Mani Kumar Subba v. State of Sikkim

Judgment

11th December, 2024 --------------------------------------------------------------------------------------------------------- J U D G M E N T Bhaskar Raj Pradhan, J. The present writ petition challenges the impugned order dated 14.02.2023 passed against the petitioner revoking the earlier order dated 27.02.2019 which reduced his punishment from dismissal from service to compulsory retirement with compulsory retirement benefits. The writ petition, therefore, explores the jurisdiction and scope of Rule 11 of the Sikkim Government Servants’ (Discipline and Appeal) Rules, 1985 (the Discipline & Appeal Rules). W.P. (C) No. 52 of 2022 Mani Kumar Subba vs. State of Sikkim & Ors. 3

2. On 25.09.2018, the petitioner was imposed a penalty of dismissal of service in terms of Rule 3(ix) of the the Discipline & Appeal Rules.

3. The petitioner had filed Writ Petition No.4 of 2018 challenging the failure of the respondents to accept his notice for voluntary retirement or resignation. On

27.09.2018, the writ petition was allowed to be withdrawn as the compliance report dated 25.09.2018 filed by the State respondent stated that the Disciplinary Authority had taken its decision and imposed a penalty of dismissal of service on the petitioner.

4. On 25.02.2019, the petitioner made a representation to the Chief Minister to review the order dated 25.09.2018, seeking voluntary retirement.

5. On 27.02.2019, the respondent no.2 issued office order modifying the order imposing the penalty of dismissal of service and reducing it to compulsory retirement with compulsory retirement pension benefit in accordance with the Sikkim (Pension) Rules, 1990.

6. On 30.06.2022, the petitioner wrote to the respondent no.1 seeking disbursement of retirement benefits as he was not given any retirement benefits.

7. On 17.11.2022, the petitioner preferred the present writ petition before this Court for release of payment W.P. (C) No. 52 of 2022 Mani Kumar Subba vs. State of Sikkim & Ors. 4 of compulsory retirement pension and other retirement benefits.

8. During the pendency of the writ petition, the impugned order dated 14.02.2023 was passed which is reproduced herein verbatim. ““ GOVERNMENT OF SIKKIM DEPARTMENT OF PERSONNEL GANGTOK – 737101 No. 820/G/DOP Dated:14.02.2023

ORDER Whereas, disciplinary proceedings against Shri Mani Kumar Subba the then Divisional Engineer (Civil), Human Resource „Education Department‟ was Development Department now instituted and communicated to him vide Memorandum No: 10672/G/DOP dated 27.06.2017 under rule 5 of the Sikkim Government Servants‟ (Discipline & Appeal) Rules, 1985. And whereas, Shri Mani Kumar Subba vide his written statement dated 23.07.2018 had admitted to all the charges levelled against him. And whereas, Shri Mani Kumar Subba had filed W.P. (C) No. 4 of 2018 in the matter of Mani Kumar Subba-vs-State of Sikkim. And whereas, compliance with the Order dated:04.09.2018 passed by the Hon‟ble High Court of Sikkim, the penalty of dismissal from service was imposed on Shri Mani Kumar Subba, the then Divisional Engineer (Civil), „Human Resource Development Department‟ now „Education Department‟ vide Office Order No. 1615/G/DOP, dated 25.09.2018. And whereas, the Sikkim Public Service Commission was consulted as required under the rules. And whereas, Shri Mani Kumar Subba, the then Divisional Engineer (Civil), „Human Resource Development Department‟ now „Education Department‟ vide his application dated 25.02.2019 had made a representation to the Government for review of Office Order No. 1615/G/DOP, dated: 25.09.2018. And whereas, the Governor, after due consideration of the representation submitted by Shri Mani Kumar Subba, was pleased to modify the Office Order No. 1615/G/DOP, dated 25.09.2018 and reduce the penalty of Dismissal from Service to Compulsory Retirement vide Office Order No. 6001/G/DOP, dated: 27.02.2019. And whereas, the Law Department opined that at the time of reviewing of the penalty the Sikkim Public Service Commission was not consulted as required under rule 10 of the Sikkim Government Servants‟ (Discipline & Appeal) Rules, 1985 since the penalty of Dismissal from Service which is a major penalty was modified into Compulsory Retirement in a situation where the Government employee had admitted all the charges of misconduct. The Law Department also opined that Shri Mani Kumar Subba was not given an opportunity of being heard before imposing the penalty of Compulsory Retirement upon him vide Office Order No. 6001/G/DOP, dated 27.02.2019. W.P. (C) No. 52 of 2022 Mani Kumar Subba vs. State of Sikkim & Ors. 5 And whereas, the Disciplinary Authority, after considering all the facts and records of the case has come to the conclusion that Office Order No. 6001/G/DOP, dated 27.02.2019 modifying the penalty of Dismissal from Service to Compulsory Retirement imposed on Shri Mani Kumar Subba, the then Divisional Engineer (Civil), „Human Resource Development Department now „Education Department‟ is required to be reviewed and the penalty imposed vide Office Order No. 1615/G/DOP, dated 25.09.2018 is to be restored. Now, therefore, the Governor is pleased to withdraw the Office Order No. 6001/G/DOP, dated 27.02.2019 in terms of rule 11 of the Sikkim Government servants (Discipline & Appeal) Rules, 1985. The penalty imposed vide Office Order No. 1615/G/DOP, dated: 25.09.2018 shall be restored from the date of its issue. By Order Secretary to the Government of Sikkim Sd/- (Rinzing Chewang Bhutia, SCS) …………………………………………………………………………..”

9. The petitioner filed an application for amendment of the writ petition to challenge the impugned order dated

14.02.2023. This application was allowed by this Court on

29.11.2023. Accordingly, the amended writ petition was filed challenging the order dated 14.02.2023, as well.

10. Heard Mr. Yam Kumar Subba, learned Counsel for the petitioner. It was submitted that the order dated

14.02.2023 is against the mandate of the Discipline & Appeal Rules, as it was passed without giving reasonable opportunity of making a representation against the penalty imposed. He further submitted that the narration of the fact in paragraph 4 of the order dated 14.02.2023 misrepresentation of the actual fact and it seeks to project that this Court had sought for the penalty of dismissal of service against the petitioner which was untrue. W.P. (C) No. 52 of 2022 Mani Kumar Subba vs. State of Sikkim & Ors. 6

11. The learned Additional Advocate General submitted that the petitioner has not challenged the imposition of major penalty vide office order dated

25.09.2018 and therefore, it is clear that he was an employee who was not fit to be a government employee which led to the loss of public exchequer. The imposition of the major penalty which led to his termination is valid. After the disciplinary proceeding was initiated against the petitioner, he filed his reply on 23.07.2018 where he admitted to the charges and accepted to face the penalties. After considering the reply and his admission, the petitioner imposed a penalty of dismissal of service on

25.09.2018. The modification of office order dated

25.09.2018 by the Governor vide order dated 27.02.2019 reducing it to compulsory retirement of the petitioner was not valid as under the power of revision, i.e., Rule 10, he was required to consult the Commission which the Governor did not do. The modification is, thus, not tenable in the eyes of law. When the file pertaining to the compulsory retirement of the petitioner was moved, some irregularities were observed in the procedure adopted while reviewing the penalty of dismissal from service to compulsory retirement. After examining the records at the time of reviewing the penalty of dismissal from service to compulsory retirement, the W.P. (C) No. 52 of 2022 Mani Kumar Subba vs. State of Sikkim & Ors. 7 Commission was not consulted and therefore the order of the Governor was an illegal order. The learned Additional Advocate General relied upon the following judgments: Indian Administrative Service (S.C.S.) Association, U.P. and Others vs. Union of Indian & Others1, Competent Authority vs. Barangore Jute Factory and Others2, Shri Chandra Kumar Chettri and Ano. vs. Smt. Kipu Lepcha3, N.B. Tiwari vs. State of Sikkim and Others4, Naresh Kumar Rai vs. State of Sikkim and Others5, Basawaraj and Another vs. Special Land Acquisition Officer6, Employees’ State Insurance Corpn. and Others vs. Jardine Henderson Staff Association and Others7. This Court has perused the judgments which were all rendered in the facts of those cases. The facts of the present case are completely different and therefore, ratio laid down therein not applicable.

12. In Indian Administrative Service (supra), Supreme Court was examining a case of seniority of IAS Officers. The Supreme Court examined section 3(1) of the All India Services Act, 1951 which provided that the Central Government may, after consultation with the Governments