IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. (T) No. 12179 of 2008. Decided on 23.02.2011. _____________________________________________________ Joginder Singh. …Petitioner. -Versus- State of H.P. and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Sanjeev Bhushan, Advocate. For the respondents. : Mr. A.K. Bansal, Additional Advocate General with Mr. P.M. Negi, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Disciplinary proceedings were initiated against the petitioner under Rule 14 of the CCS(CCA) Rules, 1965. Inquiry Officer was appointed. The Inquiry Officer submitted the report to the disciplinary authority on 13th July, 1998. The disciplinary authority, i.e., Superintending Engineer, IPH Circle, Sundernagar imposed the penalty of Censure upon the petitioner on 27.08.1999. However, the Director, R.D.D. did not agree with the penalty and requested the Engineer-in-Chief (IPH) on 17.11.1999 to review the case. The matter was referred by the Engineer-in- Chief (IPH) to the Chief Engineer (North), H.P.PWD, Dharamshala to examine the matter in the light of letter dated 17.11.1999. The Chief Engineer (North), H.P. PWD, Dharamshala directed the 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. Superintending Engineer, H.P.PWD 9th Circle, Nurpur to take further action. The Superintending Engineer, H.P. PWD 9th Circle, Nurpur imposed the penalty of recovery amounting to Rs. 4349.56/- plus ‘Censure’ upon the petitioner. Petitioner preferred an appeal before the Engineer-in-Chief. The Engineer-in-Chief recorded a specific finding that the petitioner had already made good the loss by depositing Rs. 4349.56/- vide challan No. 6452, dated 20.09.2004. He set aside the penalty of ‘Censure’ imposed by the Superintending Engineer, 9th Circle, Nurpur on 19.03.2005. The Departmental Promotion Committee was convened on 21.06.2004. The case of the petitioner was not considered for promotion, only on the pretext that the Superintending Engineer, H.P. PWD 9th Circle, Nurpur has imposed the penalty of recovery upon him. Ultimately, the petitioner was promoted on 22.10.2005 as Assistant Engineer and he joined his duties on 26.10.2005. 2. Mr. Sanjeev Bhushan, learned counsel for the petitioner has strenuously argued that once the penalty has been imposed by the disciplinary authority, the same could not be altered by the same disciplinary authority without any authority of law. He then contended that in fact, the penalty of ‘Censure’ was imposed on his client on 27.08.1999. However, vide order dated 06.09.2004, the disciplinary authority imposed the penalty of recovery of Rs. 4349.56/- as well as Censure upon the petitioner. He then argued that the penalty of Censure has been set aside by the appellate authority on 19.03.2005 and since the petitioner had already deposited a sum of Rs. 4349.56/-, his case could not be kept in sealed cover. 3. Mr. A.K. Bansal, learned Additional Advocate General has strenuously argued that since the disciplinary authority had imposed the penalty of recovery of Rs. 4349.56/- upon the petitioner, his case was required to be kept in a sealed cover. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner was charge-sheeted on 20.02.1995. The disciplinary authority, i.e., Superintending Engineer (IPH), Circle Sundernagar has imposed the penalty of Censure upon him on 27.08.1999. However, without any authority of law, the Superintending Engineer H.P. PWD 9th Circle, Nurpur has imposed the penalty of recovery amounting to Rs. 4349.56/- upon the petitioner on 06.09.2004 as well as penalty of Censure. The disciplinary authority has to apply his independent mind. In the instant case, the penalty has been altered at the instance of Director, R.D.D., who vide letter dated 17.11.1999 requested the Engineer-in-Chief (IPH) to review the case. The detailed procedure to review the case is provided under Rule-29 of the CCS(CCA) Rules, 1965. This procedure has not been followed by the disciplinary authority. The disciplinary authority could not be dictated by the Director, R.D.D., the manner in which the penalty was to be imposed upon the petitioner. Petitioner has been vexed over twice on the same charge-sheet dated 20.02.1995. Initially, the penalty of Censure was imposed and thereafter, the penalty of Censure and recovery of Rs. 4349.56/- has been imposed upon the petitioner. The order dated 19.03.2005 makes it abundantly clear that the petitioner had already deposited a sum of Rs. 4350/- on 20.09.2004 with the B.D.O., Nichar. The Engineer-in- Chief, i.e., the appellate authority has also set aside the penalty of Censure imposed upon the petitioner. The recovery of Rs.4349.56/-could not be imposed by the disciplinary authority at the instance of Director, R.D.D.. Moreover, the Departmental Promotion Committee was convened on 21.06.2004. Petitioner’s case was kept in a sealed cover and his juniors were promoted. He has been promoted to the post of Assistant Engineer on 22.10.2005 and he joined his duties on 26.10.2005. 6. What emerges from the observations and discussions made hereinabove, is that the recovery of Rs. 4349.56/- could not be imposed vide letter dated 06.09.2004. However, as far as the penalty of Censure is concerned, the same had been set aside by the appellate authority on 19.03.2005. 7. In the instruction No. 16.13 issued in Hand Book On Personnel Matters Volume -1 (Second Edition), it is clearly provided that the penalty of censure and the penalty of recovery from the pay of the Government servant of the loss caused by him to Government or of withholding his increment(s) does not stand in the way of his consideration for promotion though in the latter case promotion is not given effect to during the pendency of the penalty. While, therefore, the fact of the imposition of such a penalty does not by itself debar the Govt. servant concerned from being considered for promotion, it is also taken into account by the Departmental Promotion Committee, or the competent authority, as the case may be, in the overall assessment of his service record for judging his suitability or otherwise for promotion or his fitness for admission to a departmental/promotional examination. 8. Their Lordships of the Hon’ble Supreme Court in Jagan Narian Versus Food Corporation of India & Ors. 2010 (2) Scale, 497 have held that the promotion cannot be withheld due to imposition of minor penalty of recovery of amount. Their Lordships have held as under: “6. Seen in the background of the two circulars dated 13.12.2001 and 19.12.2001, it is evident that the promotion of the petitioner by order dated 24.1.2005 was not the result of any oversight. It should be noticed that as on 24.1.2005, the minor penalty proceedings had come to an end by levying penalty of Rs. 5,000/- Even as on 8.11.2004 what was pending was only a minor penalty proceeding. Therefore, having regard to the circulars dated 13.12.2001 and 19.12.2001, neither the pendency of minor penalty proceedings nor the imposition of minor penalty by way of recovery of Rs.5000/- would come in the way of the employee being considered for promotion or being promoted. It therefore, follows that there was no justification for cancelling the said promotion dated 24.01.2005. If the appellant was thus entitled to promotion and the cencallation of the promotion was not warranted, the case of the appellant being considered again for the very same promotion and adoption of sealed cover procedure in view of the pendenccy of subsequent disciplinary proceedings will not arise (vide : Delhi Jal Board Vs. Mahinder Singh-2000 (7) SCC 210). 9. Accordingly, the petition is allowed. Annexure A-3, dated 06.09.2004 is quashed and set aside. Respondents are directed to consider the case of petitioner for promotion to the post of Assistant Engineer from the date his juniors were promoted on the basis of Departmental Promotion Committee convened on 21.06.2004, with all consequential benefits. No costs. (Rajiv Sharma) Judge February 23, 2011. (bhupender)