IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 7207 of 2008 Date of Decision : August 09, 2010 Dr. Y. D. Bansal Petitioner Versus State of Himachal Pradesh and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. J. P. Upadhya, Advocate, for the petitioner. For the respondents : Mr. R. K. Sharma, Senior Addl. Advocate General with Mr. Ram Murti Bisht, Deputy A.G. for the respondents/State. Sanjay Karol, J. (Oral) The petitioner has prayed for the following reliefs:- “(i) That the impugned order dated 15.1.2000 at Annexure –A may please be declared null and void and accordingly quashed and set aside as there exists no such facts and circumstances warranting imposition of impugned penalty which is not only excessive and harsh but also unfair, unjust, ultravires, illegal and malafide too and as such is not sustainable in the eye of law. (ii) That the respondents may further be directed to produce all the relevant record particularly the original file pertaining to departmental proceedings for perusal of this Hon’ble Tribunal so as to verify the factual position. Whether reports of Local Papers may be allowed to see the judgment? 2 (iii) Any other equitable relief which the Hon’ble Tribunal may consider appropriate to extend substantial justice to the applicant.” 2. The impugned order dated 15.1.2000 reads as under:- “ORDER WHEREAS, Dr. Y. D. Bansal, Senior Lecturer, R.G. Government Ayurvedic College, Paprola was awarded the punishment of reduction to a lower stage of Rs. 9750/- in the time scale of Rs. 7220 – 11320 for a period of two years with the stipulation that during the above period the official will not earn increments and reduction will have the effect of postponing further increments, vide this Department’s order of even number dated the 27th September, 1999; and WHEREAS, Dr. Y. D. Bansal, Senior Lecturer, preferred an appeal against the imposition of the penalty stated above; NOW, THEREFORE, after having gone through the entire record and submissions made by the applicant and taking a lenient view, the appeal of Dr. Y. D. Bansal, is partially accepted and penalty is ordered to be reduced to “reduction to a lower stage of Rs. 9750/- in his own time scale of Rs. 7220 – 11320 for a period of two years with the stipulation that during the above period he will not earn increments but reduction will not have the effect of postponing future increments.” 3. The petitioner, a Senior Lecturer was Incharge of the Department of Swasth Vritta, Government Ayurvedic College, Paprola. On 29.7.1994 the Principal of the said institution issued an order asking him to take the students of the institution on an educational tour to Shimla. Petitioner failed to comply with the said 3 orders in spite of an attempt made by the Principal to again serve the orders upon him on 31.7.1994. Though this fact is disputed by the petitioner. He was found to have mis-conducted himself and consequently departmental proceedings were initiated against him. Petitioner was issued memorandum dated 22.10.1994 (Annexure – D) necessitating his response. Petitioner furnished a detailed reply. The authorities could not accept the explanation and consequently an inquiry officer was appointed to look into the charges. 4. The articles of charges reads as under:- “ARTICLE-I That Dr. Y. D. Bansal while functioning as Senior Lecturer, Deptt. of Swasthavritta, GAC, Paprola was required to accompany the BAMS-IInd Professional Students for Educational tour (training in Forensic medicine & Post-mortem on 31.7.94 on the orders of Principal, GAC, Paprola but he deliberately disobeyed his orders and neglected the duties entrusted to him. He, thus, failed to maintain absolute devotion to duty which violates the C.C.S. Conduct Rules 3(I)(i)(ii). ARTICLE_II That said Dr. Y. D. Bansal avoided the service of the office order issed by the Principal, Government Ayurvedic College, Paprola dated 29-7-94 by unauthorisingly absenting him on 29-7-94 from 3.30 PM to 5.00 PM. The Principal again ordered him on 1-8-94 & 2-8-94 to proceed to Shimla for the educational tour of the students but he failed to comply with these orders in contravention of Rule 3 of the CCS Conduct Rules. 4 ARTICLE-III That said Dr. Y. D. Bansal failed to comply with the orders of the Director Ayurveda dated 4-8-94 conveyed through the Medical Supdt. Regional Ayurvedic Hospital, Paprola directing him to reach Shimla on 5.8.94. He thus disobeyed the order of his superior, failed to maintain devotion to duty and avoided responsibility which is unbecoming of a gazetted Government servant and is violative of rule No. 3 of CCS Conduct Rules applicable to him.” 5. In terms of inquiry report (Annexure-F) the Inquiry Officer held all charges to be proved against the petitioner. In terms of memorandum dated 22.8.1997 (Annexure-G) the disciplinary authority proposed penalty. 6. Petitioner responded to the same in terms of letter dated 8.9.1997 (Annexure – H) clearly pointing out various defects in the inquiry proceedings conducted by the Inquiry Officer. The relevant contents of the same reads as under:- “4. That the Enquiry was not conducted in the manner prescribed for the same because the Additional Director Ayurveda who is immediate subordinate officer of the Director concerned was appointed as Inquiry Officer who conducted the Enquiry in order to please his immediate hierarchy superiors, the matter would have it been that some other higher officials of some other Department/Faculty except too that of Ayurveda had been appointed as Enquiry Officer. 5. That the evidence on record has not been appreciated properly and the material witness i.e. 5 Registrar, Punjab University Chandigarh was not summoned by the Enquiry Officer though his name was given by me in the list of …illegible… witnesses which is clear violation of the mandatory provision of Rule 14(8) of Civil Service Conduct Rules. Had the said Registrar been summoned and examined he would have …illegible… the truth that the officials who were supposed to render the duties in question, deliberately avoided the same and conducted practical/exam at Punjab University during the said period. 6. That in fact, I was unable to perform the assigned duties due to my illness i.e. dysentry and to that effect sufficient evidence has been placed by me on record, but the inference gathered by the Enquiry Officer that I was not advised bed rest by the Dr. attending on me as such, I was able to perform the normal duties, is absolutely wrong and incorrect. The disease from which I was suffering at the relevant time was of such nature that it was very difficult for me to undergo a journey and that too by a bus when I had to attend the … illegible … at any time and at any place. 7. That I had informed about my illness and applied for the leave to the officials concerned in the best possible manner and time. Had I been alright I would have never avoided the assigned job as alleged. I further submit that the Tour in question was not related to my subject or allied subject. 8. That the proposed penalty i.e. (i) Reduction to lower Stage, (ii) with-holding of increments and (iii) withholding of future increments is too harsh and before intimating me the proposed penalty no opportunity was afforded to me to explain my innocence. My defence statement was also not recorded despite my protest by 6 the Enquiry Officer which is also violative of Rule 14(9) of the Service and Conduct Rules. 9. That before intimating the proposed penalty no opportunity was given to me to explain myself on the quantum of penalty. It was only by the Memo under reference I came to know that Your Honour have proposed/decided to impose the penalty described in the Memo.” 7. The disciplinary authority however did not find favour by the explanation furnished by the petitioner and penalty was imposed vide order dated 27.9.1999 (Annexure –B). However this order was modified by the appellate authority in terms of order dated 15.1.2000 reproduced herein earlier. 8. While passing the order imposing the penalty, the authorities have not taken into account various aspects of violation of the principles of natural justice as raised by the petitioner in reply. In the appeal petitioner specifically pointed out that witnesses in support of his defence were not summoned by the Inquiry Officer. Further the record of the proceedings was not made available to him. Even the written submissions were not supplied to enable him to respond to the same in an effective manner. All this has certainly caused grave prejudice to him. 9. That apart, having perused the inquiry report I am of the considered view that the Inquiry Officer has been too presumptuous in recording his finding while arriving at its conclusions. The defence evidence has been disbelieved merely on the basis of assumptions 7 and presumptions. It was the petitioner’s case that he could not take the students on the educational tour for the reason that he was suffering from dysentery and was thus not in a position to travel from Paprola to Shimla. Importantly the Inquiry Officer comes to the conclusion that the medical certificate and the prescription slips duly proved by the delinquent officer through relevant Doctors/witnesses were genuine but yet he discarded their evidence on a flimsy ground that the said medical experts had not opined the delinquent officer to go on rest. Petitioner was suffering from dysentery. It may or may not have been necessary for an expert to advise or for that matter for the petitioner take rest but however definitely it would have been inconvenient, if not difficult to travel from Paprola to Shimla on an educational tour with students. Importantly petitioner was not the Professor Incharge of such a programme. It is the petitioner’s defence that the person who was Incharge of the said course in fact had avoided taking the students to Shimla and obtained leave on false grounds. The said person in fact had appeared before the examination committee in an another institution outside the State when the children were required to be taken on the educational tour. The findings by the Inquiry Officer are perverse which has in fact led to travesty of justice. 10. The disciplinary proceedings initiated against the petitioner thus cannot be said to be in accordance with law. Principles of natural justice stand violated. The reasoning adopted by the Inquiry Officer is absolutely preposterous and illogical and the findings are 8 not borne out from the record. They are perverse. In any event the penalty imposed upon the petitioner is grossly disproportionate to the alleged misconduct. 11. Petitioner has not only alleged malafides but has also pleaded victimization due to internal rivalry in the college. I am not going into this aspect of the matter. 12. For all the aforesaid reasons the petition is allowed. Order dated 15.1.2000 is quashed. 13. As a consequence of the quashing of the impugned order the respondents/State is directed to take necessary action, if any, within a period of three months from the date of the receipt of the certified copy of the order. Petition stands disposed of. (Sanjay Karol), Judge. August 09, 2010 (PK)