B! IN THE mGH COURT OF JUDICATURE AT BIlASPUR W.P.NO. /JJ?3-2 /2003 PETITIONER :- RESPONDENTS; ^A^ ^•>v •9^;^' 'imal Kumar Singh S/o Late Shri R.A. Singh aged 40 years resident of Muktidham Chowk, Naya Sarkanda, Bilaspur (C.G.) VERSUS State of Chhattisgarh Through : Principal Secretary Panchayat and Social Welfare Department, D.K.S. Complex, Mantralaya, Raipur (C.G.) Collector, District Bastar Jagdalpur (C.G.) / PETITION UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT OF MADAMUS. CERTITORY. PROmBITION. AND/OR OF ANY OTHER WRIT/ORDER/DIRECTION IN THE SAME NATURE IN THE CIR_CUMSTANCES OF THE CASE. (1) Particulars nfth£Ppfitinnpr_ ^;v AF^ "& HIGH COURT OF CHHATTISGARH AT BILASPOR SINGLE BEfKlH : HON'BLE MR. SATISH K. AONIHOTRI. J. WRIT PETITION N0.1033 QF2003 Vimal Kumar Singh versus State of ChhatUsgarh an<j another (ffiDEB Postfor /9-1-2007^— Sd/- Satish fc Agniboto Judge |6I-1.2007 /" ".-.--' '^. /'!%ov HIGH COURT OF CHHAmSGARH AT BILASPUR SINGLE BENCH : HON'BLE MR. SATISH K. AGNIHOTRI. J. PetiUoner WRIT PETITION N0.1033 OF 2003 Vimal Kumar Singh versus Respondents : State of Chhattisgarh and another Present : Mr. R.S.Marhas, counsel for the petitioner. Mr. V.V-S.Moorthy, Deputy Advocate General wtth Arvind Dubey, Panel LawyerfortheState/respondents. ORDER L+^1 (Passed on l^ Day ofJanuary, 2007) This writ petttion, filed under Arficles 226C27 of ttie Constitution of ln<fia, impugns fte order dated 8-3-2000 (^ineiaire P-1) passed by respondent No.2 - the Collector, Disfrtet Bastar, Jagdalpur, whereby the petitioner was dismissed from his services. 2. The indisputabte facts, in nutshell, are that the petitionw was working as Teacher in the office of tte Supenntenctent, Government Blind and Dumb School, Dharampur, Jagdatpur. In the year f999, the petiBoner, in addition to his duties, was gwen additional charge of the Superintendent, Observadon Home, Jagdalpur and was authorised for withdrawal and distribution of funds by the Jeint Dlrector, /"• ,A Panchayatand Social Welfare Department, Raipur, videoKler dated 4- 1-1999 (Annexure R-1). 3. According to leamed counsel appaaring for the State/respondents, the petittoner, while woridng as Superintiendent, Observation Home, Jagdalpur, was chaiged for misappropriation of a sum of Rs.1,98.000/- by over-writing on the cheques issued by respondent No.2. After the said misappreprtation was discovered, »ie petitioner absconded from his place of posting. Thweaftor, the petitioner was placed undersuspension vide order dated 7-7-1999 (Annexure R-5), passed by respondent No.2, cantemplating departmental acUon agalnst the petttioner for the alleged misappropriation of fund. 4. Thereafter. a charga-sheet was issuad agalnst the petiUoner. An enquiry offtcer was appointed. Mr. A.K.Toppo, Joint Collector, the enquiry officer, wittiout affordingan opportunity ef hearing to the petttioner, hekt <he charge as proved. Thedisciplinary authority, agreeing with the enquiry report, dismissed the servtees of the petih'oner under Ruls 10(ix)of the Madhya Pradesh/ChhaUtegartt Cwil Servtees (Classification, Control and Appeal) Rules, 1966 ffiencefwth the Rules,1966'). 5. Being aggrieved, the petiBoner fited an appaat before the Commlssioner, Ba^ar Dwision, Jagctelpur, clated 13-10-2802 (Annexure P-2), but thasaid appeal became infructuous »sttie po^of the Commissfoner stands abolished with effect from 31-10-2002. The petitioner, havlng no other altemative remedy, filed this wrtt petitlon ter /]'^ quashing tte order dated 8-3-2000 (Anneaire P-1), passed by rwpondent No.2. 6. Thesole contentton ofthe peUtioner is that - (i) The alteged charge-sheet issued was never serv^l on tte petttioner in the manner ss prescribed uncter Rule 30 ofthe Rules, 1966. (ii) The enquiry was concluded ex part» witftout affording proper opportunity of hearing t®the petitioner. The peBUoner was not sarvsd with the enquiry report before ths impugned order of termination was passed. (iii) Non-service of the eha^ga-sheet and ttie enqulry report has prajudiced the case offce paUtiwier, as the petiBoner had no occasion to put ferward his case by cross-examining witnesses produced by ths respondente/employer and otherwlse to prove his ignorance before ttie enqulry officer. 7. Mr. V.V.S.Moorthy, teamad Daputy ^lvecato Geneial with h4r. Arvind Dubey, leamed Panel Lawyer appearing for the StaWrespondents would, per contra, submit that tte charge-sheBt could not be served bya regfetered post A.D. because tlw peUtioner remained absent from the office. It was further contended that Uiis peUtion should be dismissed on account of dolay for a period of ttiree years. 8. Mr. R.S.Marhas, lea»ned coureel appearir^ for the pelitoner contended that the entire disciplinary proeeedings vuere bad and vitiated as the charge-sheet was not served on th®peBUoner (detfnquent employee). Leamed counsel fcr the petMtoner further contended Ihat the entire departmentat proceedings, order of termination passed consequent thereupon be quashed as fead and invalid. 9. I have heard learned counsel appaaring for the partieSt perused the pleadings and ttie documents appenttod thereto. It is evident that the chargs-sheet was not actuatly seived on the peWoner. AfTccation of the chaige-sheet on the official and pennantwitresidenee of the dellnquent emptoyee is not sufficient compUance of Rute 30 of the Rules, 1966. Rute 30 oftha Rules, 1968 reads a®under:- "30. Service of orders, notices ete. - Every order, notice and other procsss made er issued under these rules shall be served in peison on the Govemment servant concemed or communicatad to him by registered post." Rule 30 of the Rutes, 1^6 prescribes for manner of ssrvice. The statutory provision clearly contemplates that order, noUce and ether process madeor issued underthes®rules shall be served h person on ttie Govemment servant concemed or eommunicated to him by registered post. There is no provision for service of any notic®or any other process or the charge-sheet. initiEtod under Rute 14 of th^e Rules, by any other means inctuding publlcation. 10. Initiation of the departmentat proceedings b^ins wtth the service of the charge-sheet. Under Rule 30 of ttie Rutes, 1966, the mode for service of any order, notice, ete. js provided. The notice or order should be served either in pereon on ttieGovemment Servant concemed or through registered post. Admittedly, in the present case, the service was effected by pasting the charge-sheaton the ofRcial residence. No attempt was made to serve the cha^a-sheet at his permanent residence either in person or through registered post A.D., as required under the provisions of Rute 30 of ttie Rules, 1966. 11. The service of notice by way of affixation or pasting the same cannot be held asa tegal or valid way of servtee. Th8 Supreme Court, In M/s Lak^imirataa Cotton MlllsCo. Ltcl.vs. fts Workmen , observed as under:- "10. .......... Now admittodly no attempt was made to serve 9 show-cause notices wi any of these twenty-one workmen and the only mode in which service was purported to be effected was by pasting the show-cause noUces on the notice board of the mill. We may point out Uiat this mode of service adopted by the appellant was whotly unjustifled and that in Itself introduces a serious infirmity in the domestic enquiry, unless it can be shovm by the appellant thsrt ttiese twenty-one workmen were othewise aware of the contents of the show-cause notices and no prajudice was occasioned to them by reason of non-serviee of show-causenotices. .........." /( 12. In the case of Union af liMlfs and othera vs. Mohd. Ramzan Kftan^, the Supreme Court held that the disciplinary proceedmg is quasi-judicial in nature. There is a charge and a denial foltowed by an inquiry at which evidence is led and assessment of the material before conctiBion is reached. These tacete do raake the matter quasi-judicial and attract the principles of natural justice. The deNnquent employee must be served charge-sheet in actual torm to endile Wm to flle his reply to the charges before inquiry, racordlng of evtdence and the submissions made on the basis of the material made avallabte to the inquiiy ofRcer before his conclusions. 13. In the case of Unlon of Imila ancl ottere vs. K.V. Rankiraman and others , the Supreme Court obserwd that "tt is only when a charge-memo in a disciplinary proccedings or a charge-^ieet in a criminal prosecution is issued to ttie emptoyee thatit can be satd ftat the departmentat proceedings/criminal prosecutiwi is initiated against the employee." 14. tn the case of Delhl Dewelopmeat Authortty vs. li.C. Khurana, the Supreme Court, w'rth regard to iniBation of the depaitonental proceedings, has held in para 9, as under:- "9. The questlon now, is: What is the stage. when tt can be said, that 'a decisiwi has baen taken to iniUatse dlsciplinary procewltngs'? We have no doubt that ttie deciaon te iniGate dtsctplinaiyproceedingseannotbeaiteequentto the Issuance of ttie charge-aheet, shree issue of the charge-sheet is a consequenceofthectecidon to Inifiate discipllnary procesdln^. FraiBmg the fl^" L/-i charge-sheet, is the flrst step taken for holdlng the enquiry into the allegations, on the decision taken to initiate disciptinary proceedings. Ths chaige- sheet is framed on the basis ofthe allegatiens into the allegations made s^ainst the govemment servant; flie charge-sheet is then served on him to enable him to gh/e his exptanaUon; if the explanation is satisfactory, Uie proceedfnas are closed, otherwise, an enquiiy is held into the charges; if Uie chaiges are not proved, th» proceedingsareclosedandpereiltyfbltows. Thus, the service ofttiecharge-sheetonthe govemment servant follows the decisfon to initiate dteciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the govemmentsavant, after it has been ftamed and dispsrtched, does not hava the effect of delaying initiation of the di»iplinaiy proceedings, inasmuch as information to the governmentservant ofttiechargas framed against him, by service of the chaige-sheet, is not a p»tof the decision-maklng process of the authoritias for initiating the disciplinary proceedings." 15. In the case of Unton of Imlla and athws vs. Dinwiath ShmtaramKareka^, the Supreme Court observed in para 10, as under:- "10. Where the disciplinaty proceedings are intended to be initiated by issuing a cha^e-aheet, its actual semce is essential as the parson to whom ttie charge-sheet ts issued is required to submit his reply and, thereafter, to partteiparte in the disciplinary proceedings. So also, when the show-cause notice is tesued, the em^loyee is called upon to submit his reply to the action proposed to be taken against him. Since in botti the situations, the employee is given an opporhjnify to submit his reply, the theory of "communication" cannrt be involsed and "adtua! service" must be proved and established. It has already been found that neither the charge-shee* nor the show-cause notice were evar served upon the original respondent, Dinanath Shantaram Karetar. Consequently, the en8re piioceedtngs were vttiated." 16. In the case of Stote af Uf. vs. Shstruf^ian Lal »id wmthei8, theSupreme Court observed in para 10, as under:- "10. It has also been fbund tha<dunng course of the preliminary enqulry, a number of wtoessas were examined againstthe respondent in his absence, and righdy so, as the ctelinquaits are not associated in the preliminaryenquiry, and thereafter the cha^e-sheet was Aawn up. The copies of those statements, though asked fer by ttie respondent, were not suppltod to him. Sincs there was a failure on ttie partof the appeltant in this regard too, the Tribunal was juatified In coming to the conclusion that the prindples of natural jusflce were violated and the respondent was not afforded an effective opportunity of hearing, particulariy as th®appellant failed to establish that non-supply of the copies of statements recoidetl duringprelimlnaty enquiry had not caused any prejudlce to the r®5pondenttn defending hlmself." 1f/1 17. The Supreme Court in the case of Om Pralash Mann vs. Dlrector af EducaSon (Baslc)and offters7, cited by leaned counsd for the respondents, observed in paraS, as under:- "9. By now it is well-setUed princlple of Isw ttiat the doctrines of principle <rf nahiraljusUce are nat embodied rules. They cannot be applied in a straitjacket fonnula. To sustain the cwnptaint of viotaUon of the principle of ratBral JusBee one must establish that he has been prejudiced by non- observanc®of the principte of nafairal justice. As held by ttie High Court the appeltent has not been able to show as to how he has been prejudtead by non-fumishing of the copy of the eni^iiry report. The appellant has filed a detail«iappeal before the Appellate Authority which was disraissed ss noticed above. Itis not his case Uiat hs has been deprived of making effecUve appeal for nwi- fumishing of copy of enquiry report. He has participated in the enqutry proceedii^^ wtthout any demur. It is undisputed thartttie appellant hs® been aflorded enough opportunity and he has particlpated throughout tte enquiry proceecBngs, he has baen heard and allewed to make submission before the EnquiryCommittee." 18. The decisions cited hereinabove by laamed coureel appearing for the State/respondents are not applicabto te the facte of the present case. In the present casa. the entire departmantal proceedings were bad as the first step by ttie enqui^proreeding, i.e., actaal service of the charge-sheet on the delinquwrt employe®by the State/respondents was not done. The mode adoptcd by the /" !^^•) 10 State/respondents by all^ed affixatien of Uie chargs-sheet on th® residence ofthe peUConer is notone ofthe mode prascribed under Rute 30 of <he Rules, 1966. Subsequent publteation of notto or communication of dates by r^istered post A.D. is not sufficient compliance of the ftrst step of the snqulry, leading ttenial of opportunify to the petitioner, to file reply and put-forward his case efFectivety befcire Ihe enquiry offteer. The petitioner has sucwssfully edabllshed tta prejudice caused to hlm by non-service of charga-sheet on the pstitioner. In vlew of the clear findings with {egard to seivteeof the charge-sheet, as above-stated, it is not necessary to go into other points raised by ttie petlfioner. 19. This Court in the case of Warencfra Kumw Mishra vs. State of ChhaWsgarh and others (Writ Pstttion No.1328 of 2003), decMed on 12-12-2006, has held ttiat the enUre deparbnwrtal proceadings are bad if the actual service of the charge-sheet on delinquent emptoyee is not done. Ths mode of affixation of a chaige- sheet on the residenc® of the petitioner is not one aS the m<xte prescribed under Rute 30 ofthe Rules, 1966. 20. The petlBoner has cleariy submUed that he was not gainfully employed etsewhere and has suffered mental E®onyand financial liabllity. The respondents are not in a position to contovwt the submission of ttie pditioner. Thus, in the facts and oircum^anees of the case, whereln the serious allegaUon <rf misapproi»iationof fund is invoh/ad, the petttioner is not entitted to grant of any back wages. / sfi./', ' II 21. As a rwutt and in vi«vof the well sstBcd princ^le of law, the impugned order dated 8-3-2000 (Annexure P-1) passed by respondent No.2 - the Collector, Distrirt Bastar, Jagdalpur te quashed as the departmantal enquiry was vitiated. Howewer, thisorder shaU not come in e way of e respondents - authoriGes to mitiate a fresh departmental enquiry, ifso advised, in accordance wilh law. 22. costs. The writ petition is accordingfyallowed. No order as to Sd/- satish K.Agnihotri Judge 1 (1975)23ce 761 2. AIR 1991 SC 471 3. (1991) 4 SGC 109 4. (1983) 3 SCC 186 5. (i99SS)7SCCSe8 6. AIR 19^ SC 303B 7. (2006) 7 SGC 558