IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.92 of 2008 Decided on : August 6, 2008 National Institute of Technology and others …Appellants. Versus Ashok Kumar Gupta and another …Respondents. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. K.D. Sood, with Mr. Sanjeev Sood, Advocate. For the Respondents : M/s K.D. Shreedhar & Bhuvnesh Sharma, Advocates, for respondent No.1. Mr. Janesh Mahajan, Central Government, for respondent No.2. Per R.B. Misra, Judge( Oral ) With the consent of the parties, the present appeal is being disposed of at the admission stage itself. 2. The present Letters Patent Appeal is directed against the order, dated 2.7.2008, passed by learned Single Judge of this Court, in CWP No.1641 of 2007, whereby memorandum dated 27.9.2007 compulsorily retiring respondent No.1 has been set aside, giving liberty to the Disciplinary Authority to take appropriate action against the said respondent, in accordance with law, as such respondent’s representation was to be considered afresh. By the impugned order, dated 2.7.2008, liberty was given to the appellants to put respondent No.1 under Whether reporters of the local papers may be allowed to see the judgment? …2… suspension till representation made by him against the inquiry report was decided in accordance with law. 3. For adjudication of the present litigation, it is necessary to give brief background of the case. The departmental proceedings were initiated against respondent No.1, vide memorandum dated 30.6.2006. The respondent was put under suspension on 29.5.2006. Inquiry Officer of more than 70 years of age was appointed as the Inquiry Officer, who, after conducting the inquiry, submitted his report to the Director on 2.11.2006. A copy of the same was forwarded to the respondent on 8.11.2006. In reference to the inquiry report, the respondent submitted representation dated 22.11.2006 incorporating 25 grounds for consideration which, however, was said to be considered and rejected. According to respondent No.1, his representation was not considered in consonance to the principle of natural justice and in the manner it ought to have been considered, more so in view of the law laid down by the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others, (1993) 4 SCC 727. 4. Mr. K.D. Shreedhar, learned counsel appearing for respondent No.1, submitted before the learned Single Judge that order dated 27.9.2007 passed by the competent authority, whereby the respondent was compulsorily retired, has resulted in denial of right of appeal to the respondent. It was also submitted by the learned counsel that the appointment of Inquiry Officer of more than 70 years of age was in derogation to …3… the provisions of sub-rule 12(A) of Rule 14 of the CCS (CCA) Rules, 1965, and also in derogation to the guidelines for appointing Inquiry Officer issued by the Central Vigilance Commission Circular letter No.98/MSC/23 dated 16.9.1999. It was also contended by learned counsel that the respondent has highlighted in the representation that the provisions of Rule 14 of CCS (CCA) Rule, 1965, have been overlooked and the record/ documents asked for by the respondent were not supplied to him during the course of the inquiry. It was also highlighted that the witnesses whose names even did not figure in the memorandum were also examined, resulting into miscarriage of justice. According to Mr. Shreedhar, the Inquiry Officer has set up a new case, which was not projected in the memorandum supplied to the respondent. 5. After hearing learned counsel for the parties and after taking into consideration the contentions of the respondent and the rival contentions advanced on behalf of the appellants, learned Single Judge has, after perusal of the representation, dated 22.11.2006, of the respondent, observed in the impugned order dated 2.7.2008 that in view of the decision of the Supreme Court in Karunakar’s case (supra), copy of the inquiry report was to be supplied to the employee to enable him to make representation against the report to point out deficiencies/ shortcomings and infraction of the provisions of the provisions of the rules during the course of the inquiry. Learned Single Judge, therefore, has observed that as many as 25 grounds raised by the respondent in his representation to assail the inquiry report …4… were not considered in the manner ought to have been considered, as per the law laid down by the Hon’ble Supreme Court in Karunakar’s case (supra). Learned Single Judge has observed in the impugned order as under: “…… There is only bald observation that the representation made against the inquiry report has been considered. How and in what manner it has been considered is not borne out from the record. The disciplinary authority was bound to apply its mind on the ground raised in the representation of the petitioner against the inquiry report. The disciplinary authority was bound to take into consideration each ground raised by the petitioner in his representation against the inquiry report to see whether there was any shortcomings/defects or infraction of the mandatory provisions of the procedural law. The very purpose of making the representation against the inquiry report will be rendered nugatory/otiose if the same is not considered in a right perspective as has happened in the present case. The petitioner has been prejudiced by non-consideration of his representation by the disciplinary authority while imposing the penalty of compulsory retirement on 27th September, 2007.” 6. The learned Single Judge has, however, on careful consideration of the material on record, arrived at a finding that the representation made by the respondent has not been considered in a lawful manner. In such circumstances, the order dated 27.9.2007 was set aside with direction, as indicated above. 7. We have heard the learned counsel for the parties and have an occasion to peruse the decision taken by the Disciplinary Authority on the representation of the respondent. We are not satisfied the way the representation has been considered and rejected. 8. According to the learned counsel for the appellants, representation has been considered, keeping in view the facts …5… and the circumstances and the fact finding report of the Inquiry Officer, which report was given on the basis of the relevant material placed on the record. However, nothing has been brought before us that how 25 points highlighted by the respondent have been considered and where the Disciplinary Authority has applied his mind and has recorded the reasons for rejecting the representation. 9. Our attention has been invited to the provisions of sub-rule (2-A) of Rule 15 of the CCS (CCA) Rules, 1965, whereby the Disciplinary Authority is required to consider the representation submitted by a government servant or employee and record his findings before proceeding further in the matter as per sub-rules (3) and (4) of Rule 15. 10. For convenience relevant provisions of sub-rules (2- A), (3) and (4) of Rule 15 of the CCS (CCA) Rules, 1965, are extracted as under: “(2-A) The Disciplinary Authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub- rules (3) and (4). (3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. …6… (4) It the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall he taken into consideration before making an order imposing any such penalty on the Government servant.” 11. After going through the aforesaid provisions, we are of the considered view that the consideration of the representation of the respondent was not mere formality, but the Disciplinary Authority was under a statutory obligation to apply his mind and also to record the reasons and findings and was to pass a speaking order while rejecting the representation. 12. Not only that the representation has not been considered as per requirement of Rules and the principles of natural justice, but we find from the order of the Disciplinary Authority, copy whereof has been shown to us, that the Disciplinary Authority did not apply its mind at all in upholding proposed verdict arrived at in reference to the finding of the Inquiry Officer. A perusal of the Disciplinary Authority’s order shows that it did not said in its order as to what was the evidence adduced before the Inquiry Officer, on the basis of which he came to the finding that the delinquent employee, i.e., the respondent, was guilty of certain charges. He simply stated that from the testimony of some named witnesses the charges …7… stand proved. As a matter of fact, as per requirement of sub- rule (2-A) of Rule 15 of the CCS (CCA) Rules, 1965, the Disciplinary Authority is required to come to its own finding regarding the proposed verdict in the fact finding report in reference to the guilt of the delinquent, based on the inquiry report and the evidence adduced during inquiry and also after considering the representation, if any, of the delinquent official. 13. It is well settled that whenever any quasi-judicial order is required to be passed, affecting the rights of someone, reasons are required to be given in the order itself, in support of the order. This is especially so when the order is subject to appeal, as in the present case, because the delinquent has the right to appeal to higher authorities, in view of the decision of the Hon’ble Supreme Court in M/s. Mahabir Prasad Santosh Kumar v. State of U.P. and others, AIR 1970 Supreme Court 1302. 14. In view of the above observations, we do not find an occasion to interference in the impugned order. Therefore, the appeal is dismissed. CMP No. 596/2008 In view of the dismissal of LPA No.92 of 2008, this application has become infructuous. As such, dismissed as infructuous. Caveat No.595/2008 Infructuous. ( R.B. Misra ), J. August 6, 2008(sd) ( Surjit Singh ), J.