Governor Has Discretion To Not Consult With Public Service Commission Under Sikkim Government Servants' (Discipline & Appeal) Rules, 1985: Sikkim High Court

Background

Mani Kumar Subba was a former Divisional Engineer (Civil) in the Human Resource Development Department. He was dismissed for misconduct during disciplinary proceedings. Later, he applied for voluntary retirement but the Governor modified the penalty to compulsory retirement with benefits under Rule 10 of the Discipline & Appeal Rules. Rule 10 grants the Governor powers to revise the penalties imposed on a government servant, subject to consultation with the Sikkim Public Service Commission when necessary.

Despite this, Subba's retirement benefits remained unpaid, leading him to file a writ petition in 2022. During its pendency, the government, citing procedural lapses in the earlier modification, passed a fresh order. This order reinstated the penalty of dismissal as opposed to retirement with benefits. Subba challenged this order, asserting that it violated principles of natural justice and procedural safeguards under Rule 11.

Arguments

Subba's counsel, Mr. Yam Kumar Subba, contended that the new order was procedurally flawed. He argued that the revocation of the old order was undertaken without giving the petitioner an opportunity to be heard, thereby violating Rule 11. Furthermore, the counsel alleged that the impugned order misrepresented facts to suggest that the High Court had directed the penalty of dismissal, which was untrue.

The government's counsel, led by Mr. Zangpo Sherpa, Additional Advocate General, justified the new order on grounds that the Governor's earlier decision was procedurally invalid as he did not consult with the Sikkim Public Service Commission. This, they argued, was mandated by Rule 10. They argued that Subba had admitted the charges and was unfit for public service, justifying his dismissal.

Court's Reasoning

Firstly, the court affirmed the legality of the old order under Rule 10. It observed that the Governor had discretionary powers to revise penalties after consulting the Commission “where necessary.” It explained that after due consideration, the governor concluded that the imposed penalty was harsh and reduced it to compulsory retirement with pension. The court noted that Rule 10 allows the Governor to revise any order, and consult the Commission whenever he deems it necessary. Thus, it held that the Governor exercises discretion in the matter, and the order cannot be challenged now only because the Commission was not consulted.

Secondly, the court examined the new order. It noted that Rule 11 permits a review only when “new material or evidence” comes to light. The court found no such evidence being placed by the respondent in this case. It held that a mere procedural lapse—the failure to consult the Commission in 2019—did not qualify as “new material” under Rule 11 that could justify the review.

Lastly, the court explained that the proviso to Rule 11 provides the affected party with a right to be heard before altering any penalty imposed by the Governor. It noted that the respondents had failed to follow this procedural safeguard. Without an opportunity to be heard, the court held that the new order would be unsustainable. Thus, the court set aside the new order, and restored the old order that modified Subba's penalty to compulsory retirement with benefits. It directed the respondents to implement the order within three months.

Date: 11-12-2024

Case No.: W.P. (C) No. 52 of 2022 (Mani Kumar Subba v. State of Sikkim)

Counsel for the Petitioner: Mr. Yam Kumar Subba

Counsel for the Respondents: Mr. Zangpo Sherpa, Additional Advocate General, with Mr. S.K. Chettri and Mr. Sujan Sunwar, Assistant Government Advocates

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