STATE OF H.P. Vs. SURESH SANKHAYAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 3.1.2012 passed by learned Single Judge in CWP No. 7144 of 2011 quashing thereby Annexure P-8 the order retiring the respondent-writ petitioner compulsorily from service, of course with his entitlement to full pension and gratuity as admissible and order Annexure P-9 holding him thereby entitled to the subsistence allowance equal to 75% of the total leave salary in addition to dearness allowance after adjustment of the subsistence allowance released earlier in his favour vide order dated 28.4.2009 and 16.9.2010.

(2.) The respondent-writ petitioner was working as Principal in Dr. Rajender Prasad Government Medical College (hereinafter referred to as 'RPGMC' in short), Kangra at Tanda in the year 2009. The incident of ragging had taken place during the night intervening 6th and 7th March, 2009. One student namely Aman Satya Kachru, a first year MBBS student was killed by senior students in this incident. The death of the young student has brought lot of criticism for the management of the college and also the State government. The matter was agitated by the public from all walks. The appellant-respondent/State ordered a judicial inquiry in the matter. The inquiry was conducted by Additional District Magistrate, Kangra district at Dharamshala. Besides the Medical council of India also got the matter inquired into. The Raghvan committee also conducted inquiry into the causes leading to death of Aman Kachru and submitted its report. The competent authority i.e. the appellant-respondent on going through the reports submitted by the Additional District Magistrate, Medical Council of India and Raghvan Committee and taking a serious view of the matter placed the respondent-writ petitioner under suspension and also decided to hold inquiry against him for imposition of major penalty. The appellant-respondent vide Annexure P-2 to the writ petition proposed to hold inquiry under Rule 14 of the CCS(CCA) Rules 1965 against the respondent-writ petitioner. The article of charges framed against him are annexure R-1 to Annexure-P-2 whereas the imputations of misconduct/misbehavior in support of article of charges, Annexure-II and list of documents relied upon Annexure-III. Shri Ajay Sharma, the then Director Ayurveda to the Government of Himachal Pradesh was appointed as Inquiry Officer vide order Annexure P-4 to the writ petition whereas Shri Rajinder Negi as Presenting Officer. The inquiry was conducted. The Presenting Officer has submitted the written arguments Annexure P-3. The Inquiry Officer vide inquiry report Annexure P-5 has exonerated the delinquent, respondent-writ petitioner from all the charges on the ground that the same were not proved. The inquiry report was placed before the Disciplinary Authority, the appellant-respondent. The said Authority has, however, differed with the inquiry report and recorded the reasons of its dis-agreement Annexure P-6 and thereby called upon the respondent-writ petitioner to show cause as to why major penalty under Rule 14 of CCS (CCA) Rules, 1965 is not imposed upon him. He was given 15 days time to make representation or submissions, if any, to the show cause notice. Consequently, the respondent-writ petitioner has filed the replies Annexures P7-A and P7-B to the writ petition in response to the show cause notice, Annexure P-6. The appellant-respondent, however, considering the reply/submissions made by the respondent-writ petitioner and finding the same not satisfactory has ordered to retire the respondent-writ petitioner compulsorily from service vide impugned order Annexure P-8. At the same time vide impugned order Annexure P-9 of the same day held him entitled to the subsistence allowance equal to 75% of the total leave salary on adjustment of the subsistence allowance already paid to him vide order dated 28.4.2009 and 16.9.2010.

(3.) The respondent-writ petitioner has challenged the impugned order Annexures P-8 and P9 in this Court on the grounds, inter alia, that imposition of major penalty of compulsory retirement from service against him is arbitrary, illegal and void, abinitio being also not in violation of the procedure laid down under Rule 15 of CCS (CCA) Rules 1965. The report of the Inquiry Officer was stated to be well reasoned and as such, there was no occasion to the disciplinary authority to have disagreed therewith. The disciplinary proceedings being quasi judicial in nature, therefore, the requirement is that the disciplinary authority has to act in a just and fair manner. In the case in hand the opportunity of being heard allegedly was not given to the respondent-writ petitioner as the disciplinary authority has taken a final decision to retire him compulsorily from service at that very time when recorded the so called tentative reasons of its dis-agreement. Such an approach is stated to be not legally permissible. It is pointed out that the disciplinary authority is required to provide the tentative reasons of dis-agreement first and to decide finally qua such disagreement of taking into consideration the response of the delinquent officer thereon. The tentative reasons of dis-agreement recorded by the disciplinary authority are stated to be not based upon the evidence having come on record during the course of the inquiry conducted. Also that the impugned order annexure P-8 has been passed by the appellant- respondent in complete ignorance of the contentions raised by the writ petitioner in reply to the show cause notice he filed.