( 2026:HHC:26745 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWPOA No.377 of 2019 Decided on: 02.07.2026 V.K. Berry ...Petitioner Versus State of H.P and others ...Respondents Coram Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge. Whether approved for reporting?1 _______________________________________________ For the petitioner: Mr. Sahil Dixit, Advocate vice Ms. Archana Dutt, Advocate. For the respondents: Mr. Vishav Deep Sharma, Additional Advocate General. Jiya Lal Bhardwaj, Judge (Oral) The petitioner by way of present petition has prayed for the following substantive reliefs:- “i) That the orders dated 4.1.1990 annexure P-16, dated 8.10.1992, annexure P-19, annexure P-20 dated 1.12.1992 and annexure P-22 dated 28.2.2009 may kindly be quashed and set aside. ii) That the respondent may kindly further be directed to grant entire pay and other consequential benefits right from 19.3.1984 onwards to the petitioner, considering him in service without any break from his first appointment.” 2. The facts as emerge from the pleadings are that the petitioner was appointed as Section Officer with the respondent- State on 30.05.1970, which post was subsequently re-designated as 1 Whether the reporters of Local Papers may be allowed to see the judgment? ( 2026:HHC:26745 ) 2 Junior Engineer (Mechanical). While working as Junior Engineer (Mechanical) in the Mechanical and Store, Sub Division, HPPWD, Dhalli, Shimla-12, the petitioner was transferred vide office order dated 19.03.1984 to Mechanical Sub Division, HPPWD, Rohru and was relieved of his duties by the Assistant Engineer, Mechanical and Store Sub Division, HPPWD Dhalli on the same day and directed to join at Rohru. It has been averred that the petitioner fell ill and could not immediately join at Rohru and sent a telegram to the Assistant Engineer, Mechanical Sub Division, Rohru informing that he would join at Rohru immediately on recovery. The petitioner was ill for 4-5 months and thereafter reported for duty at Rohru to the Assistant Engineer, Mechanical Sub Division, Rohru. However, he was surprised to learn from the said officer that his transfer to Rohru has been cancelled by the competent authority, whereas, no such order was ever served upon him. He again reported back to the Assistant Engineer, HPPWD at Dhalli to inform that no cancellation order of transfer has been received by him in the office. It has further been averred that the petitioner had never received orders dated 25.06.1984 or 23.05.1987, whereby he was transferred. 3. It has also been averred that he met respondent No.2 and apprised him that he may be given posting, so that he may join. ( 2026:HHC:26745 ) 3 He was assured that he would be informed where to join. However, he came to know about the orders whereby he was transferred only during enquiry from the documents attached with the charge sheet that he was transferred vide order dated 25.06.1984 from Mechanical Sub Division Shimla to Rohru was transferred to the IPH Division Shimla (Jagroti). It has also been averred that the petitioner was shocked and surprised to read a notice issued in the Tribune dated 23rd April, 1989 that an enquiry has been initiated against him for being willfully absent from duty. Immediately thereafter he went to the office of the Enquiry Officer i.e. respondent No.4 on 25.04.1989, when the Enquiry Officer was not present and the proceedings were adjourned to 02.05.1989. 4. The petitioner was present on 02.05.1989, but he was not served with the charge sheet and he was not aware of what the exact charges against him. Questions were put to him by the Presenting Officer and the Enquiry Officer. This was totally illegal course of action as no questions could have been put to the petitioner without serving the copy of the charge sheet, imputation of charges and other relevant documents. It was only after recording the statement of the petitioner, unsigned copy of the charge sheet was given to him and the next date of hearing was fixed on 29.05.1989 for filing the written reply. The charge sheet ( 2026:HHC:26745 ) 4 served upon the petitioner was not signed and he made an application to the Enquiry Officer on 08.05.1989 to supply the signed copy. The Superintending Engineer supplied him the signed copy of the charge sheet. The articles of charges in both the charge sheets were pleaded to be manually different. The Enquiry Officer submitted his report, wherein, it was reported that the petitioner had failed to assume his duties on 19.03.1984 and when hearing was to take place on 08.02.1989, he did not attend the same and thus he returned the findings that the petitioner is not interested in continuing in service in the Department and the charges framed against him were proved. Thereafter, the Disciplinary Authority passed an order on 04.01.1990 imposing penalty of removal from service upon him. 5. The petitioner feeling aggrieved by the said order, approached the erstwhile H.P. State Administrative Tribunal by OA No.1223 of 1991, titled, V.K. Berry vs. State of H.P and others, which came to be disposed of on 23.06.1992, directing respondent No.1 to treat the Original Application itself as representation and decide the same within a period of three months, after affording an opportunity of being heard to the petitioner. 6. In sequel to the said directions given by the Tribunal, respondent No.1 passed an order on 08.10.1992 (Annexure P-19), ( 2026:HHC:26745 ) 5 whereby the order passed by the Disciplinary Authority was modified and instead of removing the petitioner from service w.e.f. 19.03.1984, his services were removed w.e.f. 04.01.1990 and it was held that the petitioner will not be entitled for emoluments from 19.03.1984, since that period had been considered as unauthorized leave. 7. The petitioner feeling aggrieved by the order dated 08.10.1992 had approached the Court again by way of CWP-T No.2136 of 2008, titled, V.K. Berry vs. State of H.P and others, which came to be disposed of on 24.12.2008, whereby the Financial Commissioner-cum-Secretary (PW) was directed to decide the representation as per the order passed in O.A. No.1223 of 1991 on 23rd June, 1992 within a period of four weeks, after hearing the petitioner. In sequel to the directions given by the Court, respondent No.1 passed an order on 28.02.2009, whereby the representation made by the petitioner came to be rejected. 8. The petitioner feeling aggrieved by the orders passed by the authorities has approached this Court on the grounds that the order passed by the erstwhile Tribunal on 23.06.1992 has not been properly complied with by the respondents. It has further been averred that respondent No.1 had reduced the penalty while making it w.e.f. 04.01.1990 instead of 19.03.1984, but since the petitioner is ( 2026:HHC:26745 ) 6 still aggrieved by the order, he has not been reinstated in service, the order passed by respondent No.1 is non-speaking order inasmuch as the petitioner has been denied the benefits, including salary etc., from the date of his joining till 04.01.1990. 9. The respondents filed reply to the petition and averred that no action of action accrues to the petitioner to file and maintain the present petition against the impugned orders. The petitioner was transferred from Mechanical Division Dhalli to Mechanical Sub Division, Rohru on 19.03.1984, when he was relieved by the Assistant Engineer, Mechanical and Store Sub Division, Dhalli on 19.03.1984. After the lapse of three months when the incumbent failed to join at Mechanical Sub Division, Rohru without any intimation, he was again posted in IPH Sub Division, Jagroti under Division Shimla on 25.06.1984. However, he did not report for duty at Jagroti. Thereafter, his orders were revised to IPH Division No.II Shimla (Pumping Station Churat) on 23.05.1987 and the copy of the same was also endorsed to him which was sent directly at his residential address available in his service record. However, the same was received back with the remarks that the addressee was not available at the given address. The Assistant Engineer (Mechanical) Sub Division Rohru had further intimated the petitioner that he had neither joined/reported for duties upon his transfer to ( 2026:HHC:26745 ) 7 Sub Division nor he had given any telegram/intimation regarding his illness or seeking any leave etc. Even the Superintendent of Police, Shimla also intimated that the petitioner is out of station at present as per information given by his father to the police authorities. Since the petitioner failed to resume his duties and remained willfully absent despite even publication of notice, the disciplinary action as per rules was initiated against him. The petitioner was charge sheeted under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 ( in short ‘CCS(CCA) Rules’) and respondent No.4 was appointed as Enquiry Officer by the Superintending Engineer IPH Circle, Shimla-9, vide letter dated 04.01.1989. Though the memos/orders of Enquiry Officer were sent to him on the available address, but these were received back with the remarks that the petitioner is not available. Thereafter, a notice was published in the leading newspapers and after publication of notice, the petitioner appeared before the Enquiry Officer and associated in the enquiry proceedings also. The petitioner was afforded full opportunity of being heard. In the enquiry proceedings, the petitioner was found guilty and the competent authority after considering the findings of the Enquiry Officer and the documents brought on record passed orders of penalty of removal from ( 2026:HHC:26745 ) 8 Government service vide order dated 04.01.1990 and the order was given the retrospective effect w.e.f. 19.03.1984. 10. The petitioner had filed the Original Application and after passing the order by the Tribunal, the order dated 04.01.1990 was modified vide order dated 08.10.1992 and penalty of removal from service of the petitioner was made effective w.e.f. 04.01.1990 instead of 19.03.1984. The petitioner again approached the Court and vide order dated 24.12.2008, the direction was given to decide the representation of the petitioner in light of the directions in the order dated 23.06.1992 passed by the Tribunal and thereafter, respondent No.1 passed a detailed order on 28.02.2009 rejecting the representation of the petitioner. It has been averred that the penalty has rightly been imposed upon the petitioner. 11. I have heard the learned counsel for the parties and also perused the record carefully. 12. It is not in dispute that the petitioner did not join the duties in pursuance of the transfer order dated 19.03.1984 at Rohru. It is also not in dispute that the petitioner was charge sheeted under Rule 14 of the CCS(CCA) Rules, 1965. It is also not in dispute that the memos/orders were sent to the petitioner on his available address, which were revived back with the report of the Postal authorities that the petitioner is not available. Thereafter, the notice ( 2026:HHC:26745 ) 9 was published in the leading newspapers and after publication the petitioner appeared before the Enquiry Officer. Thereafter a charge- sheet was served upon him and after granting full opportunity to the petitioner, the Disciplinary Authority, imposed penalty on the petitioner. The petitioner had taken the plea that the transfer orders were not served upon him. It was for the petitioner to contact he employer when he was transferred vide order dated 19.03.1984 and once he did not join either at Rohru or Jagroti, whereby the orders were subsequently modified, the respondents had left with no other option, but to initiate the enquiry against the petitioner. The petitioner was transferred from the Mechanical Division, Shimla to Mechanical Sub Division Rohru, vide office order dated 19.03.1984, but he did not join till the notice was published in the leading newspapers in the year 1989. It was for the petitioner to approach the authorities to know about his transfer orders and one cannot believe that the petitioner was not aware about the transfer orders. It has not come on record that where did the petitioner remain during these five years. 13. The plea raised by the petitioner that the charges in the subsequent charge sheet were materially different have been denied by the respondents. The petitioner has not filed any rejoinder to the reply filed by the respondents and thus not controverted the facts. ( 2026:HHC:26745 ) 10 He approached the Enquiry Officer only after publication of notice. Thereafter, he has been given the charge sheet and also associated in the enquiry. No procedural lapse has been committed while conducting the enquiry. 14. The Hon’ble Supreme Court has time and again held that the Courts cannot interfere with the penalty imposed upon the delinquent officer. The Court can only interfere with the order passed by the Disciplinary Authority or the Appellate Authority, if there is procedural lapse on the part of the authorities while conducting the enquiry inasmuch as the material evidence that has not been considered at the time of imposing penalty. Once the petitioner had not joined the place of transfer and willfully remained absent without any cogent reasons for about five years, the orders passed by the Disciplinary Authorities on various occasions do not require any interference. When a direction was given by the Court to respondent No.1 to consider the representation, the authority after a detailed discussion has passed a detailed order holding that the contentions of the petitioner were not correct inasmuch as it was for him to enquire about his posting and not reporting the higher official with regard to his posting, the Disciplinary Authority has passed the order and the plea taken by the petitioner that he had no knowledge about the transfer orders is without any substance. The petitioner ( 2026:HHC:26745 ) 11 did not join and report the matter to the Assistant Engineer at Rohru or placed on record any document to show that he had ever sent a telegram regarding his absence from duty. Not only this, once there is no sanctioned leave granted in his favour, the only way left with the Disciplinary Authority was to initiate enquiry against him and after conclusion of the enquiry, he has rightly been removed from service and this Court while exercising the powers under Article 226 of the Constitution of India, cannot interfere with the order passed by the Disciplinary Authority. 15. Resultantly, I do not find any merit in the present petition and the same is accordingly dismissed. No order as to costs. Pending applications, if any, also stand disposed of. ( Jiya Lal Bhardwaj ) 2nd July, 2026 Judge (naveen)