IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 10097 of 2008. Decided on: 15.06.2011. ___________________________________________ Rajesh Kumar. … Petitioner. Versus State of Himachal Pradesh and another. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. G.R. Palsra, Advocate. For the Respondents : Mr. R.P. Singh, Assistant Advocate General. Rajiv Sharma, Judge (oral): Disciplinary proceedings were initiated against the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, on 6th October, 1998. Inquiry Officer was appointed. The inquiry officer submitted the report to the disciplinary authority on 14th May, 2001. Thereafter show notice was issued to the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - petitioner vide Annexure P-F, dated 26th June, 2001 whereby he was afforded opportunity to make a representation. The petitioner filed detailed reply to the show cause notice dated 26th June, 2001 on 17th July, 2001 vide Annexure P-G. Thereafter the disciplinary authority imposed the penalty upon the petitioner and the petitioner was reduced by five increments/stages from ` 4260/- to ` 3660/- in the time scale of pay ` 3120-5160 for a period of three years with cumulative effect, vide order dated 8th April, 2002 (Annexure P-A). It was further ordered that the petitioner will earn increments only if his work and conduct was found satisfactory. Thereafter the petitioner has preferred an appeal on 12th June, 2002 against order dated 8th April, 2002, Ex.P-A vide Annexure P-1. The same has been rejected by the Joint Secretary (E&T) vide Annexure-I, dated 11th June, 2003. 2. It is evident from the facts enumerated hereinabove that the petitioner has made a detailed representation to the show cause notice vide Annexure P-G, on 17th July, 2001. However, the disciplinary authority has not taken into consideration the representation made by the petitioner against the show cause notice in right perspective. It was incumbent upon the disciplinary authority to discuss all the grounds and pleas taken in the reply to the show cause notice. Merely stating that the representation has been - 3 - considered by the disciplinary authority will not meet the requirement of law. The very propose of issuing the show cause notice and granting opportunity to an employee is to enable him to make representation to explain any circumstance appearing against him and prove his innocence before the disciplinary authority. The opportunity granted cannot be treated as a formality. The order passed by the disciplinary authority should also reflect due application of mind. The non-application of mind will render the decision arbitrary. The order passed by the disciplinary authority after the receipt of response to the show cause notice must be speaking, self contained and reasoned. 3. Their Lordships of Hon’ble Supreme Court in Roop Singh Negi Versus Punjab National Bank and others, (2009) 2 SCC 570 have held as under (para 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. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally - 4 - admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 4. What is arbitrary has been succinctly explained by their Lordships of the Hon’ble Supreme Court in East Coast Railway and another versus Mahadev Appa Rao and others, (2010) 7 SCC 678 as under (paras 20, 21 and 23): “To the same effect is the meaning given to the expression “arbitrary” by Corpus Juris Secundum which explains the term in the following words: “Arbitrary.-Based upon one’s will, and not upon any course of reasoning and exercise of judgment; bound by now; capricious; exercised according to one’s own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, non-rational, or not done or acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power, - 5 - despotic, or tyrannical; harsh and unforbearing. When applied to acts, ‘arbitrary’ has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with ‘willful’.” There is no precise statutory or other definition of the term “arbitrary”. In Shrilekha Vidyarthi V. State of U.P. this Court explained that the true import of the expression “arbitrariness” is more easily visualized than precisely stated or defined and that whether or not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed: (SCC p. 243, para 36) “36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. The rule of law contemplates governance by laws - 6 - and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that ‘be you ever so high, the laws are above you’. This is what men in power must remember, always.” Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 5. Mr. R.P. Singh, learned Assistant Advocate General has strenuously argued that the petitioner has already preferred an appeal against the impugned order and the same has been rejected by the appellate authority. 6. In the instant case since there is infraction of principles of natural justice at the initial stage, it will not be cured by the order passed by the appellate order. - 7 - 7. Their Lordships of Hon’ble Supreme Court in Chairman-cum-Managing Director, Coal India Limited and others Versus Ananta Saha and others, (2011) 5 SCC 142 have held that if the foundation falls, the super structure built thereon will also fall. Their Lordships of the Hon’ble Supreme Court have held as under (paras 32 and 33):- “It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls. In Badrinath v. Govt. of T.N. this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders (See also State of Kerala v. Puthenkavu N.S.S. Karayogam and Kalabharati Advertising v. Hemant Vimalnath Narichania.)” 8. Accordingly, in view of the observations and discussion made hereinabove, petition is allowed. Office order dated 8th April, 2002 (Annexure P-A) alongwith order dated 11th June, 2003 passed by the appellate authority (Annexure- - 8 - I) is quashed and set aside. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. June 15, 2011. (sck).