Gwash Lal : Mohd.Sha... v. Harji Lal : Ghulam M...

(1) The petitioner was employed as a clerk in the Traffic branch of the Posts and Telegraph Department, Jammu. On 15-7-1973, he was allegedly ordered by the supervisor to service two covers of Poonch. Traffic for disposal from the postman and issue a proper receipt, but h did not comply with and even refused to carry out the order. Consequently, the petitioner was served with a charge sheet and asked to submit his representation. He Submitted his representation denying the Charge. The relevant communication reads as under .

“The STT CTO Jammu.

Your reference Memo PF-84/24 dt 25-7-73

Sir,

With reference to your above cited memo I beg to submit that nn such orders by the TM as alleged by you, were given to me and therefore no question of refusal on my part arises.

Further I beg to request to furnish, me with the copies of the notes of diary, orders of TM or any such documentary evidence which might substantiate the charge against me in order to submit my final defence in the matter.

Yours faithfully, Sd/- Mansa Ram"

(2) The superintendent Telegraph (Traffic) considered the reply and parsed an order on 7-9 1973 of course after exchanging some more correspondence, where he awarded to the petitioner punishment of with-holding of two increments without future effect The petitioner appealed His Contention was twofold. .Firstly, that the S. T T. ought to have hold an enquiry into the charge and that, in the absence of such enquiry, the order imposing the penalty was bad in law. Secondly, that he could not be awarded the punishment of with-holding of two increments when, in similar circumstances, his colleague, Surjit Lal, was let off with a censure only The appeal was considered by the Deputy Director, Posts and Telegraphs. Dealing with these contentions in his order 23-3-1974, the Deputy-Director observed as follows :

"In his appeal dt. 18-10-73, Shri Mansa Ram has confused the provisions of rule 16 and rule 14 of CCS (CCA) Rules, 65. The enquiry referred to by the appellant is mandatory under rule 14 of CCS (CCA) Rules 1965 where he has been proceeded against under rule 16 ibid which does not call for any enquiry.

The appellant has further stated that he was not the only official who was charged with non compliance of orders issued by the supervisor. Another official namely, Sh. Surjit Lal was who-sailing in the same boat but he had admitted his guilt and pleaded for liniency vide his explanation dt 27-7-73 and the disciplinary authority had left him off with a censure. Therefore, the question of any discrimination does not a rise.

and ultimately dismissed the appeal. Aggrieved by the order, the petitioner has filed this petition under Article 226 of the Constitution of India and challenged the order as void, illegal and without jurisdiction.

(3) The first submission of the learned counsel for the petitioner was that the Deputy Director was not competent to decide the appeal. The appeal to decide the appeal lay with the Director. Posts and Telegraphs. But when the attention of the learned counsel was drawn to the provisions of the Posts and Telegraphs Manual in which the appellate authorities have been specified, he did not press this petition.

(4) The next submission of the learned counsel was that the order of the S. T. T. was vitiated on the ground of non-compliance of Rule 16 of the Central civil Services (Classification. Control and Appeal) Rules, 1965 and that the view to the contrary expressed in appeal by the Deputy Director, posts and Telegraphs was erroneous in law, Rule 16, in so far as relevant, reads as under :

•'Procedure for imposing minor penalises (1) Subject to the provisions of sub rule (3) rule 15, no order imposing on a Government servant any of the penalties specified in clauses :(i) to (iv) of rule 11 shall be made except after :-

(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal«.

(b) holding an inquiry in the manner laid down in sub-rule (3) to (23) of rule 14. in every case in which the disciplinary authority is of the opinion that such inquiry is necessary :

(c) Taking the representation, if any, submitted by the Government Servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration ;

(d) recording a finding on each imputation of mis-conduct or misbehaviour ; and

(e) consulting the commission where such consultation is necessary."

(5) Adverting to clause (b), learned counsel submitted and, T think rightly so, that there can be no manner of doubt that where a minor punishment is sought to be imposed, the procedure of holding an enquiry need not be followed, unless otherwise desired by the disciplinary authority. But surely it does not mean that the enquiry is barred or that it is entirely subject to the pleasure of the disciplinary authority. The clause speaks, of the opinion that such enquiry is necessary 'implying that the disciplinary authority must apply its mind to the facts and circumstances of the case as disclosed in the representation of the employee and other available material and give a reasoned finding whether an enquiry is or is not necessary. In the absence of such finding an order imposing the penalty would be invalid and of no legal consequence unless, of course, it can show that the omission has not resulted in any material prejudice to the employee. For, cases are conceivable where without the requisite opinion being there, cause (b) has been substantially complied with.

(6) In the present case, the S. T. T. has nowhere found whether an enquiry was called for or not. The Deputy Director too has missed this point. No material has been placed on record to show that the omission has caused no material prejudice to the petitioner. Applying the test laid down above, the orders passed by S. T. T. and Dy. Director Posts and Telegraph are clearly invalid and of no legal effect.

(7) The result, therefore, is that this petition succeeds and is allowed. The order dated 7-9-1973 passed by the Superintendent Telegraph Traffic, Jammu imposing the penalty of withholding of two increments on the petitioner and the order dated 23-3-1973, whereby the Deputy Director, Posts and Telegraphs has confirmed the same, are hereby set aside. This order shall not preclude the disciplinary authority from making fresh orders in accordance with law. There shall be no order as to costs.