Santosh Sharma Vs State of Hp

IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA

CWPOA No.6434 of 2020

Decided on: 5^th November, 2024

_____________________ Santosh Sharma	____________________________ ...Pe Versus	_________ titioner
State of Himachal Pr	adesh & Ors. …Res	pondent
*Coram*
Hon’ble Mr. Justice	Ranjan Sharma, Judge
1_Whether approvedf _	or reporting? No
For petitioner:	Mr. Kul Bhushan Advocate with Ms. Advocate.	Khajuria, Palavi,
For respondents:	Mr. Ajeet Sharma, Advocate General.	Deputy
Ranjan Sharma, Ju	dge(Oral)

¶5

Petitioner, widow of deceased Late Sh. Subhash Chand, has come up before this Court seeking the following prayer :-

¶6

“That the Original Application may kindly be allowed and the order dated 23^rd September, 2011 imposing penalty upon the husband of the applicant vide Annexure P-5, and rejection order dated 9.2.2018 (Annexure P-10) may kindly be ordered to be quashed and set aside, in the interest of justice and fair play.”

¶7

FACTUAL MATRIX:

¶8

2. Case as set up by Mr. Kul Bhushan

¶9

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

¶10

2 -

¶11

Khajuria, Learned Counsel is that departmental proceedings were instituted against the husband of petitioner, Late Sh. Subhash Chand, by issuance of a Memorandum dated 19.09.2000 and these departmental proceedings, culminated in imposition of a major penalty of compulsory retirement and recovery of an embezzled amount of Rs.35,000/[Rupees Thirty Five Thousand] upon delinquent employee Subhash Chand on 09.11.2010.

¶12

2(i). Notably, another departmental inquiry was initiated against delinquent employee by issuance of a Memorandum resulting in imposition of another penalty by way of recovery of Rs.5,21,876.25/- [Rupees Five Lakh Twenty One Thousand Eight Seventy Six and Twenty Five Paisa], under Rule 9 of CCS [Pension Rules, 1972], in terms of orders dated 23.09.2011 [Annexure P-5].

¶13

STAND OF STATE AUTHORITIES:

¶14

3. Upon issuance of notice, the respondents

¶15

have filed a Reply-Affidavit dated 13.05.2019. ReplyAffidavit reveals that departmental proceedings were conducted by Inquiry Officer-Commissioner of

¶16

3 -

¶17

Departmental Inquiries, Himachal Pradesh and

¶18

based on Inquiry Reports, the first departmental proceedings culminated in imposition of penalty of compulsory retirement dated 09.11.2010 and the second departmental proceedings culminated in the order of recovery of Rs.5,21,876.25/- [Rupees Five Lakh Twenty One Thousand Eight Seventy Six and Twenty Five Paisa], on 23.09.2011 [Annexure P-5].

¶19

CASE OF PETITIONER IN INSTANT PROCEEDINGS:

¶20

4. Learned counsel for petitioner submits

¶21

that the orders dated 23.09.2011 [Annexure P-5] were assailed by filing CWP, which was transferred to State Administrative Tribunal as TA No.1125 of 2015, but the same was withdrawn on 21.09.2017, so as to avail remedy of review/appeal. It is submitted that in compliance to orders dated 21.09.2017, the present petitioner, being the widow filed a Review Petition on 25.09.2017 [Annexure P-9], praying for reviewing the impugned orders of recovery dated 23.09.2011 [Annexure P-5], by raising as many as 17 contentions therein, but the Review Petition dated 25.09.2017 [ Annexure P-9 ], was

¶22

4 -

¶23

dismissed by Additional Chief Secretary [Agriculture] on 09.02.2018 [ Annexure P-10 ] and Para 4 thereof,

¶24

reads as under :-

¶25

“4. AND WHEREAS, the representtationnist filed TA No.1125 of 2015 before the Ld. Himachal Pradesh Administrative Tribunal but was later on withdrawn as per Court’s order dated 21.09.2017;

¶26

AND WHEREAS, after due consideration of record and facts of the case, the undersigned comes to the conclusion that the penalty of “Compulsory Retirement” along with recoveries referred above have been imposed upon late Sh. Subhash Chand Sharma, ADO (Retd.) in view of findings of the inquiry reports of the Commissioner, Departmental Enquiries, H.P. Shimla and approval of the H.P. Public Service Commission, Shimla, and is just and proper ; and

¶27

NOW THEREFORE, in view of aforesaid position explained in detail, your Review Petition dated 25.9.2017 for withdrawing the order of penalty of “Compulsory Retirement” and recoveries imposed upon your husband late Sh. Subash Chand Sharma, ADO (Retd.) vide this Department’s Order No. Agr.B(15) 8/2000, dated 9^th November, 2010 and No. Agr.B(15) 1/2005, dated 23.9.2011 respectively is hereby considered and rejected having no merit.

¶28

By Order, Sd/(Dr. Shrikant Baldi) Additional Chief Secretary (Agr.) to the Government of Himachal Pradesh.”

¶29

5 -

¶30

CONTENTION(S) OF LEARNED COUNSEL FOR PETITIONER:

¶31

5. Perusal of the Impugned Orders dated 09.02.2018 [Annexure P-10], indicates that the Respondent No.1-Additional Chief Secretary [Agriculture], has passed the impugned Order on 09.02.2018 [Annexure P-10], by dismissing the

¶32

Review Petition dated 25.09.2017 [Annexure P-9], after due consideration of record and facts of the case and in view of the findings of the Inquiry Reports of the Commissioner Departmental Inquiries, which was deemed just and proper. Petitioner has assailed the orders dated 09.02.2018 [Annexure P-10] dismissing the Review Petition and the Impugned Orders dated 23.09.2011 [Annexure P-5], imposing the penalty of recovery of Rs.5,21,876.25/- [Rupees Five Lakh Twenty One Thousand Eight Seventy Six and Twenty Five Paisa], under Rule 9 of the CCS [Pension Rules] 1972 by raising various contentions. A specific plea has been taken in Para IX, that against the orders of recovery dated 23.09.2011 [Annexure P-5], though the petitioner had filed a

¶33

6 -

¶34

review petition on 25.09.2017 [Annexure A-9], raising as many as 11 contentions/grounds; but without considering any of the grounds, the Respondent No.1-Additional Chief Secretary [Agriculture] had rejected the review petition on 09.02.2018 [Annexure A-10], in a cryptic and arbitrary manner.

¶35

6. At this stage, Learned Counsel for petitioner, Mr. Kul Bhushan Khajuria, assisted by Ms. Palavi, Advocate, on instructions received from petitioner submits that the petitioner would be satisfied, in case, Respondent No.1-Additional Chief Secretary [Agriculture], is directed to re-examine the entire issue and pass a fresh orders on the Review Petition in accordance with law after hearing the petitioner. [Statement taken on record].

¶36

ANALYSIS:

¶37

7. Taking into consideration the entirety of

¶38

facts and circumstances and the statement made by

¶39

Learned Counsel for the petitioner, this Court is of the considered view, that the Impugned Orders dated 09.02.2018 [Annexure P-10] , dismissing the Review Petition, does not stands the test of judicial scrutiny,

¶40

7 -

¶41

for the following reasons :-

¶42

7(i). Perusal of the Impugned Orders dated 09.02.2018 [Annexure P-10], states that this order has been passed by considering the records, facts of case and the findings in Inquiry Reports which were approved by H.P. Public Service Commission, is just and proper. Impugned Order does not deal with any of the 11 contentions raised in the Review Petition dated 25.09.2017 [Annexure P-9] by the petitioner. Non-consideration and non-recording of reasons, qua the contentions raised in the Review Petition reveals total application of mind vitiating the decision making process as well as the resultant decision. Considering the contentions raised in an appeal/review and recording reasons therefor is not merely an empty formality. Recording of reasons for an order enables a person to know as to what transpired in the mind of an authority, in coming to a conclusion and whether the grounds or basis were germane and relevant to the subject matter or the Impugned Order was based on extraneous consideration or was passed by ignoring the relevant

¶43

8 -

¶44

aspects, so as to infer patent perversity in decision making process. Non-recording of reasons or passing an unreasoned and cryptic order without considering the contentions raised, leads to unreasonableness and arbitrariness in State action, as recording reasons, even in administrative orders, are the heart and soul of non-arbitrariness and fairness in State action and consideration of the grounds/contentions in statutory appeal/review/revision has to be effective, meaningful and supported by reasons, failing which, an order cannot sustain. Accordingly,

¶45

in facts of instant case, the Impugned Order dated 09.02.2018 [Annexure P-10], being cryptic, non-speaking and perverse by not at all considering and addressing the contentions-grounds raised vitiates the decision making process and therefore, the Impugned Order dated 09.02.2018 certainly prejudices the petitioner, which cannot be permitted to operate. The same is accordingly set aside. 7(ii). Petitioner’s husband suffered penalties in two department inquiries leading to passing of orders of compulsorily retirement on 09.11.2010 and

¶46

9 -

¶47

thereafter, the penalty of recovery of Rs.5,21,876/on 23.09.2011 [Annexure P-5], were assailed by filing CWP, which were transferred to State Administrative Tribunal as TR No.1125 of 2015 and was withdrawn on 21.09.2017, so as to avail statutory remedies. Consequently, the petitioner filed a Review on 25.09.2017 [Annexure P-9], which was dismissed by the Reviewing Authority-cum-Additional Chief Secretary [Agriculture] on 09.02.2018 [Annexure P-10], in a cryptic manner without considering and without addressing the contention raised, when, the review petitioner’s asserts to have placed reliance on new material or evidence, which could not be produced or was not available earlier, when, the orders sought to be reviewed were passed. In these circumstances, the Impugned Orders dated 09.02.2018 [Annexure P-10], cannot sustain in the teeth of Rule 29A of CCS [CCA] Rules also. Action of the State Authorities in abdicating its functions and statutory obligation by passing the rejection orders dated 09.02.2018 by merely stating that the impugned order is just and fair, in view of the records and

¶48

10 -

¶49

facts of case and the findings in Inquiry Reports, without dealing with 11 contentions raised in Review Petition, cannot be permitted either cause prejudice

¶50

or to put the petitioner or delinquent engage at a disadvantageous position, as in this case. Accordingly, the Impugned Order dated 09.02.2018 [Annexure P-10], cannot be permitted to operate.

¶51

CONCLUSION AND DIRECTIONS:

¶52

8. In view of the above discussion and for the

¶53

reasons recorded hereinabove, the instant petition is allowed, in the following terms :-

¶54

(i) Impugned Orders dated 09.02.2018 [Annexure P-10], dismissing the Review Petition by a cryptic and non-speaking order is quashed and set aside;

¶55

(ii) Consequent upon the quashing of order dated 09.02.2018 [Annexure P-10], this Court directs Respondent No.1-Additional Chief Secretary [Agriculture], to pass a fresh speaking order after taking into account the contentions raised by the petitioner in review petition dated 25.09.2017, in accordance with law and on merits, after hearing the present petitioner, being widow of deceased employee; within six weeks from date of receipt of copy of this judgment;

¶56

(iii) Needless to say, that subject to passing of

¶57