IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 14006/2008 Reserved on: 24.2.2011 Decided on:3.3. 2011 _____________________________________________ Nisha Devi. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Y.P.S. Dhaulta, Advocate. For the Respondents: Mr. Ansul Bansal, Addl. A.G. with Mr. R.P. Singh, Asstt. A.G. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was appointed as Junior Basic Trained Teacher in the respondent-department on 1.7.1994. Disciplinary proceedings were initiated against her vide memorandum dated 20.12.2002. Following were the article of charges framed against the petitioner: "Article-I : That the said Smt. Nisha Devi, while functioning as J.B.T. teacher in G.P.S. Samrala proceeded on summer vacation leave w.e.f. 17.7.97 to 31.8.97 by after the expiry of vacations on 31.8.97 she never reported back for duty and thus willfully absent from 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 duty, which tantamounts to misconduct and misbehaviour. Article –II: That the said Smt. Nisha Devi, JBT Teacher is willfully absent from duty w.e.f. 16.7.97 which tantamounts to misconduct and misbehavour.” 2. Petitioner filed reply to the same on 3.1.2003. Inquiry Officer submitted the report to the Disciplinary Authority dated 9.6.2003. Petitioner submitted application to join her duties on 15.2.2002. She was permitted to join her duties on 26.8.2003. In fact, she was also paid salary for the months of August, September, October and November, 1997. The Disciplinary Authority on the basis of inquiry repot, issued strict warning to the petitioner on 5.7.2004. Thereafter on the basis of same charge-sheet i.e. dated 20.12.2002, the Deputy Director of Primary Education reduced the scale of the petitioner on 11.1.2005. Petitioner preferred an appeal to the Director of Primary Education. The Director issued memorandum dated 27.1.2006 to the petitioner calling upon her to show cause why the penalty of removal be not imposed upon her. Petitioner submitted the reply to the same on 7.2.2006. The Director imposed the penalty of removal upon the petitioner vide Annexure A-13 dated 22.3.2006. 3. Mr. Y.P.S. Dhaulta has strenuously argued that the petitioner has been penalized thrice on the basis of same 3 charge-sheet dated 20.12.2002 firstly by warning her, secondly by reducing her salary and thirdly by removing her from service. He then contended that the only charge levelled against the petitioner, as per memorandum dated 20.12.2002 was that the petitioner remained willfully absent with effect from 17.7.1997 to 31.8.1997. He lastly contended that there was no charge-sheet ever issued to the petitioner for remaining willfully absent with effect from 17.7.1997 to 26.8.2003, as mentioned in office order dated 11.1.2005 and impugned Annexure A-13 dated 22.3.2006. 4. Mr. Ansul Bansal, learned Addl. Advocate General has supported the penalty imposed upon the petitioner. According to him, petitioner has remained willfully absent with effect from 17.7.1997 to 26.8.2003. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. A bare perusal of Annexure A-1 makes it abundantly clear that the petitioner was charge-sheeted for willful absence with effect from 17.7.1997 to 31.8.1997. There was no charge-sheet ever issued to the petitioner that she remained willfully absent with effect from 17.7.1997 to 26.8.2003. She had made request to the competent authority to join her duties on 15.2.2002 and she was 4 permitted to do so on 26.8.2003, as per Annexure A-9 dated 26.8.2003. The Disciplinary Authority on the basis of the report furnished by the Inquiry Officer dated 9.6.2003 has warned the petitioner. The same Disciplinary Authority, i.e. Deputy Director of Primary Education imposed the penalty of reduction of pay scale upon the petitioner on 11.1.2005. Mr. Ansul Bansal, learned Addl. Advocate General has failed to satisfy the Court under what provisions of law, ‘strict warning’ has been substituted with ‘reduction of pay scale’. Moreover, the petitioner has not been heard before the issuance of Annexure A-13. She preferred an appeal, as per Annexure A-7, before the Director of Primary Education. 7. Petitioner has never been charged for misconduct that she remained willfully absent with effect from 17.7.1997 to 26.8.2003. The only charge against her is that she remained absent with effect from 17.7.1997 to 31.8.1997 and thereafter she had been permitted to join her duties on 26.8.2003. Her salary was drawn for the months of September, October and November, 1997. The Director of Primary Education observed that the petitioner should not have been permitted to join her duties after the period of more than six years. The fact of the matter, as noticed above, is that petitioner had joined her duties on 26.8.2003. 5 She cannot be held responsible for the action of the Deputy Director of Primary Education for permitting her to join her duties on 26.8.2003. Petitioner has never been charged for alleged willful absence after 31.8.1997. The period, as per Annexure A-1, was confined to 17.7.1997 to 31.8.1997. The fact of the matter is that the petitioner was permitted to join her duties and it was open to the Disciplinary Authority to initiate appropriate departmental proceedings against the petitioner by seeking her explanation why she did not join her duties after 31.8.1997 to 26.8.2003. 8. Petitioner submitted reply to the memorandum dated 27.1.2006 on 7.2.2006. The plea taken by the petitioner in the reply to the memorandum was that the delay in joining the duty was attributable to the Department, which issued posting orders on 26.8.2003, i.e. after a lapse of 17 months. The plea raised by the petitioner has not been taken in right perspective by the Director of Primary Education. It is in these circumstances that the penalty of removal was imposed upon the petitioner vide memorandum dated 22.3.2006. 9. Petitioner had been charge-sheeted for willful absence with effect from 17.7.1997 to 31.8.1997. There is no clear-cut finings given by the Inquiry Officer that the 6 petitioner has remained willfully absent. She has been imposed penalty of ‘strict warning’ by the Disciplinary Authority. Penalty of ‘strict warning’ was changed to ‘reduction of pay’ and thereafter was substituted to penalty of ‘removal from service’ by the Disciplinary Authority. This was not permissible under law. The Disciplinary Authority has taken the absence of the petitioner with effect from 17.7.1997 to 26.8.2003. She has never been charge-sheeted for willful absence with effect from 17.7.1997 to 26.8.2003. It is reiterated that she was charge- sheeted for remaining willfully absent as per memorandum issued on 20.12.2002 in the order passed by the Deputy Director of Primary Education on 11.1.2005. Separate charge-sheet was required to be issued to the petitioner, as per Central Civil Services (Classification, Control and Appeal) Rules, 1965 and thereafter regular inquiry was required to be held. In the absence of any charge-sheet to the petitioner, the period with effect from 17.7.1997 to 26.8.2003 could not be treated as willful absence. The same illegality has been committed by the Appellate Authority by treating the petitioner willfully absent with effect from 17.7.1997 to 26.8.2003. The petitioner could not be held guilty of willful absence or the misconduct for which she was never charge- 7 sheeted. It is the duty of the Disciplinary Authority to see that the employee is punished only after he/she has been charge-sheeted specifically with a particular misconduct and the same has been proved. It is not open to the Disciplinary Authority to hold the petitioner guilty for willful absence with effect from 17.7.1997 to 26.8.2003. 9. What are the ingredients of charge, has been explained by the learned Single Judge of the High Court of Andhra Pradesh in “G.Chandra Kanth and Guntur Dt. Milk Producers Union Ltd. & Ors., Labour Law Journal, (Vol.-1) 668 as under:- “At the outset, it is relevant to note the requirements of a proper and valid charge-sheet. It is needless to state that a charge-sheet is the charter of disciplinary action. The domestic enquiry commences with the service of the charge-sheet. In other words, before proceeding with the domestic enquiry against a delinquent official he must be informed clearly, precisely and accurately of the charges levelled against him. The charge-sheet should specifically set out all charges which the workman is called upon to show cause against and should also state all relevant particulars without which he cannot defend himself. The objects of this requirement is that the delinquent employee must know what he is charged with and have the amplest opportunity to meet the charge and to defend himself by giving a proper explanation, after knowing the nature of the offence or misconduct with which he is charged; otherwise it will amount to his being condemned unheard. Fair hearing presupposes a precise and definite catalogue of charges so that the 8 person charged may understand and effectively meet it. If the charges are imprecise and indefinite, the person charged would not be able to understand them and defend himself effectively and the resulting enquiry would not be a fair and just enquiry. The charged person ought to be informed of the charge levelled against him as also of the grounds upon which they are based. Charge of misconduct should not be vague. The charge- sheet must be specific and must set out all the necessary particulars irrespective of the fact whether the delinquent knows all about the charges. Whether he knows it or not he must be told about the charges and it was not his duty to connect the charge-sheet with his alleged understanding or knowledge of the charge. As contended by the learned Counsel for the respondent- Disciplinary authority the charge need not be framed with the precision of a charge in criminal proceeding. But it must not be vague or so general as to make it impossible of being traversed. The test is whether the charge conveys to the delinquent employee concerned exact nature of the alleged misconduct in a way that would enable him to meet the charge effectively. If a vague charge is given to delinquent, it is fatal defect which vitiates the entire proceedings. It is also relevant to note that vagueness in the charge is not excused on the plea that the employee concerned should be deemed to have known the facts correctly. It should not be left to the delinquent official to find out or imagine what the charges against him are and it is for employer to frame specific charges with full particulars.” 10. The orders passed by the Disciplinary Authority and Appellate Authority are arbitrary. The powers to be exercised by the Disciplinary Authority and Appellate 9 Authority must be judicious, according to law and human compassion. 11. Their Lordships of the Hon’ble Supreme Court in Angad Das versus Union of India and others, (2010) 3 SCC 463 have held as under: "People in power and authority should not easily lose equanimity, composure and appreciation for the problems of the lesser mortals. They are always expected to remember that power and authority must be judiciously exercised according to the laws and human compassion. Arrogance and vanity have no place in discharge of their official functions and duties.” 12. Their Lordships of the Supreme Court in Mohd. Yunus Khan versus State of Uttar Pradesh and others, (2010) 10 SCC 539 have held that statutory authority cannot act whimsically or arbitrarily and its actions should be guided by principles of reasonableness and fairness. Authority cannot be permitted to abuse law or to use it unfairly. Their Lordships have held as under: “21. Thus, the requirements of morale, discipline and justice have to be reconciled. There is no scarcity of examples in history, and we see it in day-to-day life also, that even in disciplined forces, forced morale and discipline without assured justice breeds defiance and belligerency. Our Constitution protects not only the life and liberty but also the dignity of every person. Life convicts and hardcore criminals deprived of personal liberty are also not wholly denuded of their Constitutional rights. Arbitrariness is an anathema to the 10 principles of reasonableness and fairness enshrined in our constitutional provisions. The rule of law prohibits the exercise of power in an arbitrary manner and/or in a manner that travels beyond the boundaries of reasonableness. Thus, a statutory authority is not permitted to act whimsically/arbitrarily. Its actions should be guided by the principles of reasonableness and fairness. The authority cannot be permitted to abuse the law or to use it unfairly.” 13. Moreover, in the instant case, petitioner has preferred an appeal against the reduction of pay scale. However, the Appellate Authority has exercised the powers under rule 29 of the Revision while imposing the penalty of removal upon the petitioner. The action, if any, was required to be taken only under rule 27 and not independently under rule 29 when the appeal was pending before him. Rule 27 and rule 29 are separate statutory remedies available to an employee under the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 14. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexures A-5 and A-13 dated 11.1.2005 and 22.3.2006, respectively are quashed and set aside with all the consequential benefits. No costs. (Rajiv Sharma), Judge 3.3. 2011 *awasthi*