TARSEM KUMAR SOOD Vs. CHIEF ENGINEER

JUDGEMENT

(1.) The petitioner was appointed as clerk in a temporary capacity in the Public Works Department of the State of Himachal Pradesh on May 26, 1970 He joined duty on May 30, 1970. On November 17, 1976 the petitioner proceeded on casual leave for four days. It is not in dispute that the petitioner overstayed the period of leaves. The extent of overstay appears to be in dispute between the parties and we propose to express no opinion on that part of the controversy at this stage On April 7, 1977 the petitioner was placed under suspension The suspension order was, however, revoked on March 8, 19/8. The petitioner was then served with a charge -sheet dated July 26, 1978, the annexure to which contained three articles of charges. The gravemen of the charges against the petitioner was that on different occasions he had wilfully absented from duty by proceeding on unauthorised leave and thereby contravened the provisions of rule 3 of the Central Civil Services (Conduct) Rules, 1964. The petitioner submitted his reply to the charge -sheet on August 1, 1978. On June 16, 1979 an Inquiry Officer was appointed to hold inquiry againt the petitioner in respect of the charges levelled against him. On July 7, 1979 the petitioner informed the Inquiry Officer that since he was not paid subsistence allowance, he was in financial difficulties and that under the circumstances it would not be possible for him to participate in the inquiry proceedings Similar intimations were given by the petitioner to the Inquiry Officer on July 15, 1979 and August 10, 1979, The Inquiry Officer made a report on May 18, 1980 in the course of which he inter alia referred to the refusal of the petitioner to participate in the inquiry inspite of notices having been served upon him and proceeded to observe : "It is for your kind information that Shri Tarsem Kumar Sood, Clerk, is understood to be staying quite close to my office and he has been deliberately avoiding attendance of inquiry. Shri Tarsem Kumar Sood, Clerk, is absent from duty w.e.f. 17 -11 -1976 and has never tried to resume his duty during the last 4 years. He is also not interested to explain anything in his defence before inquiry." The concluding portion of the inquiry report is in the following terms : "The delinquent official Shri Tarsem Kumar Sood, has not cared to attend the inquiry on appointed date which shows that he has nothing to say in his defence. Report is submitted to the Superintending Engineer, 2nd Circle, H.P. PWD, Simla -3 for further necessary action." A memorandum (show -cause notice) dated December 26, 1980 was thereafter served upon the petitioner which stated that a copy of the inquiry report was enclosed therewith and called upon him to show -cause why the penalty of removal from service should not be imposed upon him It is pertinent to point out that the penalty in question was proposed to be imposed upon the petitioner on the following ground which is extracted verbatim from the show -cause notice: "On a careful consideration of the enquiry aforesaid report, the undersigned agrees with the findings of the Inquiry Officer that Shri Tarsem Kumar Sood, Clerk, deliberately avoided attendance before the Inquiry Officer on the appointed dates. The undersigned has, therefore, provisionally come to the conclusion that Shri Tarsem Kumar Sood, Clerk is not a fit person to be retained in Government Service and, therefore, proposes to impose on him the under -noted penalty." The petitioner sent two replies to the show -cause notice, one on January 10, 1981 and the other on February 7, 1981. The petitioner appears to have made further representations to the disciplinary authority as well as to the appellate authority, inter alia, pleading that he may be permitted to join duty. The last of such representations appears to have been made on November 7, 1983. On November 26, 1983, that is to say, after a lapse of a period of about three years from the date of the show -cause notice, the following order was passed by the disciplinary authority : "After careful consideration of the inquiry report, Shri Tarsem Kumar Sood has not been found fit for Government Service and as such his services are hereby terminated w.e.f 17 -11 -1976, i.e. the date from which he has absented himself wilfully. - This is the order which is principally assailed in the present petition. The petitioner has claimed certain other and/or incidental reliefs which need not, however, be set -out in the order which we propose to pass ultimately. The impugned order of termination has been challenged by the petitioner on several grounds. It is not necessary, however, to express our opinion on all those grounds because, in our opinion, the petitioner is entitled to succeed on the short ground that the inquiry against the petitioner has not been held in accordance with law and that the termination of the services of the petitioner could not have been effected on the strength of the findings, if any, recorded in the course of such inquiry.

(2.) Before we proceed to consider this ground, a submission which was made in the forefront on behalf of the respondents might be dealt with. It was -strenuously urged on behalf of the respondents that the impugned order was passed by the competent authority in exercise of the powers under rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 and that the termination of the services of the petitioner having been effected in exercise of such powers, the question as to whether or not the disciplinary inquiry was held in accordance with the relevant rules governing such inquiry is wholly irrelevant. The submission, in other words, was that the termination was not penal in character but termination simpliciter and that even if the disciplinary inquiry held against the petitioner was not defective in any manner, the termination could not be regarded as illegal or invalid because it was not founded on the misconduct, if any, on the part of the petitioner established in the course of such inquiry. The argument has been stated merely to be rejected. The termination order, on the face of it, discloses that the termination is not simpliciter but penal termination founded on misconduct. The order expressly rests on the inquiry report as is evidence from the opening words. The inquiry report is admittedly the one which was submitted on May 18, 1980 at the conclusion of the disciplinary inquiry. This fact alone is sufficient to establish that the misconduct, if any, of the petitioner in overstaying leave, for which disciplinary proceedings were initiated against him and which was found to have been established in the course of the inquiry, was the foundation of the order Besides, the concluding portion of the orders to the absence of the "petitioner from duty "wilfully" and if it is read in the proper context and perspective, the clear impression which is left on the mind is that the conclusion as to the unfitness of the petitioner to be retained in Government service was recorded because of such alleged wilful absence. The order, therefore, on the face of it casts a stigma on the petitioner. On both these grounds, therefore, the conclusion is inevitable that the termination of the services of the petitioner is penal in character. No other view is possible or permissible.

(3.) In light of our holding as aforesaid, there is no manner of doubt that the petitioner, who was a Government employee (even if temporary), could not have been removed/dismissed from service except in accordance with the relevant constitutional provisions and rules. Under Article 311 of the Constitution, the petitioner could not have been visited with the major penalty of removal/ dismissal from service except after an inquiry in which he had been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges. Besides, the major penalty of removal/dismissal from service could not have been imposed upon the petitioner without following the procedure for imposing such penalty as prescribed in the relevant rules. If there is any breach of these constitutional or statutory provisions, the removal of the petitioner from service would be vitiated,