- (1.) J. C. S. Rawat, J. This writ petition under Art. 226 of the Constitution of India has been filed by the petitioners with the follow ing prayers : (i) to issue a writ, order or direction in the nature of certiorari calling for the records and quashing the impugned order dated 1/-01-2003 (Annexure-1 to this writ pe tition) passed by the respondent No. 2- Director, Horticulture & Food Processing, Almora. (ii) pass any other and further order as this Hon'ble Court may deem fit and proper in the facts and cir cumstances of the case. (iii) Award the cost of the writ peti tion to the petitioners.
(2.) IT is admitted to the parties to the writ petition that petitioners No. 1 & 2 M. T. Khan and PC. Upadhyay have been working as Senior Research Assist ant, Group-1 since July 1984 and August 1995 respectively in Indo-Dutch Mush room Project, Horticulture Department, Jyolikot, District Nainital. The petitioner No. 3- Suresh Chandra has been work ing as Mechanic Group-II in the afore said Project of Horticulture Department. The petitioner Nq. 4 & 5 Surendra Singh Bisht and Ganeshi Lal have been work ing as Mushroom Production Assistant Grade-III in the Project. The petitioner No, 6- Jagdish Chandra Bhatt is work ing as Lab Assistant since November 1993 in the said Project. While discharg ing their duties, the petitioners have sup plied the compost to the mushroom growers. The mushroom growers made complaints to the authorities that the compost supplied under the B. P. L Scheme in August 2002 was of sub standard and due to which they did not receive good results upto their expecta tion and they suffered heavy financial losses. On the basis of the complaints from the mushroom growers, the Chief Development Officer constituted a com mittee to inquire into the matter. The committee consisting of Dr. G. S. Mer, Project Scientist, Mushroom Centre Bhawali, K. M. V. N. , Nainital and Mr. R. S. Adhikari, Project Economist, Dis trict Rural Development Officer, Nainital has submitted its report on 28-11-2002. IT was mentioned inter-alia in the inquiry report that the compost supplied to the mushroom growers was sub-standard, due to which the mushroom growers suffered a heavy pecuniary loss and the, petitioners were responsible for the same. The Committee has found the petitioners guilty of supplying the sub standard compost to the mushroom growers. Due to the negligence and lapses on the part of the petitioners, the mushroom growers have suffered the fi nancial loss and due to this the image of the department as well as the State Government has been tarnished, On the basis of recommenda tions of the committee's report, the re spondent No. 2 has passed the impugned order dated 1/-01-2003 directing the re covery of the amount of financial loss suffered by the mushroom growers from the petitioners. Feeling aggrieved by this, the petitioners have filed the writ peti tion before this Court. It was contended on behalf of the petitioners that the respondent no. 2 has passed the impugned order without giving an opportunity of hearing or show cause notice to the petitioners and as such the impugned order is in violation of principle of natural justice. It was fur ther contended that the respondent no. 2 has not complied with the provision of Rule 10 (2) of LJ. P Government Service (Discipline & Appeal) Rules, 1999 {ap plicable to the State of Uttaranchail. Rule 10 (2) provides that an explanation is required from the government servant against whom the minor punishment is awarded under Rule 3, U. P. Govern ment Service (Discipline & Appeal) Rules, 1999 and the same is to be con sidered before passing the order. Learned Standing Counsel has submit ted that the impugned order has been passed after making thorough inquiry by the Committee and on the recommen dations of the Chief Development Of ficer, Nainital. The action of recovery against the petitioners was made in the public interest and to avoid the repeti tion of such lapses and negligence in future. It was further submitted that the petitioners were found guilty and respon sible for supplying the sub-standard com post to the mushroom growers. Perusal of the record reveals that the petition ers had made specific averments in para 12 & 13 of the petition that they have not been given an opportunity of hear ing or show cause as provided under Rule 10 (2) of the U. P Government Serv ice (Discipline & Appeal) Rules, 1999. The said averment is unrebutted in the counter affidavit filed by the respondent no. 2. Perusal of the record reveals that the impugned order has been passed in view of the inquiry report submitted by the Committee and on the recommen dations of the Chief Development Of ficer, Nainital. Rule 10 (2) U. P. Govern ment Servant (Discipline and Appeal) Rules, 1999 provides as under: "10. Procedure for imposing minor penalties: (1 ). . . . . . . . . . (2) The Government Servant shall be informed of the substance of the im putations against him and called upon to submit his explanation within a reasonable time. The Disciplinary Authority shall, after considering the said explanation, if any, and the rel evant records, pass such order as he considers proper and where a penalty is imposed, reason thereof shall be given. The order shall be communi cated to the concerned Government Servant. "
(3.) RULE 10 (2) provides when a mi nor punishment is to be awarded an ex planation is required from the erring gov ernment servant. RULE 3 of the U. P Gov ernment Servant (Discipline and Appeal) RULEs, 1999 deals with the punishment: "3. Penalties.- The following penal ties may, for good and sufficient rea sons and as hereinafter provided, be imposed upon the Government Serv ants: Minor penalties: - (i) (ii ). . . . . . . . . . (Hi ). . . . . . . . (iv) Recovery from the pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders; (v ). . . . . . . . " Perusal of the aforesaid Rule re veals that the recovery of any amount from the salary of a government servant is a minor punishment. The respondent no. 2 has not specifically stated in the counter affidavit that the explanation was called from the petitioners and af ter considering the explanation the im pugned order was passed. It is also re vealed that there was no averment in the impugned order itself that the explana tion was sought from the delinquent of ficials/officers and after due considera tion of their explanation the minor pun ishment was awarded. It is amply proved that no opportunity of hearing was given to the petitioners before awarding the minor punishment vide impugned order dated 1/-01-2003. Therefore, the impugned order is in vio lation of Rule 10 (2) of the U. P Govern ment Service (Disciplines Appeal) Rules, 1999.;