TIWARI N B Vs. STATE OF SIKKIM

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution of India the petitioner seeks quashing of the order dated August 9, 2002 of the Department of Personnel, Administrative Reforms and Training, Government of Sikkim at Annexure 27, imposing the penalty of compulsory retirement on him in exercise of the powers conferred by Rule 3(vii) of the Sikkim Government Servants' (Discipline and Appeal) Rules, 1985. Incidentally, he also questions the validity of the inquiry report dated September 27, 2000 at Annexure 20 and the remand order dated February 2, 2000 at Annexure 13 of the Department of Personnel, Administrative Reforms and Training, Government of Sikkim.

(2.) In the year 1997 when the petitioner was working as Superintending Engineer in the Power Department, Government of Sikkim, he was placed under suspension by office order No. 1025/Gen/DOP dated September 3, 1997 at Annexure 1 of the Department of Personnel, Administrative Reforms and Training, Government of Sikkim, pending drawing up of departmental proceedings against him. He was served with statement of articles of charges and statement of imputations of misconduct by Memorandum No. 1959/(G)/DOP dated November 3, 1997. In response to the articles of charges the petitioner filed his written statement dated November 12, 1997 at Annexure 4, denying the charges levelled against him. He pleaded inter alia that there was no misconduct or misbehaviour on his part which would constitute act of indiscipline or dereliction of duty in terms of the Sikkim Government Servants' Conduct Rules, 1981 or any other provisions of law. On consideration of his stand taken in the written statement, the Department of Personnel, Administrative Reforms and Training, Government of Sikkim by order dated November 25, 1997 at Annexure 5 appointed Nari Tshering, Secretary, Sikkim Legislative Assembly, as the inquiring authority to inquire into the charges. In course of the inquiry, S.D. Negi, Superintendent of Police, East and A. Dutta, DIG (SB) were examined on May 6, 1998 and May 13, 1998 respectively, in support of the charges. On the basis of the evidence the inquiring authority held the petitioner guilty of the charges and submitted its report dated June 26, 1998 at Annexure 12. The disciplinary authority after considering the relevant records, imposed the penalty of compulsory retirement on the petitioner by office order No. 4226/G/DOP dated March 24, 1999 at Annexure 11. Being aggrieved by the said order, the petitioner filed a review petition before the Governor under Rule 11 of the Sikkim Government Servants' (Discipline and Appeal) Rules, 1985. The Governor as communicated by Department of Personnel, Administrative Reforms and Training order dated February 2, 2000 at Annexure 13 set aside the findings of the inquiring authority on the ground that the findings were vitiated for non-compliance of sub-rule (14), (16), (17) and (18) of Rule 5 of the Sikkim Government Servants' (Discipline and Appeal) Rules, 1985, and remitted the matter to the inquiring authority with direction to examine the witnesses as per the list submitted by the petitioner and by affording him the opportunity to cross-examine the witness Govind Mohan, the then District Collector (East). The penalty of compulsory retirement issued by office order No. 4226/G/DOP dated March 24, 1999 at Annexure 11 was suspended until further orders. On receipt of the aforesaid remand order dated February 2, 2000 the petitioner made a representation dated February 14, 2000 at Annexure 14 praying for revocation of the suspension order with retrospective effect, appointment of a new inquiry officer in place of Nari Tshering Bhutia and to give him proper assistance through a lawyer of his choice. After remand of the matter, one Amit Kumar Jain was appointed as inquiry officer vice Nari Tshering Bhutia. The department did not choose to examine Govind Mohan. The petitioner submitted a list of six defence witnesses to be summoned. Though they were all summoned, he examined only three of them. They were Prem Tshering Lepcha, Junior Engineer, power Department, Damber Chettri, Assistant Engineer, Building and Housing Department and R.P. Sharma, a teacher of the Education Department. The inquiry officer gave liberty to the department as well as to the petitioner to submit written synopsis of arguments. On consideration of the materials available on record the inquiry officer in his report dated September 27, 2000 at Annexure 22 held that charges were partially proved and accordingly recorded his findings. On receipt of the inquiry report the petitioner submitted a representation dated February 13, 2001 at Annexure 24 challenging the adverse findings recorded against him. On examination of the records, the disciplinary authority in its order dated September 10, 2001 at Annexure 25 imposed the penalty of compulsory retirement. The petitioner thereafter filed a writ petition in this Court bearing Writ Petition No. (C) 5 of 2002 challenging the above order of compulsory retirement on the ground inter alia that his representation dated February 13, 2001 at annexure 24 was not considered by the disciplinary authority. This Court by order dated July 10, 2002 set aside the order of penalty and directed the disciplinary authority to consider the representation and pass appropriate orders according to law. Thereafter, the State Government upon hearing the petitioner and on consideration of the record of the disciplinary proceedings including the representation dated February 13, 2001 passed the impugned order of compulsory retirement dated August 9, 2002 at Annexure 27 in exercise of the powers conferred by Rule 3(vii) of the Sikkim Government Servants' (Discipline and Appeal) Rules, 1985.

(3.) Shri A. Moulik, learned counsel for the petitioner submitted the following points in support of the writ petition which are being dealt with hereinafter: A) It was contended by Shri Moulik that the changes are vague inasmuch as there is no reference to any specific rule of the Sikkim Government Servants' Conduct Rules, 1981 which was alleged to have been violated. In support of it, reliance was placed on the judgment of the Supreme Court in Sawai Singh v. State of Rajasthan AIR 1986 SC 995: 1986 (3) SCC 454 : 1986-II-LLJ-390. We have perused the memorandum containing articles of charges (Annexure 2). It contains three articles of charges based on the following allegations: - (i) He participated in the meeting held on September 27, 1997 in the Community Hall and actively incited the Government employees to continue the illegal strike. (ii) He made statement to the effect that the Employment Exchange (Compulsory Notification of Vacancies) Act had been extended to Sikkim and this statement was calculated to mislead the Government employees. (iii) He did not attend to his duties from September 26 to 28, 1997. At the end of Article III it was mentioned as follows: