Hukam Singh vs State of H.P. and The Director General of Prisons, Himachal Pradesh

Surjit Singh, Judge

Petitioner has been serving as Warder in Prisons Department of Himachal Pradesh. In the year 2002, when he was posted in Open Air Jail at Bilaspur, he left his duty without permission from the local superior officer. Also, he was alleged to be in the habit of instigating prisoners against the jail authorities, and creating indiscipline, by leveling false and frivolous allegations against the jail officials. He was charge sheeted and a regular inquiry was conducted. Inquiry Officer found him guilty and submitted the report accordingly. Disciplinary authority, i.e. Director General of Prisons, issued notice of proposed penalty, copy Annexure P-6, proposing a penalty of withholding of increments of pay for two years, with permanent effect. Petitioner submitted representation to the show cause notice. Finally, order of punishment, copy Annexure P-7, was passed on 29.9.2009. Petitioner filed appeal against the order of penalty to the appellate authority, i.e. the Government. His appeal has been dismissed vide order dated 21.8.2010, copy Annexure P-9. Petitioner has challenged the order of penalty, by filing the present writ petition. It is stated that mind had not been applied, while framing the charge and also while imposing penalty. Findings of the inquiry report have also been assailed. Prayer has been made for quashing the findings of inquiry, as also the order of punishment, passed by the disciplinary authority and the order passed by the appellate authority, dismissing the appeal against the order of punishment.

Respondents, in their reply, have stated that there is no defect in the charge sheet and the inquiry was also conducted properly. Order of punishment passed by the disciplinary authority and the order of appellate authority, dismissing the appeal of the petitioner, are also stated to be lawful, having been passed in a legal manner.

I have heard learned counsel for the parties and gone through the record.

No serious flaw has been pointed out in the inquiry report, Annexure P-3. Report is based on the evidence that was adduced during the course of inquiry. Findings recorded by the inquiry officer, being based on evidence adduced in the course of inquiry and nothing having been pointed out, indicating that the findings are perverse being not based on evidence, no fault can be found with the inquiry report.

However, there is a good deal of merit in the submission of learned counsel for the petitioner that order of penalty, Annexure P-7, passed by the disciplinary authority is illegal, because the order is of major penalty, whereas in the show cause notice of proposed penalty, penalty stated is minor. Annexure P-6 is the show cause notice of proposed penalty. By means of this notice, petitioner was called upon to show cause, why penalty of withholding of increments of pay for two years, with permanent effect, be not imposed. Petitioner submitted representation to the said show cause notice. Disciplinary authority passed order Annexure P-7, imposing major penalty of reduction of pay by two stages, in the time scale of pay, with cumulative effect.

With holding of increments is included in the list of minor penalties, per Rule 11 (iv) of the CCS (CCA) Rules. Reduction of pay to lower stage in the time scale is a major penalty, per clause (v) of Rule 11 of the aforesaid rules. Now, when the show cause notice, Annexure P-6, was for minor penalty of withholding of increments, major penalty of reduction in pay should not have been imposed.

Consequently, writ petition is disposed of in the following terms. Order of penalty, Annexure P-7 and the order of dismissal of appeal of the petitioner, Annexure P-9 are quashed. Disciplinary authority may pass fresh order of imposition of penalty, in accordance with law.