IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 9685 of 2008 (OA No. 2801/2003) Judgment reserved on: 22.12.2009 Date of decision: 22.2.2010 Hutashan Dev …Petitioner. Versus H.R.T.C. and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. Lovneesh Kanwar, Advocate. For the Respondents : Mr. H.S.Rawat, Advocate. Kuldip Singh, Judge The petitioner in the petition has prayed for quashing order dated 3.9.2003 Annexure A-11 with a further direction to the respondents to take back the petitioner in service as Conductor with all consequential benefits. 2. The facts, in brief, are that the petitioner was appointed as Conductor in respondent No.1 Himachal Road Transport Corporation (for short ‘Corporation’) in May 1997 and was posted in Local Unit, Shimla. In the year 2001, he was transferred to Rohru. On 17.6.2002 he was deputed as Conductor on Summerkot - Chandigarh bus route of the Corporation. There was some defect in 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 the punch meant for punching the tickets. The petitioner somehow performed his duty with the defective punch and reached Shimla with all necessary entries in the way bill. The petitioner was relieved at Shimla and another conductor Jai Gopal Dass took over the charge from the petitioner. The bus was checked at Vaknaghat by the flying squad and report was made against the petitioner for not punching the tickets. 3. In pursuance of the report of the flying squad, an inquiry was ordered to be conducted against the petitioner and he was charge-sheeted. Only one witness Jai Gopal Dass, Conductor was examined during the inquiry. The petitioner during the inquiry requested for examining defence witnesses but only one witness was allowed to be examined. The inquiry officer submitted his report in April, 2003. A show cause notice was issued to the petitioner on 26.5.2003, the petitioner submitted his reply to show cause notice. The respondent No.3 vide office order dated 9.6.2003 Annexure A-6 imposed penalty upon the petitioner of stoppage of two annual increments with cumulative effect and for the suspension period w.e.f. 20.6.2002 to 5.6.2003 the petitioner shall not get anything more than the subsistence allowance already paid to him. 4. The petitioner against the order dated 9.6.2003 Annexure A-6 filed an appeal before respondent No.2, appellate authority. The petitioner received memo dated 15.7. 2003 from respondent No.2 directing him to file reply as to why the penalty of removal from service be not imposed upon the petitioner. The 3 petitioner submitted his reply. The petitioner was not called for hearing and finally vide office order dated 3.9.2003 respondent No.2 imposed penalty of removal from service. The petitioner has assailed the order dated 3.9.2003 Annexure A-11 on the grounds that he was not afforded opportunity to examine defence witnesses. The inquiry report is illegal, the evidence was not properly appreciated. The order dated 3.9.2003 is illegal and is in contravention of Rule 29 of CCS (CCA) Rules. The appellate authority has no power to impose penalty under Rule 29 when the appeal was pending. The impugned order is not a speaking order and is in violation of Articles 14, 16 and 21 of the Constitution of India. 5. The respondents have contested the petition by filing reply and defended order dated 3.9.2003. The duty of the petitioner on 17.6.2002 on Summerkot – Chandigarh bus was regular duty and not as an adjustment to allow him to visit his native village in Solan. It has been denied that there was any defect in the punch issued to the petitioner for punching the tickets. It has been admitted that petitioner was relieved by Jai Gopal Dass, Conductor. M.S. Grewal was already examined as a prosecution witness. The appellate authority, felt and rightly so, that the penalty of stoppage of increments was extremely low and not at all commensurate with the seriousness of the offence. Therefore, exercising his powers as reviewing authority under Sub-Rule (i) of Rule 29 of the CCS & CCA Rules, the appellate authority had issued notice to the petitioner as to why penalty of removal from service should not be imposed upon 4 him. The order dated 3.9.2003 was issued after considering the reply of the petitioner and taking into consideration the entire facts of the case. The petitioner did not file any application to examine Smt. Sushma, M.S. Rana, Regional Manager, Rohru, R.N.Negi, Divisional Manager, Madan Lal, Driver and Dharam Pal, Adda Incharge. He, however, made an application for examining M.S. Grewal but M.S.Grewal was already examined as a prosecution witness. The respondents prayed for dismissal of the petition. In rejoinder, the petitioner has re-asserted his case. 6. I have heard the learned counsel for the parties. The relevant Rule 29 CCS (CCA) Rules, 1995 is as follows:- “29 [Revision ] (1) Notwithstanding anything contained in these rules - (i) xxx (ii) xxx (iii) xxx (iv) xxx (v) the Appellate Authority, within six months of the date of the order proposed to be [ revised ] ; or (vi) xxx may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may - (a) Confirm, modify or set aside the order ; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or 5 (c ) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit: Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) of Rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under Rule 14 has not already been held in the case, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary ” 7. The inquiry officer in his report dated 19.7.2002 Annexure A-2 has returned the findings that intention of the petitioner was only to grab the Corporation revenue and accordingly held that charge No.1 is proved. It has also been held that since charge No.2 is based on the same circumstances and evidence as examined for charge No.1, therefore, charge No.2 is also proved against the petitioner. The respondent No.3 vide office order dated 9.6.2003 Annexure A-6 had imposed penalty of stoppage of two annual increments with cumulative effect upon the petitioner. The petitioner during suspension period from 20.6.2002 to 5.6.2003 shall not get anything more than the subsistence allowance already paid to him. The period of suspension will not count for pension and gratuity etc. The petitioner filed appeal annexure A-8 before the Divisional 6 Manager against the penalty. The respondent No.2 Divisional Manager vide memo dated 5.7.2003 issued notice to petitioner under Sub Rule (i) of Rule 29 of CCS (CCA) Rules, 1965 as to why the penalty of removal from service be not passed. The petitioner filed reply Annexure A-10 and submitted that he had already filed representation (appeal) against the penalty which is pending and prayed for exoneration of charges. The appellate authority ultimately vide office order dated 3.9.2003 Annexure A-11 set-aside the order dated 9.6.2003 of the disciplinary authority and imposed penalty of removal from service on the petitioner with immediate effect with further direction that during suspension, the petitioner will get only subsistence allowance and the period shall not count for duty for any purposes. 8. Rule 29 provides that Appellate Authority within six months of the date of the order proposed to be revised may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may confirm, modify or set-aside the order etc. There is no dispute between the parties that the penalty order dated 9.6.2003 Annexure A-6 was appealable, the petitioner had already filed the appeal and such appeal was pending before respondent No.2. The Rule 29 is applicable where appeal is provided but no appeal has been filed or 7 where no appeal is provided. The present case does not fall in either of the contingencies provided in Rule 29. The petitioner had already filed appeal which was pending, therefore, respondent No.2 could not have revised / reviewed the order dated 9.6.2003. The appellate authority under Clause (v) of Sub Rule (i) of Rule 29 had no powers to revise the order dated 9.6.2003 Annexure A-6 from which appeal was provided and petitioner had already filed the appeal which was pending before the appellate authority when the order dated 3.9.2003 Annexure A-11 was passed by the appellate authority. The order dated 3.9.2003 Annexure A-11 is without jurisdiction and, therefore, the same is liable to be quashed. The petitioner has placed nothing on record that he remained unemployed from the date of termination of service onwards. 9. No other point was urged. 10. The result of the above discussion, the petition is allowed. The office order dated 3.9.2003 Annexure A-11 is quashed. The respondents are directed to re-instate the petitioner immediately without back wages, the petitioner however shall be entitled to continuity of service, seniority and pay fixation. ( Kuldip Singh ), February 22, 2010. Judge. (GR)