Puran Singh vs The State of Himachal Pradesh and Others

V.K. Sharma, J.—The petition has been filed for grant of the following substantive reliefs vide para 7(i) to (vii):

(i) That the orders dated 29.12.1998 vide Annexure A-9, may kindly be quashed and set-aside.

(ii) That the orders dated 19.4.1997 vide Annexure A-4, may kindly be quashed and set-aside.

(iii) That the Respondents may be directed to consider the case of the applicant for counting the same as duty period for all intents and purposes w.e.f 16.8.1996 to 8.1.1998 forthwith.

(iv) That the Respondents may be directed to give the pay and allowances to the applicant for the period w.e.f 16.8.1996 to 8.1.1998, after regularizing the same, in view of (iii) above forthwith.

(v) That the Respondents may be directed to give interest on the payment of delayed pay and allowances for the period w.e.f. 16.8.1996 to 8.1.1998 @ 18% per annum forthwith.

(vi) That the Respondents be directed to restore the 3 increments to he applicant w.e.f the date the same were due after 16.8.1996 with arrears accruing therefrom, forthwith.

(vii) That the Respondents may be directed to give the benefit of the service for the period of absence, as qualifying service for pension, without constituting break in service of the applicant forthwith.

In reply on behalf of the Respondents, the following averments have been set up vide paras 3 and 6(xv):

3 That the original application is not maintainable in the present form. It is submitted that the order dated 19.04.1997 (Annexure A-4) cannot be treated as penalty because the same is the outcome of absence from duty. It is the plain interpretation of Rule 17 of FRSR Government of India order (I) that if a person remains absent from duty for a long time period as is in the case of the applicant he is not entitled for pay and allowances for the period of absence and it will constitute an interruption of service. Hence, this cannot be termed as penalty. The order dated 29.12.1998 annexed as Annexure A-9 is a penalty which has been imposed after a regular inquiry. It is further submitted that the order dated 24.04.1997 is not penalty as per Rule 11 of CCS CCA Rules, 1965. 6(xv) That the contents of this para are wrong, hence, denied. As already submitted the order dated 19.04.1997 (Annexure A-4) cannot be termed as penalty whereas the order dated 29.12.1998 (Annexure A-9) vide which penalty has been imposed on the applicant for willful absence has been imposed after the inquiry. The inquiry has been conducted as per the rules and there is no patent error, irregularity or illegality in the inquiry. The applicant has been given full opportunity of being heard and he has exercised his right of defence in the said inquiry. It is further submitted that the applicant has not highlighted any patent error or illegality in the inquiry, hence, the original application is liable to be dismissed.

The report of the inquiry on the basis of which the Petitioner has been indicted has not been brought on record either by the Petitioner or the Respondents. Two fold grievance(s) raised by the Petitioner is that firstly charge-sheet dated 7.4.1997,Annexure A-3, was served upon him and he was called upon to submit written statement to the same within ten days of the receipt of the memorandum, which according to the Petitioner was received by him on 11.4.1997, meaning thereby the requisite period of ten days was to elapse only on 21.4.1997, but without waiting for expiry of that period disciplinary authority vide memorandum dated 19.4.1997,Annexure A-4, proceeded to treat the period of absence from 16.8.1996 onwards as break in service. Secondly the case of the Petitioner is that while passing the impugned penalty of withholding of three increments vide memorandum dated 29.12.1998, Annexure A-9, he was not supplied with copy of inquiry report as mandated by sub rules 2 and 2(a) of Rule 15 of the CCS (CCA) Rules.

Both the above submissions are duly borne out even on a bare perusal of the memorandum Annexure A-3, dated 7.4.1997 and the subsequent further memorandum Annexure A -4, dated 19.4.1997, ordering of treating the period of absence as break in service even before expiry of the period of ten days granted to the Petitioner to submit written statement to the memorandum of charge excluding the period during which it remained in transit. It is a matter of common knowledge that in the ordinary course of business of Posts and Telegraph Department, it takes at least three days for reaching a communication to the addressee. If that was so, the memorandum Annexure A-3 issued on 7.4.1997 could not have reached the Petitioner in any case before 10.4.1997 and thereafter when the period of ten days granted to him for submitting written statement to the memorandum is taken into consideration, it goes upto 20.4.1997. However, the fact remains that the memorandum Annexure A-4 was issued even before that on 19.4.1997.

As already observed, the inquiry report has not been brought on record on behalf of either of the parties, yet on a bare perusal of order of imposition of penalty Annexure A-9 dated 29.12.1998, as also the pleadings on behalf of the parties, it is abundantly clear that the Petitioner was not supplied with copy of inquiry report before imposition of theRules as referred to here-in-above.

In view of the above, the petition is allowed Consequently, memorandum Annexure A-4, dated 19.4.1997 and memorandum Annexure A-9, dated 29.12.1998, are quashed. As a result, disciplinary proceedings are ordered to be remitted to the disciplinary authority for disposal afresh from the stage of supplying of copy of the inquiry report to the Petitioner in accordance with law.

With these observations the writ petition is disposed of so also the pending application(s), if any.