IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 132 of 2006. Reserved on: 24.11.2008. Decided on: 10.12.2008. Hem Raj. … … … Petitioner. Versus Union of India and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Rajiv Jiwan, Advocate. For the Respondents: Mr. K.B. Khajuria, Central Government Counsel. Rajiv Sharma, Judge: Brief facts necessary for the adjudication of this petition are that disciplinary proceedings were initiated against the petitioner vide Annexure P-4. The Inquiry Officer was appointed. He submitted his inquiry report to the Disciplinary Authority. The Disciplinary Authority on the basis of inquiry report passed final order dated 7.1.2004 whereby the petitioner was removed from service with effect from 6.1.2004 and his name was struck of the strength of 5th Battalion, SSB, Lakhimpur-Kheri Whether reporters of local papers may be allowed to see the judgment? No. - 2 - (U.P.). The period of suspension with effect from 30.7.2003 to 5.1.2004 was treated/regularised as “Dies non” and whatsoever he has already drawn. He preferred an appeal against the order dated 7.1.2004 on 2.2.2004. The appeal preferred by the petitioner was rejected on 24.3.2004 and the same was conveyed to him vide memorandum dated 31st March, 2004. The appellate order was a non-speaking order. He filed a petition/representation against order dated 7.1.2004 before the Director General, FHQ, Lucknow on 28.4.2004 purportedly under Rule 29 of the Central Reserve Police Force Rules, 1955. In the mean-time memorandum dated 31.3.2004 was superseded vide memorandum dated 30.6.2005. The petitioner approached this Court by way of CWP No.393 of 2005. The writ petition was disposed of by this Court on 28.4.2005. A Division Bench of this Court directed the Inspector General, S.S.B., FHQ, Lucknow to decide the revision petition/ representation in accordance with law by recording a reasoned order within eight weeks. In sequel to this order dated 28.4.2005, the representation preferred by the petitioner was decided and rejected on 14th July, 2005. Mr. Rajiv Jiwan has strenuously argued that the orders, i.e. Annexure P-12 dated 30.6.2005 and Annexure P-13, dated 14th July, 2005 are non-speaking orders. He then contended that once this Court had directed the Director General, S.S.B., FHQ, Lucknow to decide the revision petition/representation by a speaking order, the same ought to have been decided by a speaking order. Mr. K.B. Khajuria has supported the impugned orders. I have heard the learned counsel for the parties and perused the record carefully. - 3 - The petitioner has filed an appeal against order dated 7.1.2004. He had raised five grounds in his appeal. However, initially the appeal was rejected by a very cryptic order on 24th March, 2004 and the same was conveyed to him on 31.3.2004. This order dated 24th March, 2004 was superseded vide memorandum dated 30th June, 2005. Order dated 30th June, 2005 is again a non-speaking order. The Deputy Inspector General (Sector Headquarters), S.S.B., Bahraich has only reproduced three articles of charges levelled against the petitioner and thereafter he has discussed the punishment awarded to him and ultimately abruptly came to the conclusion that there was no merit in the appeal since the due procedure has been adopted and the punishment was justified vide the appellate order. It is settled law by now that the appellate order should be a speaking order. The grounds mentioned in the appeal are required to be discussed while deciding the appeal. The petitioner had filed a revision against his punishment order dated 7th January, 2004 vide Annexure P-9, dated 28th April, 2004. A Division Bench of this Court had directed the Inspector General to decide the representation by a speaking order. I have gone through order dated 14th July, 2005 passed by the Inspector General. The same is also not a speaking order. The grounds mentioned in the representation/revision petition have not been discussed in detail by the Inspector General FHQ, Lucknow. The remedies of appeal and revision under the Central Reserve Police Force Rules are statutory in nature. The appellate and revisional orders should be speaking orders. The recording of reasons is must to ensure that there is due application of mind by the competent authority. Their Lordships of Hon’ble Supreme Court in Narinder Mohan Arya - 4 - Versus United India Insurance Co. Ltd. and Others, (2006) 4 SCC 713 have held as under:- “An appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regard the compliance of the requirements of law while exercising his jurisdiction under Rule 37 of the Rules. In Apparel Export Promotion Council V. A.K. Chopra which has heavily been relied upon by Mr. Gupta, this Court stated: (SCC p. 770, para 16) "16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact- finding authorities." (emphasis supplied) The appellate authority, therefore, could not ignore to exercise the said power. The order of the appellate authority demonstrates total non-application of mind. The appellate authority, when the rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression “consider” is of some significance. In the context of the Rules, the Appellate Authority was required - 5 - to see as to whether (i) the procedure laid down in the Rules was complied with; (ii) the Enquiry Officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive. In R.P. Bhatt V. Union of India this Court opined: (SCC p. 654, paras 4-5) "4. The word ‘consider’ in Rule 27(2) implies ‘due application of mind’. It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. “5. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non- compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the - 6 - disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside." In para 13 of the memorial the appellant at the first opportunity raised a contention that the order of the Appellate Authority was not a speaking order at all, besides drawing the attention of the Chairman-cum Managing Director to the subsequent event namely the judgment and decree passed by the civil court. The said authority again did not apply its mind while passing his order dated 31-3-1981. When such a contention was raised, it was obligatory on the part of the Chairman-cum- Managing Director while exercising its statutory jurisdiction to show that he had applied his mind to the contentions raised. Such application of mind on his part is not apparent from the order. The departmental proceedings are quasi-criminal in nature.” Similarly, in a recent judgment, their Lordships of Hon’ble Supreme Court in State of Uttaranchal and Others versus Kharak Singh (2008) 8 SCC 236 have held as under:- “A reading of the enquiry report also shows that the respondent herein was not furnished with the required documents. The Department’s witnesses were not examined in his presence. Though the respondent who was the writ petitioner specifically stated so in the affidavit before the High Court in the writ proceedings, those averments were specifically controverted in the - 7 - reply-affidavit filed by the Department. Mere denial for the sake of denial is not an answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by the enquiry officer to the disciplinary authority, the respondent herein was furnished with the copy of the said report along with all the relied upon documents. When all these infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same but has not pointed out the relevant materials from the records of the enquiry officer and disciplinary authority to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent.” In view of the observations made above, the writ petition is allowed. The orders, Annexure P-12, dated 30th June, 2005 and Annexure P-13, dated 14th July, 2005 are quashed and set aside. The respondents are directed to decide the appeal preferred by the petitioner by a speaking order. In case the appeal is decided against the petitioner and he prefers a revision, the same shall be decided by a speaking order. There shall, however, be no order as to costs. December 10, 2008. (Rajiv Sharma) (sck). Judge.