Allowed

Shri Sidharth Das (Died) Through LRs. v. State of Chhattisgarh

Chhattisgarh HC1 Sept 2024WPS/2576/2015

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed a writ petition challenging the dismissal of a Deputy Collector. The court held that dismissal is a major penalty requiring a departmental enquiry under Rule 14 of the Service Rules, which was not conducted. The quash order also directed consequential benefits and family pension.

What did the court decide?

Orders dated 27.05.2014 and 26.05.2015 quashed. Petitioner's LRs entitled to 50% salary from 27.05.2014 and family pension.

Shri Sidharth Das (Died) Through LRs… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

2024:CGHC:33591

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 2576 of 2015

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Shri Sidharth Das (Died) Through Lrs. (As Per Hon'ble Court Order Dated 21-08-2024), Chhattisgarh

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1.1 - I. Smt. Chabi Das W/o Late Shri Sidharth Das Aged About 64 Years R/o Q. No. E.A.C.- 1, Church Road, Stadium, Opposite Manas Bhavan, Police Station Durg, District Durg, Chhattisgarh

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1.2 - Ii. Ku. Ritika Das D/o Late Shri Sidharth Das Aged About 32 Years R/o Q. No. E.A.C.- 1, Church Road, Stadium, Opposite Manas Bhavan, Police Station Durg, District Durg, Chhattisgarh

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1.3 - Iii. Ku. Pallavi Das D/o Late Shri Sidharth Das Aged About 29 Years R/o Q. No. E.A.C.- 1, Church Road, Stadium, Opposite Manas Bhavan, Police Station Durg, District Durg, Chhattisgarh

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... Petitioner

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versus

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State Of Chhattisgarh Through Secretary, Department Of General Administration, Mantralaya, Mahanadi Bhawan, Police Station Rakhi, Naya Raipur, Chhattisgarh

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The Commissioner, Bastar Division, Jagdalpur Chhattisgarh

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Collector, Bijapur, District- Bijapur Chhattisgarh

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Chhattisgarh Public Service Commission, Through Its Secretary Chhattisgarh State Public Service Commission, Shankar Nagar Raipur, Civil And Revenue District- Raipur Chhattisgarh

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... Respondents

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(Cause Title is taken from Case Information System)

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For Petitioner : Mr. Amrito Das, Advocate For State : Mr. Satish Gupta, Government Advocate

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Hon'ble Shri Justice Rakesh Mohan Pandey

Order on Board

0 2.09.2024

By way of this petition, the petitioner has sought the following relief(s):-

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“10.1 That the Hon’ble Court may kindly be pleased to issue appropriate nature of writ and quash the order dated 26/05/2015 (ANNEXURE P-1) issued by Respondent No. 1 as being arbitrary, illegal and against the Principle of Natural Justice.

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10.2 That the Hon’ble Court may kindly be pleased to direct the Respondent No. 1 to reinstate the petitioner with full back wages in the post of Joint Collector.

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10.3 That any other relief which the Hon’ble Court deem fit in the interest of justice and equity may kindly be granted.”

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The facts of the present case are that in the year 2012, the petitioner was posted to the post of Deputy Collector at Durg. He was transferred from Durg to Jashpur vide Order dated 24.07.2012. He was relieved from services on 01.08.2012. The petitioner did not join the services at the transferred place, therefore, he was placed under suspension vide order dated 21.08.2012. Thereafter, an article of charge was issued on 14.09.2012, and the petitioner filed a reply to the article of charge on 21.09.2012, thereafter, the order of suspension was revoked vide order dated 22.12.2012 and the petitioner was posted as a Deputy Collector, Bijapur, where he joined on 31.01.2013. The petitioner moved an application for optional leave on 15.02.2013, 16.02.2013, and 17.02.2013 and an application to leave headquarters and since then he remained absent from services from 18.02.2013 without prior permission of the superior authority.

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The show cause notices were issued to the petitioner on 02.03.2013, 19.06.2013, 08.08.2013, 02.11.2013. The show-cause notice dated 08.08.2013 was served upon the petitioner on 19.09.2013, but no reply was filed. Thereafter, respondent No. 1 without holding any enquiry according to the provisions of Rule 14 of the Chhattisgarh Civil Services (Classification,

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Control and Appeal) Rules, 1966 (hereinafter referred to as “Rules, 1966”) passed an order whereby respondent No. 1 declared the period of absence as dies-non and removed the petitioner from services according to the provisions of Rule 10 (9) of the Rules, 1966.

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Learned counsel appearing for the petitioner submitted that no departmental enquiry was conducted; no enquiry report was served along with show-cause notice to the petitioner and punishment was imposed contrary to the provisions of Rule 14 of the Rules, 1966. He further submitted that an appeal was preferred and the same was also dismissed vide Order dated 26.05.2015 by respondent No. 1. He also submitted that both the orders dated 27.05.2014 and 26.05.2015 are liable to be quashed. He has placed reliance on the judgment passed by the High Court of M.P. in the matter of Balram Gumasta Vs. State of M.P. and others reported in 2014 (2) M.P.L.J. 462.

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On the other hand, Mr. Satish Gupta, Government Advocate appearing for the State would oppose. He submitted that the petitioner remained absent from duty for a considerable period without the sanction of leave and without communicating with the department. He further submitted that many times show-cause notices were issued to the petitioner, but for one or other reasons those notices could not be served upon the petitioner. He also submitted that notice dated 08.08.2013 was served upon the petitioner, but no reply was filed. It is also contended that according to Article 311 (2) (b) of the Constitution of India, the disciplinary authority exercised its power and inflicted penalty. It is further contended that the instant petition deserves to be dismissed.

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I have heard learned counsel appearing for the parties and perused the

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documents placed on the record.

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Article 311 of the Indian Constitution deals with the dismissal, removal or

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reduction in rank of persons employed in civil capacities under the Union or

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a State and the same is reproduced herein below:-

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(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

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(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

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Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

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Provided further that this clause shall not apply—

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(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

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(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

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(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

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(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

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This article specifically states that the civil servant shall not be dismissed from services except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard. The proviso appended to the above stated Article says that where the

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authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded in writing, it is not reasonably practicable to hold such enquiry in such a situation the penalty can be imposed.

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Rule 10 of the Rules, 1966 deals with the penalties, whereas, Rule 14 of the Rules, 1966 deals with the procedure for imposing penalties, Rules 10 and 14 are reproduced herein below for reference:-

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10. Penalties

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The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely :-

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Minor penalties :-

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( i )Censure;

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( ii )Withholding of his promotion;

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(iii)recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of order;

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(iv)[ withholding of increments of pay or stagnation allowance; [Substituted by Notification No. 6-2-76-3-(I), dated 24-3-1976.]

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Major Penalties :-

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(v)reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not, the Government servant will earn increments of pay or the stagnation allowance, as the case may be, during the period, on such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the further increments of his pay or stagnation allowance;Note. - The expression "reduction to a lower stage in the time scale of pay" shall also include reduction of pay from the stage of pay drawn by a Government servant of account of grant of stagnation allowance of any].

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(vi)reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service;

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(vii)compulsory retirement;

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(viii)removal from service which shall not be a disqualification for future employment under the Government;

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(ix)dismissal from service which shall ordinarily be a disqualification for future employment under the Government;.

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[x x x] [Omitted by Notification No. 6-4-77-3-I, dated 26-9-1977.]

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Explanation. - The following shall not amount to a penalty within the meaning of this rule, namely :-(i)withholding of increments of pay of a Government servant for his failure to pass any departmental

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examination in accordance with the rules or orders governing the service to which he belongs or post which he holds or the terms of his appointment;

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(ii)stoppage of a Government servant at the efficiency bar in the time scale of pay on the ground of his unfitness to cross the bar;

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(iii)non-promotion of a Government servant, whether in a substantive or officiating capacity, after consideration of his case, to a service, grade or post for promotion to which he is eligible;

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(iv)reversion of a Government servant officiating in a higher service, grade or post to a lower service, grade or post, on the ground that he is considered to be unsuitable for such higher service, grade or post or on any administrative ground unconnected with his conduct;

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(v)reversion of a Government servant, appointed on probation to any other service, grade or post, to his permanent service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing such probation;

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(vi)replacement of the services of a Government servant, whose services had been borrowed from the Union Government or any other State Government, or an authority under the control of any Government, at the disposal of the authority from which the service of such Government servant had been borrowed;

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(vii)compulsory retirement of a Government servant is accordance with the provisions relating to his superannuation or retirement;

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(viii)termination of the services;

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(a)of a Government servant appointed on probation, during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and orders governing such probation; or

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(b)of a temporary Government servant appointed until further orders on the ground that his services are no longer required; or

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(c)of a Government servant, employed under an agreement, in accordance with the terms of such agreement.

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14. Procedure for imposing penalties.

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(1)No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 10 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 15 or in the manner provided by the Public Servants' (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.

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(2)Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, 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.Explanation. - Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (7) to subrule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the disciplinary authority.

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(3)Where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the disciplinary authority shall draw up or cause to be drawn up-(i)the substance of the imputation of misconduct or misbehaviour into definite and distinct articles of charge;(ii)a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain :-(a)a statement of all relevant facts including any admission or confession made by the Government servant;(b)a list of documents

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by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.

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(4)The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the article of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which article of charge is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.

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(5)(a)On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted or, if it considers it necessary so to do, appoint, under sub-rule (2), an inquiring authority for the purpose; and where all the articles of charges have been admitted by the Government servant in his written statement of the defence the disciplinary authority shall record its finding on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15;(b)If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge or ma;, if it considers it necessary to do so, appoint, under sub-rule (2), an inquiring authority for the purpose;(c)Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge.

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(6)The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority-(i)a copy of the articles of charge and the statement of the imputations of misconduct and misbehaviour;(ii)a copy of the written statement of defence, if any, submitted by the Government servant;(iii)a copy of the statements of witnesses, if any, referred to in sub-rule (3);(iv)evidence providing the delivery of the documents referred to in sub-rule (3), to the Government servant; and a copy of the order appointing the "Presiding Officer".

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(7)The Government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by him of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiring authority may, by a notice in writing specify in that behalf, or within such further time, not exceeding ten days, as inquiring authority may allow.

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(8)The Government servant may take the assistance of any other Government servant to present the case on his behalf, but may not engage a legal practitioner, for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits.

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(9)If the Government servant who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the Government servant thereon.

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(10)The inquiring authority shall return a finding of guilt in respect of these articles of charge to which the Government servant pleads guilty.

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(11)The inquiring authority, shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presiding Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence-

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(i)inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3);

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(ii)submit a list of witnesses to be examined on his behalf.Note.-If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.

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(iii)Give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3).Note. - The Government servant shall indicate the relevance of the documents required by him to be discovered and produced by the Government.

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(12)The inquiring authority shall, on receipt of the notice for the discovery or production of documents forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition :Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse requisition to such of the documents as are, in its opinion, not relevant to the case.

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(13)On receipt of the requisition referred to in sub-rule (12), every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority :Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the Government servant and withdraw the requisition made by it for the production or discovery of such documents.

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(14)On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge arc proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.

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(15)If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer, to produce evidence riot included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have if he demands it, a copy of the list of further evidence proposed to be produced and

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an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the enquiry is adjourned. The inquiring authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice.Note. - New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.

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(16)When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record, in their case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.

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(17)The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to crossexamination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.

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(18)The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.

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(19)The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Government servant or permit them to file written briefs of their respective case, if they so desire.

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(20)If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex-parte.

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(21)(a)Where a disciplinary authority competent to impose any of the penalties specified in clauses (i) to (iv) of Rule 10 (but not competent to impose any of the penalties specified in clauses (v) to (ix) of Rule 10); has itself inquired into or the articles of any charge and that authority, having regard to its own finding or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of opinion that the penalties specified in clauses (v) to (ix) of Rule 10 should be imposed on the Government servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties.(b)The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses if necessary in the interests of justice, recall the witness and examine, cross-examine and reexamine the witness and may impose on the Government servant such penalty as it may deem fit in accordance with these rules.

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(22)Whenever any inquiring authority, after haying heard and

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recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by itself :Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross-examine and re-examine any such witnesses as hereinbefore provided.

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(23)(i)After the conclusion of the inquiry, a report shall be prepared and it shall contain-

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(a)the articles of charge and the statement of the imputations of misconducts or misbehaviour;

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(b)the defence of the Government servant in respect of each articles of charge;

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(c)an assessment of the evidence in respect of each article of charge; and

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(d)the finding on each article of charge and the reasons therefor.

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Explanation. - If in the opinion of the inquiring authority the proceedings of the inquiry establish an article of charge different from the original articles of the charge, it may record its finding on such article of charge :

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Provided that the finding on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

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(ii)The inquiring authority where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include-

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(a)the report prepared by it under clause (i);

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(b)the written statement of defence, if any, submitted by the Government servant;

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(c)the oral and documentary evidence produced in the course of the inquiry;

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(d)written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of inquiry; and

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(e)the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.

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10. From a perusal of the above-stated rules, it is apparent that no major punishment can be imposed on the delinquent employee or Civil Servant without holding a departmental enquiry strictly in accordance with Rule 14 of the Rules, 1966.

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11. In the present case, at the relevant time, the petitioner was posted at Durg and he was transferred to Jashpur vide Order dated 24.07.2012, but he

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failed to join; therefore, he was placed under suspension and a departmental enquiry was contemplated. Thereafter, he was posted as a Deputy Collector at Bijapur, where, the petitioner joined his services on 31.01.2013, thereafter, the petitioner applied for optional leave and left the headquarters without intimating the superior authority and without sanction of leave. Various show-cause notices were issued to the petitioner on 02.03.2013, 19.06.2013, 08.08.2013, 02.11.2013, whereby, the petitioner was directed to join services and only show-cause notice dated 08.08.2013 was served upon the petitioner on 19.09.2013, but no reply was filed and thereafter, the Additional Secretary, State of Chhattisgarh, General Administration Department without holding any enquiry passed an order of dismissal from service.

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12. The departmental enquiry can be conducted even in the absence of a delinquent employee after recording reasons for it. In the present case, no such reason has been recorded by the disciplinary authority and directly, the punishment has been imposed.

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13. The High Court of M.P. in the matter of Balram Gumasta (supra) held that “the opening lines of Rule 10 of the Rules itself prescribe that the major penalty can be imposed only after following the procedure as laid down under Rule 14 of the Rules. The penalty of dismissal from service is a major penalty, which is not in dispute. That being so, before imposing such a penalty, at least a regular departmental enquiry should have been conducted against the petitioner and after proving of the misconduct the penalty should have been imposed on the petitioner .”

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14. In the present case also no article of charge was issued, no show-cause notice was served on the petitioner along with the article of charge, no

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departmental enquiry was conducted, no enquiry report was prepared, and without holding an enquiry as contemplated under Rule 14 of the Rules, 1966, punishment of dismissal has been imposed and the period of absence has been declared as dies-non, such an order cannot be sustained in the eyes of law; therefore, the order dated 27.05.2014 passed by the Additional Secretary, General Administration Department, and the order dated 26.05.2015 passed by respondent No. 1 are hereby quashed. Accordingly, the instant petition is hereby allowed .

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15. It is informed by Mr. Das that the petitioner is no more and his legal representatives have been substituted. He submitted that the petitioner would have retired from services in the year 2020. Since the petitioner is no more, no order of reinstatement can be passed, but looking to the facts of the case, the LRs of the petitioner would be entitled to get 50% salary from the date of the order of dismissal from services i.e. 27.05.2014, till his date of actual retirement treating him in service and the civil servant would be entitled to get all consequential benefits. The respondent authorities are also directed to calculate the family pension accordingly.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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$iddhant

Shri Sidharth Das (Died) Through LRs. v. State of Chhattisgarh

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Shri Sidharth Das (Died) Through LRs. v. State of Chhattisgarh

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