Rax Pal Vs State of Hp and Others

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 422 of 2020 Reserved on: 15.05.2024 Decided on: 14.06.2024 __________________________________________________________ Rax Pal ... Petitioner Versus State of H.P. and others. … Respondents _________________________________________________________ Coram_

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The Hon'ble Mr. Justice Satyen Vaidya, Judge

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1 Whether approved for reporting? Yes

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______________________________________________________ For the petitioner: Mr. Sanjeev Bhushan, Senior Advocate, with Mr. Rakesh Kumar and Mr. Sohail Khan, Advocates. For the respondents: Ms. Avni Kochhar, Deputy Advocate General.

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Satyen Vaidya, Judge

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Petitioner has prayed for following

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substantive reliefs:

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i) That appropriate writ, order or direction may very kindly be issued and the impugned orders Annexures P-1 dated 1^st November, 2019 and P-2 dated 8^th January, 2020 may very kindly be quashed and set-aside, in the interest of law and justice. ii) That appropriate writ, order or direction may very kindly be issued directing the

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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respondents to re-instate the petitioner in service with all consequential benefits of pay, arrears, seniority etc. alongwith the interest @ 9% per annum, in the interest of law and justice.

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iii) That appropriate writ, order or direction may very kindly be issued directing the respondents to pay full salary to the petitioner for the suspension period by granting the arrears alongwith interest @ 9% per annum.

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Petitioner, while serving as Subject Matter Specialist in the Department of Agriculture, Himachal Pradesh, was ordered to be transferred to Kaza in Lahaul & Spiti District vide office order dated 30.08.2018. The petitioner did not join at Kaza till 07.02.2019. The defiance on part of the petitioner to obey the administrative orders was viewed seriously by the disciplinary authority and was considered as a misconduct under Rule 3 of the CCS (Conduct) Rules, 1964. In the first instance, show cause notice was served upon the petitioner. Having remained dis-satisfied with the cause shown by petitioner, a charge memo was served upon him. Inquiry under Rule 14 of the CCS (CCA) Rules was conducted. The Inquiry Officer found

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the charges proved against the petitioner. The disciplinary authority concurred with the inquiry report and imposed the major penalty of removal from service.

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The petitioner has approached this Court with a grievance that he could not join at Kaza till 07.02.2019 on account of his compelling circumstances. It has been submitted in the alternative that the misconduct alleged against the petitioner was not of such magnitude which called for infliction of major penalty. The petitioner has also challenged the penalty imposed against him to be strikingly disproportionate to his alleged misconduct.

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As per petitioner, initially he had sought legal remedies against the order of his transfer to Kaza by approaching the erstwhile State Administrative Tribunal (for short “Tribunal”). He had been protected by the orders of the Tribunal. The reason to challenge the transfer order as per petitioner was his individual hardship. The petitioner alleged his inability to serve at Kaza on account of his family circumstances viz., the wife of petitioner was serving at GSSS, Jawalamukhi and as per the policy of the Government he was entitled to be posted at or near the

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station where his spouse was posted; his parents were old and ailing and lastly the education of his children would have suffered. Petitioner further contended that he had every right to avail legal remedies and his absence from duties could not be termed as misconduct.

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The submissions of the respondents on the other hand are that the petitioner had willfully disobeyed the administrative orders which amounted to serious misconduct. As per respondents, the petitioner made every effort to stall his transfer to Kaza by repeatedly approaching the Tribunal. Having failed to get any relief from the Tribunal, he had further unsuccessfully approached this Court and Hon’ble Supreme Court also. In this background, it is alleged that the petitioner had no lawful reason to disobey the orders of his transfer. The respondents have also highlighted the subsequent conduct of petitioner which suggests that petitioner joined at Kaza on 07.02.2019 and on the very next day i.e. 08.02.2019 he proceeded on leave and left the station without informing his superior/supervisory officer and thereafter remained absent till 20.03.2019. The conduct of disciplinary

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proceedings and imposition of penalty has been sought to be justified on the ground that the same was warranted in the facts and circumstances of the case for the reasons firstly that the petitioner had grossly misconducted himself by disobeying the lawful administrative orders and secondly to avoid indiscipline in the service, the action was necessitated. 6. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

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It is not in dispute that the petitioner challenged transfer order dated 30.08.2018 before the Tribunal by way of O.A. No. 5403 of 2018. The Tribunal vide order dated 10.09.2018 disposed of the O.A. of petitioner with liberty to make a representation to the competent authority and direction to the competent authority to decide the same. The respondents were also directed not to compel the petitioner to join at Kaza till the decision on his representation. As a sequel, petitioner made representation on 15.09.2018 which was rejected on 28.09.2018. Thereafter, the petitioner again approached the Tribunal with O.A. No.6013 of 2018 assailing the rejection order

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dated 28.09.2018, which was again disposed of with direction to decide the representation of petitioner afresh. The competent authority again rejected the case of petitioner vide office order dated 17.10.2018. The petitioner filed another O.A. before the Tribunal and again failed to secure any relief. The petitioner then approached this Court by way of CWP No.2718 of 2018, which was decided on 15.11.2018. Again, no relief was granted to the petitioner save and except liberty to approach the employer with his grievances. The petitioner then approached Hon’ble Supreme Court by way of Special Leave to Appeal (C) No.2164 of 2019 against order dated 15.11.2018 passed by this Court. The Special Leave to Appeal (C) No. 2164 of 2019 was dismissed by the Hon’ble Supreme Court vide order dated 28.01.2019 in the following terms:

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“We are not inclined to interfere with the impugned order passed by the High Court. The Special Leave Petition is, accordingly, dismissed.

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Let the petitioner join duty at the place of posting within ten days from today and compliance be reported to this Court immediately after ten days.”

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It is thereafter that the petitioner joined at Kaza

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for one day on 07.02.2019. Thus, there is no denying the fact that the petitioner failed to join and serve at Kaza till 07.02.2019 despite order of his transfer having been issued on 30.08.2018.

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Though, the petitioner has taken a plea that he had protection of the orders passed by the Tribunal, but except for the direction dated 10.9.2018 to the respondents not to compel the petitioner to join at Kaza till the decision on the representation of the petitioner, no other order of protection has been placed on record. It is also not in dispute that the protection so granted to the petitioner by the Tribunal on 10.09.2018 had also come to an end on 30.09.2018 with the rejection of his representation.

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The petitioner had been served with a show cause notice on 22.11.2018. He had submitted his reply on 04.12.2018, which was not found satisfactory. Petitioner was ordered to be suspended w.e.f. 07.12.2018 and his headquarter was fixed at Kaza. Still the petitioner did not join at Kaza.

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The Article of Charge framed against the

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petitioner was as under:

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“That the said Sh. Raxpal Singh, while working as SMS(Agriculture,) Development Block, Dehra, District Kangra has failed to maintain discipline, devotion to duty, disobeyed the orders of the superior authorities and did the things which are unbecoming on the part of a Government servant. The said officer failed to join the duties at Kaza as APO even after lapse of more than 4 months’ time for which was directed thrice. Lastly the said officer was placed under suspension on 7.12.2018 with headquarter in the O/o A.D.C. Kaza.

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Therefore, Sh. Rax Paul Singh, SMS, is charged for misconduct and disobedience of the orders of the superior authorities in the manner and spirit of Rule-3 of Central Civil Services (Conduct Rules, 1964).”

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After holding the inquiry, the Inquiry Officer had concluded as under:

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“From inquiry conducted, it is revealed that Sh. Raxpal Singh, SMS who have been transferred from Development Block, Dehra to Kaza as APO vice Sh. Abhay Singh, APO to SMS Dehra, keeping in the view ill health of spouse of Sh. Abhay Singh (on administrative grounds). The transferred officer Sh. Rax Pal Singh, SMS, Dehra did not join his duties at new place of posting as APO at Kaza and filed series of petitions before Hon’ble HPAT, Hon’ble Court and

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Apex Court and try to seek liberty/relief in place of posting other than APO Kaza. During the course of judgment none of the Court has provided him any relief except extension in joining time awarded by State Authority time to time in all cases, the said officer has tried to justify the liberties sought and had not act upon the orders issued by superior authorities time and again, in the manner and spirit of rule-3 of Central Civil Service(Conduct) Rules, 1964.

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Hence, the charges levelled against Sh. Raxpal Singh, SMS, regarding misconduct and disobedience of the order of the superior authorities are hereby justified, however, it is worth mentioning here that the charged officer had no intention to flout the orders of competent authorities but to get relief under government framed couple case transfer policy and to seek justice he approached Hon’ble Tribunal time and again and Hon’ble High Court and Apex Court in succession and when his plea was turned down by the Apex Court, the charged officer immediately joined at Kaza within time limit granted by Apex Court.”

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The jurisdiction of Constitutional courts in

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the matters involving disciplinary proceedings are well defined. In Deputy General Manager (Appellate Authority) and others vs. Ajai Kumar Srivastava

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(2021) 2 SCC 612 , the Hon’ble Supreme Court has held as under:

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“ 24 . It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.

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25 . When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine:

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(i) whether the enquiry was held by the competent authority;

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(ii) whether rules of natural justice are complied with;

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(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.”

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The petitioner has not been able to justify his allegations with respect to violation of principles of natural justice or the findings recorded against him in the disciplinary proceedings to be perverse. It is clearly evident from the above noticed facts that the petitioner had no justification in not complying with the administrative order of his transfer except his self-assumed notions. The transfer being an incidence of service, petitioner was bound to obey the transfer order. He had failed to secure any protection from the Courts/Tribunal except to the limited extent as noticed above. Even if the petitioner had right to avail legal remedies, he could have joined under protest reserving his rights. To the contrary, petitioner kept disobeying the administrative orders. In this background, the report of Inquiry Officer and the findings recorded by

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Disciplinary or Appellate Authorities cannot be said to be perverse so as to warrant any interference by this Court.

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As regards the contention of the petitioner that the punishment inflicted upon him was disproportionate to his alleged misconduct, again I am not persuaded keeping in view the fact that petitioner had shown the audacity to disobey and defy the administrative orders of his superiors without any lawful justification. Gross indiscipline by a government servant, if left unpunished, will potentially have serious consequences and hence cannot be brushed aside lightly.

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The powers of this court to go into the question of proportionality of punishment is also well circumscribed. In Union of India and others vs. Constable Sunil Kumar (2023) 3 SCC 622 , the Hon’ble Supreme Court has held as under:

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“ 11 . Even otherwise, the Division Bench of the High Court has materially erred in interfering with the order of penalty of dismissal passed on proved

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charges and misconduct of indiscipline and insubordination and giving threats to the superior of dire consequences on the ground that the same is disproportionate to the gravity of the wrong. In the case of CRPF vs. Surinder Kumar (2011) 10 SCC 244, while considering the power of judicial review of the High Court in interfering with the punishment of dismissal, it is observed and held by this Court after considering the earlier decision in the case of Union of India Vs. R.K. Sharma; (2001) 9 SCC 592 that in exercise of powers of judicial review interfering with the punishment of dismissal on the ground that it was disproportionate, the punishment should not be merely disproportionate but should be strikingly disproportionate. As observed and held that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227 or under Article 32 of the Constitution.”

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In the background facts as noticed above, I

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do not find the punishment of removal from service to be strikingly or shockingly disproportionate to the charge of misconduct proved against petitioner.

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Another contention of the petitioner that the order passed in appeal is by a subordinate authority to the disciplinary authority also deserves rejection as the

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appeal has been decided by the Appellate Authority and the order has been signed under delegated authority, which is permissible in law.

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