A minor penalty is invalid if imposed without an opportunity to represent against the inquiry report.

The applicant, a member of a departmental verification board for Ayurvedic/Unani medicine supplies, faced regular departmental action arising from allegations concerning sub-standard medicines.

The Enquiry Officer’s report dated 27 February 2019 found the allegations against him unestablished.

Nevertheless, by Government Order dated 9 January 2025, the respondents imposed a one-year non-cumulative withholding of increment under Rule 30(iii) of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956.

The applicant challenged that order, including on the ground that he had not been given an opportunity to represent against the inquiry report.

He also sought second time-bound promotion, but at the hearing stated that this relief had been granted and was not pressed.

1. Whether the penalty order was unlawful because the applicant was not given an adequate opportunity to make a representation against the inquiry report before the penalty was imposed.

2. Whether the penalty could stand where the Enquiry Officer had found the allegations unestablished and the disciplinary authority gave no reasons for departing from that report.

3. Whether the respondents should be permitted to resume proceedings from the stage of inviting the applicant’s representation.

Rule 35 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 requires that, before imposing the penalties specified in Rule 30(i), (ii), (iii) or (v), the government servant be given an adequate opportunity to make a representation and that any representation be considered before the order is passed, subject to the rule’s stated exceptions.

Relying on State of J&K v. Mohd Amin Makhdoomi (1980 JKLR 417), the Tribunal held that where a formal inquiry is held and the disciplinary authority proposes to act on the inquiry report, the employee must be given the report and an opportunity to represent against it before a penalty is imposed.

The Tribunal also noted Vinod Kumar v. Jammu Municipal Corporation, which, relying on Union of India v. Mohd Ramzan Khan, reiterated the requirement of an adequate pre-penalty opportunity and consideration of the employee’s representation.

The penalty imposed was one of the penalties covered by Rule 35, but the applicant was not given an opportunity to make a representation against the inquiry report before the order was issued.

The Tribunal further found that the disciplinary authority had not explained why it imposed a penalty despite the Enquiry Officer’s finding that the misconduct was not established.

The order therefore failed to meet the procedural requirement in Rule 35 and was unsustainable.

Although the procedural defect might ordinarily warrant allowing the disciplinary authority to reconsider the matter after giving the required opportunity, the inquiry report had been submitted in 2019 and the penalty was imposed more than six years later.

In the circumstances, the Tribunal considered it futile to remit the matter for that purpose.

The applicant’s claim for second time-bound promotion was not pressed after the Tribunal was informed that it had been granted with effect from 1 January 2025.

No order was made as to costs.