HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 1303 (S/S) year 2003 Digamber Singh Negi S/o late Shri Fateh Singh Versus State of Uttaranchal Approved for reporting. _______________________ Not approved for reporting Date of decision. 30.10.2003 Initial of Judge HIGH COURT OF UTTARANCHAL AT NAINITAL. Writ Petition No. 1303(S/S) 2003 Digamber Singh Negi, S/o Late Shri Fateh Singh Negi, Resident of Jaunpur, Ward No. 2, Kotdwar, District Pauri Garhwal .… Petitioner Vs. (1) State of Uttaranchal Through Secretary, Medical Health and family Welfare Uttaranchal, Dehradun (2) Director General, Medical Health and Family Welfare, Govt. of Uttaranchal Dehradun. ….Respondents Counsel for the petitioner Sh. Rajendra Dobhal Dated:-30-10-2003 Hon’ble Rajesh Tandon, J. Heard Shri R.Dobhal counsel for the petitioner standing counsel for the respondent no. 2. By the Impugned order the petitioner has challenged the order dated 23-4-2003 (Annexure 4) to the writ petition. Brief facts giving rise to the present writ petition, are that the petitioner is posted as the junior clerk in the office of Chief Medical officer, Uttarkashi. On 24-4-2002 Director General Secretary, Medical, Health and Family welfare Uttaranchal Dehradun has passed an order by placing the petitioner under suspension on the ground of certain irregularities. After the aforesaid suspension order the inquiry officer was appointed who has submitted the charge sheet on 13-6-2003. The petitioner has filed has reply on 3-7-2002 in which he has denied the charges leveled against him. He has denied that he has committed any irregularities. On 23 April 2003 the inquiry officer has imposed punishment upon the petitioner i.e censor and withholding one increment in pay scale for five years and also issuing a direction to the effect that in future, no account work shall be assigned to the petitioner. The petitioner against the order dated 23-4-2003 has made a representation on 9-6-2003 requesting him for setting aside the order passed against him. The petitioner has challenged the order dated 23- 4-2003 by way of present writ petition. Shri R. Dobhal has placed reliance on Rule 10 (2) of Uttar Pradesh Employees Government Servant (Discipline and Appeal) rules 1999. As will appear from sub clause 2 of rule 10 that the government servant shall be informed regarding the imputation against him and shall be called upon to submit his explanation with in a reasonable time. Sub clause 2 of Rule 10 is quoted below:- “The Government Servant shall be informed to the substance of the imputations against him and called upon to submit his explanation within a reasonable time. The Disciplinary Authority shall after considering the said explanation, if any, and the relevant records, pass such orders as he considers proper and where a penalty is imposed, reason thereof shall be given. The order shall be communicated to the concerned Government Servant.” Petitioner has further submitted that the he cannot be held responsible for the charges, leveled against him. The punishing authority was required to give an opportunity to the petitioner by calling an explanation before passing the impugned order. A perusal of the order dated 23-4-2003 shows that the Director General has passed the following order: - Jh fnxEcj flag usxh] dfu"B fyfid dk;kZy; eq[; fpfdRlkf/kdkjh] mRrjdk”kh dks Mk0 gfjnkl oekZ] rRdkyhu eq[; fpfdRlk v/kh”kd] la;qDr fpfdRlky;] dksV)kj ikSMh x<oky ds fnukad 6&7&2001 dks dk;ZeqDr gksus ds mijkUr izHkkj izek.k i= cSad@ dks"kkxkj tkus ls jksddj fnukad 6&7&2001 ls 18&7&2001 rd vukf/kd`r :i ls fd;s x;s vkgj.k ,oa forj.k ds QyLo:Ik egkfuns”kky; ds vkns”k la[;k &mi@ fyfid @14@2002@12447 fnukad 24&4&2002 ds )kjk fuyfEcr fd;k x;k Fkk rFkk fuyEcu ds mijkUr mUgs dk;kZy; eq[; fpfdRlk vf/kdkjh]fVgjh ls lEc`) fd;k x;k Fkk A egkfuns”kky; ds i= la[;k &mi@ fyfid@14@2002@12445 fnukad 24&4&2002 )kjk vkjksi i= nsdj eq[; fpfdRlk vf/kdkjh] mRrjdk”kkh ls tkap djk;h xbZ] tgka vf/kdkjh ls izkIr tkap fjiksVZ ds vk/kkj ij vkjksi fl) ik;s tkus dh fLFkfr esa Jh fnxEcj flag usxh dh pfj= iaftdk esa fuEu izfrdwy izfofo"V iznku dh tkrh gSA Jh fnxEcj flag usxh dks bl d`R; ds fy;s HkRlZuk dh tkrh gS rFkk ikap o"kksZ rd ds fy;s ,d okf"kZd osru o`f) jksd nh tkrh gS o Hkfo"; esa Jh usxh ls ys[kk dk;Z ugh djk;k tk;A Jh usxh ds fo:) mijksDr izdj.k ls lEcfU/kr izpfyr foHkkxh; dk;kZokgh lekIr dh tkrh gSA Jh usxh dks lsok esa losru cgky fd;k tkrk gSA Jh usxh dh cgkyh ds mijkUr muds ewy rSukrh LFkku eq[; fpfdRlk vf/kdkjh] mRrjdk”kh ds v/khu dfu"B fyfid ds in ij lek;ksftr fd;k tkrk gS rFkk cgkyh ij dk;ZHkkj xzg.k djus ds mijkUr rSukrh LFkku gsrq voeqDr dj fn;k tk;saA Standing counsel has pointed out Rule 1, which provides the alternative remedy of filing the appeal. It reads as under: - Appeal (1) Except the orders passed under these rules by the Governor, the Government Servant shall be entitled to appeal to the next higher authority from an order passed by the Disciplinary Authority.” (2) The appeal shall be addressed and submitted to the Appellate Authority. The Government Servant Preferring an appeal shall do so in his own name. The appeal shall contain all material statements and arguments relied upon by the appellant. (3) The appeal shall not contain any intemperate language. Any appeal, which contains such language, may be liable to be summarily dismissed. (4) The appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall be dismissed summarily.” Apart from rule 11 there is another rule known as rule 12 which provides that the Appellate Authority shall pass the orders after considering the following factors: - “Consideration of Appeals. The Appellate Authority shall pass such order as mentioned in clauses (a) to (d) of rule 13 of these rules, in the appeal as he thinks proper after considering:- (a) Whether the facts on which the order was based have been established; (b) Whether the facts established afford sufficient ground for taking action; and (c) Whether the penalty is excessive, adequate or inadequate. As will appear from the aforesaid sub rule (a), (b), (c) of Rule 12 of Uttar Pradesh Employees Government Servant (Discipline and Appeal) rules 1999 that the appeal lies on facts as well as on the ground of quantum of penalty. Shri Rajendra Dobhal has referred out Annexure ‘6’ of the writ petition dated 28.9.2002 showing the malafide intention of the respondents against the petitioner while passing the impugned order . He has further stated that he was not directly involved. However, question of fact as well as law along with the quantum of punishment shall be suitably considered by the Appellate Authority in accordance with law. So far as the observation of the Director General that: - “ Hkfo"; esa Jh usxh ls ys[kk dk;Z ugha djk;k tk;sa” Suffice it to observe that the Appellate Authority shall also consider as to whether the observation of the Director is in accordance with rule 3(a) of Uttar Pradesh Employees Government Servant (Discipline and Appeal) rules 1999 i.e. relating to the censor i.e. minor punishment. Since the petitioner has available with him alternative remedy, no interference under Article 226 of the Constitution of India is possible. The Appellate Authority shall provide an opportunity to the petitioner on facts as well as law. The appellate authority shall dispose of the appeal within a period of 3 weeks from the date of obtaining certified copy of this order. The petitioner has stated that the representation dated 9-6-2003 is pending. The representation annexed along with writ petition Annexure 5 is still pending, the Director General shall forward by the same and the same shall be treated as an appeal. However, on filing the appeal by the petitioner, the same shall be decided by the authority concerned on merits and the period of limitation will not come in the way of the petitioner. Subject to the observations made above, writ petition is dismissed on the ground of alternative remedy. The writ petition is dismissed. There will be no order as to costs. (Rajesh Tandon, J.) 30-10-2003 Mohit