Mahesh Chandra Joshi v. State of Uttaranchal & Ors.

Heard Mr. R.P. Nautiyal, Advocate for the petitioner and Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. The petitioner was a Village Development Officer. He was placed at the top of the list of such Village Development Officers published on 29.12.1997. However, the promotion of the petitioner to the next higher post i.e. Assistant Village Development Officer (Statistics) could not be made as a disciplinary proceeding against the petitioner was already on where there were serious charges against the petitioner, such as, misappropriation of public fund in a public scheme, etc. Thereafter a preliminary enquiry was constituted in the matter in which the petitioner was given a show cause notice and thereafter after hearing the present petitioner punishment order dated 4.10.2000 was passed in which it was found that the petitioner is guilty of charges and following penalties were imposed upon him :- (1) A fine of ‘ 15,000/-, (2) Cancellation of personal promotional pay-scale with effect from 1.10.2000 and (3) The petitioner was given a censure entry and integrity for one year was withheld. Against the aforesaid penalty order, the petitioner filed an statutory appeal which was disposed of on 19.4.2001 whereby 2 the appeal was partly allowed inasmuch as the fine of ‘ 15,000/- was reduced to ‘ 10,000/-. The rest of the penalty was upheld. The petitioner therefore has challenged the orders dated 4.10.2010 and 19.4.2001 before this Court. This Court does not find any procedural irregularity or illegality in the present matter before the disciplinary authority. The only legal submission made by the petitioner before this Court is that no detail enquiry was made before the said penalties were imposed upon him. This submission of the petitioner is totally misconceived. The disciplinary proceedings are governed under Rule 3 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (from hereinafter referred to as 1999 Rules), which are presently applicable in the State of Uttarakhand. As per the said Rule, there are two kinds of penalties which may be imposed on a Government servant which is (cid:147)Minor Penalties(cid:148) and (cid:147)Major Penalties(cid:148). Rule 3 of 1999 Rules reads as follows :- (cid:147)3. Penalties. (cid:150) The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon the Government Servants : Minor Penalties : (i) Censure ; (ii) Withholding of increments for a specified period; (iii) Stoppage at an efficiency bar; (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders; (v) Fine in case of persons holding Group (cid:145)D(cid:146) posts : provided that the amount of such fine shall in no case exceed twenty five per cent of the month(cid:146)s pay in which the fine is imposed. Major Penalties : (i) Withholding of increments with cumulative effect; (ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale: (iii) Removal from the service which does not disqualify from future employment. 3 (iv) Dismissal from the service which disqualifies from future employment. Explanation . (cid:150) The following shall not amount to penalty within the meaning of this rule, namely : - (i) Withholding of increment of a Government servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service; (ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar; (iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation. (iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation.(cid:148) Clearly penalties have been divided into (cid:147)major(cid:148) as well as (cid:147)minor(cid:148) penalties. The detail procedure of a disciplinary proceeding is only contemplated for imposing major penalty, under Rule 7 of 1999 which Rules reads as follows :- (cid:147)7. Procedure for imposing major penalties. (cid:150) Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner : (i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges. (ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority : Provided that where the Appointing Authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department. (iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of 4 witnesses proposed to prove the same alongwith oral evidences, if any, shall be mentioned in the charge-sheet. (iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte. (v) The charge-sheet, alongwith the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner the charge-sheet shall be served by publication in a daily newspaper having wide circulation : Provided that where the documentary evidence voluminous, instead of furnishing its copy with charge- sheet, the charged Government shall be permitted to inspect the same before the Inquiry Officer. (vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission. (vii) Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence : Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions Inquiries (Enforcement of Attendance of Witness and Production of Documents) Act 1976. Pradesh Departmental the Uttar (ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person 5 charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant. (xi) The Disciplinary Authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as (cid:147)Presenting Officer(cid:148) to present on its behalf the case in support of the charge. (xii) The Government servant may assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary circumstances of the case so permits : Authority having regard Provided that this rule shall not apply in following cases : (i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or (ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or (iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.(cid:148) For minor penalty procedure is given in Rule 10 of 1999 Rules which reads as under :- (cid:147)10. Procedure for imposing minor penalties. (cid:150) (1) Where the Disciplinary Authority is satisfied that good and sufficient reasons exist for adopting such a course, it may, subject to the provisions of sub-rule (2) impose one or more of the minor penalties mentioned in Rule 3. (2) The Government servant shall be informed of the substance of the imputations against him and called upon to submit his explanation within a reasonable time. The Disciplinary Authority shall, after considering the said explanation, if any, and the relevant records, pass such orders as he considers proper and where a penalty 6 is imposed, reason thereof shall be given. The order shall be communicated to the concerned Government servant.(cid:148) There is no such contention of the petitioner that procedure as prescribed under Rule 10 of 1999 Rules has not been followed by the respondents. The procedure under Rule 7 of 1999 Rules are not applicable in his case inasmuch as he has not been given a major penalty. Therefore, there is no violation of any procedure or the rules, as stated above. Learned counsel for the petitioner has further submitted that penalty of (cid:147)cancelling the promotional pay-scale(cid:148) has wrongly been imposed upon the petitioner. A perusal of Rule 3 of 1999 Rules shows that the penalty of cancellation of the earlier promotional pay-scale given to the petitioner is not one of the penalties given in Rule 3 of 1999 Rules. Therefore, as far as cancellation of personal pay-scale is concerned, the same has been cancelled wrongly and is held to be illegal. The order dated 4.10.2010 and order dated

19.4.2001 are set aside to that extent only. Writ petition is, therefore, partly allowed to the above extent. No order as to costs.

23.9.2011 Avneet (Sudhanshu Dhulia, J.)