VIKRAMADITYA PRASAD, J. - (1.) HEARD both the sides.
(2.) IN these two writ petitions the writ petitioners have been departmentally proceeded in one and the same departmental proceeding on a charge that they did not apply their discretion to recover the hire charges of the machines, while making accounts payment to the contractor/agency, thus, the Government has been put to loss to the tune of Rs. 62.08 Lakhs. The petitioners were Assistant Engineers in the Irrigation Department. They were awarded the punishment to the effect that they will not be promoted and further 5 increments with uncumulative effect is withheld vide Annexure -1 in respect of Gopinath Sahay petitioner of W.P. (S) No. 5013 of 2001 and videAnnexure -6 in respect of Yatish Kumar Malliek petitioner of W.P. (S) No. 4993 of 2001. Both these annexures are sought to be quashed on the ground that the enquiry was not made in accordance with law and no opportunity was given to the petitioners to represent their case and, thus, enquiry has been made and order has been passed in their absence, therefore, there has been a violation of the principle of natural justice. In this context the order dated 8,5.2003 was passed and the respondents were directed to file supplementary counter affidavit showing that the notice of the enquiry had been served upon the petitioners and consequent to that supplementary counter affidavit has been filed in both the writs annexing Annexures -A and B. In paragraphs 8 and 9 of the supplementary counter affidavit the following averments have been made: 8. That it is stated that the petitioner was given ample opportunity to reply the show cause i.e. in November 1996 including the reminder dated 28.11.1997 but he did not care to reply the same and thereafter only in October 2000 order of punishment was issued vide Annexure -A. 9. That again on 3.12.1998 vide letter No. 3506 one reminder given to the petitioner alongwith a type copy of charge -sheet and enquiry report but he did not reply vide Annexure -B. Annexures A and B were allegedly issued to both of petitioner in W.P. (S) No. 5013 of 2001 and 4993 of 2001. During the course of argument the learned counsel for the respondents submitted that these Annexures are sufficient to show that the petitioners were duly served with the show cause as also the charge -sheet and even thereafter they did not turn up or care to reply, hence, the impugned orders were passed. The question here is whether these Annexures A and B actually prove that these letters have been served upon the petitioner. These Annexures A and B do not bear the signature of the writ petitioner and in absence of such signature of receipt of these letters it cannot be said that it in any way proves that these letters were actually received by the petitioner. Issuance of a letter and service of that letter as notice are two different things. Issuance of a letter is an administrative step and service has to be affected according to law. In this case the respondents have filed these two letters to prove that there has been service. The learned counsel for the respondents submitted that the punishment is minor one and, therefore, even in absence of departmental enquiry the punishment could have been awarded.
(3.) IN this connection Rule 55 -A of the Civil Service (Classification, Control and Appeal) Rules, reads as follows : "55 -A. Without prejudice to the provisions of Rule 55, no order imposing the penalty specified in Clauses (i), (ii) or (iv) of Rule 49 (other than an order based on facts which led to his conviction in a Criminal Court or by a Court Martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post) on any Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed : Provided that the requirements of this rule may for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned.";