STATE OF HIMACHAL PRADESH Vs. ISHWAR SINGH AZAD

JUDGEMENT

(1.) IN this petition, filed under Articles 226 and 227 of the Constitution of India, State of Himachal Pradesh is seeking a writ for quashing the order dated 28.2.2007, passed by the Himachal Pradesh Administrative Tribunal (hereinafter referred to as the Tribunal) in OA No.2114 of 2004, titled as Ishwar Singh Azad versus State of H.P. and another.

(2.) BRIEFLY stated, facts are that on 25.10.1972 respondent Shri Ishwar Singh Azad joined as Inspector in the Department of Agriculture, Government of Himachal Pradesh. In the year 1981, he was sent on deputation as Manager (Pesticides) with the H.P. Agro Industries Corporation (hereinafter referred to as the Corporation). In 1983, the Corporation assigned him duties of Marketing Manager (Pesticides). In the year 1989, he was repatriated to his parent department. With regard to his conduct in the Corporation, certain disciplinary proceedings were initiated against him by his parent department. On 13.6.1997 (Annexure A -1), he was put under suspension, which order was subsequently revoked on 10.3.2000 (Annexure A -3/A). On 6.7.1998 (Annexure A -2), memorandum containing five Articles of Charge was issued to him. Charges No.1, 2 and 5 pertained to the financial embezzlement/financial loss of Rs.17,97,277.41 caused to the Corporation. Charges No.3 and 4 pertained to his unauthorized absence. On 20.7.1998, he filed response (Annexure A -3), which did not find favour with the Disciplinary Authority and as such an Enquiry Officer was appointed to enquire into the charges. On 28.3.2001, the Enquiry Officer furnished a report (Annexure A -5), holding the delinquent official not to be guilty of any of the charges. Disciplinary Authority sent the enquiry report to the Corporation and invited its comments. On 21.12.2002 (Annexure A -4), the Disciplinary Authority informed the delinquent official, expressing its disagreement with the findings of the Enquiry Officer, asking him to respond to the "reasons for disagreement", in relation to the Articles of Charge. Delinquent official responded to the same in February, 2003 (Annexure A -7). The explanation did not find favour and as such vide order dated 16.7.2004 (Annexure A - 9), the Disciplinary Authority imposed major penalty of compulsory retirement from service and also ordered recovery of a sum of Rs.4,01,515/ - against the delinquent official.

(3.) THE Tribunal quashed and set aside the order of penalty passed by the Disciplinary Authority and directed the State to grant all consequential benefits to the delinquent official. The Tribunal set aside the order, inter alia, for the reasons that the Disciplinary Authority had adopted a novel procedure of inviting comments from the Corporation; "Reasons for disagreement" supplied to the Officer were not of the Disciplinary Authority but that of the Corporation. Hence, principles of natural justice stood violated; the State adopted a vacillating stand on the question of "reasons for disagreement" with the findings of the Enquiry Officer. Firstly, it took a stand that reasons enclosed with the notice dated 21.12.2002 were in fact the reasons of the Disciplinary Authority, but when record of the disciplinary proceedings revealed such fact not to be true as the Disciplinary Authority had only conveyed the points of disagreement communicated by the Corporation, State took a stand that the "reasons for disagreement" were in fact incorporated in the order dated 23.6.2004, enclosed with order dated 16.7.2004 imposing major penalty. Since there were no reasons for disagreement of the Disciplinary Authority, as such while passing the order of penalty there was total non -application of mind. The Tribunal also observed that imposition of major penalty was shocking, to which no reasonable man, within his senses, could have come to such a conclusion.