IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 4262/2008 (OA 601/97) Date of Decision : May 8, 2009 Sh. N. L. Wardhan Petitioner Versus State of Himachal Pradesh and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Shri S.S. Sood, Advocate, for the petitioner. For the respondent : Mr. R. K. Sharma, Sr. Addl. Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General and Mr. R.P. Singh, Asstt. Advocate General for respondents. Sanjay Karol, J. (Oral) While serving as Tehsildar disciplinary action against the petitioner was initiated. He was charge-sheeted under Rule 14 of the CCS (CC&A) Rules, 1965. Office memorandum containing articles of charge were issued to him on 13.8.1986. The authorities did not find favour with the response submitted by the petitioner hence inquiry proceedings were directed to be continued and inquiry officer was appointed to inquire into the charges. Vide inquiry report dated (Nil) September, 1990 Commissioner Departmental Enquires, HP, the Inquiry Officer returned his findings 1 Whether reports of Local Papers may be allowed to see the judgment? 2 that the respondents could not prove that the petitioner had misbehaved/misconducted himself and as such the charge was not proved against him. The admitted position being that the disciplinary authority did not agree with the same and consequently issued impugned order dated (Nil) May, 1992 (Annexure A-1) imposing the following penalty: “Accordingly, the undersigned holds the said Sh. N. L. Vardhan guilty of the charge and orders the imposition of the penalty of reduction of his three increments and he will also not earn any increments for the next three years. At present his basis pay after earning increment on 1.1.1992 is Rs. 2400.00 and now after imposition of penalty his basic pay will be reduced by three increments and will be Rs. 2250.00 and he will earn his next increment in 1994. A copy of this order be also placed in his A.C.R.’s dossier.” After hearing learned counsel for the parties and perusing the record the undisputed position which emerges is that before disagreeing with the findings of the inquiry officer and imposing the impugned penalty, petitioner was not served with a show cause notice. No opportunity of hearing was afforded. In Punjab National Bank and others versus Kunj Behari Misra, (1998) 7 SCC 84, the Apex Court has held that the respondent is duty bound to afford opportunity of hearing to the delinquent employee if the disciplinary authority is to differ with the findings of 3 the inquiry officer. Unfortunately the same was not done in this matter. That apart the charge against the petitioner was as under: “That while functioning as Tehsildar, Lahaul, Shri N.L. Wardhan visited village Tholang on Sunday on 9.3.1986, without any official work. He consumed liquor in the same village. Under the influence of liquor, he entered the houses of 3-4 harijans of village Tholang. He misbehaved, teased ladies, used unparliamentary language and created nuisance in the village. Thus, the misdeeds of the Tehsildar, Lahaul, Shri N.L. Wardhan have brought a bad name for the District Administration and is unbecoming of responsible gazetted Govt. servant.” II. The imputations of mis-conduct given in Annexure II of the charge-sheet are as follows:- “That while functioning as Tehsildar, Lahaul, Sh. N. L. Wardhan, visited village Tholang on Sunday 9.3.1986, at his own accord, without any official work (this area did not fall under jurisdiction for revenue work as spelled out vide office order No. 1532-40/SK, dated 30.9.1985) and without approving the tour programme. He consumed liquor in the house of Shri Karam Chand s/o Shri Ganga Dass of Village Tholang. In intoxicated state, he entered houses of Smt. Man Dassi, widow and Shri Devi Chand, Sweeper Civil Dispensary Tholang. There he uttered indecent words and teased Bharati, daughter of Sh. Devi Chand and two-three other girls and Smt. Man Dassi, widow. He alleged that Smt. Man Dassi, widow, was herself a party in a conspiracy to kill her husband, late Sh. Ram Dass and that she (Smt. Man Dassi) had an illicit relations with few persons of 4 Tholang village. Later on 10.3.1986 Sh. N.L. Wardhan, Tehsildar, gave a written apology to the villagers. On 24.3.1986, the villagers complained to the Deputy Commissioner, Lahaul & Spiti at Keylong and on 25.3.1986, entire villagers got together in one house where Sh. N.L. Wardhan, Tehsildar confessed his guilt. As per tribal custom, Sh. N.L. Wardhan, Tehsildar was fined Rupees one thousand to be paid to Smt. Man Dassi widow, for dishonouring her. Going to village, consuming liquor, entering houses of innocent poor harijans unauthorizedly, teasing and dishonouring ladies in intoxicated state and creating nuisance in village is unexpected of and unbecoming of a responsible gazetted Government servant. The misdeeds and misbehaviour of Sh. N.L. Wardhan, Tehsildar have created law and order problem and also brought a slur in the name of the District Administration. Thus, Shri N.L. Wardhan, Tehsildar, is liable for disciplinary action.” The original complainant in terms of affidavit (Annexure A-2) has stated that she never participated in the inquiry proceedings. That being so how could the disciplinary authority impose the penalty on the basis of mere conjectures and surmises. The petitioner filed review petition (Annexure A-11) which also stood rejected in terms of order dated 4.5.1996 (Annexure A-12). Incidentally the authority has not assigned any reason while rejecting the same. The order can be faulted on this ground alone, apart from non application of mind. 5 For all the aforesaid reasons the impugned orders Annexure A-1 and Annexure A-11 are quashed. The petition was originally filed before the erstwhile Himachal Pradesh Administrative Tribunal and was admitted on 31.7.1997. Petitioner has already retired and much water has flown since then. Respondents in their reply has stated as under: “… He was however considered for confirmation against the post which became available for him alongwith his juniors but could not be confirmed at a relevant point of time as he was facing departmental proceedings. A substantive post was kept for him by the D.P.C. During the pendency of the penalty imposed upon him, vide order at Annexure-I of the Original Application, he could not be confirmed against the post of Tehsildar. He has also not been promoted in H.P.A.S. as only substantive Tehsildars are considered for promotion as such. His case for confirmation and forwarding his particulars to the Department of Personnel for promotion in H.P.A.S. will be considered when the penalty is over if he otherwise becomes eligible for the same. …” Admittedly the period of penalty was over in the year 1995 itself. However the service/retiremental benefits have not been completely disbursed to the petitioner. Hence the respondents shall pass necessary orders and release the same within a period of four months from today, failing which, petitioner shall be entitled to interest at the rate of 9% per annum. (Sanjay Karol), Judge. May 8, 2009 (PK)