IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 14285 of 2008 Date of decision: 26.05.2011 ________________________________________________________________ Dr. Harmohinder Singh. .....Petitioner. Versus State of H.P. .....Respondent. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: Mr. Sanjeev Bhushan, Advocate. For the respondent: Mr. Vikas Rathore, Dy. AG. V.K. Sharma, J. (Oral). The petition has been filed on the following prayer: “To quash and set aside Annexure A-6 dt. 27.2.06 and Annexure A-8 dt. 24.11.2006 with all consequent benefits of pay, seniority arrears etc. etc.” 2. In reply, the respondent has taken the following stand vide para 3, 6(a) and 6(b): “3. In reply to this para it is stated that Order dated 27.2.2006 and 24.11.2006 are just, legal and valid in the eyes of law. Detailed enquiry was conducted against the applicant and after that penalty has been imposed as the charge against him stands duly proved. Order rejecting the appeal is neither illegal nor arbitrary and the same has been passed after complying with the provisions of the law and after due application of mind, therefore, the averments made are wrong and O.A. filed is liable to be rejected at the threshold. 6(a) That the impugned action of the replying respondent is just, legal and proper. Orders imposing penalty have been passed adhering to the 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... principle of natural justice and after due application of mind. As such the same is justified in the eyes of law. 6(b) In reply to para it is submitted that not only the applicant has admitted the charge sheet but the penalty has been imposed after detailed enquiry. Deposit of the excess payment by the applicant after a long time itself is proving the negligence on the part of the applicant.” 3. As per memorandum dated 24th October, 2005, Annexure A-4, the petitioner was proceeded against departmentally on the following charge: “That Dr. Harmohinder Singh while working as SMO Fe ESI Hospital, Parwanoo claimed diet bills during Free Eye camp in the Hospital during 10/2003 to 02/2004 and made overpayment with the help of Smt. Parveen and Smt. Manju, Staff Nurses who had verified the Diet bills and Dr. Harmohinder Singh DDO who has drawn the bill from Treasury and made payment to Sh. G.S. Reen, Contractor amounting to Rs. 15405/- despite the fact that free langar was served to the patients by the Shiv Mandir Committee, Parwanoo and it was the duty of the Office/DDO to deduct the amount from the bills, submitted by the Contractor in lieu of the days for which free food was served to the patients. Thus Dr. Harmohinder Singh has made overpayment amounting to Rs. 15405/- to Sh. G.S. Reen, Contractor which is unbecoming of a Government servant and in violation of Rule 3 of CCS (Conduct) Rules, 1964.” 4. The petitioner submitted reply dated February 9, 2005, Annexure A-5, to the charge sheet, which is as under: “From Dr. Harmohinder Singh, M.O., Community Health Center, Nalagarh, District Solan. To The Principal Secretary (Health) to the government of Himachal Pradesh, Shimla – 171 002. Subject:- Reply to the charge sheet. Madam, ...3... JAI HIND. With reference to your memo No. Health- B(3)423/99 dated 24th October, 2005, whereby I have been served with a charge sheet alongwith the Annexures, the following submissions are made:- p That it is true that while functioning as DDO as well as Incharge E.S.I, Hospital Parwanoo during 10/2003 to 2/2004 an overpayment of Rs. 16260/- was made to the diet contractor Sh. G.S. Reen on the basis of various monthly claims/bills preferred by him for payment. These claims on receipt in the office were duly verified by the ward sister and accounts clerk and were passed, on the basis of their verification, by me. But inadvertently the excess diets claimed by the contractor could not be noticed at that stage due to an oversight. Moreover as already submitted that ward sister as well as the Accounts Clerk has verified the same. This resulted into an overpayment of total Rs. 16260/- to the contractor and not Rs. 15405/- as has been mentioned in the charge sheet. p That in the month of June, 2004 an audit party was to visit E.S.I, Hospital on Inspection. Thus while making preparation for its inspection, it came to my notice that contractor had claimed charges for excess diets in his various monthly bills pertaining to the period from 31.10.03 to 19.2.04.  Thus on coming to know about this fact of over payment to the Contractor, I issued a memo dated 17.7.2004 to him giving out the details of excess amount claimed and received by him with a direction to him for refunding the same. Whereon the diet contractor deposited Rs. 16260/- in the office and then same were deposited in the Treasury subsequently. A photo copy of the memo is attached as Annexure-'A' and letter dated 2.8.04 from contractor in response to memo is attached as Annexure 'B' for your kind perusal. Therefore, the pecuniary loss to the Government has been made good by the contractor. In view of the above, it appears that official conducting the preliminary enquiry has not placed ...4... the complete facts before you for the reason best known to him. Otherwise the perusal of the facts brought out above, it is clear that no misconduct, dishonest intention or motive is involved on my part. It is a clear-cut case of inadvertent innocent mistake, which stands rectified subsequently on my behest only. Therefore, in view of the foregoing submissions, it is humbly prayed, that the charges may kindly be dropped at this stage only, as no dishonest motive or moral turpitude is involved in the case. The money was wrongly claimed by the contractor, which inadvertently was passed, and payment was made to the contractor on the basis of his various claims preferred during the said period. And have been subsequently refunded by him. Thus there is no illegality involved in the case. The oversight on my part, however is regretted and I tender an apology for the same. Finally it is prayed that, in the interest justice I may be allowed personal hearing in the matter. Yours faithfully, Dated:- November 9, 2005. Dr. Harmohinder Singh, M.O., Community Health Center, Nalagarh, District Solan.” 5. In view of the above reply, the following order dated 27th February, 2006, Annexure A-6, imposing penalty was passed against the petitioner by the Principal Secretary (Health) to the Government of Himachal Pradesh. The appeal preferred by the petitioner though addressed to the Governor, Himachal Pradesh, was also rejected by the same authority, i.e. Principal Secretary (Health) vide order dated 24.11.2006, Annexure A-8: “Government of Himachal Pradesh Department of Health & Family Welfare No. Health-B(3)423/99 Dated Shimla-2 the 27 Feb., 2006. ORDER ...5... WHEREAS, Dr. Harmohinder Singh, Medical Officer was charge sheeted under Rule 14 CCS(CC&A) Rules, 1965 vide this Department Memorandum No. Health-B(3)423/99 dated 24th Oct., 2005. AND WEHEREAS, Dr. Harmohinder Singh has submitted his representation admitting the charge(s) leveled against him to that extent that the overpayment was made inadvertently and the said amount has been recovered from the Contractor and deposited in the Government treasury. NOW THEREFORE, after due consideration of his representation and other relevant material, the undersigned in exercise of the powers vested under Rule 11 (iii) (a) of CCS (CC&A) Rules, 1965, hereby impose a penalty of “reduction to a lower stage in time scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension” upon the said Dr. Harmohinder Singh, M.O. Civil Hospital, Nalagarh, Distt. Solan. By Order & in the name of Governor Sd/- (Harinder Hira) Pr. Secretary (Health) to the Government of Himachal Pradesh.....” 6. It is seen from the records that the excess payment in question relates to the period October, 2003 to February, 2004. It was thereafter that on 27.07.2004 the petitioner served memo, Annexure A-1, upon the diet contractor, Shri G.S. Reen, in the following terms: “No. ESI/PWN-460/04 dt. 27.7.04. Office of SMO Incharge, ESI Hospital, Parwanoo. To Sh. G.S. Reen, Diet Contractor, ESI Hospital, Parwanoo. Sub: Excess claim of Diet Money in the month of Oct., Nov. and February. Memo ...6... During review of records, it has come to the notice of the undersigned that you have claimed the diet money for the days on which langer was served by Jangiri Shiv Mandir Committee, Parwanoo during eye camps organized on 31.10.03 to 2.11.2009 and 17.2.04 to 19.2.04. You are now hereby advised to reconcile the bills as per details below and refund the amount within one month. Dates Excess claimed ESI Non ESI 31.10.03 2 47 1.11.03 2 84 2.11.03 1 55 3.11.04 3 18 17.2.04 6 2 37 18.2.04 4 2 58 19.2.04 4 2 40 Total 22 6 339 X 45 x2.50x 45 990 15 15,255/- 1005 + 15,255 = Rs. 16260/- Sd/- SMI, Incharge ESI Hospital, Parwanoo.” 7. The above memo was replied by the diet contractor vide letter dated 2.8.2004, Annexure A-2, as under: Gurdev Singh Reen Diet Contractor E.S.I. Hospital Parwanoo Distt. Solan (H.P) Ref........... Dated: 2/8/2004 To The S.M.O. E.S.I. Hospital Subject: Refund of excess payment claimed Sir, Reference your letter no. ESI/PWN 460/04 dated 17.7.04. I have checked my tools for the months mentioned in the letter & found that excess payment to the tune of 16,260/- has been claimed due to oversight. I hereby deposit a sum of Rs. 16,260/- (Rupees Sixteen Thousands Two Hundred Sixty only) vide receipt no. 1085153 & 1085154 today to ...7... adjust the excess amount claimed. Dated: 2/8/04. SD/- GURDEV SINGH REEN Diet Contractor T.B. Sanatorium Dharampur, Distt. Solan (H.P) Prop:-” 8. Consequently, a sum of ` 16,260/- was deposited in the government treasury vide challan dated 12.08.2004, copy of which is Annexure A-3. 9. A perusal of the reply submitted by the petitioner would go to show that he had stated the facts attendant upon the excess payment clearly and in quiet unequivocal terms. However, at the same time, he had not admitted the charge leveled against him, as projected in the order of imposition of penalty dated 27th February, 2006, Annexure A-6. In such circumstances, it was incumbent upon the disciplinary authority to resort to a regular enquiry. However, since it was not done, the impugned order dated 27th February, 2006, Annexure A-6, cannot be sustained and is accordingly quashed. Since the penalty was imposed and the appeal decided by one of the same authority, the order in appeal dated 24.11.2006, Annexure A-8, can also not be sustained and is accordingly quashed. However, it shall be open to the respondent-department to proceed in the matter afresh in accordance with law, if so advised. 10. The petition stands disposed of, so also pending CMP(s), if any. (V.K. Sharma) Judge 26th May, 2011 (virender)