( 2026:HHC:14839 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWPOA No.149 of 2019 Reserved on: 07.04.2026 Decided on: 06.05.2026 Dr.Piar Singh Bains .......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.Tara Singh Chauhan, Senior Advocate with Ms.Abhidha Bhardwaj and Mr.Surya Chauhan, Advocates. For the respondents: Mr.Amandeep Sharma, Additional Advocate General for respondents No.1 and 2. Respondent No.3 proceeded against ex-parte vide order dated 29.09.2015. Jiya Lal Bhardwaj, Judge By way of present petition, the petitioner has prayed for the following substantive relief:- “a) That the respondents have not followed proper procedure as prescribed under CCS(CC&A) Rules for initiating enquiry against the petitioner. It is pertinent to mention here that no formal charge sheet has been served by competent authority upon the petitioner. It is only on the telephonic instructions of the mission 1 Whether the reporters of Local Papers may be allowed to see the judgment? ( 2026:HHC:14839 2 Director that petitioner came to know of alleged enquiry. During the period petitioner was posted at Keylong and no communication with respect to article of charge or fixing date for enquiry was ever received at Keylong by the petitioner hence, enquiry on the face of it is bad and liable to be quashed and set aside.” 2. The facts which emerge from the pleadings are that the petitioner who was working as a Doctor at Bilaspur, vide Notification dated 25.05.2006 was transferred to Regional Hospital, Keylong Lahaul and Spiti, who did not join at the transferred place on account of the fact that no other Doctor was posted at Bhajoon, where he was serving. Later on, he was again transferred vide Notification dated 13.06.2008 to Regional Hospital, Keylong Lahaul and Spiti, where he joined his duties and served till June, 2010. Thereafter, he was transferred to CHC Jhandutta, where he joined his services in the month of June, 2010. 3. It has been averred in the petition that the petitioner during his posting as Block Medical Officer, Jhandutta, received a telephonic call from the Missions Director, NRHM, Shimla in September, 2011 with respect to some enquiry against him, while he was posted at PHC Bajoon. He immediately made a representation to the Enquiry Officer, specifically pointing out therein that he has no ( 2026:HHC:14839 3 knowledge about the enquiry. However, later on, a charge- sheet was given to him without forwarding letter during the proceedings held in the month of September, 2010 and the articles of charge were to the effect that the petitioner while working as BMO I/c CHC-Markand, District Bilaspur had committed financial irregularities in maintaining the funds of NRHM, as no record for receipt and expenditure of funds had been maintained during the year 2003 to 2006. Further, the petitioner while working as BMO Incharge at CHC Markand, District Bilaspur had misused the Government vehicle during the year 2003 to 2006 and also indulged in financial impropriety. He had travelled to Bhakra from Markand frequently via Kirtpur and Nangal during 13.09.2003 to 30.09.2003, instead of HP route which is 186 Kms. which was nearer to his home, while it has been shown as 232 Kms. in log Book which has been established in the fact finding enquiry. During a random check-up of the fact finding enquiry, it was found that the petitioner had claimed a sum of Rs.22,874/- during the stay at Markand and did not maintain the proper record of various National Programmes being run in the State e.g. Breast Feeding and Aids etc. which shows ( 2026:HHC:14839 4 that he was careless and shown scant regard to such vital and National Programmes. 4. On receipt of aforesaid article of charge, the petitioner on 06.09.2010, made a representation to the Hon’ble Health Minister. The Enquiry Officer had fixed the enquiry on 30.09.2010, but the petitioner did not attend the same and faxed a letter addressed by him to the Hon’ble Minister for Health and Family Welfare, pleading before him, that the enquiry against him be withdrawn. On this date even the Presenting Officer was not present and the Enquiry Officer had fixed the next date, on which date too neither the petitioner remained present nor the Presenting Officer. The Enquiry Officer fixed the matter on 22.02.2011. On that date Dr. Veena Pathyarch, who conducted the preliminary Enquiry was examined and due opportunity was given to the petitioner to cross-examine her, which he availed. On the said date, the petitioner was informed that he has right to get the Defence Assistant and the matter was listed on 07.03.2011 and 08.03.2011, for recording the statements of the witnesses. 5. The petitioner did not remain present on 07.03.2011 before the Enquiry Officer and he faxed an ( 2026:HHC:14839 5 application to grant him permission to engage Defence Assistant namely Shri Promod Chand, retired S.O. and further requested to adjourn the matter for some other date between 16th March, 2011 to 20th March, 2011 as he would be busy on 7th March 2011 to attend the ‘Chavarkh ceremony’ (fourth death anniversary of his younger brother), as subsequent dates already fixed in respect of other such departmental cases. However, the Enquiry Officer did not accede to request of the petitioner, though he had also appended the medical prescription slip. Thereafter, the petitioner had written on 14.03.2011 (Annexure P-10) to the Enquiry Officer to apprise him about the decision. The Enquiry Officer had not deferred the proceedings and recorded the statements of the witnesses on 07.03.2011 and 08.03.2011. The petitioner was served with an order dated 27.08.2011 (Annexure P-11), thereby enclosing the copy of enquiry report and asked him to make a representation with regard to the findings in the enquiry report. The petitioner made a detailed representation on 09.11.2011 (Annexure P-12) and stated that the ex-parte enquiry conducted is nothing but a repetition of all the contents of the preliminary enquiry inasmuch as the petitioner was not given an ( 2026:HHC:14839 6 opportunity to cross-examine all individuals, whose locus- standi in his case was very much insignificant and thus requested for grant of some more time to him to satisfy on all the issues. 6. On receipt of the representation, respondent No.1, vide office order dated 25.04.2012 (Annexure P-13) had imposed the major penalty of “compulsory retirement” as specified under Rule 11(vii) of the Central Civil Services(Classification, Control and Appeal) Rules, 1965, hereinafter referred as CCS (CCA) Rules, 1965, upon the petitioner, with immediate effect. 7. The petitioner feeling aggrieved by the penalty imposed upon him, had preferred an appeal under Rule 23(ii) of the CCS (CCA) Rules, 1965, before the Hon’ble Health Minister (Appellate Authority) to the Government of Himachal Pradesh, Shimla, being the appellate authority, stating therein that the appointment of the Enquiry Officer was without serving a charge-sheet and obtaining reply from the petitioner, non-supply of copy of complaint, on which disciplinary enquiry was initiated, denial of opportunity to engage Defence Assistant, prescribed procedure for ex-parte proceedings not followed, non-supply of copy of proceedings ( 2026:HHC:14839 7 and statements recorded during ex-parte enquiry and copy of advice of the H.P. Public Service Commission not supplied to the petitioner, before imposing the punishment and consulting the H.P. Public Service Commission. It was mentioned that as per provision of Rule 32 of the CCS (CCA) Rules, 1965, it is mandatory to supply a copy of the Commission’s advice to the delinquent before imposing the punishment. 8. Though the appeal so preferred was before the Health Minister (Appellate Authority), however, the order has been passed by respondent No.1 on 27.07.2012, who was the disciplinary authority and had imposed the penalty of “compulsory retirement” on the petitioner. A perusal of the order reveals that the decision of the disciplinary authority was put up to the Reviewing Authority, namely, the Minister- in-charge, who too had subscribed to the conclusion of the former. 9. The petitioner feeling aggrieved by the order dated 27.08.2011 (Annexure P-11), the enquiry report, order imposing penalty dated 25.04.2012 (Annexure P-13) and order dated 27.07.2012 (Annexure P-16), passed in appeal, has preferred the present petition before this Court. It has ( 2026:HHC:14839 8 been averred in the petition that the respondents had not followed the proper procedure as prescribed under the CCS (CCA), Rules, 1965 for initiating enquiry against the petitioner. Even the article of charges has been dispatched on 31.12.2009, which was not served until 06.09.2010, though the petitioner was very much on duty at Health & Family Welfare Training Centre, Parimahal w.e.f. 21.12.2009 to 28.02.2010 and even the Enquiry Officer at that time was posted as Mission Director, who used to frequently deliver the lecturers but never informed the petitioner about the enquiry. The petitioner made a representation to the Enquiry Officer, which was sent to him through fax, and the petitioner had expressed his inability to attend the enquiry on that day, due to his illness and due to non-availability of proposed Defence Assistant. This aspect of the matter has not been looked into by the Enquiry Officer. The enquiry so conducted is nothing, but an eye wash. 10. The Appellate Authority did not consider the pleas raised in the appeal and has endorsed the penalty imposed upon the petitioner. Further, the procedure as envisaged under the CCS (CCA) Rules was not followed and thus entire enquiry stands vitiated and liable to quashed and set aside. ( 2026:HHC:14839 9 11. The respondents filed reply and averred that the petitioner was given ample opportunity and no communication with respect to the enquiry was made with him before June, 2010. The petitioner was served with memorandum on 31.12.2009 and the charge-sheet was served upon him by the registered post at the place of his posting, but the same was received back undelivered. Further, the enquiry report of the Enquiry Officer clearly indicates that the Enquiry Officer initially fixed the date of enquiry on 21.08.2010, in which, the petitioner was not present and on the second hearing on 06.09.2010, the petitioner had appeared and the Enquiry Officer had asked him whether he has received the charge-sheet and whether he required some record pertaining to the enquiry. On his request, the petitioner was handed over the charge-sheet and relevant documents. It is wrong to aver that the petitioner had no knowledge about the enquiry before September, 2011. The petitioner had appeared before the Enquiry Officer on 22.02.2011, when he was asked to intimate whether he will participate in the further proceedings or not, though the petitioner intimated the name of Defence Assistant and the petitioner thereafter did not attend the enquiry fixed on ( 2026:HHC:14839 10 07.03.2011, 08.03.2011 and 18.03.2011. The petitioner was granted ample opportunity before 31.12.2009 to June, 2011 to obtain the requisite documents and associate himself with the enquiry. 12. I have heard the learned counsel for the parties and also perused the record carefully. 13. The petitioner has placed on record the enquiry report and the perusal of the same reveals that the petitioner was present on 22.02.2011, when further proceedings were kept for 07.03.2011 and 08.03.2011 and the petitioner had noted down these dates and further he was given the copy of daily order sheet, which he had signed. However, on 07.03.2011, the petitioner was absent and despite making efforts by the Enquiry Officer as well as his office, he had not picked up the phone. It is not in dispute that on the said date when the enquiry was to be held, an application filed by the petitioner was received by the Enquiry Officer though not accompanied with the prescription slip. Once the Enquiry Officer had received the application, the least which is expected of him to postpone the enquiry, but the Enquiry Officer proceeded against the petitioner ex-parte and recorded the statement of the witnesses. Not only this, even on the ( 2026:HHC:14839 11 next date i.e. 08.03.2011, the entire evidence of the disciplinary authority was recorded in absence of the petitioner and the evidence on behalf of the disciplinary authority was closed. It is not known that why the Enquiry Officer was so keen to conclude the enquiry on 07.03.2011 and 08.03.2011, once he had received the application seeking adjournment on behalf of the petitioner. Though, entire evidence was concluded on 08.03.2011, but the enquiry report was furnished by the Enquiry Officer on 23.07.2011. This clearly shows that the Enquiry Officer has not given ample opportunity to the petitioner and in case the petitioner was delaying the enquiry, in that case, the Enquiry Officer immediately after recording the evidence on 08.03.2011 could have furnished the enquiry report to the disciplinary authority, but the same was not done, which shows that the delay was not deliberate on behalf of the petitioner. The petitioner had mentioned in the application that on 07.03.2011, he had to attend the Chavrakh of his younger brother. 14. On receipt of the enquiry report sent by respondent No.1 on 27.08.2011, the petitioner had filed representation before the disciplinary authority, however, the ( 2026:HHC:14839 12 disciplinary authority on the basis of finding returned by the Enquiry Officer, had passed the order on 25.04.2012 imposing major penalty of “compulsory retirement” on the petitioner. As per Rules, the petitioner being delinquent had preferred an appeal before the Appellate Authority i.e. the Hon’ble Health Minister to the Government of Himachal Pradesh, however, the said authority had not passed the order in the appeal, rather the disciplinary authority who passed the order had dealt with the same and one sentence has been written in the order that the decision of the disciplinary authority was put up to the Reviewing Authority, who too had subscribed to the conclusion of the former. The statute has provided the remedy of appeal which is not a mere formality, but a substantive right to the delinquent, but in the present case, respondent No.1, which is the disciplinary authority had himself passed the said order. 15. At this juncture, it is relevant to quote the provision of Rule 23 of the CCS (CCA) Rules, 1965 which reads as under: “23. Orders against which appeal lies Subject to the provisions of Rule 22, a Government servant may prefer an appeal against all or any of the following orders, namely:- ( 2026:HHC:14839 13 (i) an order of suspension made or deemed to have been made under Rule 10; (ii) an order imposing any of the penalties specified in Rule 11, whether made by the disciplinary authority or by any appellate or [revising] authority; (iii) an order enhancing any penalty, imposed under Rule 11; (iv) an order which- (a) denies or varies to his disadvantage his pay, allowances, pension or other conditions of service as regulated by rules or by agreement; or (b) interprets to his disadvantage the provisions of any such rule or agreement; (v) an order- (a) stopping him at the efficiency bar in the time-scale of pay on the ground of his unfitness to cross the bar; (b) reverting him while officiating in a higher service, grade or post, to a lower service, grade or post, otherwise than as a penalty; (c) reducing or withholding the pension or denying the maximum pension admissible to him under the rules; (d) determining the subsistence and other allowances to be paid to him for the period of suspension or for the period during which he is deemed to be under suspension or for any portion thereof; (e) determining his pay and allowances – (i) for the period of suspension, or (ii) for the period from the date of his dismissal, removal or compulsory retirement from service, or from the date of his reduction to a lower service, grade, post, time-scale or stage in a time-scale of pay, to the date of his ( 2026:HHC:14839 14 reinstatement or restoration to his service, grade or post; or (f) determining whether or not the period from the date of his suspension or from the date of his dismissal, removal, compulsory retirement or reduction to a lower service, grade, post, time-scale of pay or stage in a time- scale of pay to the date of his reinstatement or restoration to his service, grade or post shall be treated as a period spent on duty for any purpose. EXPLANATION- In this rule-- (i) the expression 'Government servant' includes a person who has ceased to be in Government service; (ii) the expression 'pension' includes additional pension, gratuity and any other retirement benefit.” 16. Once the statute prescribe the right of filing an appeal under the statute, it is not a mere formality, but a substantive right given to an appeal under the law, thus, the appellate authority has to decide the appeal considering all the points raised in the appeal. It is settled law that the appellate authority is higher authority than the one who has passed the order. In the present case the order of penalty under Rule 11(vii) of the CCS (CCA) Rules, 1965 has been passed by respondent No.1 and thus, it cannot be the appellate authority. 17. This Court had summoned the original record to satisfy its conscious. A perusal of the record reveals that at ( 2026:HHC:14839 15 the time of imposing the penalty of compulsory retirement vide office order dated 25.04.2012, the matter was placed before the Health Minister, Himachal Pradesh who had given nod on 02.12.2011 to the proposal to levy the penalty of compulsory retirement. Once the Appellate Authority to whom the appeal was preferred had given its nod, there was no reason to place the same before the said authority. Even if it is assumed that the appeal was to be decided the said authority, it never reached to the said authority and respondent No.1 who had passed the order had dismissed the appeal noting at Note 117 Discussed. Facts of the case are given at N-101 to N-114. Appeal may be rejected as per detailed order attached. It is worth to mention here that the same very officer, who had passed the order as disciplinary authority, had passed the order as an appellate authority which shows that only formality has been done. While acting in such a manner, it shows that the impugned order passed in the appeal is by the disciplinary authority and the very purpose of providing the remedy of appeal is frustrated, when the disciplinary authority has passed the order in appeal. 18. A perusal of file also reveals that the appeal preferred by the petitioner was received through the Joint ( 2026:HHC:14839 16 Secretary to Hon’ble Chief Minister, on which the Hon’ble Chief Minister had observed to examine the matter of the petitioner by respondent No.1 and to put up with full facts of the case on departmental file. Thereafter, no decision was taken in view of the writ petition having been filed by the petitioner. 19. The facts which emerged are that the enquiry officer had concluded the enquiry and no reasonable opportunity of being heard was given to the petitioner. But once the petitioner had filed the appeal, this issue is to be decided by the appellate authority who has not bothered to apply independent mind and thus, to subserve the ends of justice, the order passed in appeal is ordered to be quashed and set aside. It is to be noted here that remedy of an appeal is not a mere formality, but is a statutory right available to the delinquent officer. This Court could have relegated the petitioner before the enquiry officer to conduct the enquiry from 07.03.2011 since the petitioner was not given ample opportunity to defend him, but once the petitioner has filed a statutory appeal, let the said issue be decided by the said authority and pass appropriate orders. ( 2026:HHC:14839 17 20. Consequently, the present petition is allowed and the order dated 27.07.2012 passed in appeal is quashed with a direction to respondent No.1 to place the matter before the appellate authority for decision afresh. Needless to say that the appellate authority will consider all the points raised by the petitioner and further, if he raises additional grounds, the same may also be considered before passing the order in appeal. Let the decision be taken within two months from the date of receipt of copy of the judgment. However, there shall be no orders as to costs. Pending applications, if any, also stand disposed of. ( Jiya Lal Bhardwaj ) 6th May, 2026 Judge (naveen)