THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extra-Ordinary Jurisdiction)
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SINGLE
BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P.(C) N
o. 52 of 2022
Mani Kumar Subba,
Son of late C.S. Subba,
Aged about 56 years,
Resident of Theyzong Heem,
Development Area,
P.O. & P.S. Gangtok,
Sikkim.
Petitioner
…..
versus
1. State of Sikkim,
Through its Chief Secretary,
Tashiling Secretariat,
Bhanu Path,
Gangtok 737101.
–
2. Department of Personnel,
Adm. Reforms, Training & Public Grievances
Through its Secretary,
Government of Sikkim,
Gangtok 737101.
–
3. Human Resource Development Department,
Through its Secretary,
Government of Sikkim,
Gangtok 737101.
–
4. Pension, Group Insurance & Provident Fund,
Finance Department,
Through its Director,
Government of Sikkim 737101.
–
5. Buildings & Housing Department,
Through its Secretary,
Government of Sikkim,
Gangtok 737101.
–
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
6. Sikkim Vigilance,
Police Station Gangtok,
Through its Director,
Gangtok 737101. s
– ….. Respondent
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Petition under Article 226 of the Constitution of India
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Appearance:
Mr. Yam Kumar Subba, Advocate for the Petitioner.
Mr. Zangpo Sherpa, Additional Advocate General with
Mr. S.K. Chettri, Government Advocate and Mr. Sujan
Sunwar, Assistant Government Advocate for the
Respondents.
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Date of hearing : 29th November, 2024
Date of judgment: 11th December, 2024
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J U D G M E N T
Bhaskar Raj Pradhan, J.
The present writ petition challenges the impugned
order dated 14.02.2023 passed against the petitioner
revoking the earlier order dated 27.02.2019 which reduced
his punishment from dismissal from service to compulsory
retirement with compulsory retirement benefits. The writ
petition, therefore, explores the jurisdiction and scope of
Rule 11 of the
Sikkim Government Servants’ (Discipline and
Appeal) Rules, 1985 (the Discipline & Appeal Rules).
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
2. On 25.09.2018, the petitioner was imposed a
penalty of dismissal of service in terms of Rule 3(ix) of the
the Discipline & Appeal Rules.
3. The petitioner had filed Writ Petition No.4 of 2018
challenging the failure of the respondents to accept his
notice for voluntary retirement or resignation. On
27.09.2018, the writ petition was allowed to be withdrawn
as the compliance report dated 25.09.2018 filed by the State
respondent stated that the Disciplinary Authority had taken
its decision and imposed a penalty of dismissal of service on
the petitioner.
4. On 25.02.2019, the petitioner made a
representation to the Chief Minister to review the order
dated 25.09.2018, seeking voluntary retirement.
5. On 27.02.2019, the respondent no.2 issued office
order modifying the order imposing the penalty of dismissal
of service and reducing it to compulsory retirement with
compulsory retirement pension benefit in accordance with
the Sikkim (Pension) Rules, 1990.
6. On 30.06.2022, the petitioner wrote to the
respondent no.1 seeking disbursement of retirement benefits
as he was not given any retirement benefits.
7. On 17.11.2022, the petitioner preferred the
present writ petition before this Court for release of payment
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
of compulsory retirement pension and other retirement
benefits.
8. During the pendency of the writ petition, the
impugned order dated 14.02.2023 was passed which is
reproduced herein verbatim.
““ GOVERNMENT OF SIKKIM
DEPARTMENT OF PERSONNEL
GANGTOK – 737101
No. 820/G/DOP Dated:14.02.2023
ORDER
Whereas, disciplinary proceedings against Shri Mani Kumar
Subba the then Divisional Engineer (Civil), Human Resource
Development Department now „Education Department‟ was
instituted and communicated to him vide Memorandum No:
10672/G/DOP dated 27.06.2017 under rule 5 of the Sikkim
Government Servants‟ (Discipline & Appeal) Rules, 1985.
And whereas, Shri Mani Kumar Subba vide his written
statement dated 23.07.2018 had admitted to all the charges
levelled against him.
And whereas, Shri Mani Kumar Subba had filed W.P. (C) No. 4
of 2018 in the matter of Mani Kumar Subba-vs-State of Sikkim.
And whereas, in compliance with the Order
dated:04.09.2018 passed by the Hon‟ble High Court of Sikkim, the
penalty of dismissal from service was imposed on Shri Mani
Kumar Subba, the then Divisional Engineer (Civil), „Human
Resource Development Department‟ now „Education Department‟
vide Office Order No. 1615/G/DOP, dated 25.09.2018.
And whereas, the Sikkim Public Service Commission was
consulted as required under the rules.
And whereas, Shri Mani Kumar Subba, the then Divisional
Engineer (Civil), „Human Resource Development Department‟ now
„Education Department‟ vide his application dated 25.02.2019 had
made a representation to the Government for review of Office
Order No. 1615/G/DOP, dated: 25.09.2018.
And whereas, the Governor, after due consideration of the
representation submitted by Shri Mani Kumar Subba, was pleased
to modify the Office Order No. 1615/G/DOP, dated 25.09.2018
and reduce the penalty of Dismissal from Service to Compulsory
Retirement vide Office Order No. 6001/G/DOP, dated: 27.02.2019.
And whereas, the Law Department opined that at the time
of reviewing of the penalty the Sikkim Public Service Commission
was not consulted as required under rule 10 of the Sikkim
Government Servants‟ (Discipline & Appeal) Rules, 1985 since the
penalty of Dismissal from Service which is a major penalty was
modified into Compulsory Retirement in a situation where the
Government employee had admitted all the charges of misconduct.
The Law Department also opined that Shri Mani Kumar Subba
was not given an opportunity of being heard before imposing the
penalty of Compulsory Retirement upon him vide Office Order No.
6001/G/DOP, dated 27.02.2019.
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
And whereas, the Disciplinary Authority, after considering
all the facts and records of the case has come to the conclusion
that Office Order No. 6001/G/DOP, dated 27.02.2019 modifying
the penalty of Dismissal from Service to Compulsory Retirement
imposed on Shri Mani Kumar Subba, the then Divisional Engineer
(Civil), „Human Resource Development Department now „Education
Department‟ is required to be reviewed and the penalty imposed
vide Office Order No. 1615/G/DOP, dated 25.09.2018 is to be
restored.
Now, therefore, the Governor is pleased to withdraw the
Office Order No. 6001/G/DOP, dated 27.02.2019 in terms of rule
11 of the Sikkim Government servants (Discipline & Appeal) Rules,
1985.
The penalty imposed vide Office Order No. 1615/G/DOP,
dated: 25.09.2018 shall be restored from the date of its issue.
By Order
Sd/-
(Rinzing Chewang Bhutia, SCS)
Secretary to the Government of Sikkim
…………………………………………………………………………..”
9. The petitioner filed an application for amendment
of the writ petition to challenge the impugned order dated
14.02.2023. This application was allowed by this Court on
29.11.2023. Accordingly, the amended writ petition was filed
challenging the order dated 14.02.2023, as well.
10. Heard Mr. Yam Kumar Subba, learned Counsel
for the petitioner. It was submitted that the order dated
14.02.2023 is against the mandate of the Discipline &
Appeal Rules, as it was passed without giving reasonable
opportunity of making a representation against the penalty
imposed. He further submitted that the narration of the fact
in paragraph 4 of the order dated 14.02.2023 is
misrepresentation of the actual fact and it seeks to project
that this Court had sought for the penalty of dismissal of
service against the petitioner which was untrue.
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
11. The learned Additional Advocate General
submitted that the petitioner has not challenged the
imposition of major penalty vide office order dated
25.09.2018 and therefore, it is clear that he was an
employee who was not fit to be a government employee
which led to the loss of public exchequer. The imposition of
the major penalty which led to his termination is valid. After
the disciplinary proceeding was initiated against the
petitioner, he filed his reply on 23.07.2018 where he
admitted to the charges and accepted to face the penalties.
After considering the reply and his admission, the petitioner
was imposed a penalty of dismissal of service on
25.09.2018. The modification of office order dated
25.09.2018 by the Governor vide order dated 27.02.2019
reducing it to compulsory retirement of the petitioner was
not valid as under the power of revision, i.e., Rule 10, he was
required to consult the Commission which the Governor did
not do. The modification is, thus, not tenable in the eyes of
law. When the file pertaining to the compulsory retirement of
the petitioner was moved, some irregularities were observed
in the procedure adopted while reviewing the penalty of
dismissal from service to compulsory retirement. After
examining the records at the time of reviewing the penalty of
dismissal from service to compulsory retirement, the
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
Commission was not consulted and therefore the order of
the Governor was an illegal order. The learned Additional
Advocate General relied upon the following judgments:
Indian Administrative Service (S.C.S.) Association, U.P. and
,
Others vs. Union of Indian & Others1 Competent Authority vs.
,
Barangore Jute Factory and Others2 Shri Chandra Kumar
,
Chettri and Ano. vs. Smt. Kipu Lepcha3 N.B. Tiwari vs. State of
4,
Sikkim and Others Naresh Kumar Rai vs. State of Sikkim and
,
Others5 Basawaraj and Another vs. Special Land Acquisition
,
Officer6 and Others vs.
Employees’ State Insurance Corpn.
7. This Court
Jardine Henderson Staff Association and Others
has perused the judgments which were all rendered in the
facts of those cases. The facts of the present case are
completely different and therefore, ratio laid down therein
not applicable.
12. In (supra), the
Indian Administrative Service
Supreme Court was examining a case of seniority of IAS
Officers. The Supreme Court examined section 3(1) of the All
India Services Act, 1951 which provided that the Central
Government may, after consultation with the Governments
11
1993 Supp (1) SCC 730
2
(2005) 13 SCC 477
3
2024:SHC:71
4
(2004) SCC Online Sikk 28
5 2020:SHC:100
6
(2013) 14 SCC 81
7
(2006) 6 SCC 581
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
of the States concerned (including the State of Jammu &
Kashmir), (and by notification in the Official Gazette) make
rules for the regulation of recruitment, and the conditions of
service of persons appointed to an All India Service. It is in
this context that the Supreme Court examined various
judgments rendered by it on the meaning of the word
“consultation” and when such “consultation” is mandatory.
13. In (supra), while
Barangore Jute Factory
examining a land acquisition case under the National
Highways Act, 1956, the Supreme Court opined that it is
settled law that where a statute requires a particular act to
be done in a particular manner, the act has to be done in
that manner alone.
14. In (supra), while
Shri Chandra Kumar Chettri
interpreting the provisions of the National Highways Act,
1956, this Court relied upon the opinion of the Supreme
Court in
Vinod Kumar & Others vs. District Magistrate Mau &
in which it was held that where the words of a
Others8
statute are absolutely clear and unambiguous, recourse
cannot be had to the principles of interpretation other than
the literal rule. The language employed in a statute is a
determinative factor of the legislative intent. The legislature
8
(2023) SCC Online SC 787
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
is presumed to have made no mistakes. The presumption is
that it intended to say what it had said.
15. In (supra), the Division Bench of this
N.B. Tiwari
Court while interpreting Rule 11 of the Discipline & Appeal
Rules opined that there is no mention of power of remand in
Rule 11, that power is inherent in the Reviewing Authority.
At times it happens that a delinquent officer has been
materially prejudiced on account of improper inquiry. In
such cases, the Reviewing Authority cannot plead
helplessness. It would be within its jurisdiction to remand
the matter to the Disciplinary Authority for fresh disposal in
the ends of justice. The power of remand always inheres
with higher authority. The Reviewing Authority in the
circumstances cannot be held to be lacking the power of
remand when it is noticed that the petitioner was not given
opportunity to examine his defence witnesses.
16. In (supra), a Single Bench of
Naresh Kumar Rai
this Court relied upon a judgment of the Supreme Court in
where it was observed
Sohan Lall Gupta vs. Asha Devi Gupta9,
that the principles of natural justice cannot be put in a
straightjacket formula. In a given case the party should not
only be required to show that he did not have a proper
9
(2003) 7SCC 492
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
notice resulting in violations of principles of natural justice
but also to show that he was seriously prejudiced thereby.
17. In (supra), while examining
Basawaraj and Another
sufficiency of cause in seeking condonation of delay of five
and a half years in filing the appeals, the Supreme Court
opined that it is settled legal proposition that Article 14 of
the Constitution is not meant to perpetuate illegality or
fraud, even by extending the wrong decision made in other
cases. The said provision does not envisage negative equality
but has only a positive aspect.
18. In (supra), the
Jardine Henderson Staff Association
Supreme Court examined a case in which a notification
issued by the Union of India by which Central Government
amended Rules 50, 51 and 54 of the Employees‟ State
Insurance (Central) Rules, 1950, pursuant to which the
wage limit for coverage of an employee under section 2(9)(b)
of the Employees‟ State Insurance Act was enhanced from
Rs.3000/- to Rs.6500/- instead of the existing wage ceiling
of Rs.3000/- per month. It is in this context that in
paragraph 61 thereof the Supreme Court opined as it did
which has no relevance in the facts of the present case.
19. After hearing the learned counsel for the parties,
it seems it would be relevant to examine the power of
Revision under Rule 10 and the power of Review under Rule
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
11 of the Discipline and Appeal Rules. These Rules are
reproduced herein below.
10. Revision.-
“
(1) Notwithstanding anything contained in these
rules, the Governor may at any time, either on his own
motion or otherwise, call for the records of any inquiry or
revise any order made under these rules or under the rules
repealed by rule 12 from which an appeal is allowed but from
which no appeal has been preferred or from which no appeal
is allowed, after consultation with the Commission where
such consultation is necessary and may-
(a) confirm, modify or set aside the order, or
(b) confirm, reduce, enhance or set aside the
penalty imposed by the order, or impose any
penalty where no penalty has been imposed,
or
(c) remit the case to the authority which made
the order or to any other authority directing
such authority to make such further inquiry
as it may consider proper in the
circumstances of the case,
(d) or pass such other orders as it may deem fit.
Provided that no order of imposing or enhancing any
penalty shall be made by any Revision Authority unless the
Government servant concerned has been given a reasonable
opportunity of making a representation against the penalty
proposed and where it is proposed to impose any of the
penalties specified in the clauses (v) to (ix) of rule 3 or to
enhance the penalty imposed by the order sought to be
reviewed to any of the penalties specified in these clauses, no
such penalty shall be imposed except after an inquiry in the
manner laid down in rule 5 and after giving reasonable
opportunity to the Government servant concerned of showing
causes against the penalty proposed on the evidence
adduced during the inquiry and except after consultation
with the Commission where such consultation is necessary.
11. Review.- The Governor may, at any time, either on
his own motion or otherwise, review any order passed under
these rules, when any new material or evidence which could
not be produced or was not available at the time of passing
the order under review and which has the effect of changing
the nature of the case, has come, or has been brought to his
notice.
Provided that no order imposing or enhancing any penalty
shall be made by the Governor unless the Government
servant concerned has been given a reasonable opportunity
of making a representation against the penalty proposed or
where it is proposed to impose any of the major penalties
specified in rule 3 or to enhance the minor penalty imposed
by the order sought to be reviewed to any of the major
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W.P. (C) No. 52 of 2022
Mani Kumar Subba vs. State of Sikkim & Ors.
penalties and if an inquiry under rule 5 has not already been
held in the case, no such penalty shall be imposed except
after inquiring in the manner laid down in rule 5, subject to
the provision of rule 7, and except after consultation with the
Commission where such consultation is necessary
.”
[emphasis supplied]
20. The sequence of events reflected above shows that
the initial order dated 25.09.2018 of dismissal of service was
revisited under Rule 10 above. The office order dated
27.02.2019 records that the Governor in exercise of the
powers conferred on him under Rule 10, called for the
records of inquiry held against the petitioner, considered the
quantum of punishment imposed and after due
consideration came to the conclusion that the penalty of
dismissal imposed was harsh and accordingly modified by
reducing the penalty to compulsory retirement with an order
that the petitioner be allowed compulsory retirement
pension in accordance with the relevant provisions of the
Sikkim (Pension) Rules, 1990. Rule 10, as quoted above,
permits the Governor to on his own motion call for the
records of the inquiry or revise any order made after
consultation with the Commission where such consultation
is necessary. Rule 10, therefore, allows the Governor to
exercise his discretion to suo motu call for the records and
consult the Commission whenever he deems it necessary. In
such view of the matter, the order dated 27.02.2019 passed
in favour of the petitioner cannot be assailed on the sole
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Mani Kumar Subba vs. State of Sikkim & Ors.
ground that the Commission was not consulted without
anything more. The facts reflect that even after the passing
of the order dated 27.02.2019, the respondent took no steps
to challenge it or undo it till the writ petition was filed on
17.11.2022 by the petitioner seeking the benefit of the order
dated 27.02.2019.
21. Rule 11 permits the Governor to review any order
when any new material or evidence which could not
passed “
be produced or was not available at the time of passing the
order under review and which has the effect of changing the
nature of the case, has come or has been brought to his
notice No new material or evidence has been placed by the
”.
respondent which has the effect of changing the nature of
the case. Instead, the respondent argues that since the
Governor had failed to consult the Commission as envisaged
in Rule 10 while passing the order dated 27.02.2019, the
Governor thought it fit to review it. This Court is afraid that
this failure alone would not change the nature of the case.
More importantly, the proviso to Rule 11 prohibits any order
imposing or enhancing any penalty by the Governor and
mandates the requirement of fair play and natural justice by
requiring a reasonable opportunity of making a
representation against the penalty imposed. Admittedly, no
such opportunity was granted before the impugned order
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Mani Kumar Subba vs. State of Sikkim & Ors.
dated 14.02.2023 was passed, by which the order dated
27.02.2019 passed earlier, was withdrawn. When an order
of compulsory retirement with compulsory retirement benefit
was passed in favour of the petitioner on 27.02.2019, the
impugned order dated 14.02.2023 imposing the penalty of
dismissal of service without hearing the petitioner, cannot
be sustained. As rightly contended by the learned counsel
for the petitioner, the narration in paragraph 4 of the
impugned order dated 14.02.2023 misrepresents the facts
as well.
22. In the facts of the present case as narrated above,
this Court has no hesitation in holding that the impugned
order dated 14.02.2023 has been passed in the teeth of Rule
11 of the Discipline and Appeal Rules and liable to be set
aside.
23. Resultantly, the writ petition is allowed. The order
dated 14.02.2023 is set aside. The order dated 27.02.2019
stands revived. The respondents are directed to comply with
it within a period of three months from today and grant the
petitioner the compulsory retirement pension in accordance
with the Sikkim (Pension) Rules, 1990.
(Bhaskar Raj Pradhan)
Judge
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