Allowed

Ashwani Kumar Joshi v. Hp State Industries Development Corp. Ltd.

Himachal Pradesh HC22 May 2024CWPOA/6827/2020

Case brief

AI extract

What is this about?

The High Court quashed impugned departmental orders that imposed financial recovery penalties on a senior scale stenographer. Finding procedural violations and a long delay due to the officer's imminent retirement, the Court refused a remand and directed the refund of Rs. 1.20 lakhs recovered from the petitioner.

What did the court decide?

Impugned orders quashed; respondents directed to refund Rs. 1,20,859/- with 6% interest.

Ashwani Kumar Joshi Vs Hp State Industries… — Service and Employment | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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CWPOA No.6827/2020

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Reserved on: 20.5.2024

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Decided on: 22.5.2024

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Ashwani Kumar Joshi …..Petitioner

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Versus

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General Industries Corporation Limited & anr. ….Respondents

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Coram:

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge . The Hon’ble Mr. Justice Sushil Kukreja, Judge.

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Whether approved for reporting?¹ No

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For the petitioner:

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For the respondents:

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Mr. Sanjeev Bhushan, Sr. Advocate with Sohail Khan, Advocate.

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Dr. Lalit K. Sharma, Advocate.

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Justice Tarlok Singh Chauhan

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The petitioner, though was working as Senior Scale

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Stenographer, but vide office order dated 8.4.2013 was ordered to look after the work of store department in addition to his existing duties and one Krishan Dev Singh, worker, was also deputed to assist him.

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2 As per the petitioner, physical verification of store and stock was not conducted at the end of financial year i.e. on 31.3.2013 as Madan Kumar, Junior Assistant did not join his duties back and even did not hand over the charge.

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1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

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Respondent No.2-country liquor bottling plant vide order dated 16.6.2013 constituted a committee of 7 persons including the petitioner for conducting verification of stock and store.

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3 During such inspection, packaging material amounting to Rs.4,83,436/- was found short in the stock and store of respondent No.2 and on the basis of such shortfall, the respondent-Department issued charge sheet against Madan Kumar, Ex-senior Assistant, and the petitioner herein.

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4 The proceedings were initiated under Rules 14 and 18 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, the CCS (CCA) Rules. In the inquiry so conducted, charges against the petitioner stood proved and accordingly, respondent No.1-disciplinary authority held the petitioner to have been negligent in performing his duties in the store section and ordered recovery of amount of shortages detected in the stocks and stores to the extent of 25% (Rs.1,20,859/-) from his monthly salary @ 1/3 rd of his basic pay while rest of the amount was directed to be recovered from other delinquent i.e. Madan Kumar.

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5 Aggrieved by the order passed by the disciplinary authority, the petitioner filed an appeal before the Board of

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Directors (for short, “the B.O.D.”) and the same was accepted on

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28.9.2015 by according following reasons:-

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The Board considered this Item and after detailed discussions it was observed that the penalty has rightly been imposed on Shri Madan Kumar, Ex-Store Keeper, CLBP Mahatpur. Moreover, It was observed that penalty of merely recovery of the loss caused has been imposed on him whereas he has been also negligent in discharge of duties. Disciplinary Authority has already taken lenient view and accordingly BOD decided to dismiss the appeal being devoid of merits and authorized the Managing Director to pass Speaking Orders on this.

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Further, the BOD after detailed discussions observed that nothing is made out against Shri Ashwani Kumar Joshi. Therefore, it was decided to exonerate him by setting aside the order Imposing penalty of recovery on him.

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Further, It was observed by the BOD that the then GM CLBP Mehatpur erred and failed to discharge his duties properly and in a responsible manner by not getting the stores & stocks physically verified by constituting a physical verification Committee before passing Office order to Sh. Ashwani Kumar Joshi to take charge of the stock & Store Items during the leave period of Shri Madan Kumar Walia, Sr.Asstt. Store.

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As such It was desired that disciplinary action may be initiated against the then GM CLBP Mehatpur and the matter be placed before the BOD in its next meeting to be held in the month of December, 2015.

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"FURTHER RESOLVED that the Managing Director of the Corporation be and is hereby authorized to take all steps in this regard."

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6 Thereafter show cause notice dated 7.12.2015 was

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issued to one G.K. Lakhanpal, Ex. GM., but it appears that the matter was again placed before the Board of Directors on 30.9.2016, wherein the B.O.D. dismissed the appeal filed by the petitioner and maintained the order passed by respondent No.1. Relevant portion of the decision taken by the B.O.D. reads as

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under:-

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“The Board considered this item and after detailed discussions, dismissed the appeal filed by Shri Madan Kumar, Ex- Sr.Asstt. (Store/Gen.) and Sh. Ashwani Kumar Joshi, Sr. Scale Stenographer against the Order of competent authority dated 24.07.2015 by passing the following resolution:-

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"RESOLVED that the appeal filed by of Shri Madan Kumar, Ex-Sr. Asstt. (Store/Gen.) and Sh. Ashwani Kumar Joshi, Sr. Scale Stenographer against the Order of competent authority dated 24.07.2015 be and is hereby dismissed and the order of Managing Director passed vide letter No. PF-6/88-2015-829 dated 24.7.2015 will stand. "

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"IT IS FURTHER RESOLVED that Managing Director of the Corporation be and is hereby authorised to take all necessary steps in this regard."

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7 Aggrieved by the aforesaid order of the B.O.D., the

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petitioner has filed the instant petition for grant of the following substantive reliefs:-

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“1. That impugned order (Annexure A-9) dated 15.11.2016, as also the decision on Item No. 201.12 taken in meeting of BOD on 30.09.2016 (Annexure A-8), also as the order dated 24.07.2015 (Annexure A-4) and the order dated 30.01.2019 (Annexure A-13) may very kindly be quashed and set aside in the interest of law and justice. 2. That respondents may very kindly directed to refund the entire amount be of recovery which has already been recovered from the applicant to the tune of Rs. 1,20,859/with interest @9% per annum in the interest of law and justice.”

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8 Since these are the admitted facts and the

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respondents have not controverted the same, therefore, we have proceeded to hear the matter.

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9 Evidently, there has been blatant violation of Rule 15 of CCS (CCA) Rules when the disciplinary authority failed to follow the procedure as prescribed under sub Rules 1 and 2 thereof, which provide for as under:-

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“15. Action on inquiry report

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(1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall

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thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.

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(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.”

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10 What is more shocking is the manner in which the B.O.D. has taken the decision. Once the appeal filed by the petitioner had been accepted, the same could not have been rejected in absence of any reasons, that too, without affording an opportunity to the petitioner to defend his case.

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11 In absence of there being any notice and further in absence of any adverse material made available to the petitioner, the B.O.D. could not have rejected the appeal filed by him.

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12 It is well settled law that in a normal course, the matter would have to be remitted back to the authorities but

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the respondents cannot take advantage of such law by blatantly violating the same at every step or else that would be giving a licence to the respondents to arm twist its employees by leaving lacunas and prolonging departmental action indefinitely.

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13 As observed above, the normal procedure adopted by the writ Court is to remand the matter to the departmental authority, but this is only one of the options before the Court and in appropriate cases the Court may refuse to direct the government employee to undergo the rigors of the departmental inquiry.

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14 In M.V. Bijlani v. Union of India (2006) 5 SCC 88

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the Hon'ble Supreme Court took a view that on account of a long lapse of time the matter was not required to be remitted to the disciplinary authority and the government employee was reinstated in service.

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15 Similarly, in Allahabad Bank & Ors. v. Krishna

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Narayan Tewari (2017) 2 SCC 308 the Hon'ble Supreme

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Court held as under:

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"8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to

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redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand."

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16 Admittedly, it is more than 9 years that the charge

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sheet had been issued to the petitioner. Further, there is no dispute that the petitioner is to retire shortly in June 2024. Therefore, it will be extremely unfair, harsh and even unnecessary to direct further inquiry, more particularly, in the the given background.

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17 In view of aforesaid discussions, we find merit in the instant petition and the same is accordingly allowed. Consequently, impugned orders dated, 24.7.2015 (Annexure A- 4), 30.9.2016 (Annexure A-8), 15.11.2016 (Annexure A-9), and order dated 30.1.2019 (Annexure A-13), qua the petitioner, are quashed and set aside and the respondents are directed to refund the amount so recovered i.e. Rs. 1,20,859/- to the

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petitioner within a period of four weeks, failing which the respondents shall be liable to pay interest @ 6% per annum thereon. Pending application(s), if any, also stands disposed of.

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(Tarlok Singh Chauhan) Judge

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(Sushil Kukreja) 22.5.2024 Judge (pankaj)

Ashwani Kumar Joshi v. Hp State Industries Development Corp. Ltd.

Case brief

What is this about?

What did the court decide?

Ashwani Kumar Joshi v. Hp State Industries Development Corp. Ltd.

Case brief

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