1. By way of this petition, the petitioner has prayed for the following reliefs:-

i) That a writ in the nature of certiorari may kindly be issued for quashing the impugned order dated 06.12.2021 issued by Respondent- Board vide Annexure P-15.

ii) That a writ in the nature of mandamus may kindly be issued directing the Respondent- Board to refund the amount of recovery made from the salary of the petitioner in pursuance of the impugned order dated 06.12.2021 alongwith interest @ 12% per annum from the date the amount has been started recovering that is w.e.f. January, 2022, till actual refund made to the petitioner and justice be done.”

2. Brief facts necessary of the adjudication of the present petition are that the petitioner is stated to be serving as Junior Engineer with the respondent-Board. A memorandum was issued to the petitioner dated 15.03.2019, Annexure P-11, on behalf of the disciplinary authority by the Executive Director (Personnel) of the respondent-Board, in which it was mentioned that the respondent-Board proposed to hold an enquiry against the petitioner under Rule 14 of the CCS (CC&A) Rules, 1965. It was further mentioned in the said memorandum that a statement of imputations of misconduct or misbehavior in support of each article of charge was also enclosed, as well as a list of documents and a list of witnesses, on the strength of which articles of charge were to be proved, was also enclosed. The petitioner was called upon by the respondent-Board to submit his reply within 10 days and he was also instructed that if he does not submits his written statement of defence on or before the specified time period, or does not appear in person with his defence or otherwise fails or refuse to comply with the provisions of Rule-14 of the CCS (CC&A) Rules, 1965, the enquiring authority may hold the enquiry against him ex parte. In brief, misconduct alleged against the petitioner was that while working as Junior Engineer, Electrical Sub Division No. III, HPSEBL, Solan, he failed to maintain absolute integrity and devotion to duty as he allowed unauthorized installment of energy meters on the works of M/s G.R. Infra Project Ltd., on 05.06.2017, without valid SCO by the Assistant Engineer. Further, as per the statement of imputation of misconduct or misbehavior, the petitioner was alleged to have exceeded his authority by releasing the connection to M/s G.R. Infra Private Limited and he also committed dereliction in performance of official duty by not conducting timely inspection of the energy meter consumption.

3. Reply to the memorandum of article of charges was filed by the petitioner in terms of the Annexure P-12 denying the charges. As the disciplinary authority was not satisfied with the reply which was filed to the memorandum by the petitioner, accordingly, Enquiry Officer was appointed and enquiry was held in the matter. The enquiry report which was submitted by the Enquiry Officer was forwarded to the petitioner vide Annexure P-13, dated 09.09.2021, in terms whereof the petitioner was given an opportunity to make his representation, if any, against the inquiry report, within a period of 15 days as from the date of issuance of the notice. According to the petitioner, he submitted his response to this notice vide Annexure P-14, dated 7th October, 2021. It was mentioned in the opening paragraph of Annexure P-14 that the petitioner acknowledges the receipt of notice dated 9th September, 2021, received by him on 24th September, 2021 and he accordingly, submitted his reply thereto dated 7th October, 2021. This was followed by issuance of Annexure P-15 i.e. order dated 6th December, 2021, in terms whereof the disciplinary authority has imposed penalty of reduction of pay of the petitioner by five stages from Rs.14,240/- to Rs.12,100/- + Rs.4350/- grade pay in the pay band of Rs.10,900-34800 for a period of five years from the date of issuance of orders with the direction that during the period of reduction, he will not earn increments and reduction will have the effect of postponing future increments.

4. Feeling aggrieved, the petitioner has approached this Court by way of present writ petition.

5. Mr. Jia Lal Bhardwaj, learned counsel for the petitioner, has submitted that the impugned order which has been passed by the disciplinary authority is liable to be set aside on the short count that this order was passed by the disciplinary authority without taking into consideration the response which was filed by the petitioner to the enquiry report, which has resulted in grave miscarriage of justice to the petitioner, as his contentions against the enquiry report were not considered by the disciplinary authority despite the fact that the response was available with the disciplinary authority at the time when the impugned order was passed.

6. Learned counsel for the petitioner has argued that a perusal of the impugned order (Annexure P-15) itself demonstrates that it is self speaking that despite the response to the enquiry report being available with the disciplinary authority, yet, the same was ignored by it on the ground that the same was not submitted by the petitioner within the stipulated time period. Learned counsel submitted that as the notice itself was received by the petitioner on 24th September, 2021, therefore, but natural, the time for submitting the response has to be construed from the said date and not from the date of issuance of the memorandum. He further submitted that de hors this fact, once the disciplinary authority was having the response which was filed by the petitioner to the enquiry report, ignoring the same and that too, on a hyper technical ground that the same was not filed within the time prescribed in it, itself has smacks of legal mala fides because under the provisions of CCS (CC&A) Rules, there is no bar that if the response is not received by the disciplinary authority within the prescribed time period, then the disciplinary authority cannot consider the same at the time of passing the order in the disciplinary proceedings. On this count, learned counsel has submitted that the present petition be allowed and the impugned order be quashed and set aside.

7. The petition is opposed by the respondent-Board inter alia on the ground that the plea of the petitioner on the basis of which the petition has been filed is totally baseless as the reply which was filed by the petitioner to the enquiry report was duly appreciated and considered by the disciplinary authority at the time of passing of the final order.

8. Leaned counsel for the respondent has taken the Court through order Annexure P-15 and after relying upon the same, he has submitted that the second page of the order, which has been passed by the disciplinary authority, is self speaking that the written statement of defence which was filed by the delinquent employee, was considered by the disciplinary authority and as per the learned counsel, this averment finds mention in the impugned order on more than one occasion. Accordingly, it has been argued that it is incorrect on the part of the petitioner to suggest that the response filed to the enquiry report was not considered by the disciplinary authority at the time of passing of impugned order Annexure P-15. On these bases, a prayer for dismissal of the petition has been made.

9. I have heard learned counsel for the parties and also carefully gone through the pleadings as well as documents appended therewith.

10. The moot issue before this Court is twofold, (a) whether the disciplinary authority could have had ignored the response which was filed by the petitioner to the inquiry report, even if it is assumed for the sake of arguments that the same was not filed by the petitioner within the period contemplated in the show cause notice and (b) whether the contention of the respondent-Board that the response which was filed by the petitioner to the inquiry report, was duly considered by the disciplinary authority, is correct or contrary to the record.

11. The Court will first answer the first issue. As already mentioned hereinabove, after the issuance of the memorandum and after receipt of the reply of the petitioner thereto, as the disciplinary authority was not satisfied with the response of the petitioner, accordingly, it decided to initiate disciplinary proceedings against the petitioner. An Enquiry Officer was appointed and inquiry was conducted. The Enquiry Officer after completion of enquiry, submitted his report and this report was forwarded by the disciplinary authority, in terms of provisions of Rule 15 of the CCS (CC&A) Rules, to the petitioner, calling upon him to submit his response thereto. This notice is appended with the petition as Annexure P-13. It is dated 9th September, 2021. A perusal of this notice demonstrates that it was mentioned therein that after holding the enquiry against the petitioner, the enquiry report stood submitted by the enquiry officer and the same was being forwarded to the petitioner alongwith the notice, with an opportunity being afforded to him to submit his response thereto within a period of 15 days from the date of issuance of this notice, failing which it shall be presumed that the petitioner has nothing to state in his defence and appropriate action, as deemed fit, shall follow. The response which was filed by the petitioner to the enquiry report is appended with the petition as Annexure P-14. This response is dated 7th October, 2021 and as already mentioned hereinabove also in the very opening paragraph of this particular Annexure, it was mentioned that the petitioner had received notice Annexure P-13, dated 9th September 2021, on 24th September, 2021, and as the enquiry report submitted by the officer was not maintainable, he was submitting response thereto parawise.

12. The reference to Annexure P-14 is made in para- 21 of the writ petition and therein the petitioner has expressly mentioned that the petitioner received the copy of notice dated 9.9.2021, alongwith which an enquiry was enclosed, only on 24th September, 2021, and as per the notice, representation to the enquiry report was to be furnished by the petitioner within a period of 15 days as from the date of issuance of notice which admittedly was received by the petitioner on 24th September, 2021 and he submitted a detailed response thereto in terms of Annexure P-14 dated 07.10.2021. A perusal of para-21 of the reply which has been filed by the respondent-Board demonstrates that the factum of notice dated 09.09.2021, having been received by the petitioner on 24.09.2021, has not been denied. That being the case, this Court is of the considered view that the myopic construction of the notice by the respondent-Board that response thereto had to be filed by the petitioner within the period of 15 days as provided in the show cause notice is not sustainable in law. Assuming that the notice was received by the petitioner after 15 days as from the date of issuance thereof, then, it is to be presumed that the petitioner in fact had lost the right to file reply thereto The answer obviously has to be in the negative. Now in the backdrop of what has been discussed, this Court has no hesitation in holding that as notice dated 9th September, 2021, was received by the petitioner on 24th September, 2021 and admittedly the response to the enquiry report thereafter was filed within 15 days as from the date of receipt of said notice, the disciplinary authority was duty bound to have had considered the response so filed and thereafter, taken a view with regard to punishment, if any, to be imposed upon the petitioner or not. At this stage, this Court would like to make an observation that in the larger interest of justice, even if the disciplinary authority had received the response to the enquiry report after the lapse of time mentioned in the notice, but before the decision was taken on the issue by the disciplinary authority, then also, interest of justice demanded that the response should have been to be taken into consideration by the disciplinary authority before passing the final order in the matter because there is no bar in terms of the provisions of CCS (CC&A) Rules in general and Rule 15 thereof in particular that reply to the enquiry report, if filed after the lapse of time prescribed in the notice, cannot be taken into consideration by the disciplinary authority. Therefore, passing of the impugned order by the disciplinary authority by ignoring the response which was filed by the delinquent employee to the enquiry report is not sustainable in the eyes of law and the impugned order is liable to be set aside on this count alone.

13. Now this Court will answer the second issue which has been framed by this Court, i.e. whether the contention of the respondent-Board that the response which was filed by the petitioner to the inquiry report was duly considered by the disciplinary authority, is correct or not. The Court is shocked and surprised that this contention was made before the Court, which is contrary to the contents of the impugned order Annexure P-15. The relevant extract of the order, which expressly states that the reply filed by the petitioner to the enquiry report was not considered by the disciplinary authority as it was received after the date prescribed in the same, is quoted herein below:-

“And whereas, Sh. Yashwant Thakur, Junior Engineer, has not submitted the reply against inquiry report within stipulated period as per condition of notice.”

14. In the teeth of contents of the impugned order which have been quoted hereinabove, the contention of the respondent-Board that the reply which was filed by the petitioner to the enquiry report was considered by it, does not holds any water. The Court reiterates that it is not as if it is mentioned in the impugned order that though the reply which was filed to the enquiry report was not received within the prescribed period, yet it was considered. The language is explicit and very very clear that the petitioner had not submitted the reply against the enquiry report within stipulated period as per condition of the notice. Thereafter, there is nothing in the impugned order from which it could be inferred that indeed the reply, which was filed by the petitioner to the enquiry report, was in fact considered by the disciplinary authority while passing the impugned order. The reference of learned Counsel for the petitioner to the portion of the impugned order wherein it is mentioned that the written statement of defence filed by the petitioner was taken into consideration is misleading as statement of defence is no substitute for the response which was filed by the petitioner to the enquiry report for the reasons that this written statement of defence etc. are of pre-enquiry stages and after the enquiry report was filed by the Enquiring Officer, the provisions of Rule 15 of the CCS (CC&A) Rules, 1965, come into application. The right to file response to the enquiry report is a right which is enshrined under CCS(CC&A) Rules and this right cannot be infringed in the mode and manner in which it was done by the respondent-Board in the present case and this Court in fact concurs with the contention which has been raised by learned Counsel for the petitioner that there are smacks of legal mala fides in the present case.

15. Accordingly, this petition succeeds and the impugned order is quashed and set aside on the ground that the response which was filed by the petitioner to the enquiry report was not considered by the disciplinary authority at the time of passing of the impugned order, which has resulted in grave miscarriage of justice to the petitioner because technically he has been condemned unheard by the disciplinary authority. The disciplinary authority shall pass a fresh order in the case, after taking into consideration the response filed by the petitioner. Cost of Rs.2.00 Lac is imposed upon the respondent-Board for trying to mislead the Court and raising arguments against the record. Out of the same, Rs.1.00 Lac shall be deposited with Himachal Pradesh High Court Bar Association and Rs. 1.00 Lac be paid to the petitioner.

It goes without saying that the order, which shall be passed by the disciplinary authority, has to be a reasoned and speaking order. Pending miscellaneous application(s), if any, also stand disposed of accordingly.