Partly allowed

Uttam Prasad Pandey v. State of Chhattisgarh

Chhattisgarh HC7 Dec 2021WPS/4202/2010

Case brief

AI extract

What is this about?

The High Court set aside an appellate order dismissing an employee's appeal against major penalty. The Board of Directors acted through a committee without personally hearing the appellant, violating Rule 33 of the Service Rules and the principle of a personal hearing derived from Gullapalli Nageswara Rao. The matter was remitted to the Board.

What did the court decide?

The impugned appellate order is set aside and the matter is remitted to the Board of Directors to consider and decide the appeal in accordance with the Rules of 1994 within three months.

Uttam Prasad Pandey Vs State of Chhattisgarh — Service and Employment | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (S) No.4202 of 2010

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Uttam Prasad Pandey, S/o Late Shri Pyarelal Pandey, aged about 59 years, R/o M.I.G. 1/13, Pandit Ravi Shanker Shukla Nagar, Korba, Distt. Korba (C.G.)

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---- Petitioner

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Versus

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State of Chhattisgarh, Through Secretary, Department of Forest, D.K.S. Bhavan, District Raipur (C.G.)

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Chhattisgarh Rajya Laghu Vanopaj “Vyapara Avam Vikas” Sahakari Sangh Maryadit, Raipur, Through its Chairman

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The Managing Director, Chhattisgarh Rajya Laghu Vanopaj Sangh, Raipur (C.G.)

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The Managing Director, Zila Union Korba, Distt. Korba (C.G.)

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Executive Director (Establishment), Chhattisgarh Rajya Laghu Vnopaj (Vyapar and Vikas) Sahakari Sangh Maryadit, Shanker Nager, Raipur (C.G.)

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---- Respondents

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-----------------------------------------------------------------------------------------------------For Petitioner: Mr. Ashutosh Shukla, Advocate. For Respondent No.1 / State: - Mr. Lalit Jangde, Panel Lawyer.

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For Respondents No.2 to 5: -

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Mr. Yashwant Singh Thakur, Advocate.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Order On Board

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07/12/2021

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The petitioner was Accountant in respondent No.2 Society and while working as Accountant he was inflicted with major penalty of stoppage of two increments with cumulative effect and he was also imposed with the order of recovery which he challenged before the Board of Directors by filing appeal under the relevant provisions of the Chhattisgarh Rajya Laghu Vanopaj Sangh Karmachari Bharti, Vargikaran Tatha Seva Sharten Niyam, 1994 (for short, ‘ the Rules of

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1994’). The appellate authority constituted a committee on 3-11-2008 consisting of the Officiating Director (Estt./Development), Chhattisgarh Rajya Laghu Vanopaj Sangh to be the Chairman and the Member Director of the Chhattisgarh Rajya Laghu Vanopaj Sangh, Raipur to be the Member to consider the appeal and make recommendation which the Committee recommended on 12-3-2009 and held that the charges are duly proved. Relying upon that report, the Board of Directors again in its meeting dated 13-3-2009 has accepted the recommendations of the Committee and dismissed the appeal which has been called in question in this writ petition.

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Mr. Ashutosh Shukla, learned counsel appearing for the petitioner, would submit that the appellate authority did not hear the appeal in accordance with law and merely by constituting a Committee and accepting the recommendations of the Committee, the order of punishment has been affirmed which is not the correct way of deciding the appeal as the appellate authority itself i.e. the Board of Directors could have heard and decided the appeal on merits.

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Mr. Lalit Jangde, learned Panel Lawyer appearing for the State / respondent No.1 and Mr. Yashwant Singh Thakur, learned counsel appearing for respondents No.2 to 5, would support the impugned appellate order.

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I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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Admittedly and undisputedly, power to hear appeal under the relevant rules has been conferred to the Board of Directors, but the Board of Directors did not hear the appeal personally and constituted a two-

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Member Committee by order dated 3-11-2008 and the said Committee submitted its recommendation on 12-3-2009 holding that the charges against the petitioner herein have been duly proved and the order of major punishment is justified which has been accepted as it is by the Board of Directors in its meeting dated 13-3-2009. Rule 33 of the Rules of 1994 (page 148 of the paper book) prescribes the procedure to hear the appeal which states as under: -

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अपील ननिराकरण की प्रनक्रियाः-

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अपील सरसरी तौर पर खाररि की िा सकेगी यनद ननियय 94 (27) के अनिुसार प्रसतुत निही की गई है । तथा ननियय 94 (32) ये दरारई तुनु/तुनुयों से पररपूणर हो ।

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अपीलीय प्राधधकारी उस अधधकारी से जिसके आदेर के नविर अपील

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की गई हो प्रकरण से संबंधधत ररकाार तलब कर सकता है और यायले पर नविार करनिे के उपरानत आगे िांि या ननिणरय हेतु ररयांा कर सकता है ।

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नकनतु अधधरो नपत रन्त ये तब तक वृदधध निही की िायेगी िब तक नक अपीलाथर्थी को ऐसी बढाई गई राससत के नविर अभयावेदनि करनिे का युन्त यु्त अवसर नि दे नदया गया हो ।

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नकनतु आगे ऐसा को ई आदेर पाररत निही नकया िायेगा िब तक उस

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व्यन्त को व्यन्तरः सुनिवाई का पयारत अिअवसर नि दे नदया गया हो ।

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A careful perusal of the aforesaid Rule would show that the appellate authority has to hear the appeal after calling for the record and even empowered to make remand and personal hearing will be afforded to the delinquent servant.

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Reverting to the facts of the present case, in this case, no such procedure as prescribed in the Rules has been followed and no personal hearing has been afforded to the petitioner and except constituting committee and calling for recommendations of the committee and accepting the recommendations of the committee, the appeal of the petitioner has been dismissed.

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The Supreme Court (Constitution Bench) in the matter of Gullapalli

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Nageswara Rao and others v. Andhra Pradesh State Road Transport Corporation and another 1, while highlighting the object of personal hearing, held as under:-

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“(31) … Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.”

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The principle of law enunciated in Gullapalli Nageswara Rao (supra) was followed with approval by the Supreme Court in the matter of Automotive Tyre Manufacturers Association v. Designated Authority and others 2 (see paragraphs 83 and 84).

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In the instant case, the petitioner has not been afforded opportunity of personal hearing as provided in the Rules of 1994 and even the Board of Directors have simply performed their legal obligation by constituting committee and inviting the recommendations of the committee, and accepting the recommendations of the committee, the petitioner’s appeal has been dismissed holding that the charges are justified. Hearing of appeal in accordance with the Rules of 1994 is a quasi judicial power conferred to the appellate authority which is not supposed to be entrusted in the manner which has been done by the Board of Directors of the respondent Society. As such the impugned appellate order is hereby set aside and the matter is remitted to the Board of Directors to consider and decide the appeal in accordance with the Rules of 1994 within three months from the date of production of a copy of this order before it.

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