State Of Uttarakhand & Others @APPELLANT@Hash Girish Chandra Tiwari

Manoj K. Tiwari, J

There is delay of 98 days in filing this Appeal. Shri Bhagwat Mehra, learned counsel for the respondent submits that he has no objection if the delay

is condoned. The cause shown in the delay condonation application is sufficient. Accordingly, the delay is condoned. Delay condonation application is

allowed.

This special appeal is directed against the judgment and order dated 16.03.2018 rendered by learned Single Judge of this Court in Writ Petition (S/S)

No. 1689 of 2011 whereby the writ petition filed by the respondent was allowed and the punishment order dated 17.11.2011 was quashed.

Respondent was selected for special B.T.C course in the year 2004. Upon successful completion of training, he was appointed as an Assistant

Teacher in Govt. Primary School, Rankuna, Block Salt, District Almora. On 01.06.2011 a letter was issued to him by the Additional District Education

Officer, Basic Almora, enclosing therewith a complaint made by one Mr. Rakesh Kumar through his lawyer. By the said letter, respondent was called

upon to submit his written reply on 14.06.2011. Thereafter on 06.08.2011, a charge-sheet was issued to him alleging that in the year 2005, he

simultaneously served in two institutions, namely Government Primary School Rankuna, Block Salt and Amrapali Institute Haldwani. It was further

alleged that respondent had applied for leave without pay for the period between 01.11.2006 to 31.10.2007 for rendering service in Amrapali Institute.

Respondent submitted his written reply to the charge-sheet, denying both the charges. On 18.10.2011, District Education Officer, Almora issued

one letter to respondent stating therein that he had submitted his reply to the charge-sheet in English language; therefore, he was called upon to give

his reply in Hindi language. Pursuant to said letter, respondent submitted his reply in Hindi on 23.10.2011. The District Education Officer, Almora

passed the punishment order on 17.11.2011 whereby following five penalties were imposed.

Recovery of a sum of Rs. 1,31,744/-

Withholding two increments with cumulative effect.

Reversion to original school, i.e., Govt. Primary school, Rankua.

Censure.

Warning.

Thus, feeling aggrieved appellant filed a writ petition challenging the punishment order dated 17.11.2011, on the ground that he has been punished

without following the procedure prescribed by Law. It was further contended that the inquiry report was not supplied to him. Learned Single Judge

allowed the writ petition by holding that the Inquiry Officer did not submit any enquiry report. Relevant portion of the judgment is extracted below:-

“There is detail procedure, the manner, in which, the major penalty could be imposed. It could only be made by way of regular inquiry. The amount

of Rs. 1,31,744/- could not be ordered to be recovered from the petitioner. The respondents could not become a judge of their own cause. Similarly,

the censure order and withholding of two increments cannot be made without holding any regular inquiry.’’

Government of Uttarakhand has framed Statutory Rules known as “The Uttaranchal Government Servant (Discipline and Appeal) Rules,

2003â€. According to Rule 3(b)(i), withholding of increments with cumulative effect is a major penalty. Rule 7 of the said Rules lays down the

procedure for imposing major penalties and provides that a regular disciplinary inquiry has to be held before imposing a major penalty. Rule 7 of the

said Rules is extracted below:-

Procedure for imposing major penalties â€" Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following

manner:-

(i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the

charges.

(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called

charge sheet. The charge sheet shall be approved by the Disciplinary Authority.

Provided that where the Appointing Authority is Governor, the charge sheet may be approved by the Principal Secretary or the Secretary, as the case

may be, of the concerned department.

(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and

circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same alongwith oral evidences, if

any, shall be mentioned in the charge sheet.

(iv) The charged Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be

less than 15 days from the date of issue of charge sheet and to state whether he desires to cross examine any witness mentioned in the charge sheet

and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement

on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry exparte.

(v) The charge sheet, alongwith the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be

served on the charged Government Servant personally or by registered post at the address mentioned in the official records in case the charge sheet

could not be served in aforesaid manner, the charge sheet shall be served by publication in a daily news paper having wide circulation:

Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge sheet, the charged Government Servant shall

be permitted to inspect the same before the Inquiry Officer.

(vi) Where the charged Government Servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority

on the basis of such admission.

(vii) Where the charged Government Servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge sheet

and record their oral evidence in the presence in the presence of the charged Government Servant who shall be given opportunity to cross examine

such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government

Servant desired in his written statement to be produced in his defence.

Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.

(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the

provisions of the Uttar Pradesh Departmental Inquiries (enforcement of Attendance of Witness and Production of Documents) Act, 1976 which is

enforced in Uttarakhand under provisions of Section-86 of the Uttar Pradesh Reorganization Act, 2000.

(ix) The Inquiry Officer may ask any question, he pleases, at any time from any witness or from person charged with a view to discover the truth or to

obtain proper proof of facts relevant to charges.

(x) Where the charged Government Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the Service

of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry exparte. In such a case the Inquiry Officer

shall record the statement of witnesses mentioned in the charge sheet in absence of the charged Government Servant.

(xi) The Disciplinary Authority, if it considers it necessary to do so. May be an order, appoint a Government Servant or a legal practitioner, to be

known as “Presiding Officerâ€​ to present on its behalf the case in support of the charge.

(xii) The Government Servant may take the assistance of any other Government Servant to present the case on his behalf but not engage a legal

practitioner for the purpose unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner or Disciplinary Authority

having regard to circumstances of the case so permits:

Provided that this rule shall not apply in following case:-

(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to held an inquiry in

the manner provided in these rules; or

(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in

these rules.â€​

Admittedly, regular disciplinary inquiry was not held against the respondent and although Inquiry Officer was appointed however punishment order

was passed without waiting for the report of the Inquiry Officer. As many as five penalties were imposed upon the respondent, including major

penalty of withholding of increments with cumulative effect. Holding of regular disciplinary inquiry is mandatory requirement of law, except in a case

where proviso (ii) or proviso (iii) to Rule 7 is invoked. In the present case, neither proviso (ii) nor proviso (iii) to Rule 7 was invoked. Therefore, the

punishment order passed without holding disciplinary inquiry cannot be sustained.

It is settled position in Law that when statute requires something to be done in a particular manner; the same must be done in that manner or not at

all. Therefore, punishment order passed against respondent without holding disciplinary inquiry is ex-facie arbitrary and illegal. The Discipline and

Appeal Rules have been framed under Proviso to Act 309 of the Constitution of India, therefore, they are equally binding upon the authorities.

In view of the aforesaid discussion, we find no infirmity or illegally whatsoever in the judgment rendered by learned Single Judge.

In such view of the matter, the special appeal fails and is hereby dismissed.

No order as to cost.