IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P.(T) - No. 4043 of 2008 Date of decision: 5. 8. 2010 Shri Chet Singh …..Petitioner Versus State of H.P. and others. ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the petitioner: Mr. Ranjan Sharma, Advocate. For the respondents : Mr. J. S. Rana, Assistant Advocate General. Advocate for respondents No. 1 and 2. Surinder Singh, J (oral). In the year 1994, the petitioner was posted at Dalhousie as Naib Tehsildar. He was also exercising the powers of Sub Registrar for registering the documents under The Indian Registration Act. 2. It is alleged that during such posting, he had accepted and registered 12 sale deeds without following the provisions of Rule 38 (2) and defied the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act which requires the production of the ‘agricultural certificate’, by the purchaser. Secondly, he had accepted and registered 7 sale deeds in violation of Rule 38 (2) as also Section 118 of the H.P. Tenancy 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - and Land Reforms Act and Rules and also in violation of Section 230 (A) of the Income Tax Act, 1961 as the production of income tax certificate was necessary more specifically in those sale deeds where the consideration amount was shown 3, 40,000 and 7,51,000/- respectively. The said certificate was required to be produced by the vendee before accepting the aforesaid sale deed for registration. Thirdly, the aforesaid sale transactions were pending investigation by a ‘High Powered Committee’ constituted by the State Government inquiring into the Benami transactions. 3. On the above allegations the petitioner was accordingly charge-sheeted by the Disciplinary Authority, i.e., respondent No. 2. The petitioner submitted reply to the aforesaid charge sheet and denied the allegations leveled therein. 4. Petitioner was placed under suspension which was revoked later, on 30.11.1995 pending inquiry. Having not satisfied by the reply, the Disciplinary Authority decided to hold an enquiry into the charges as such Shri J.K. Sharma respondent No. 3 was appointed as Inquiry Officer to look into the charges aforesaid. - 3 - 5. The written defence was submitted by the petitioner wherein he disputed the correctness of the aforesaid charges and justified his action. 6. The inquiry officer recorded evidence of the parties in accordance with the Rules. 7. After perusing the evidence and going through the material on record, the inquiry report was submitted vide annexure A-12 dated 20.3.1997 without mentioning what charge was proved and what was not proved. As such on examination of the said report, the Disciplinary Authority vide letter Annexure R5 dated 17.6.1997 required the Inquiry Officer to give his clear reasoned finding on all the charges and returned the record. 8. On reconsideration of the matter, as desired, the Inquiry Officer vide his subsequent report Annexure R6 dated 12.9.1997 held: (i) Charge No. 1 was partly proved, (ii) Charge No. 2 was fully proved and; (iii) Charge No. 3 was not proved. 9. Admittedly, while reconsidering the matter by the Inquiry Officer, petitioner was not associated. 10. On receipt of the subsequent report, respondent No. 2 Divisional Commissioner, the - 4 - Disciplinary Authority passed the following order imposing penalty with copy endorsed to the petitioner: “OFFICE ORDER. WHEREAS, an enquiry under Section 14 of the CCS (CCA) Rules, 1965 was ordered against Shri Chet Singh, Naib Tehsildar vide charge sheet dated 8.5.1995 on three articles of charge; WHEREAS, the Additional District Magistrate, Chamba was appointed as Enquiry Officer to enquire into the charges and who has submitted his enquiry report dated 20.3.1997 followed by subsequent report dated 12.9.1997; WHEREAS, the Enquiry officer has held that charge No. 1 to the extent of wrong registration of sale deed No. 109 of 1994 and No. 111 of 1994 and article of charge No. 2 stand proved and the charge No. 3 is not proved; WHEREAS, I have gone through the enquiry report, the evidence produced and the enquiry proceedings and am in agreement with the findings of the Enquiry Officer, and; WHEREAS, I hereby drop the charge No. 3 against the delinquent official and hold him guilty for the other two charge proved; NOW, therefore, in exercise of the powers vested in me as ‘Disciplinary Authority’, taking a lenient view as the delinquent official is retiring in February, 1998, hereby impose a penalty of reduction to a lower stage in the time scale of pay and he will not earn his increment of pay during the remaining period of his service. Since his basic pay is presently at Rs. 2625+60 Addl. Pay, the same shall stand reduced to Rs.2550-60- addl. Pay. - 5 - Divisional Commissioner Kangra Division. Endst. No. Even 4777-79 dated 9 October, 1997 Copy forwarded to the:- 1. Deputy Commissioner, Chamba w.r.t. his letter No. CBA-PA-1 (2)/86-118 dated 22nd March, 1997 for information. 2. Deputy Commissioner, Kangra at Dharamshala for information and immediate necessary action. 3. Shri Chet Singh, Naib Tehsildar, Shahpur along with a copy of enquiry report for information. Divisional Commissioner Kangra Division.” [Emphasis mine] 11. Now, the above office order has been challenged by the present petitioner by way of filing Original Application before the Erstwhile Tribunal and after abolition of the Tribunal, the matter was transferred to this Court and registered as CWP(T) No. 4043/2008. 12. Shri Ranjan Sharma, Advocate, for the petitioner vehemently argued that the only one report of the Enquiry officer, i.e., 20.3.1997 was supplied to the petitioner, that too, along with penalty order referred to above as is evident from the endorsement in Office Order referred to above. Thus before imposing penalty, no opportunity was given to the petitioner to make representation against the findings of the enquiry report, which is against the principle of natural justice - 6 - and has caused prejudice to the petitioner; thus, the penalty imposed is not sustainable in law. 13. Contra Shri J.S. Rana, learned Assistant Advocate General forcefully argued that petitioner did not exhaust the remedy available to him under the Rules by filing appeal and directly approached the Tribunal and also that at the relevant time Rule 17 of the CCS (CCA) Rules, was in force and applicable which did not mandate the supply of the copy of the enquiry report before imposing any penalty. Therefore, no prejudice is caused to the petitioner. 14. On considering the rival contentions and after going through the material on record, the plea raised by the learned Assistant Advocate General is rejected for the reasons mentioned hereinafter. 15. Firstly, when any authority has committed the breach of any fundamental procedure or infracted the principle of natural justice, the delinquent may also directly approach the court assailing the order of such authority. Therefore, petitioner by not exhausting the remedy of appeal/revision cannot be debarred to approach the court to seek his redressal. Therefore, this argument of the learned Assistant Advocate General is merit less hence rejected. - 7 - 16. Secondly, the next point urged by the learned Assistant Advocate General that at the time when this inquiry was conducted and concluded, Rule 17 did not provide for supply of the report of the inquiry before imposing penalty is also devoid of any force in view of the judgment of the Supreme Court rendered in Managing Director, ECIL, Hyderabad, etc. versus B. Karunakar etc AIR 1994 SC 1074 whereby it observed. “………….where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee’s right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings. Thus it was held: - 8 - “(iv) In view that we have taken, viz that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defense against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan’s case (AIR 1991 SC 471) (supra) should apply to employees in all establishments whether Government or non- Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges leveled against him. Hence question (iv) is answered accordingly.” [Emphasis supplied] 17. Therefore, the contention of the learned Assistant Advocate General that Rule 17 was in existence at that time, will not at all come in the way, in view of the law declared by the apex Court. Therefore, by not supplying the copy of subsequent findings (enquiry report) to the petitioner, he was denied the - 9 - right to defend and to prove his innocence. Thus the order of imposing penalty by respondent No. 2 Disciplinary is unsustainable and indefensible. Also for the reasons that in the first report the Inquiry Officer did not give any finding qua charge No. 1 and 2 and exonerated him with respect to the charge No.3 as having not proved and before submitting subsequent report the petitioner was not heard and Inquiry Officer held that charge No. 1 was partly proved, Charge No. 2 proved, without affording any opportunity to the petitioner to present his case. 18. Had both these reports been supplied to the petitioner before imposing the penalty in conformity with the judgment of the apex Court, prior to the order imposing penalty the petitioner would have represented against the proposed penalty disputing the findings of the Inquiry Officer and also proved his innocence before the Disciplinary Authority. The Inquiry report whatever was sent to the petitioner vide impugned order of penalty is no compliance. Even now after the judgment of the apex Court cited above rule 15 (2) of the CCS (CCA) Rules stands amended and it reads as under:- “15 (2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the - 10 - Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.” [amended] 19. Since there has been denial of principle of natural justice thus, petitioner was materially prejudiced as such impugned order Annexure A11 dated 9.10.1997 imposing the penalty upon the petitioner is quashed and set aside. 20. Keeping in view the time lag of more than a decade, the Disciplinary Authority if it so desire to proceed with the matter shall revert back to the stage where the breach was committed and comply with Rule 15 sub Rule 2 of the CCS (CCA) Rules referred to above. 21. The petitioner stood retired from service in February 1998, therefore, respondent No. 2, if decides not to close the matter the Disciplinary Authority, in that event, shall conclude the proceedings within - 11 - “three” months from the production of the certified copy of this judgment by either of the parties. The petition stands accordingly disposed of along with pending application(s), if any. August 5, 2010 (Surinder Singh, J (cm)