IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.352 of 2002 Reserved on 14.11.2007 Date of decision 11.1.2008 Ms. Kiran Aggarwal Petitioner Vs. The Chief Secretary to the Govt. of H.P. and others. Respondents Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner: Petitioner in person. For the respondents: Mr. M.A.Khan and Ms.Meenakshi Sharma, Deputy Advocate Generals for respondents No.1 and 2. Mr. Bipin C. Negi, Advocate, for respondents No.3 to 6. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that disciplinary proceedings were initiated against the petitioner vide memorandum dated 4.11.1996. Mr. Justice Surinder Sarup was appointed the Enquiry Officer and Mr. J.L. Gupta, Additional District & Sessions Judge (Rules) of the High Court of Himachal Pradesh was appointed as Presenting Officer. The concluding portion of the departmental enquiry dated 27.3.1997 reads thus: 1 Whether reporter of local papers are allowed to see the judgment ? Yes. 2 “For the aforementioned reasons, all the three charges (articles) stand conclusively proved against Ms. Kiran Aggarwal. This is as a result of ex-parte departmental enquiry. There is no doubt about the fact that the delinquent officer failed to associate herself with the enquiry, rather as per the written report of the Reader of this Court, who had accompanied the undersigned on tour to Hamirpur to assist in the inquiry, whereby he intimated that not only did he inform the delinquent officer on telephone at 8.30 a.m. on 18th March 1997 from the Circuit House where the undersigned along with the staff was staying, nor did she come for the enquiry despite being personally requested by Mr. Ashwani Sharma, Reader of this Court, who went to her retiring room to request her to join the inquiry proceedings. Rather she gave a very cheeky and saucy answer that it was open to the Inquiring Authority to either proceed against her ex-parte or to issue warrants against her. A written report to this effect by the said Mr. Ashwani Sharma also forms part of the enquiry proceedings. This conduct of the delinquent officer smacks of utter in- subordination, indiscipline and disobedience.” The memorandum was issued by the then Registrar Mr. M.R. Verma on 4.11.1996. A copy of the Enquiry Report was placed before the Full Court Meeting held on April 4, 1997. Mr. Justice Surinder Sarup was also one of the Hon’ble Judges who attended the Full Court Meeting held on April 4, 1997. The Enquiry Report of Hon’ble Mr. Justice Surinder Sarup was accepted by the Full Court and the Full Court was of the tentative opinion that the penalty of dismissal should be imposed upon the petitioner. A copy of the Enquiry Report was directed to be forwarded to the petitioner and she was also to be informed of the tentative decision to impose punishment of dismissal. She was permitted to file a representation within two weeks from the receipt of the copy of the report and the communication and in case no representation was made by her 3 within the stipulated period it was to be presumed that she had no representation whatsoever to make against the Enquiry Report. She was also put under suspension with immediate effect and her headquarters during the period of her suspension was fixed at Hamirpur. Consequently, a notice dated April 4, 1997 was issued to her. The text of the Notice dated April 4,1997 reads thus: “Whereas, a charge-sheet was served upon Ms. Kiran Aggarwal, District and sessions Judge, Hamirpur vide Memo No.HHC/GAZ/14-30/74-II-2874 dated November 4,1996 for disciplinary action under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 by appointing Hon’ble Mr. Justice Surinder Sarup as Inquiring Authority; And whereas, Ms. Kiran Aggarwal opted not to appear before the Inquiring Authority despite notice to her, ex-parte proceedings were drawn against her; And after enquiry, the Inquiring Authority has submitted its report, finding Ms. Kiran Aggarwal guilty of all the Articles of Charge. The said report has been considered and accepted by the High Court. In view of the above, it has been decided to serve the present notice along with a copy of the Inquiry Report upon Ms. Kiran Aggarwal, District and sessions Judge informing her that the High Court tentatively proposes to impose upon her the penalty of dismissal from service. However, before imposing the said penalty, it has been decided to call upon Ms. Kiran Aggarwal, District and Sessions Judge, Hamirpur to submit her representation, if any, within a period of two weeks from the date of receipt of the report and the communication. It is made clear that if there is no representation by her within the time specified above, it will be taken that the Officer has no representation whatsoever to make against the Inquiry Report of the proposed punishment and further action shall be accordingly taken in the matter.” 4 It appears that the petitioner did not make any representation pursuant to notice dated 4th April, 1997. The matter was thereafter put up before the Full Court Meeting held on April 25, 1997. The Full Court resolved that since the notice had been duly served on the petitioner in accordance with law, it was not necessary for the Court to wait any more for getting her representation in reply to the notice to Show Cause dated April 4, 1997. The Full Court resolved that the punishment of dismissal from service was an appropriate punishment which should be imposed upon the petitioner. The Full Court further resolved that its recommendation to dismiss the petitioner be made to the Governor of Himachal Pradesh for passing the orders. Vide letter dated April 29/30, 1997 the Registrar of the High Court requested the Chief Secretary to obtain the orders from the Governor for dismissing the petitioner. Thereafter the Additional Secretary (Home) prepared the note dated May 24, 1997. The operative portion of the same reads thus: “As per Rule 55 (xvii & xviii) of the Rules of Business of the Government of Himachal Pradesh, the Hon’ble Chief Minister may like to get the approval of His Excellency the Governor of Himachal Pradesh for issuing the notification. The aforesaid Rules are reproduced here-in-below:- “55. The following classes of cases shall be submitted by the Chief Minister to the Governor before the issue of orders:- (xvii) cases raising questions of policy; (xviii) such other cases or classes of cases of administrative importance, which the Chief Minister might consider necessary or the Governor may wish to see;” The Governor approved the recommendations made by the High Court. Consequently, vide notification dated July 29, 1997 the petitioner was dismissed from the Himachal Pradesh Higher Judicial services with immediate effect. 5 The petitioner assailed the Notification dated July 29, 1997 by way of CWP No.527 of 1997. A Division Bench of this Court allowed the petition partly on July 30, 2001. The operative portion of the judgment dated July 30, 2001 reads thus: “For the reasons aforesaid, the petition deserves to be partly allowed. The enquiry initiated against the petitioner is held to be legal, valid and in accordance with law, so also the findings arrived at by the Inquiring Authority do not call for any interference and the charges leveled against the petitioner are held proved, but an order of penalty of dismissal passed against the petitioner is disproportionate, excessively high and unreasonable. The order of penalty is, therefore, set aside and the matter is sent back to the Disciplinary Authority for reconsideration and to take appropriate decision in accordance with law in the light of the decisions of the Hon’ble Supreme Court, as also the observations made in the earlier part of the judgment. The petition is accordingly partly allowed. In the facts and circumstances of the case, there shall be no order as to costs.” It is, thus evident that the Division Bench of this Court has categorically held that the enquiry imitated against the petitioner was legal, valid and in accordance with law and the findings arrived at by the Enquiring Authority do not call for any interference and the charges leveled against her were held proved. The matter was thereafter placed before the Full Court on August 10, 2001 for imposing fresh penalty upon the petitioner. The Full Court resolved to impose major penalty of compulsory retirement upon the petitioner, as provided for in clause vii of Rule 11 of CCS (CCA), Rules, 1965. A reference was made by the Registrar General of this court to the Chief Secretary to obtain orders from the Governor for compulsory 6 retirement of the petitioner vide letter dated August 10/13 of 2001. The operative portion of the same reads thus: “In view of the above stated position, I have been directed to request you to kindly obtain the orders from His Excellency, the Governor of Himachal Pradesh for compulsory retirement of Ms. Kiran Agarwal, District and sessions Judge (now under deemed suspension for which formal order Anenxure-7 as modified vide order Annexure-8 has been issued) and after obtaining such orders, to cause the necessary notification to be issued.” Consequently the note was put up before the Chief Minister and he approved the same. It appears from the record as produced by the state that the matter had not gone to the Governor as per the law and the Notification was issued compulsorily retiring the petitioner without approval of the Governor. The notification compulsorily retiring the petitioner was issued on September 27, 2001. The petitioner has assailed this notification in the present petition, inter alia on the following grounds: 1) the inquiry was not conducted in accordance with law. 2) she was seriously prejudiced by non-supply of the inquiry report before the authority has made up tentative opinion to dismiss the petitioner in view the law laid down in Managing Director, ECIL, Hyderabad and others Versus B. Karunkar and others 1993 (4) SCC 727; 3) the participation of the Inquiry Officer in deliberations of the Full Court meetings held on 4.4.1997 and 25.4.1997 have rendered them void ab initio on the principle of ‘reasonable likelihood of bias’ and the recommendations made on the basis of the deliberations dated 25.4.1997 are also vitiated and thus liable to be quashed and set aside; 4) the order of compulsory retirement could only be passed after obtaining the orders from the Governor and not merely on the approval accorded by the Chief Minister as revealed from the record during the course of hearing; 7 5) the penalty of compulsory retirement imposed upon her was disproportionate to the alleged misconduct and is liable to be interfered by this Court. Mr. Bipin C. Negi, learned counsel appearing on behalf of respondents No.3 to 6 had strenuously argued that in view of the SLP preferred by the petitioner against the imposition of penalty of dismissal, this petition itself is not maintainable, more particularly, when the Hon’ble Supreme Court has declined to interfere with the penalty imposed upon her i.e. compulsory retirement. The submissions of Mr. Negi in a nutshell, are, that since the Hon’ble Supreme Court has not interfered with regard to the punishment which has subsequently been imposed, this court may not go into the question of quantum of punishment. The respondents were directed to produce the entire record during the course of hearing and the same was produced by them at the time of hearing. The record was perused by the Court in the presence of the parties. I have heard the learned counsel for the parties. Point No.1: In view of the decision dated 30.7.2001 rendered by this Court in CWP No. 527 of 1997 whereby the inquiry initiated against the petitioner was held legal, valid and in accordance with law, the Court will only go into the post inquiry scenario. As far as the decision of the Division Bench of this Court whereby it has held that the inquiry was legal, valid and in accordance with law, the Court is precluded to embark upon whether the inquiry was held in accordance with law or not. Point No.2: The Inquiry officer has submitted the report dated 27.3.1997. Thereafter the matter came before the Full Court on 4.4.1997. The Full 8 Court accepted the report dated 27.3.1997 on 4.4.1997 and was of the tentative view that the penalty of dismissal be imposed upon the petitioner. The Full Court directed the supply of inquiry report dated 27.3.1997 to the petitioner and also to make the representation against the proposed penalty. The petitioner had filed CMP bearing No. 2724 of 2007 seeking amendment of the writ petition. The same was allowed on 6.11.2007. The respondents have not chosen to file reply to the amended writ petition. The petitioner has taken a specific ground in para 15 (iv) with regard to the acceptance of the inquiry report immediately on 4.4.1997 instead of permitting the petitioner to make the representation. She has taken a specific ground that the imposition of penalty was in violation of Rule 15 of the CCS (CCA) Rules, 1965. There is sufficient force in the contention of the petitioner in view of the judgment rendered by the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and others Versus B. Karunkar and others 1993 (4) SCC read with Rule 15 of the CCS (CCA) Rules, 1965. The procedure adopted was contrary to the dicta of the Hon’ble Supreme Court. The copy of the inquiry report dated 27.3.1997 was required to be furnished to the petitioner before the Full Court made up its mind to impose the penalty upon the petitioner. The wholesome principle of supplying the copy of the inquiry report to the delinquent after receipt of the inquiry report is in consonance with the principles of natural justice. The inquiry report is supplied to the delinquent to make the representation against the inquiry report to point out deficiencies/shortcomings in the inquiry report. The employer after the receipt of the representation has to consider the same and only thereafter the decision imposing the penalty has to be taken. The principles laid down by the Hon’ble Supreme Court in “B. Karunkar” case have been incorporated in CCS (CCA) Rules, 1965. Rule 15 of the CCS (CCA) 9 Rules, 1965 in detail provides for the procedure to be adopted after the receipt of the inquiry report. Sub-rule (2) of Rule 15 in clear terms provides that the Disciplinary Authority shall supply the copy of the inquiry report to the Government servant, who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within 15 days, irrespective of whether the report is favourable or not to the Government servant. Sub-rule (2-A) of Rule 15 provides that the Disciplinary Authority shall consider the representation submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub-rules (3) and (4). It is only thereafter that the penalty can be imposed upon the Government servant. In the present case the non-supply of the copy of the inquiry report to the petitioner as per sub-rule (2) of Rule 15 has seriously prejudiced the petitioner. The petitioner was required to make independent representation to the inquiry report furnished by the Inquiry Officer and not to the proposed penalty as stated in the notice dated 4.4.1997. Their Lordships of the Hon’ble Supreme Court have held in Managing Director, ECIL, Hyderabad and others Versus B. Karunkar and others 1993 (4) SCC as under: “The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be 10 considered by the disciplinary authority, the principles of natural justice required that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.” A Division Bench of this Court in the earlier petition bearing CWP No. 527/1997 filed by the petitioner has dealt with the issue of non-supply of the copy of the inquiry report, though their Lordships have not gone into 11 the larger question about the effect of non-supply of the inquiry report to the delinquent. They have dealt with the issue in the following manner: “In our opinion, the contention raised by the petitioner that there was failure on the part of the respondents in serving the report of the Inquiring Authority is not correct. In our judgment, the respondents were right in stating that it was the petitioner who had refused to associate with the enquiry and to accept the report. The petitioner, hence, cannot make a grievance of non receipt of the report of the Inquiring Authority. As we are negativing the contention of the petitioner, it is not necessary to enter into larger question about the effect of non-supply of the Inquiry Report to the delinquent.” In view of the judgment dated 30th July, 2001 with regard to supply of inquiry report, this Court will not go into the question of effect of non- supply of the inquiry report to the delinquent. Point No.3: The petitioner has strenuously argued that Mr. Justice Surinder Sarup being the Inquiry Officer could not participate in the Full Court meetings dated 4.4.1997 and 25.4.1997. She then contended that the Inquiry Officer was bound to influence the other Hon’ble Judges during the course of the deliberations to ensure that inquiry report submitted by him was accepted and consequential action is taken thereon. In other words, she had invoked the principles of “reasonable likelihood of bias” against Mr. Justice Surinder Sarup. Now the Court has to consider whether the proceedings dated 4.4.1997 and 25.4.1997 were vitiated due to the presence of Mr. Justice Surinder Sarup, who was appointed as the Inquiry Officer to hold the inquiry against the petitioner. Mr. Justice Surinder Sarup participated in the deliberations of the Full Court dated 9.10.1996 whereby decision was 12 taken to frame the charges against the petitioner. Mr. Justice Surinder Sarup concluded the inquiry against the petitioner dated 27.3.1997. Mr. Justice Surinder Sarup was also a Member of the Full Court dated 4.4.1997 whereby the Full Court accepted the report dated 27.3.1997 and came to the tentative conclusion that the penalty of dismissal be imposed upon the petitioner. Mr. Justice Surinder Sarup also participated in the deliberations in the Full Court meeting dated 25.4.1997 whereby the penalty of dismissal was recommended against the petitioner. Mr. Justice Surinder Sarup being the Inquiry Officer should have recused from the Full Court held on 4.4.1997 as well as on 25.4.1997. The resolutions dated 4.4.1997 and 25.4.1997 are vitiated due to the presence of the Inquiry Officer, who had conducted the inquiry against the petitioner. The petitioner sent a communication to the Additional Registrar- cum-Secretary of Hon’ble the Chief Justice on 12.5.1997 seeking the copy of the minutes of the Full Court meeting. The text of letter dated 12.5.1997 reads thus: “In continuation to my confidential letter No. 16 & 18 delivered to you on 7.5.97 and 8.5.97 respectively, it is stated that I want to inspect the entire record relating to inquiry held under Rule 14 of CCS (CCA) Rules, 1965. Necessary permission to do so deserved to be accorded at the earliest. True copy of all the statements of witnesses so examined, documents so exhibited, order sheets so recorded, inquiry report is also prayed to be supplied to me at the earliest. It is learnt that Hon’ble High Court recommended dismissal from service. Copy of minutes of Full Court Meeting making said recommendations, grounds on which dismissal as recommended is also prayed to be supplied to me immediately. It is further prayed that I may be permitted to retain house at Hamirpur till 4th June, 97.” 13 The prayer made by the petitioner was rejected and was conveyed vide communication dated 16th May, 1997. The relevant extract of the same reads thus: “As regards your request about the supply of copies of records mentioned in your letter dated 12th May, 1997, I am further directed to inform you that at present the said prayer cannot be granted. Please acknowledge receipt.” The petitioner again reiterated her prayer for the supply of the inquiry report as well as of minutes of Full Court meeting of the High Court recommending dismissal of the petitioner from service vide letter dated 16th June, 1997. The same was also rejected and conveyed to her on 11th July, 1997 by the Additional Registrar (S). It is thus evident that the petitioner had not been supplied with the copy of the minutes of the decision dated 4.4.1997. In the absence of these details she could not have come to know whether the Inquiry Officer Hon’ble Mr. Justice Surinder Sarup had also participated in the deliberations of the Full Court dated 4.4.1997 and 25.4.1997 or not. The fact that Hon’ble Mr. Justice Surinder Sarup had also participated in the deliberations on 4.4.1997 surfaced during the course of hearing of this petition when the record was produced by the Registry of the Court. Since the petitioner was not aware of these developments, she could not assail the same in the earlier writ petition and this being a pure question of law has been permitted to be taken by her for the first time in this petition in view of the law laid down by the Hon’ble Supreme Court with regard to the real likelihood of bias in Rattan Lal Sharma versus Managing Committee, Dr. Hari Ram (Co- education) Higher Secondary School and others AIR 1993 SC 2155. Their Lordships have held as under: 14 “In the facts of the case, there was not only a reasonable apprehension in the mind of the appellant