Shiv Kumar Sharma vs State Of Himachal Pradesh & Anr.

Jiya Lal Bhardwaj, Judge

By way of present petition, the petitioner has prayed for the following substantive reliefs:-

A memorandum dated 22.05.2008 (Annexure P-1) alongwith articles of charge was issued to the petitioner, who was working as Patwari, by respondent No.2, to the effect that firstly; he while working as Patwari in Patwar Circle, Chamba Town-II in the year 2001, changed Girdawari of land comprised in Khasra No.9011/2877 measuring 39.1 sq. yards, owned by Sh. Gopal Singh Son of Sh. Kahan Singh, R/o Moh. Kasakra, Chamba Town on 29.09.2001 and thereafter issued fake agriculturist certificate to him on 11.12.2002 just to provide him undue benefit of agriculturist in contravention of the provisions of the Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, which was in violation of Rule 3 of the Central Civil Services (Conduct Rules) (for short “CCS (Conduct) Rules’) and secondly; during the course of Girdawari, he did not detect and report encroachment on government land measuring 60-0 Sq. Yards by Sh. Gopal Singh, son of Sh. Kahan Singh R/o Moh. Kasakra, Chamba Town, who had constructed his house, which land was adjoining to his land measuring 39.1 Sq. Yards to propose to hold an inquiry against him and asked to submit his written statement and also to state whether he wants to be heard in person.

The petitioner submitted reply to the charges and denied the same. It was submitted that the charges levelled against him are false and frivolous. He had changed classification of the private land as per undisputed position found on the spot according to prevailing provision of Para No.9.9(k) of HP Land Records Manual (1992 Edition). The petitioner has not issued the alleged agriculture certificate to Gopal Singh Son of Sh. Kahan Singh and whatever report was given on 11.12.2002 was given on the basis of the entries of revenue record i.e. Khasra Girdawari. So far as second charge was concerned, it was stated that while working as Patwari Circle Chamba Town-II, there was no encroachment on Govt. land as alleged. Respondent No.2 was not satisfied with the reply and proceeded with the departmental enquiry. He appointed the Sub-Divisional Officer (Civil), Chamba, District Chamba, H.P. as Enquiry Officer.

The Enquiry Officer, after conducting the enquiry in respect of Charge No.1, came to the conclusion that the petitioner had changed Girdawari of land comprised in Khasra No.9011/2877 measuring 39.1 sq. yards, owned by Sh. Gopal Singh Son of Sh. Kahan Singh, R/o Moh. Kasakra, Chamba Town on 29.09.2001 and issued fake agriculturist certificate to him on 11.12.2002 just to provide him undue benefit of agriculturist. As per Khasra Girdawari of years 1998, 1999 and 2000, Khasra No. 9011/2877 belonging to Kuldeep Chand, Gopal Chand etc. measuring 39.1 Sq. Yards has been shown to be used as residential house, but in the Khasra Girdawari of the year 2001, the land measuring 30.1 Sq. Yards in this khasra number has been shown to be used for residential house and remaining 9 Sq. Yards area for the purpose of cultivation of vegetable, thus it was concluded that the area mentioned is very small and there is no possibility of any type of cultivation being carried out there.

So far as second charge with respect to the fact that the petitioner did not detect and report encroachment on government land measuring 60-0 sq. yards, is concerned, it was concluded by the Enquiry Officer that though as per report of the revenue officials, Gopal Singh had encroached upon the government land upto the extent of 47.7 Sq. yards and had constructed a house over it, but as per the statement of the petitioner, during his tenure, there was no encroachment and no witness had stated anything about the encroachment except Diwan Singh, who has not produced any report regarding encroachment, hence, in the interest of justice, this charge may be dropped.

On receipt of enquiry report, respondent No.2, who was the Disciplinary Authority, furnished the same to the petitioner and the petitioner made a representation on 31.05.2010 (Annexure P-4) stating therein that the Enquiry Officer has gravelly erred in proving charge No.1 against him. The Enquiry Officer has not taken into consideration provisions of Para No.9.9(k) of HP Land Records Manual concerning change of classification of private land by the Patwari according to the spot position under which the petitioner had changed the classification of Khasra No.9011/2877 measuring 39-1 Sq. Yard on 29.09.2001 as 30-1 Sq. Yard (Gair Mumkin Makan Kacha Do Manjila) and 9.0 Sq. Yard (under vegetables) as vegetables were actually found grown during Girdawari 2000-01 on above Khasra No. 9011/2877 on the side towards Khasra No.2878. On the basis of changed entries of Khasra Girdawari, report was issued on 11.12.2002 on demand of Gopal Singh stating above position of land. The petitioner had nowhere reported whether Sh. Gopal Singh is agriculturist. So far as the second charge is concerned, the same was not proved and he thus prayed for exonerating him from charge No.1. On receipt of the representation, respondent No.2, passed an office order dated 25.06.2010 (Annexure P-5) against the petitioner, whereby penalty of reduction of his initial scale of pay was ordered with immediate effect as provided under Rule 11 (vi) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short “CCS (CCA) Rules, 1965”).

The petitioner feeling aggrieved by the said order of penalty imposed upon him, preferred a statutory appeal under Rule 23 of the CCS (CCA) Rules, 1965 before the Divisional Commissioner, Kangra Division at Dharamshala, H.P. It was averred in the appeal that the Enquiry Officer has gravely erred in not affording him opportunity for adducing defence evidence, as provided in Rule 14 (17) of CCS (CCA) Rules, 1965 and further the enquiry without taking his defence in respect of Charge No.1, is wrong in the eyes of law. It was also averred that the Enquiry Officer had merely reproduced in his report the deposition of the witnesses recorded during the course of enquiry, but not assessed or analyzed the evidence. The agreement of the Disciplinary Authority with such in-conclusive and premature findings and that too without reasons thereon recorded in writing is against the principles of natural justice. So far as charge No.2 is concerned, the Enquiry Officer had not returned any findings and had requested to drop the charges.

The Appellate Authority, allowed the appeal vide order dated 07.10.2010 (Annexure P-7) holding that it is not clear from a perusal of order passed by respondent No.2 that as to why representation dated 31.05.2010 submitted by the petitioner against the enquiry report had not been accepted and the reasons for rejection. Further no time limit has been prescribed in the order of penalty, which is also in violation of Government of India decision No. F.2(34)-E.III/59 dated 17^th August, 1959 and 9^th June, 1960 as well as No. 6/8/70-Disc I, dated 16.12.1970 below F.R.-29. Hence, the appeal was accepted and the penalty imposed upon the petitioner by respondent No.2 vide office order dated 25.06.2010 was set aside.

Respondent No.2 feeling aggrieved by the order dated 07.10.2010, passed by the Divisional Commissioner, Kangra, H.P., made a request to respondent No.1 to review the order passed by the Appellate Authority stating therein the petitioner had knowingly changed the classification of Gair Mumkin Makan and further not prepared case of encroachment against the person in whose favour agriculturist certificate was issued.

Respondent No.1, on the revision petition filed by the Disciplinary Authority, set aside the order passed by the Appellate Authority noticing that the Disciplinary Authority had recorded that it has carefully gone through the enquiry report alongwith other documents and statements appended thereto and thereafter had recorded that he agrees with the reasons given by the Enquiry Officer. Thus, the Disciplinary Authority, having considered and accepted the report of the Enquiry Officer and found the same to be in order, agreed with the reasons contained therein and proceeded to impose the penalty. It is further recorded that the present revisionist has rightly said that; firstly there was no need to again discuss the evidence and reiterate the same findings by giving reasons and the Appellate Authority’s order in finding the Disciplinary Authority‘s order to be non-speaking is not correct; secondly, the Appellate Authority’s finding that no time limit was imposed is also incorrect, as time limits are not required to be specified in cases where the penalty is that the officer’s pay will stand reduced to the initial of the pay scale, this is because the official will start earning increments immediately after reduction to the initial of the pay scale; and lastly, the Appellate Authority’s finding that the Disciplinary Authority erred in not recording reasons for rejecting the official’s representation dated 31.05.2010, is also incorrect, as paragraph 2 of the Disciplinary Authority’s order clearly states that the official’s reply was found to be not satisfactory. Now, in which manner, it was not satisfactory could have been spelt out in detail as has been done in para-4 of the order, however, not giving detailed reasons will not vitiate the order because the reason of the reply being un-satisfactory has been mentioned. Hence, the revision petition was allowed and the order of Appellate Authority dated 07.10.2010 was set aside and the order of the Disciplinary Authority dated 25.06.2010 was upheld.

The petitioner feeling aggrieved by the order dated 26.02.2011 (Annexure P-11) passed by the Revisional Authority has laid challenge to the same before this Court inter alia on the grounds that the Rules do not provide that in the event of Appellate Authority setting aside the order of Disciplinary Authority, the Disciplinary Authority can challenge the said order by filing a revision before the higher authority as has been done in his case by respondent No.2. Further the Disciplinary Authority had to act in quasi-judicial manner and take decision on the charges impartially. However, in the case of the petitioner, the Disciplinary Authority becomes party to the lis by calling upon respondent No.1 to review the order passed by the Appellate Authority. The Revisional Authority had not assigned any independent reasons while allowing the revision petition. Even the Disciplinary Authority had not assigned any reasons while imposing penalty.

The respondents filed reply to the petition and supported its decision. It has been averred in the reply that the petitioner, while working as Patwari in Patwar Circle Chamba-II had performed his duties with malafide intention and changed the Girdawari of the land comprised in Khasra No. 9011/2877, for which he was not authorized and the same was in contravention of the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act and in violation of Rule 3 of the CCS (Conduct) Rules, 1964 with a view to provide undue benefit of agriculturist to Sh. Gopal Singh Son of Sh. Kahan Singh. Respondent No.2 being Disciplinary Authority had reported the matter to the Reviewing Authority, which had rightly and validly, as per the provisions of Rule 29 of CCS (CCA) Rules, 1965, exercised the jurisdiction and passed the order. Order dated 26.02.2011 passed by respondent No.1 is pleaded to be right and valid and the petitioner was afforded with sufficient opportunity to defend his case.

I have heard Mr. Sunil Mohan Goel, learned senior counsel duly assisted by Mr. Raman Jamalta, Advocate and Mr. Anup Rattan, learned Advocate General for the respondents. The record has also been perused carefully.

Before adverting to the submissions made, it would be relevant to reproduce order of penalty imposed by respondent No.2 (Annexure P-5), which reads as under:

Mr. Sunil Mohan Goel, learned senior counsel for the petitioner has vehemently argued that once the petitioner had made a representation after receipt of the enquiry report, the least, which was expected of respondent No.2, was to advert to the pleas raised in the representation and in not doing so, the very purpose of making representation is frustrated. If the office order dated 25.06.2010, which is reproduced hereinabove, is perused and read in its entirety, the Disciplinary Authority has only observed that the petitioner was requested to submit his reply within 15 days and the reply submitted by him was found to be not satisfactory. Further, the Disciplinary Authority has gone through the charge leveled against the petitioner as well as enquiry report submitted by the inquiry officer [SDO(C) Chamba] along with the documents/statements appended to the enquiry report carefully and observed that the charge No.1 has been proved against the petitioner and he agrees with the reasons given by the Inquiry Officer.

A perusal of the above order dated 25.06.2010 reveals that the Disciplinary Authority has reiterated the reasons given by the Enquiry Officer; and not returned his independent findings and reasons and in cursory manner imposed the penalty upon the petitioner. The very purpose of making representation is frustrated if the Disciplinary Authority without considering the points raised in the representation, imposes the penalty on the delinquent officer.

At this juncture, it is relevant to quote the provision of Rule 15 of the CCS (CCA) Rules, 1965, which reads as under:

Sub-rule (2-A) of Rule 15 of the CCS(CCA) Rules, 1965 clearly provides that the Disciplinary Authority shall consider the representation, if any, submitted by the Govt. Servant and record its findings before proceeding further in the matter under sub-rule (3) & (4). However, in the present case, the Disciplinary Authority has not given independent findings or reasons before passing the order of imposing penalty, except that the reply of the official is not satisfactory. The legislature has consciously used the words “record its findings”. By using the phrase to record its finding in sub-rule (2-A) of Rule 15 of the CCS (CCA) Rules, is with a view that the delinquent official knows that his representation has been considered and the particular reasons have been weighed with the Disciplinary Authority while imposing the penalty. The Disciplinary Authority has to apply its independent mind and not to reiterate the decision and findings arrived at by the Enquiry Officer. If it is construed like this, then the very purpose of making the representation after receipt of the enquiry report, which is mandatory to be furnished to the delinquent official, is frustrated. The purpose of furnishing the enquiry report to the delinquent official is with a view to make a representation by him and thereafter, before imposing penalty, the Disciplinary Authority considers the points raised in the representation and records its findings and arrives at independent decision. It is true that the Disciplinary Authority is not required to give detailed reasons, but some reasons are to be given.

By now, it is settled in catena of judgments of the Hon’ble Supreme Court that “the reasons are hallmark of the decision”, and the purpose to record reasons is to facilitate the statutory authority to ascertain the application of mind by the authority, whose order is under challenge. Moreover, stating that the reply is not satisfactory, is not sufficient while passing the order of penalty.

The Hon’ble Supreme Court in its Constitution Bench judgment passed in S.N. Mukherjee vs. Union of India, (1990) 4 SCC 594, has succinctly dealt with the issue of recording reasons and held that the reasons when recorded by an administrative authority in an order passed by it, while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. The recording of reasons by administrative authority excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions, which are subject to appeal, revision or judicial review. It should infer from the decision that the authority has given due consideration to the points in controversy. The party is entitled to know reasons. The rule requiring reasons to be given in support of decisions is like principles of audi alterum partem. The relevant paras of the judgment read as under:-

The Hon’ble Supreme Court in Chairman and Managing Director, United Commercial Bank and others vs. P.C. Kakkar, (2003) 4 SCC 364, has held that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Relevant para of the said judgment reads as under:-

The Hon’ble Supreme Court in Mohtesham Mohd. Ismail vs. SPL. Director, Enforcement Directorate and another, (2007) 8 SCC 254 has reiterated the same view.

In the present case, no reasons have been assigned by the Disciplinary Authority while imposing penalty and only by stating that the reply of the official is not satisfactory, it agreed with the reasons given by the Enquiry Officer. If this is sufficient, then the very purpose of making representation after receipt of the inquiry report is frustrated and it is not the intention of the Rule 15 (2-A) of the CCS (CCA) Rules, quoted above. Not only this, even the Revisional Authority had not applied its independent mind while accepting the revision preferred by respondent No.2, who had imposed the penalty upon the petitioner.

The Hon’ble Supreme Court in Divisional Forest Officer, Kothagudem and others vs. Madhusudhan Rao, (2008) 3 SCC 469, has held that a duty is cast upon the Appellate Authority to give at least some reasons for rejecting the appeal preferred by the aggrieved party and a similar duty is also cast on the Revisional Authority, being the highest authority. Unfortunately, the Revisional Authority had merely indicated that the decision of the Divisional Forest Officer had been examined, wherein the charge of misappropriation was clearly proved. No doubt the Appellate or Revisional Authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum, but the delinquent officer is entitled to know at least the mind of the Appellate or Revisional Authority in dismissing his appeal and/or revision. Relevant paras of the judgment read as under:

In the present case, firstly the Disciplinary Authority has not given any reasons and independent findings while rejecting the points raised by the petitioner in his representation, while imposing the penalty. Not only this, even the Revisional Authority has not given any independent reasons except for reiterating that the Disciplinary Authority had recorded in the order that it has carefully gone through the enquiry report alongwith other documents and once it had agreed to the reasons, the Appellate Authority could not have held that the order passed by the Disciplinary Authority is non-speaking one.

The learned Advocate General has vehemently argued that once the Disciplinary Authority had recorded in the order of penalty imposed by him that the reply of the petitioner is not satisfactory, it was not supposed to give separate reasons. He placed reliance upon the judgment passed by the Hon’ble Supreme Court in National Fertilizers Ltd. and another vs. P.K. Khanna, (2005) 7 SCC 597, to buttress his submission. He further argued that the Disciplinary Authority was required to record reasons if it had disagreed with the findings of the Enquiry Officer. Relevant paras 10 and 11 of the judgment read as under.

In the aforementioned judgment, the Hon’ble Supreme Court had occasion to consider sub-rule (2) and not sub-rule (2-A) of Rule 15 of CCS (CCA) Rules, 1965. Once the sub-rule (2-A) specifically provides that the Disciplinary Authority shall consider the representation, if any, submitted by the government servant and record its findings, the impugned order passed by the Disciplinary Authority, without recording its findings, is unsustainable in law and the judgment referred above is not attracted.

A three-judge Bench of Hon’ble Supreme Court subsequently in Boloram Bordoloi vs. Lakhimi Gaolia Bank and others, (2021) 3 SCC 806, has held that if the Disciplinary Authority accepts the findings recorded by the Enquiry Officer and passes an order, no detailed reasons are required to be recorded in the order imposing punishment. It does not mean that no reasons are required to be recorded in the order imposing punishment. Furthermore, in this judgment too, the sub-rule (2-A) of Rule 15 of CCS (CCA) Rules, 1965, which was in existence when the penalty was imposed upon the petitioner has not been considered. Once the legislature had specifically mentioned that the Disciplinary Authority will consider the representation and record its findings, it is mandatory on the part of the Disciplinary Authority to record its finding before proceeding further and in case, the view is taken to not record its findings separately, the provision would be negatory. It is settled law that the Courts have to give literal meaning to the words in the statute. The relevant paragraph 11 of the judgment reads as under:-

As already held above, in the present case, no independent reasons and findings have been recorded by the Disciplinary Authority while imposing the penalty, except that charge No.1 has been proved against the petitioner as per the enquiry report submitted by the Enquiry Officer along with documents/statements and it agrees with the reasons given by the Enquiry Officer. The Disciplinary Authority is required to record its findings once the representation has been received from the delinquent officer. No doubt, the Disciplinary Authority is not required to give detailed reasons, but the Disciplinary Authority is expected to consider the points raised in the representation and in case the same are rejected, some reasons are required to be given. Simply stating that the reply is not satisfactory does not meet the requirement of law. If the points raised in the representation are not to be considered and the Disciplinary Authority has to only concur with the findings recorded in the enquiry report submitted the Enquiry Officer, then the very purpose of furnishing a copy of enquiry report to the delinquent officer and ask him to make representation, is frustrated and it is a mere formality. It is not even the intent of the judgment of the Constitution Bench of the Hon’ble Supreme Court in Managing Director, ECIL Hyderabad and others vs. B. Karunakar and others, (1993) 4 SCC 727. As per judgment referred above, the Disciplinary Authority is not required to record its elaborate reasons, but the authority at least has to record some reasons for rejecting the points raised in the representation. However, in the present case, if the order passed by the Disciplinary Authority is perused, it does not meet the requirements of law.

As already mentioned above, the Constitution Bench of Hon’ble Supreme Court has laid down the principles and further held that the reasons are required to be recorded to show that the authority had applied its independent mind and further the Appellate or Revisional Authority can peruse the same to find out that the authority had not passed the order in a mechanical manner and the same was passed after application of mind.

Learned Advocate General has vehemently argued that as per the judgment in Boloram’s case (supra), the Hon’ble Supreme Court has come to a categorical conclusion that once the Disciplinary Authority accepts the findings recorded by the Enquiry Officer and passes an order, no reasons are required to be recorded in the order imposing the punishment. In the present case, the Disciplinary Authority once recorded that the reply of the official is not satisfactory, the mandate of law, as propounded in the aforementioned judgments, has been fully met. However, if the judgment is read in its entirety, the only thing, which can be culled out, is that no detailed reasons are required to be recorded in the order while imposing punishment, but that does not mean that the Disciplinary Authority was not bound to give independent reasons and findings, as required under sub-rule (2-A) of Rule 15 of CCS(CCA) Rules, 1965, while passing the order of penalty, that too, to bring the petitioner to the initial scale of pay. The Hon’ble Supreme Court was not informed about the provisions of sub-rule (2-A) of Rule 15 of the CCS(CCA) Rules, 1965, prevalent at that time, which was subsequently deleted.

The learned senior counsel for the petitioner vehemently argued that once the Appellate Authority had exercised jurisdiction vested in it and had come to the conclusion that no reasons had been assigned by the Disciplinary Authority, the Revisional Authority ought not to have interfered with the said well reasoned order and further respondent No.2, who had passed the order himself, filed the revision petition before the Revisional Authority, which could not have been done by him. In this regard, it is relevant to mention that once the Disciplinary Authority has not applied its independent mind and not given any independent reasons and findings and this Court quashes the order of penalty imposed upon the petitioner, the order passed by the Revisional Authority will also go.

The another submission made by learned senior counsel for the petitioner that respondent No.2 could not have filed revision application is concerned, the same is without any merit for the reasons that the Disciplinary Authority, if aggrieved by the order passed by the Appellate Authority, could have filed the revision and thus, the said plea is rejected.

This Court, after quashing the order passed by the Disciplinary Authority could have remanded back the matter to the said authority to pass appropriate orders after considering the representation made by the petitioner, but keeping in view the fact that the petitioner has now retired from service on attaining the age of superannuation, it would be harsh to remand back the matter to decide the same afresh after considering the representation. It would practically deny any relief to the petitioner. Further there is no evidence to show that by the act of the petitioner, the respondents have been caused and suffered any financial loss. In similar facts, the Hon’ble Supreme Court had quashed the orders passed by the Disciplinary Authority and Appellate Authority and the reference of the judgment is Allahabad Bank vs. Krishna Narayan Tewari, (2017) 2 SCC,

The relevant paragraphs of the judgment read as under:-

The Hon’ble Supreme Court in recent judgment in State of Uttar Pradesh versus Ram Prakash Singh, 2025(4) SLR 931 (SC) has held that since the employee had retired from service, no fruitful purpose will be solved in remitting the case and the issue must be given quietus. In the present case, since the petitioner has retired from service, he can be denied the promotion, but he is entitled to other benefits.

Consequently, the present petition is allowed and the order dated 26.02.2011, passed by respondent No.1, affirming the order dated 25.06.2010, passed by respondent No.2, is quashed and set aside with a direction to the respondents to grant the petitioner same pay scale, as was received by him before passing of the impugned order dated 25.06.2010 alongwith enhancement in the pay scale from time to time, but he shall not be entitled to promotion etc. The arrears of salary and pension be paid to the petitioner within three months from today and in case, the petitioner is not paid the arrears within three months, he shall be entitled to interest @6% per annum from today till its payment to him. However, there shall be no orders to cost. Pending applications, if any, also stand disposed of.