of the petitioner against the order dated 14.08.2004 (Annexure P/8) passed by the Secretary, Krishi Upaj Mandi Samiti, Dhamtari not on merit but on the ground that the earlier order of removal was challenged before the appellate authority and it was found that the punishment of removal of the petitioner from service was disproportionate. Thus, perhaps it was assumed by the Managing Director that appeal against the order dated 14.08.2004 (Annexure P/8) amounts to second appeal This is legally not tenable The Managing Director has not dealt With imposmon of pun1shment ofw1thhold1ng promotion for five years on merit In serv1ce law it is ell settled that there are tWo stages of notic ne before initiation o disciplinary enquiry and second before mposition of punishment; The punishment order of Withholding promotion for five years was passed after a perod 0f about 9 years after passing of the order dated 09.01.1995 (Annexure P/4). It is an admitte case of all the prties that no opportunty of d a i hearing was afforded to the petitioner before imposition of the order of Witholng promotion for five years an recovery of Rs. 17,931.26 and as such, the second pportunity of hearing before imposition ofpunishment was not given to the petitioner. Even if the second order was passed pursuant to the liberty reserved by th Joint Director, Mandi, Bhopal i its order dated 09.01.1995 (Annexure P/4), the stand o the appellate authority that it amounts to second appeal against the same cause of action, cannot be countenanced. It is not sustainable in law. 11. The Supreme Court, in Lav Nigam v. Chairman & MD. ITILtd. & anotherl, the Supreme Court observed as under: “10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the View taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed.” en l2. In Roop Singh Negi v. Punjab National Bank & Othersz, the Supreme Court observed as under: 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. , . ‘ (2006) 9 scc 440 2 (2009) 2 scc s70 r .h _ \5 % w e, o f i i hdi d o e n f 13. In South Bengal State Transport Corpn. v. Sapan Kumar Mitm & Others3, the Supreme Court held as under: 14. ...It is well settled that the inquiry officer and disciplinary authority are the sole judges of facts. Adequacy and reliability of the evidence is not a matter that can be canvassed before a High Court in a writ proceeding under Article 226 of the Constitution. (See State ofA.P. V. S. Sree Rama Rao.) 14. For the reasons stated hereinabove, the order dated 14.08.2004 (Annexure P/8) and the order dated 01.05.2008 (Annexure P/l) are set aside. The matter is remitted back to the Managing Director, C.G. State Agriculture Marketing Board, Raipur for deciding the case of the petitioner afresh in accordance with the law. 15. The writ petition is allowed to the extent indicated above. No order asto costs. y Sd/- Satish K. Agnihotri Judge \. Amit J (2006) 2 scc 584