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2000 DIGILAW 820 (PAT)

Hari Prasad v. State of Bihar

2000-06-30

S.K.CHATTOPADHYAYA

body2000
JUDGMENT S.K. CHATTOPADHYAYA, J. The petitioner initially prayed for quashing the order dated 11.7.1995 awarding major punishment of stoppage of two increments with cumulative effect together with the salary of suspension period. He also prayed for production of the order of the appellate authority dated 1.4.1997, which was not supplied to him. Subsequently when the copy of the said order was supplied to him he challenged the same by filing a supplementary affidavit. He has also challenged the order of the District Education Officer dated 28.9.1999 stopping his salary on the ground that he has not provided a copy of the writ petition and so his salary be stopped. 2. Without going into the facts in details it is suffice to state that the petitioner was put under suspension on 19.8.91 for certain commission and commission but no departmental proceeding was initiated against him and thus he moved this Court in CWJC No. 3969 of 1993(R). By order dated 12.8.1994 a Division Bench directed that if the departmental proceeding is not initiated against the petitioner within nine weeks from today, the order of suspension shall stand automatically vacated. 'This Court also directed to pay the entire amount of subsistence allowance from the date of suspension, if not already paid, within the same period. However, during pendency of the writ application a charge sheet was issued leveling allegation against the petitioner and he was asked to appear before the Enquiry Officer on 15.3.1994. The petitioner submitted his show cause and after detailed enquiry the Enquiry Officer opined that the charges leveled against the petitioner were not proved and thus recommended for exonerating him from the charges. This enquiry was conducted by the Regional Deputy Director, Hazaribagh, and the report is Annexure-6. The Disciplinary Authority, without issuing any notice to the petitioner differed with the findings of the Enquiry Officer and passed the impugned order of punishment. By this order two Increments with cumulative effect were stopped and salary for the suspension period was withheld except subsistence allowance, which was already paid to the petitioner. The petitioner was suspended on 19.1.91 and along with the order of punishment dated 11.7.95 the suspension order was revoked resulting in withholding a lump sum amount of salary. Being aggrieved the petitioner moved the appellate authority raising all the points available to him. The petitioner was suspended on 19.1.91 and along with the order of punishment dated 11.7.95 the suspension order was revoked resulting in withholding a lump sum amount of salary. Being aggrieved the petitioner moved the appellate authority raising all the points available to him. One of the points specifically urged by the petitioner was that before awarding the punishment the Disciplinary Authority while differing with the report of the Enquiry Officer, was required to give show cause notice stating categorically the reasons for differences with the report of the Enquiry Officer. No such notice was ever given to the petitioner for which, he urged before the appellate court that the entire order of punishment was vitiated in law. 3. As also noted earlier that though the appellate authority rejected his appeal on 1.4.97 the petitioner averred that the copy of the appellate order was not supplied to him. Pursuant to order dated 18.4.2000 the said order was supplied to the petitioner and the petitioner also impugned the same in this writ application. The appellate order is Annexure-9. 4. Mr. Banerjee, learned counsel appearing on behalf of the petitioner has contended that while differing with the findings of the Enquiry Officer, exonerating the petitioner, the Disciplinary Authority was bound to give notice specifically stating the reasons for differing with the Enquiry Officer. In this case, he urged, the same having not done, the order of the Disciplinary Authority as well as appellate authority are liable to be quashed. In support of his contention he has relied on the decision in the case of Punjab National Bank and others V Kunj Behari Misra reported in (1998)7 Supreme Court cases 84. 5. Mr. Gajendra Nath Ojha, learned J.C. to Government pleader No. V accepting the factual position, however, has disputed the proposition of law formulated by Mr. Banerjee and with reference to the decision of this Court in the case of Braj Kishore Prasad Shrivastava v. The Bihar State Electricity Board [1998 (2) All PLJR 551] submits that the law postulates merely giving reasons for disagreement in the impugned order. According to him the Disciplinary Authority may agree or may not agree with the enquiry report and in the instant case after hearing the petitioner the Disciplinary Authority has given reasons for disagreement with the enquiry report in his order dated 11.7.95 and, as such, it cannot be set aside. 6. According to him the Disciplinary Authority may agree or may not agree with the enquiry report and in the instant case after hearing the petitioner the Disciplinary Authority has given reasons for disagreement with the enquiry report in his order dated 11.7.95 and, as such, it cannot be set aside. 6. In the case of Braj Klshore Prasad Shrivastava (supra) this Court relying on the decision of the Apex Court in the case of State of Rajasthan vs. M.C. Sexena, JT 1998(2) S.C. 103 has held that "a delinquent employee is entitled to supply of all the materials which are taken into account by the disciplinary authority but there is no requirement that even the reasoning for differing with the enquiry report submitted in favour of the delinquent should also be communicated and petitioner should be afforded an opportunity before passing a final order of holding guilt and imposing punishment after differing with the report of the enquiry officer. The horizan of the natural justice cannot be expanded to the extent as urged on behalf of the counsel for the petitioner." 7. However, this principle of law has been unsettled by the Hon'ble three Judges of the Supreme Court in the case of Punjab National Bank and others (supra). Considering different provisions of the Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1917, their Lordships in paragraph-19 have concluded by observing as follows: "........As a result thereof, wherever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records it findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." Having thus observed, their Lordships have held that the contrary view expressed in the cases of State Bank of India v. S.S. Koshal [1994 Supp(2) see 468] and the State of Rajasthan v. M.C. Sexena (supra) do not lay down the correct law. In such view of the matter I am of the view that the decision rendered in Braj Kishore Prasad Shrivastava's case (supra) is not a good law and cannot help the State. 8. Learned counsel for the State as observed earlier has not disputed this fact that the Disciplinary Authority has not communicated its reasoning for differing with report of the Enquiry Officer to the petitioner. On this ground the impugned orders of the Disciplinary Authority as well as the appellate authority cannot be allowed to stand. 8. In the result, this writ application is allowed. The orders dated 11.7.95 and 1.4.97 are set aside. 9. However, it is open to the Disciplinary Authority to pass fresh order, if so advised, after supplying reasoning for difference to the petitioner and giving him opportunity to show cause in that matter. So far order dated 28.9.99 (Annexure-10) is concerned, in my view the District Education officer had illegally stopped the salary of the petitioner on the ground that a copy of the writ application though asked for, was not supplied to the department. The department is represented by the Advocate General and before filing of the writ application two copies are being served on his office on 18.4.2000 the State counsel has appeared and an order was passed enabling the Director of Secondary Education to Supply a copy of the appellate order to the petitioner and thus it is clear that the state counsel was under an obligation to forward a copy of the writ application to the department. Under these circumstances, I set aside the order dated 20.9.1999 as contained in Annexure-10 and direct the concerned authority to pay all the arrears to the petitioner within three weeks from the date of receipt/production of a copy of this order.