IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.581/2001 Reserved on.24.3.2008 Decided on.10.4. 2008 Jyoti Prakash. …Petitioner. Versus State of H.P. and another. …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the petitioner : Mr. Subhash Sharma, Advocate. For the respondents Mr. B.M. Chauhan, Advocate for respondent No.2. Rajiv Sharma, J. The present writ petition has been directed against the order dated 1.5.2001 passed by the learned Himachal Pradesh Administrative Tribunal in O.A. No. (M) 461 of 1995. The brief facts necessary for the adjudication of this petition are that the petitioner was employed as a Driver with respondent No.1. His services were taken over by respondent No.2 in the month of March, 1978. A charge sheet was served upon the petitioner vide memo No.AIC.3-44/80-60 dated 1.4.1981 to the following effect: “That the said Sh. Jyoti Parkash while functioning as Mechanic, Grade-I in H.P. Agro-Industries Corporation Ltd., Agricultural Workshop, Bhangrotu alleged to have 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 committed disobedience, misconduct, negligence in discharging of his duties. That he disobeyed and have shown non-compliance to the orders issued to him by the Divisional Manager/Work Supervisor, H.P. Agro-Industries Corporation Ltd., Bhangrotu on various occasions such as letter No. AIC.2-15/80-2048 dated 26.6.80 letter No.AIC.16-1/80-2065 dated 28.6.80, letter No. AIC. 16- 1/80-2151 dated 30.6.80, letter No. AIC.2-13/80-1985-1089 dated 20.6.80 and letter No. AIC.2-13/80-2058 dated 27.6.80.” The petitioner was also put under suspension. He was removed from the service on 22.11.1982. He assailed his removal by way of CWP No. 1126/1985 in this Court. The removal order was quashed by this Court and the case was remanded back to the Inquiry Officer with the direction that the Inquiry Officer should proceed in the case in the light of the observations made in the judgment on 2.7.1986. The operative portion of the judgment reads thus: “After perusal of the order of the disciplinary authority, we also find that the disciplinary authority too has not categorically held as to how and in what manner the various charges against the petitioner have been proved. We thus find that a grave miscarriage of justice has taken place and rules of natural justice have not been followed. Thus the order of removal of the petitioner from service is not justified. In view of the aforesaid discussion, we are of the view that the enquiry officer should be directed to give complete enquiry report in which he should mentioned the articles of charges, the statement of imputations of misconduct and misbehaviour as also the defence of the petitioner in respect of each article of charge. Then he should assess the evidence in respect of each article of 3 charge with reasons therefore. He should submit the enquiry report to the disciplinary authority who after applying its mind can pass appropriate orders in accordance with law. It is thus ordered that the order Annexure PF is quashed. The case be now remitted back to the enquiry officer with the direction that the enquiry officer should proceed with the case in the light of the above observations. It is made clear that the enquiry officer is not to record any further evidence, but he will only submit his report to the disciplinary authority, on the basis of the evidence already recorded by him. We are informed that the enquiry officer Shri Jit Singh Thakur is still in service of the respondent corporation, therefore, he should be directed to submit his report at the earliest but not later than three months from today. The disciplinary authority will thereafter proceed in the matter in accordance with law and pass appropriate orders. The present writ petition is accepted to the extent mentioned above.” He was again removed vide order dated 28.9.1987. He assailed his removal before the learned Himachal Pradesh Administrative Tribunal by way of OA No. 87/1990. The order dated 28th September, 1987 was quashed by the learned Himachal Pradesh Administrative Tribunal vide order dated 27.2.1991. It appears from the pleadings that the petitioner could not make representation as per order dated 27th February, 1991. He filed a fresh original application No. 1009/1991 before the learned Himachal Pradesh Administrative Tribunal. The learned Tribunal vide order dated 2nd November, 1992 directed him to file a representation within a period of one month. He made a representation on 15.11.1992 and another representation was made by him on 22.11.1992 against the inquiry report. The Managing Director of respondent No.2 Corporation vide letter dated 18.3.1993 rejected the representation and proposed the 4 penalty of removal from service. He was served with a show cause notice why the penalty of removal from service be not imposed upon him and period with effect from 10.11.1981 till the date of removal of service be not considered as on suspension. He submitted representation against the letter dated 18th March, 1993 on 6.4.1993. The Managing Director of respondent No.2-corporation imposed the penalty of compulsory retirement upon the petitioner vide office order dated 7th September, 1993. He preferred an original application before the learned Tribunal bearing OA No. 1980/1993. The same was directed to be treated as a representation to the Board of Directors of respondent No.2-corporation. The representation was directed to be decided within 6 months vide order dated 10th November, 1993. The representation was not decided by the Board of Directors and the learned Tribunal on 22.9.1994 directed that the representation be decided by the Secretary (Agriculture) to the Government of Himachal Pradesh within a period of 3 months. The representation made by the petitioner was rejected by the Agriculture Production Commissioner, Government of Himachal Pradesh on 20.4.1995. The petitioner assailed order dated 20.4.1995 by way of original application bearing No. OA (M) No. 461 of 1995. The original application was dismissed by the learned Tribunal by order dated 1.5.2001. It is in this backdrop that we have to decide the writ petition. Mr. Subhash Sharma, Advocate had strenuously argued that the order dated 1.5.2001 is not sustainable in the eyes of law. The learned Deputy Advocate General had supported the order dated 1.5.2001 passed by the learned Himachal Pradesh Administrative Tribunal. We have heard the learned counsel for the parties and have perused the record carefully. 5 It is evident from the article of charges as quoted hereinabove that the disciplinary proceedings were initiated against the petitioner for disobedience, misconduct, negligence in discharge of his duties. He according to article of charge No.2 had disobeyed and shown non- compliance to the orders. The petitioner was removed from service on 22.11.1982 by the disciplinary authority on the basis of the report furnished by the Inquiry officer. This Court vide judgment dated 2nd July, 1986 quashed the penalty of removal from service imposed upon the petitioner. The Inquiry Officer after the judgment of this Court compiled a fresh report and came to a conclusion that the charges levelled against the petitioner were proved. The petitioner was removed again on 28.9.1987. The removal of the petitioner was set aside by the learned Himachal Pradesh Administrative Tribunal on 27.2.1991. The petitioner was permitted to make a representation against the inquiry report. He could not make the representation within the period granted by the learned Himachal Pradesh Administrative Tribunal on 27.2.1991, however, the period for making the representation was enlarged by the Tribunal on 2.11.1992. The petitioner made a detailed representation against the inquiry report and he also filed a supplementary affidavit on 2.11.1992. The representation made by the petitioner was rejected by the disciplinary authority on 18.3.1993 and the show cause was issued to him why the penalty of removal from service be not imposed upon him. He made a representation against the same. Ultimately the penalty of compulsorily retirement was imposed upon the petitioner on 20.3.1993. Another original bearing No. 1980/1993 was preferred by the petitioner. The learned Tribunal directed the Board of Directors to decide the representation of the petitioner, however, the same was not decided by the Board of Directors as directed on 11th November, 1993. The Himachal 6 Pradesh Administrative Tribunal on 22.9.2004 specifically directed that the representation made by the petitioner since was not decided by the Board of Directors, therefore, the same be decided by the Secretary (Agriculture). The same was decided by the Agriculture Production Commissioner on 20.4.1995. The relevant portion of the order dated 20.4.1995 passed by the Agriculture Production Commissioner reads thus: “However pursuant to the directions of the Hon’ble Administrative Tribunal, I heard the applicant and have gone through the relevant record of the case carefully. I do not find any reason to interfere with the orders dated 7.9.1993 of the Managing Director, Industries Corporation. Representation stands disposed of accordingly.” The petitioner had primarily argued before the learned Himachal Pradesh Administrative Tribunal in OA (M) No. 461/1995 that the order dated 20.4.1995 was a non-speaking and cryptic order. He had also contended that the rules and regulations framed by respondent No.2 under which the inquiry was initiated and culminated into his removal were vague. He had also assailed the finding of the Inquiry Officer dated 22.10.1986. The Himachal Pradesh Administrative Tribunal had come to a conclusion that the Courts exercising the jurisdiction of judicial review cannot interfere with the finding of fact except in case of mala fide or perversity that is where there is no evidence to support finding. The plea of the petitioner with respect to the mala fide was not accepted. The contention of the petitioner that the rules were vague was also repelled by the Himachal Pradesh Administrative Tribunal. It will be apt at this stage to reproduce the order of the Himachal Pradesh Administrative Tribunal dated 1.5.2001 to ascertain whether the 7 orders passed by the Agriculture Production Commissioner was in accordance with law or not: “The Agriculture Production Commissioner had clearly mentioned in his order dated April 20, 1995 (Annexure PL) that he had gone through the entire record and found no reason to interfere with orders dated September 7, 1993 passed by the Managing Director of the respondent Corporation. The order passed though brief, is not cryptic and it caused no prejudice to the applicant in view of the fact that only following points had been raised in OA No. 1980/93 which was treated as representation:- (a) That the order of compulsory retirement against the applicant was in violation of principles of natural justice and earlier his removal from service was quashed by the Hon’ble high Court and the Tribunal. The disciplinary authority thus acted against all cannon of law. (b) The allegations against the applicant were of trivial nature on which even minor penalty could not be imposed. (c) Rule 17 (a) of H.P. Agro Industries Corporation Service Regulations does not specifically mention the circumstances in which one of the other penalty can be imposed. Rules 17 (a) is ambiguous. As regards (a) above, the Hon’ble High Court and the Tribunal had already passed orders to ensure conformity with principles of natural justice. As far as (b) above is concerned, there is not much material even in the present original application in support of this point. Similarly Rule 17 (a) has not been challenged even in the present original application. In view of the above position the relief claimed for cannot be considered favourably. The original application fails and is dismissed being without merit.” Mr. Subhash Sharma, Advocate has taken us through the order dated 20th April, 1995, the relevant portion of which has already been 8 reproduced (supra). The order passed by the Agriculture Production Commissioner is not a speaking order. What has been stated by the Agriculture Production Commissioner is that he had gone through the record of the case and did not find any reason to interfere with the order dated 7.9.1993 passed by the Managing director respondent No.2- corporation. Once the learned Tribunal has directed the Agriculture Production Commissioner to decide the representation, the same was bound to be decided by a speaking order. Order dated 20th April, 1995 is the result of total non-application of mind. It was incumbent upon him to consider the points raised by the petitioner in his OA, which was directed to be treated as a representation. The Agriculture production Commissioner was bound to assign brief reasons even if he had agreed with the order passed by the Managing Director. Their Lordships of the Hon’ble Supreme Court in Divisional Forest Officer versus Madhusudhan Rao, 2008 (2) Scale 322 have held that it is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum. Their Lordships have held as under: “It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.” 9 The order dated 20th April, 1995 could not be upheld by the learned Himachal Pradesh Administrative Tribunal in the manner in which it has been done by it. The findings recorded by the learned Himachal Pradesh Administrative Tribunal are set aside. Now, we have to consider the manner in which the petitioner has been dealt with by the respondent-corporation by taking into consideration the above mentioned facts. We have gone through the charge sheet carefully. The Inquiry officer has though examined the statements of PW- 1 and PW-2 but has not discussed the letters exhibited by PW-2. It was incumbent upon the Inquiry Officer to refer to each of the documents exhibited by PW-2 instead of merely making a cursory remark on these exhibits. The charges levelled against the petitioner were trivial in nature. He was removed on the basis of the report of the Inquiry officer on 22.11.1982. This Court remanded the matter back to the Inquiry Officer. The Inquiry Officer again furnished the report to the disciplinary authority. He was again removed on 28.9.1987. This removal was also set aside by the Tribunal in OA No. 87/1990 on 27.2.1991. He made a representation to the disciplinary authority against the inquiry report. He has raised several grounds in his representation. The disciplinary authority without discussing the grounds taken in the representation proposed the penalty of removal from service. Their Lordships of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others, (1993) 4 SCC 727 have held that the disciplinary authority is required to consider the evidence, report of Inquiry Officer and the representation of the employee against it. Their Lordships have held as under: 10 “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 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, 11 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.” The petitioner made a representation against the proposed penalty of removal but ultimately the penalty of compulsory retirement was imposed upon the petitioner. The representation made by the petitioner against the proposed penalty was not considered the manner in which it was supposed to be considered by the disciplinary authority. The order dated 7.9.1993 is not a speaking and a reasoned order. Once the petitioner has made a representation against the proposed penalty, the same was required to be discussed at length by the disciplinary authority. He had only mentioned that every point raised by the petitioner in his representation was considered. Their Lordships of the Hon’ble Supreme Court have held in The State of Punjab etc. versus Bakhtawar Singh and others, AIR 1972 SC 2083 as under: “Now coming to Shri Rajinder Pal Abrol, all the charges levelled against him related to alleged acts and omissions prior to his appointment as a member of the board. That apart, the order of the Minister removing him does not disclose that he had applied his mind to the material on record. That order does not show what 12 charges against Shri Abrol have been established. The order reads: "I have gone through the charges and the explanation furnished by Shri R. P. Abrol. From the material on the file, I am definitely of the opinion that he is not a fit person to be retained as part-time member of the Electricity Board. I, therefore, order that Shri Abrol may be removed from membership under sub-clause (iv) of Cl. (e) of sub-s. (1) of Section 10 of the Electricity Supply Act, 1948. C. M. may kindly see. After C. M. has seen, immediate orders be issued." Sd/- Sohan Singh Basi, I.P.M. 17-7-1969". This order cannot be said to be a speaking order. It is arbitrary to the core. Such an order cannot be upheld. Hence it is not necessary to go into the other contentions advanced on behalf of Shri Abrol. Learned Single Judge of the Madras high Court in T.N. Govindarajan versus The Management of Indian Overseas Bank and others, 1992 Labour and Industrial Case 1832 has held that the disciplinary authority while agreeing with the reasons given by the Inquiring Authority need not give elaborate reasons but that does not mean that the disciplinary authority need not give any reason at all. The learned Single Judge has held as under: “It may be open to the disciplinary authority while agreeing with the reasons given by the Enquiring Authority, not to give elaborate reasons. But that does not mean that the Disciplinary Authority need not give any reason at all” 13 The petitioner’s representation was required to be decided by the Board of Director as per order dated 10.11.1993. The same was not done and the learned Tribunal was constrained to direct on 22.9.1994 that the representation be decided by the Secretary (Agriculture) to the Government of Himachal Pradesh. The representation has been rejected as discussed hereinabove by the Agriculture Production Commissioner without a speaking order. Thus it is clear that the petitioner has not been dealt with in a just and fair manner. He has been made to enter into protracted litigation since 1986. The penalty of compulsory retirement imposed upon the petitioner vide order dated 23.8.1993 is also disproportionate to the alleged misconduct. There was no serious misconduct attributed to the petitioner as is evident from the article of charges discussed hereinabove. The Inquiry Officer had also not discussed the evidence. He had only referred to the letters without considering the contents of the same. The petitioner ought to have been afforded reasonable opportunity to lead his evidence. True it is that he had been granted four opportunities to lead the evidence, but the petitioner had brought to the notice of the Inquiry Officer that in the absence of the Defence Assistant, who was serving in Sirmaur, it was not possible for him to lead defence evidence. This plea of the petitioner should have been accepted by the Inquiry Officer taking into consideration the checked history of the case. The learned Tribunal had come to a wrong conclusion that under no circumstances it can look into the evidence produced during the course of disciplinary proceedings. Their Lordships of the Hon’ble Supreme Court have held in Moni Shankar Versus Union of India and another, 2008 (3) Scale 455 that the Court exercising power of judicial review are entitled to 14 consider as to whether while inferring commission of misconduct on the part of delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Their Lordships have further held that the Tribunal is entitled to arrive at its own conclusion on the premise that the evidence adduced by the department even it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely preponderance of probability. Their Lordships have held as under: “We have, as noticed hereinbefore, proceed on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasize that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record