IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2816/2008 Decided on:31.3.2009 Ashwani Kumar Sharma. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes For the petitioner : Mr.Ashwani K. Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, J. (Oral) The disciplinary proceedings were initiated against the petitioner vide memorandum dated 9.11.1992. He was given opportunity to make representation against the memorandum. He filed his written representation against the memorandum. The Disciplinary Authority imposed the penalty of “censure” upon the petitioner on 23.2.1994. He was not held responsible for the pecuniary loss sustained by the Government to the extent of 21,600/-. However, vide office order dated 11.9.1995, the memorandum dated 9.11.1992 was withdrawn in the light of letter dated 1.5.1995. In sequel to office order dated 11.9.1995 fresh memorandum was served upon the petitioner on 27.9.1995 vide Annexure 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 A-1. The Inquiry Officer was appointed on 21.10.1995. The petitioner has assailed the decision of the respondents whereby fresh inquiry has been instituted against him on the basis of Annexures A-1 to A-3. Mr. Ashwani Kumar Sharma, Advocate has strenuously argued that once the disciplinary proceedings had been initiated and the penalty of ‘censure’ was imposed upon the petitioner, the respondents could not hold fresh inquiry on the same or similar charges on the basis of letter dated 1.5.1995 issued by the Superintending Engineer. He further contended that the order passed by the Disciplinary Authority as per instruction No.1 appended to rule 17 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is a judicial decision and once it is arrived at it is final and cannot be varied by that authority. He has also relied upon instruction 3 appended to rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that the charges as contained in Annexures A-1 to A-3 and A-4 are distinct and separate. I have heard the learned counsel for the parties and perused the record carefully. I have gone through the charge-sheet issued vide memorandum Annexures A-1 to A-3 and A-4 dated 9.11.1992. The charges levelled against the petitioner are same and similar in both the charge-sheets. In the previous inquiry initiated on the basis of Annexure A-1, the penalty of ‘censure’ has been imposed upon the petitioner on 23.2.1994. The Superintending Engineer on 1.5.1995 while exercising the powers under rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 had ordered fresh inquiry to be initiated against the petitioner under the provisions of the Central Civil Services (Classification, 3 Control and Appeal) Rules, 1965. He has in fact not set aside the order dated 23.2.1994. In order dated 23.2.1994, Annexure A-7 has been withdrawn by the Executive Engineer, Dehra on 11.9.1995. The penalty upon the petitioner was also imposed by the Executive Engineer, Dehra on 23.2.1994. In view of condition No.1 appended to Rule 17 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, this order could not be varied by the Disciplinary Authority. It could be varied or modified only by the revising or the appellate authority. The Superintending Engineer has only ordered fresh inquiry vide letter dated 1.5.1995 without setting aside the penalty imposed upon the petitioner. It is also stipulated in condition No.3 appended to rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 that the original punishing authority is not competent to revise or cancel the order in revision. In the present case, the order has been revised by the original punishing authority i.e. Executive Engineer, Dehra. It was not permissible under the law. He could not set aside his own orders since it was required to be done by the appellate/revising authority. The decision to order fresh inquiry should be taken in a just and fair manner. In the present case, the disciplinary authority has not found the petitioner wholly responsible for causing loss to the Government as is evident from Annexure A-6 dated 23.2.1994. He had, however, imposed penalty of ‘censure’ upon the petitioner. The charges levelled against the petitioner in both the charge- sheets are same. The Superintending Engineer had decided to order fresh inquiry without recording any specific reasons for doing so. He was required to pass a self-contained/speaking order. He has only mentioned that the order dated 23.2.1994 is not passed on merits of the case. How he has come to this abrupt conclusion is not borne out from the record. He was required to pin-point specifically how the order was not based on 4 merits of the case after taking into consideration the charge-sheet and the reply filed by the petitioner and the order passed by the Disciplinary Authority dated 23.2.1994. The petitioner had also pointed out while filing the reply to the memorandum issued on 11.9.1995 that the second inquiry was not warranted under law. This aspect has also been over looked by the Disciplinary Authority. Accordingly, the petition is allowed. Annexures A-1 to A-3 are quashed and set aside. There will, however, be no order as to costs. 31.3.2009 (Rajiv Sharma ), J. *awasthi*