IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No.1820 of 2008 Reserved on: 24.2.2009 Date of decision: March 2nd, 2009 D. N. Sharma …. Petitioner Versus H. P. State Electricity Board …. Respondent Coram: The Hon’ble Mr Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the Petitioner: Ms. Sunita Sharma Advocate. For the respondent. Mr Shashi Shirshoo, Advocate. Surinder Singh,J. The present petition was filed, before the Erstwhile H. P. State Administrative Tribunal, Shimla, by the petitioner for seeking the following reliefs: i) that the impugned Annexure A-7 dated 19.6.2006 may be quashed and set aside; 1 Whether the reporters of Local Papers may be allowed to see the judgment ? Yes. 2 ii) that the respondent-Board may be directed to release the entire retrial benefits of the applicant i.e. retirement gratuity, commuted value of pension and leave encashment with interest at the rate of 18% per annum; I have heard the learned counsel for the parties and have carefully gone through the record. Precisely, the facts giving rise to the present petition are that the petitioner during the year 1983-94, while working as Superintendent Grade-II in Operation Circle, HPSEB Rampur, was dealing with the cases of daily waged, ministerial staff and registration of contractors etc. along with other cases of the establishment section. It is alleged that he got the name of his daughter Santosh Devi, entered in the category of clerk. On 25.6.1985 when initially she was deployed as a casual labour, she was also under matric and of 17 years 3 months of age. Since she did not at all fulfill the criteria to be deployed in the grade of Clerk but, however, the petitioner, being the dealing hand scrutinized the particulars of daily waged workers listed in the list, deliberately and 3 knowingly in order to give undue benefit to his daughter, concealed such facts from the Screening - Committee by which his aforesaid daughter was wrongly considered for the post of clerk by considering her seniority w.e.f. 25.6.1985 the date of her initial appointment as a casual labour. This action on the part of the petitioner was prima- facie held to be violative to the provisions contained in Rule-3 of the CCS (Conduct) Rules 1964. The second allegation against the petitioner was that he enrolled as many as 35 contractors in A, B & C Class, without charging enlistment-fee in contravention of circular dated 4.11.1985 issued by the S. E. Operation Circle, Rampur. Thus, the petitioner with a malafide intention, deliberately ignored the said instructions and put the Board in financial loss to the tune of Rs.24,625/- After holding the preliminary inquiry, a show cause notice (Annexure A/1) was issued to the applicant-petitioner. The petitioner filed the reply (Annexure A/2). After considering the reply, the Secretary of the respondent-Board issued the Memo (Annexure A/3), specifying the Articles of charges whereby the petitioner was charge-sheeted. Pursuant to that, petitioner submitted his detailed 4 reply (Annexure A/4). The respondent-Board decided to hold an inquiry against the petitioner as it did not fell satisfied by it, as such, the respondent- Board appointed Shri Ramesh Chauhan, Under Secretary (Law) HPSEB as the Inquiry Officer. A detailed regular inquiry was conducted by the aforesaid Inquiry Officer against the petitioner. He submitted his report dated 9.3.2006, exonerating the petitioner from the aforesaid charges, as articles of charge were not proved by the Department. On considering the inquiry report by the Disciplinary Authority, it was found that the inquiry officer did not properly appreciate the patent facts on record, therefore, decided to get the matter re-enquired from the another officer, vide order (Annexure A/7) dated 19.6.2006. This order is reproduced below: “…………… O R D E R WHERAS Shri Ramesh Chauhan, Under Secretary (Law) HPSEB was appointed as an Inquiry Officer in the departmental inquiry case against Shri D. N. Sharma, S.O. (retired) vide order No. HPSEB (Sectt)/548/2005-3-10 dated 13.1.2006. WHEREAS Shri Ramesh Chauhan, Inquiry Officer-cum-Under Secretary (Law) submitted the inquiry report in the case 5 vide letter No. HPSEB (Sectt) / L.S./ RC/ PF2006-2725 dated 9.3.2006. AND WHEREAS the said inquiry report was considered by the Disciplinary Authority i.e. Whole Time Members of the Board and observed that the said inquiry officer has not properly appreciated the patent facts on record, including the official’s daughter being under matric and under age. Being father, the delinquent official could not have been oblivious of these facts while processing the case for Screening Committee, and therefore decided to get the matter re- enquired. NOW,THEREFORE, the Disciplinary Authority in exercise of powers conferred by sub-rule(2) of Rule-14 of CCS (CCA) Rules, 1965 hereby appoints Shri Satish Sharma, Additional Secretary (Law) HPSEB as the Inquiring Authority to inquire into the charges framed against the said Shri D. N. Sharma, S.O.(Retd.) “ [emphasis supplied] Rule 14(2) of the Rules aforesaid provides the procedure for imposing the major penalty. When the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or mis- behaviour against a Government servant and it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. This procedure is followed when the delinquent stands charge-sheeted and on his denial, the enquiry is 6 required to be made by appointing the inquiry officer when the disciplinary authority does not take unto itself the onus of conducting the inquiry. This was done in this case earlier and the report was also submitted. Thus by issuing the order Annexure A/7, it appears that the respondent has a clear intention to get the articles of charges re-inquired from different officer. The petitioner, herein by a written communication No.DNS/PF/2006-28 dated 2.8.2006 raised the objection for re-inquiry and requested to release, the retrial benefits w.e.f. 30.9.2005 the date of superannuation, but it did not yield any result as such the Annexure P-7, quoted above, was assailed in the present petition, being illegal, arbitrary and violative of Articles 14 & 16 of the Constitution of India. The respondent-Board in its reply submitted that the petitioner was not exonerated from the charges leveled against him and the Board could get re-inquired the matter despite the fact that the Inquiry Officer held that the charges were not proved. The final decision was yet to be taken by the Disciplinary Authority. Therefore, the 7 contention raised by the petitioner is premature and deserves to be dismissed outright. For our purpose clauses 1 and 2 of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, in short ‘the rules’ are important which clearly indicates the procedure and action to be taken by the Disciplinary Authority on receipt of the report of the Inquiring Authority. The aforesaid rules are applicable to the petitioner and clauses 1 and 2 of the Rules aforesaid read as under: “15. Action on the inquiry report: (1) The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be. (2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who 8 shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant. This rule clearly contemplates the powers of the disciplinary authority, what action is to be taken on the inquiry report but it nowhere says that it could set aside the whole inquiry and get the articles of charges re-enquired from any other inquiry officer for no substantial reason. It is well settled that the disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965 or under any corresponding Rules, are quasi-judicial in nature and as such, it is necessary that orders in such proceedings are issued only by the Competent Authorities in accordance with the Rules, as the orders issued by such authorities has the attribute of a judicial order. Further any decision arrived at by the Disciplinary Authority or Appellate Authority under the said Rules is in the capacity of quasi-judicial authority thus it is obligatory to record the reasons and it should also ensure that the decision reached is according 9 to law and is not the result of caprice, whim or fancy or reached on the ground of policy or expediency. In Para 12 of the judgment of the Supreme Court in K.R.Deb versus The Collector of Central Excise, Shillong: 1971(2) Supreme Court Cases 102 held as under: “It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to re- consider the evidence itself and come to its own conclusion under Rule 9.” 10 Thus, the action of the Board to re- inquire the matter by another inquiry officer by issuing Annexure A/7 in the instant case is manifestly illegal in the circumstances discussed above. It seems that respondent-board has conveniently ignored Rule 15 ibid and was determined to get a favourable report from other officer against the petitioner, which is against the principles of natural justice. In result, the petition is allowed and Annexure A-7 dated 19.6.2006 is hereby set aside. The Disciplinary Authority of the Board is hereby directed to take action on the inquiry report, submitted by the Inquiring Authority in accordance with Rule 15 aforesaid and law applicable thereto. However, pending final decision by the Disciplinary Authority, it may withhold an amount of only rupees 25,000/- alleged to be involved in the matter, and rest of the retiral benefits be released to the petitioner within a period of one month from today, failing which, it shall carry interest at the rate of 9% per annum from the date when it fell due. Accordingly, the petition stands disposed of. 11 In view of the disposal of the main petition, all the pending miscellaneous applications are also disposed of accordingly. March 02,2009 (Surinder Singh), (D/Pds) Judge.