IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 4879/2010 Decided on:18.6.2011 _____________________________________________ Rattan Chand Arora. …Petitioner. Versus State of H.P. and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. A.K. Gupta, Advocate. For the Respondents: Mr. R.P. Singh, Asstt. A.G. _____________________________________________________ Justice Rajiv Sharma, Judge (oral). Disciplinary proceedings were initiated against the petitioner vide memorandum dated 26.11.1996. The Executive Engineer, Theog Division, HPPWD, Theog was appointed as Inquiry Officer. He submitted the report to the Disciplinary Authority. Petitioner was held responsible for shortage worth Rs. 6,84,152.75 paise for short handing over the material. A show cause notice was issued to the petitioner on 29.11.2000 by the Disciplinary Authority. He was also 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 permitted to make a representation against the inquiry report. Petitioner received the show cause notice alongwith inquiry report on 4.12.2000. He was required to file the representation before 10.12.2000. He made representation on 18.12.2000, which was received by the Executive Engineer, Arki Division, HPPWD, Arki on 19.12.2000. In view of this, the representation made by the petitioner was not entertained and the following penalties were imposed on 21.5.2001: “Now, therefore, in consideration of above facts the undersigned in exercise of the powers conferred by rule 12 of provision of Rule 11 Sub-Rule (IV) of C.C.S. (CCA) Rule, 1965 withholding one annual increment for two years from the date of increment to be accrued to the official after the date of issue of this order and that on the expiry of two year the withheld increment will not have the effect of postponing his further increment. Further under the provision of Rule 11 Sub-Rule (iii) of C.C.S. (CCA) Rule 1965 the recovery of shortages amounting to Rs. 6.84 lacs (Rupees six lac eighty four thousand) only as reported by the Executive Engineer, Killar Division, HPPWD, Killar Pangi vide his letter No. PW/KD-EA/Chargesheet/R.C. Arora, J.E./94-4676-77 dated 20.10.94 is ordered to be recovered from the pay of Shri Rattan Chand Arora, Junior Engineer (Civil) @ Rs.7650 (Rupees Seven thousand six hundred and fifty) only per month from the pay for the month of May, 2001 to be paid in June, 2011, till his retirement i.e. 31.3.2006 for 3 causing loss to the Govt. by negligence and misconduct. Whereas, by monthly recovery from the pay of Shri Rattan Chand Arora, Junior Engineer (Civil) as ordered above an amount of Rs. 4.36 lac (Rupees Four lac and thirty six thousand) only is likely to be recovered upto the date of retirement/superannuation, therefore, balance remaining amount shall be recovered in accordance with the provision of rule 9 of the C.C.S. Pension Rule, 1972.” 2. Thereafter petitioner filed a detailed appeal against the imposition of penalty dated 21.5.2001. The same was decided by the Appellate Authority on 27.2.2003. Petitioner filed original application before the erstwhile Himachal Pradesh Administrative Tribunal, which after the abolition of Tribunal was transferred to this Court and assigned CWP (T) No.11253/2008. The appellate order was set aside by this Court on 9.7.2009. The Appellate Authority, i.e. Chief Engineer was directed to decide the appeal by a speaking order after taking into consideration the evidence, representation against the inquiry report and the points raised by the petitioner in the appeal within a period of 8 weeks. Thereafter, order dated 15.9.2009 was passed and the appeal of the petitioner has been rejected. 4 3. Mr. A.K. Gupta has strenuously argued that the appellate order is not in conformity with law. According to him, the Appellate Authority has neither taken into consideration the representation made by his client against the show cause notice dated 29.11.2000 nor the grounds/pleas taken by him in the memorandum of appeal have been taken into consideration by the Appellate Authority. 4. Mr. R.P. Singh, learned Assistant Advocate General has supported the appellate order Annexure P- 8. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. Petitioner has been issued, as noticed above, a show cause notice dated 29.11.2000. The representation made by the petitioner against the inquiry report was only delayed by 8 days. The Court is of the considered view that the same ought to have been taken into consideration in the interest of justice by the Disciplinary Authority before imposing the penalty. The earlier order passed by the Appellate Authority against the imposition of penalty dated 21.5.2001 has already been quashed by this Court with further direction to the Appellate Authority to 5 decide the same afresh as per judgment dated 9.7.2009 after taking into consideration the representation made by the petitioner against the inquiry report and also on the basis of the evidence led by the petitioner. 7. Mr. A.K. Gupta has taken the Court through appellate order dated 15.9.2009. The Court is constrained to observe that Annexure P-8 dated 15.9.2009 is not in conformity with rule 27 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the instructions issued therein. The Appellate Authority, as per rule 27, is required to consider as under: i. whether the procedure laid down in the rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; ii. whether the findings of the Disciplinary Authority are warranted by the evidence on the record; iii. and whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe. 6 8. According to the instructions issued by the Director General P&T even if the appellant has not brought out any new points in the appeal, it is obligatory on the part of the Appellate Authority to discuss how there has been no procedural flaw or denial of opportunity of defence and that the findings of the Disciplinary Authority are based on evidence and are just. Thus, as per these instructions, the Appellate Authority is supposed to discuss thoroughly the following points: i) the procedural aspects as well as the justness of the findings of the Disciplinary Authority with reference to the admissible evidences; ii) a proper discussion of the points raised in the appeal; and iii) any objective assessment of the lapse on the part of the punished official with a view to coming to a decision that the charge(s) had been established and that the penalty is appropriate/adequate and does not require to be either toned down or enhanced. 9. The order passed by the Appellate Authority must be self contained, speaking and reasoned. The order should be clear and carefully worded. According to the instructions, as discussed hereinabove, issued by the Director General P&T dated 1.10.1980, the 7 Appellate Authority has to make objective assessment of the findings of the Disciplinary Authority and required to issue detailed order, i.e. speaking order. According to these instructions, a number of points are generally raised in the appeal and the appellant reasonably expects that the Appellate Authority would give weightage to those points before coming to any decision on his request. It may be that the Appellate Authorities had made a mental examination of those points, but their brief observations to the effect that they were not tenable cannot satisfy the appellant. It is, thus, necessary that all the points raised by the appellant are summarized in the orders and are also logically discussed to show how they are not tenable or acceptable. It is further stipulated that unless this is done, the appellants are not likely to be satisfied with the orders and will apparently submit petitions to the higher authorities even though there may not be sufficient justification therefor. 10. In the case in hand, petitioner has filed a detailed appeal against the imposition of penalty. He has taken as many as 21 grounds. He has specially assailed the findings of the Inquiry Officer and has also explained the circumstances against him and also tried 8 to prove his innocence. The order passed by the Appellate Authority on 15.9.2009 is not in conformity with the observations and discussions made hereinabove on the basis of the language employed in rule 27 and instructions No.1 and 2 issued on 9.2.1973 and 1.10.1980 11. Accordingly, the petition is allowed. Annexure P-8 dated 15.9.2009 is quashed and set aside. The Appellate Authority is directed to decide the appeal afresh in view of the observations and discussions made hereinabove within a period of 10 weeks after the production of certified copy of this judgment by the petitioner. Petitioner shall also be heard in person and for that purpose; the date will be notified to him accordingly. No costs. (Justice Rajiv Sharma), Judge. 18.6.2011 *awasthi*