IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.1256 of 2002 Decided on: 1st September, 2008. Vikrant Datta …Petitioner Versus HP State Civil Supply Corpn. and another …Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1Yes. For the Appellant : Mr. Ramakant Sharma, Advocate. For the Respondent : Mr. Dushyant Dadwal, Advocate. Surjit Singh, Judge (oral) By way of this writ petition order dated 2.7.1996, Annexure PJ, passed in OA No.654 of 1990, and order dated 1.8.2001, Annexure PL, passed in Review Petition No.25 of 1996, by the learned State Administrative Tribunal, have been challenged. The aforesaid OA and the Review Petition had been filed by the petitioner challenging the order of his termination dated 5.8.1988, Annexure PG, passed by the Managing Director, HP State Civil Supplies Corporation Limited, Kasumpti, impleaded as respondent No.1 herein. 2. Relevant facts may be stated thus. Writ petitioner was employed as a salesman in a depot of the State Civil Supplies Corporation at Dharamshala, in the year 1985, when he allegedly sold 65 bags of levy cement for a consideration of Whether reporters of the local papers may be allowed to see the judgment? …2… Rs.3498.30 and misappropriated the aforesaid amount of money, which he realized on account of sale proceeds. Disciplinary action was initiated against him for committing the aforesaid act of misconduct and several other acts of misconduct. He was formally charge-sheeted and on his pleading not guilty, inquiry was held in accordance with the provision of Rule-14 of CCS (CCA) Rules. Inquiry Officer found him guilty of misappropriation of the sale proceeds of 65 bags of levy cement, amounting to Rs.3498.30. The Divisional Manager, Dharamshala, exercising the delegated powers of Disciplinary Authority, delegated vide letter dated 16/17.7.1985, Annexure PB, imposed penalty of recovery of a sum of Rs.1893/- from the writ petitioner, on account of interest on the aforesaid amount of sale proceeds and the difference between the levy price and the market price of 65 bags of cement. It appears that the amount of sale proceeds of Rs.3498.30 stood already recovered, when the order of penalty dated 4.2.1988, Annexure PC, was passed. 3. Managing Director of the respondent-Corporation, who is the Appointing Authority, per service bye-laws and recruitment and promotion rules, felt that the penalty imposed by the Divisional Manager was inadequate. Therefore, he issued a show cause notice, calling upon the writ petitioner why he should not be terminated from service, by way of punishment for the aforesaid act of misconduct. 4. Writ petitioner filed reply to the show cause notice. It appears that the writ petitioner also filed an appeal, …3… challenging the penalty imposed by the Divisional Manager, vide Annexure PC. The Managing Director passed order dated 5.8.1988, annexure PG, thereby superseding the order of the Divisional Manager and imposing the penalty of termination of service. This order, Annexure PG, was challenged by the writ petitioner by filing the aforesaid Original Application before the learned State Administrative Tribunal. Learned Tribunal dismissed the Original Application, on merits, vide order dated 2.7.1996, Annexure PJ. A review petition was filed by the writ petitioner, which was dismissed by the learned Tribunal, vide order dated 1.8.2001, Annexure PL. Writ petitioner then came to this Court. 5. It is stated in the grounds of challenge to the order of the learned Tribunal as also the order of the Managing Director, Annexure PG, that the Managing Director, who passed the order Annexure PG, did not have any authority or jurisdiction to enhance or change the penalty, because he had already, vide letter dated 16/17.7.1985, Annexure PB, delegated the powers of taking disciplinary action, in respect of the salesmen and helpers, to the Divisional Managers. In reply it is stated by the respondents that since the writ petitioner himself had appealed against the order of punishment, passed by the Divisional Manager, to the Managing Director, he cannot be heard to say the Managing Director did not have the competence or the jurisdiction to supersede the order of Divisional Manager and to pass order of punishment. …4… 6. We have heard the learned counsel for the parties and gone through the record. Admitted facts are that as per HP State Civil Supplies Corporation Service Bye-laws and Recruitment and Promotion Rules, the Managing director is the Appointing Authority. A copy of the Bye-Laws has been produced, which we order to be taken on record. Per clause 2(vi) of the Bye-Laws, Appointing Authority has been defined to mean the Managing Director of the Corporation. The necessary implication is that the Managing Director, on account of being the Appointing Authority, is also the Disciplinary Authority, in respect of all the employees. 7. Admittedly, the Managing Director, vide communication Annexure PB dated 16/17.7.1985, delegated the powers of Disciplinary Authority to Divisional Managers, in respect of salesmen and helpers. It was in exercise of this delegated power that the Divisional Manager passed the order Annexure PC, imposing penalty of recovery of a sum of Rs.1893/- from the writ petitioner, on account of interest and difference between the price of levy cement and the market price. In other words, the Divisional Manager exercised the powers of Disciplinary Authority delegated to him by the Managing Director himself and if it is so, the Managing Director could not have then exercised the power of the Disciplinary Authority or that of the Appellate Authority or the Revisional Authority, because his own power as Disciplinary Authority stood delegated to the Divisional Manager and exercised by the latter and so, he could not have exercised the …5… power of Disciplinary Authority. Since the Divisional Manager had passed the order in exercise of the power delegated to him by the Managing Director, the latter could not have exercised even the appellate or revisional powers, in respect of the aforesaid order, passed by the Divisional Manager. 8. No doubt in his communication of delegation of power Annexure PB, the Managing Director had reserved the power of termination to himself, but at the same time, the aforesaid letter of delegation of power said that the delegate, i.e. the Divisional Manager, would make a reference to the Managing Director where the former felt that penalty of removal from service or termination was required to be imposed. In the present case, the Divisional Manager himself exercised the power of punishment and did not make any reference to the Managing Director, recommending termination or removal. Therefore, the Managing Director could not have exercised even the reserved power of termination of service. 9. In view of what we have stated herein-above, we are of the considered view that the impugned order Annexure PG, dated 5.8.1988, passed by the Managing Director is nonest. Learned Tribunal has not taken this aspect of the matter into account and, therefore, Tribunal’s order is also bad in law. Consequently, the writ petition is allowed and the impugned orders of the Tribunal as also of the Managing Director, Annexure PG, are quashed and set aside. …6… 10. As a consequence of the setting aside and quashing of the order Annexure PG, the writ petitioner shall be reinstated. However, he shall not be entitled to salary for the period he has not worked, under the respondents, on account of the passing of the impugned Annexure PG, as the termination of the writ petitioner has been set aside only on technical ground and not on merits. However, he shall be deemed to be in service inspite of the aforesaid order, Annexure PG, for all other purposes, i.e. seniority, promotion and retrial benefits etc. The writ petition stands disposed of. ( R.B. Misra ), J. September 1, 2008(ss) ( Surjit Singh ), J.