Hiralal Deb Nath and another vs The Union of India, New Delhi and another

R.S. Bindra, J.C.

Hiralal Deb Nath the Inkman, and Upendra Chandra Singha. a Machineman employed in the Government Press of the Tripura State, were suspended on 19-11-1962 for the reason that disciplinary proceedings were contemplated against them. Each of them was subsequently charged on three counts for lapses allegedly committed by them in discharge of their functions as Government employees. Shri B. N. Sarkar. the Superintendent Printing and Stationery Department, was the Disciplinary Authority respecting both the employees. He appointed Shri P. S. Gupta as the Inquiry Officer in both the cases. By his order, dated 20th of October. 1963. in each case. Shri P. S. Gupta exonerated the two employees of all the three charges. Shri B. N. Sarkar. the Disciplinary Authority, however, did not agree with the findings of Shri Gupta. In his opinion, all the three charges against both the employees had been established. He. therefore, by his order dated 20th of December, 1963. in each case, inflicted the punishment of censure on both the employees, and, in addition, directed that they shall not get any more financial benefit for the period of their suspension beyond what had been already paid to them. In other words, the period of absence during suspension was not treated as a period on duty. Both the employees having felt aggrieved filed separate writ petitions in this Court under Article 226 of the Constitution challenging the penalty imposed and the denial of emoluments. The main ground pleaded in support of the prayer made was that the Disciplinary Authority had not given an hearing to the petitioners before passing the impugned orders. The writ petition filed by Hiralal Deb Nath bears No. 19 of 1964. while the one instituted by Upendra Chandra Singha was entered at No. 21 of 1964. Since the two petitions raise common questions of fact and law they were jointly argued in this Court. I have decided to dispose of them by this common judgment.

To begin with, Shri B. C. Dev Barma. appearing for the writ-petitioners. canvassed two propositions in support of the relief claimed. They are: (1) mat the Disciplinary Authority had imported personal knowledge in reaching conclusions differing from the findings given by the Inquiry Officer and that this is not permissible in law and (2) that the penalty of censure and deprivation of the emoluments had been imposed on each petitioner without giving them an opportunity to make a representation against the action proposed and as such there had been violation of principles of natural justice. However, ultimately Shri B. C. Dev Barma confined himself to the second of these two points.

It was not denied by Shri H. C. Nath, the Government Advocate, that after the report of the Inquiry Officer, who had exonerated both the petitioners of all the charges, the Disciplinary Authority did not give any hearing to them before making the impugned order on 20th of December, 1963. Shri H. C. Nath justified the procedure adopted by the Disciplinary Authority on the footing of sub-rule (11) of Rule 15 of the Central Civil Services (Classification, Control & Appeal) Rules, 1957. hereinafter called the Rules. Rule 15 primarily prescribes the procedure for cases where the major penalties specified in clauses (iv) to (vii) of Rule 13. namely, reduction in rank, compulsory retirement, removal from service. and dismissal from service are in contemplation. Sub-rule (11) of Rule 15 provides that if the Disciplinary Authority having regard to its findings is of the opinion that any of the penalties specified in clauses (i) to (iii) of Rule 13. namely, censure, withholding of increments or promotion, and recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of orders, should be imposed instead of major penalty of the nature mentioned in clauses (iv) to (vii) of Rule 13. it shall pass appropriate orders in the case. This sub-rule obviously is meant to meet the situation when in the first instance it was proposed to impose some one of the major penalties mentioned in clauses (iv) to (vii) of Rule 13 but after the necessary enquiry it turns out that a case for inflicting any of those major penalties has not been made out and that only one of the minor penalties provided in clauses (i) to (iii) of Rule 13 would meet the ends of justice. The right given to the Disciplinary Authority by sub-rule (11) is that in such a contingency "he shall pass appropriate orders in the case". The manner and the method by which he shall pass the appropriate orders is not specified in sub-rule (11).

The next Rule 16 bears the marginal heading: "Procedure for imposing minor penalties". Sub-rule (1) of this Rule enacts that no order imposing any of the penalties specified in clauses (i) to (iii) of Ride 13 shall be passed except after, (a) the Government servant is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation he may wish to make: (b) such representation, if any is taken into consideration by the Disciplinary Authority; and (c) the Union Public Service Commission is consulted in cases where such consultation is necessary. It was conceded by Shri H. C. Nath that the procedure prescribed by the Rule 16(1) was not adopted by Shri B. N. Sarkar before he imposed the penalty on each of the two writ-petitioners on 20th of December, 1963. Shri B. N. Sarkar. it cannot be gainsaid, may have relented if he had furnished an opportunity to the two employees to make their representations against the action he proposed to take against them and they had submitted their representations or had appeared before him to explain their defence. At any rate, it looks obvious that principles of natural justice were grievously violated by not affording the two employees an opportunity to represent their view point against the action which Shri B. N. Sarkar contemplated taking against them. Further, there has been a violation also of the provisions enacted in Rule 16 (1). If the President, who made the Rules in exercise of the authority vesting in him under Article 309 of the Constitution, has ordained that penalties of the nature specified in clauses (i) to (iii) of Rule 13 shall not be imposed except in the manner outlined in Rule 16 (1). any infraction thereof would be actionable. The violation of the safeguards provided to the Government employees by the Rules will entitle the latter to complain of the same and seek redress from this Court by a petition under Article 226 of Constitution. Towards the close of his arguments, Shri H. C. Nath candidly conceded that he had no authority to cite or principle to rely upon in support of the impugned orders. Hence, the inescapable conclusion that I reach at is that the order in each case must be quashed because it was made not only in violation of the principles of natural justice but it also infringes the provisions of Rule 16 and as such is illegal.

As a result. I quash the order imposing the penalty of censure on each of the two writ-petitioners. The consequential order depriving each petitioner of the benefits of additional emoluments during the period he remained under suspension is also set aside. The petitioner in each case shall get costs. Advocate''s fee Rs. 50/- in each case. However, before parting with the cases I may state that this judgment will not deprive the Disciplinary Authority of his right to take appropriate action afresh against the two writ-petitioners on the basis of the charges enquired into, of course, in the manner provided by law.