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2000 DIGILAW 889 (PAT)

Anant Pandey v. Bihar State Electricity Board

2000-07-19

ASOK KUMAR GANGULY

body2000
Judgment A.K.Ganguly, J. 1. While the petitioner was working as Junior Electrical Engineer, Electric Supply Section, Triveniganj District Supaul under Koshi Area Electricity Board, Saharsa, in contemplation of a disciplinary proceeding, he was put under suspension on 8.6.1998 by an order of the same date and thereafter, the petitioner was served with a charge memo vide memo No. 284 dated 24.3.1999. The petitioner challenged the said suspension order by filing a writ petition being C.W.J.C. No. 2443 of 1999. The said writ petition was disposed of by an order dated 26.3.1999 by a learned Judge of this Court with a direction upon the respondents to complete the departmental inquiry within a particular time. Thereafter, the suspension order issued against the petitioner was revoked by an order dated 22.7.1999 and was made effective from 21.7.1999 instead of 22.7.1999. In the said enquiry, the Inquiry Officer submitted his report dated 5.7.1999. In the said report the Inquiry Officer after going through the records of the case and holding an inquiry found that the charges against the petitioner have not been proved. 2. Thereafter, a purported second show-cause notice dated 2.8.1999 was served upon the petitioner in which the authorities of the Board expressed disagreement with the findings of the Inquiry Officer and held that the charges are proved on certain grounds and the petitioner was asked to show-cause against certain punishment mentioned in the said second show-cause notice. On getting the said second show-cause notice the petitioner asked for certain documents but the petitioner was denied the same and it was pointed out that the time to submit reply to the second show-cause notice was extended and the said time will lapse by 29.11.1999. It appears that the petitioner having no option filed his reply to the second show-cause notice dated 2.8.1999. Thereafter, the final order was passed on 29.12.1999 imposing upon the petitioner the following punishment: 1. His three increments are stopped with cumulative effect. 2. He will never be posted in any supply Section. 3. He will not get anything beyond subsistence allowance during the suspension period. This period will be counted us on duty for post retirement benefits. 3. The main ground of attack in the disciplinary proceeding held by the respondent Board against the petitioner is about the manner in which second show-cause notice was issued to the petitioner. 4. 3. He will not get anything beyond subsistence allowance during the suspension period. This period will be counted us on duty for post retirement benefits. 3. The main ground of attack in the disciplinary proceeding held by the respondent Board against the petitioner is about the manner in which second show-cause notice was issued to the petitioner. 4. It has been urged by the earned Counsel for the petitioner that admittedly in the instant case, the Inquiry Officer has found that the charges against the petitioner could not be proved and the disciplinary authority has disagreed with that report. 5. Learned Counsel for the petitioner submitted that in the instant case the show-cause notice which has been issued does not contain any reason for disagreement with the findings of the Enquiry Officer. The second show-cause notice merely contains the findings of the disciplinary authority on certain grounds. According to him, the crucial recitals in the second show-cause notice would bear it out. In order to highlight his submission, he has drawn the attention of this Court to the following part of the recitals in the show-cause which are crucial for the point in issue. The relevant portion is set out below: And whereas the Inquiry Officer submitted his enquiry report vide his letter No. 3082 dated 5.7.1999 along with all the relevant papers and enclosures of the Said proceeding. And whereas after disagreeing with the findings of the Inquiry Officer after due consideration and analysis of the inquiry report, charges against Sri Pandey, Junior Electrical Engineer are proved on the following grounds. 6. Learned Counsel submitted that the purported grounds which have been mentioned by the disciplinary authority are alleged grounds in support of its findings to prove the charges against the petitioner but they are not reasons for disagreeing with the findings of the Inquiry Officer. 7. Learned Counsel further submitted that the second show-cause notice as issued in this case does not satisfy the test laid down by the three-Judge Bench judgment of the Supreme Court in the case of Punjab National Bank and Ors. V/s. Kunj Behari Misra Reported in -- . Learned Counsel for the petitioner relied on the conclusions which have been drawn by the learned Judges of the Hon ble Supreme Court after discussing several decisions on this issue. V/s. Kunj Behari Misra Reported in -- . Learned Counsel for the petitioner relied on the conclusions which have been drawn by the learned Judges of the Hon ble Supreme Court after discussing several decisions on this issue. In paragraph 19 in the case of Kunj Behari Misra (supra), the following principles have been laid down by the Hon ble Supreme Court: As a result thereof, whenever the disciplinary authority disagrees with the inquiry 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 its findings. 8. The learned Judges of the Supreme Court also spelt out the reason why the disciplinary authority must record its reasons for disagreement before it records its findings on the charges. The reason being that if such reasons of disagreement are recorded and forwarded to the delinquent officer, he will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the Inquiry Officer. The learned Judges of the Hon ble Supreme Court in the case of Kunj Behari Misra, (supra) has approved another judgment of the Supreme Court in the case of Ram Kushan V/s. Union of India, reported in -- . In the case of Ram Kishan, the learned Judges of the Supreme Court have been pleased to spell out the purpose for recording reasons for disagreement in the show-cause notice in the following words. Those observations are quoted below: The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the Inquiry Officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the Inquiry Officer. In that situation, unless the disciplinary authority gives specific reasons in the show-cause on the I basis of which the findings of the Inquiry Officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the Inquiry Officer. 9. In that situation, unless the disciplinary authority gives specific reasons in the show-cause on the I basis of which the findings of the Inquiry Officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the Inquiry Officer. 9. Learned Counsel appearing for the respondent-Bihar State Electricity Board (hereinafter referred to as the said Board), on the other hand submits that the second show-cause notice as issued is sufficient to meet the ends of natural justice and it contains tentative findings of the disciplinary authority and it offers the petitioner an opportunity to make a representation against the same. He, however submitted that no other opportunity is contemplated either under the law or under the principles of natural justice. Learned Counsel wanted to substantiate his case on the basis of the decision in the case of State of Assam v. Bimal Kumar Pandit . In the said decision of Bimal Kumar Pandit (supra), the question which fell for consideration before the Honble Supreme Court was whether in the absence of a statement that the findings of the Inquiry Officer are accepted, the second show-cause notice will be vitiated. The learned Judges of the Supreme Court held that it will not be so vitiated. In the said case also, the ambit of reasonable opportunity contemplated under Article 311(2) of the Constitution was discussed. While explaining the above principle in paragraph 8, the learned Judges of the Supreme Court held that in a case where the disciplinary authority disagrees with the findings of the Inquiry Officer, in such case it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the inquiry report. The learned Judges held that without expressly making that statement in the notice, it would be impossible to issue the notice at all. This observation has been made in paragraph 8 at page 1615 of the report in the case of Bimal Kumar Pandit (supra). 10. Here we are not concerned with the aforesaid issue. The learned Judges held that without expressly making that statement in the notice, it would be impossible to issue the notice at all. This observation has been made in paragraph 8 at page 1615 of the report in the case of Bimal Kumar Pandit (supra). 10. Here we are not concerned with the aforesaid issue. In the case of Kunj Behari Misra (supra), the learned Judges of the Supreme Court has construed the decision in Bimal Kumar Pandit (supra), and after construing the said decision, has laid down the propositions which have been extracted above and the Court is bound by the way the decision in Bimal Kumar Pandit has been interpreted in Kunj Behari Misra (supra). Therefore, this Court cannot accept the contention of the earned Counsel for the respondent Board that in view of the propositions laid down in Bimal Kumar Pandits case (supra) the impugned second show-cause notice issued in this case is valid and legal. 11. This Court is of the opinion that the proposition as laid down in Kunj Behari Misra (supra) is an extension of the principles laid down in Bimal Kumar Pandit (supra) case and the Supreme Court has said in paragraph 19 in Kunj Behari Misra (supra) that principles of natural justice has to be read into the service regulation in question. 12. Learned Counsel for the respondent Board has also relied on a subsequent judgment in the case of High Court of Judicature at Bombay V/s. Shashikant S. Patil and Anr. . In that case the respondent was a Judicial Officer against whom a departmental proceeding was initiated. The Inquiry Officer exonerated him of the charges but the disciplinary committee of the High Court after issuing notice to the petitioner held the charges proved against him. The Governor on the recommendation of the High Court imposed the penalty of compulsory retirement upon him. Thereafter, a Division Bench of the High Court on the judicial side quashed the punishment on the ground that the disciplinary committee had not put forward adequate reasons for differing with the findings of the Inquiry Officer. 13. The Governor on the recommendation of the High Court imposed the penalty of compulsory retirement upon him. Thereafter, a Division Bench of the High Court on the judicial side quashed the punishment on the ground that the disciplinary committee had not put forward adequate reasons for differing with the findings of the Inquiry Officer. 13. The approach of the Division Bench in setting aside the penalty has been commented upon by the Supreme Court in the following words: The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above, But, it cannot be overlooked that the departmental authority (in this case the disciplinary committee of the High Court) is the sole Judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution. 14. The Hon ble Supreme Court held that the aforesaid approach of the Division Bench was erroneous inasmuch as the approach of the Division Bench was as if it was hearing an appeal against the order of the disciplinary authority. 15. But, the point, which has fallen for consideration in this case, was not in issue in the case of Shashikant S. Patil (supra). In the case of Shashikant S. Patil (supra) the issue was the manner of interference by the High Court almost as an appellate authority over the findings of the disciplinary authority, In that case, the judgment in Kunj Behari Misra (supra) was also not considered. In the case of Shashikant S. Patil (supra) the issue was the manner of interference by the High Court almost as an appellate authority over the findings of the disciplinary authority, In that case, the judgment in Kunj Behari Misra (supra) was also not considered. Apart from that, it was not the contention of the parties that in recording its difference with the Inquiry Officer, the disciplinary authority need not record its reasons but can only give its findings as has been done in the impugned show-cause notice. Apart from that, the basic reason behind the decision in Shashikant S. Patil is the question, of High Courts functioning for the purpose of ensuring a corruption-free Judiciary. This has been emphasised in paragraph 24 of the said judgment in Shashi Kant S. Patil (supra) as the Hon ble Judges of the Supreme Court has held that when a constitutional function is exercised by the administrative of the High Court, the judicial review thereof should be made with great care and circumspection and going by that standard the Hon ble Judges of the Supreme Court found that the learned Judges of the Division Bench of Bombay High Court have clearly acceded to the jurisdictional frontier by interfering with the order passed by the High Court on administrative Side. Therefore, the ratio of the decision in Shashikant S. Patil delivered in an altogether different context and in a case where identical question was not at issue cannot be cited as an authority in the present case. 16. For the reasons aforesaid, this Court finds that in the impugned show-cause notice dated 2.8.1999, the disciplinary authority has not given any reason for disagreement with the findings of the Inquiry Officer. It has given its own finding in respect of the charges levelled against him. This is not contemplated in view of the law laid down by the Supreme Court as discussed above. Incidentally, it may be pointed out that the decision in Kunj Behari Misra (supra) was considered by a Division Bench of this Court in L.P.A. No. 792 of 1999. In the said judgment of the Division Bench dated 1.2.2000 delivered by Hon ble Mr. Justice B.P. Singh (as His Lordship then was) and Hon ble Mr. Justice A.K. Ganguly same question came up for consideration. In the said judgment of the Division Bench dated 1.2.2000 delivered by Hon ble Mr. Justice B.P. Singh (as His Lordship then was) and Hon ble Mr. Justice A.K. Ganguly same question came up for consideration. The relevant portion of the Division Bench judgment in paragraph 6 is quoted below: We notice from the order of the disciplinary authority dated 12th September, 1999 (Annexure-11 to the writ petition) that he called upon the appellant only to show-cause why the proposed punishment should not be inflicted upon him. Counsel for the appellant, therefore, submitted, relying upon the aforesaid judgment of the Supreme Court, that no opportunity was given to the appellant to persuade the disciplinary authority to accept the favourable conclusion of the Inquiry Officer. There was, therefore, no scope for the appellant to represent that the finding of the Inquiry Officer was justified in the facts and circumstances of the case and that the reasons for disagreement as recorded in the order were not adequate to disturb the finding recorded by the Inquiry Officer. All that the notice, provided was that the appellant should represent against the proposed punishment. Counsel for the Bank on the other hand, contends that even if the appellant was called upon only to show-cause why the proposed punishment should not be inflicted upon him, he could, in his representation before the disciplinary authority contend that the findings of the Inquiry Officer were justified and there was no good reason to disagree with the aforesaid finding. We are of the view that the submission urged on behalf of the respondent-Bank cannot be accepted. The law has been clearly laid down by the Supreme Court in the aforesaid judgment that an opportunity to represent must be given against the tentative reasons recorded by the disciplinary authority while disagreeing with the findings of the Inquiry Officer. This was not done in the instant case and, therefore, we are of the opinion that the matter should be remitted to the disciplinary authority for further action in accordance with law. 17. The aforesaid proposition as laid down by the Division Bench, in my view, correctly represents the legal position. 18. For the reasons aforesaid, this Court quashes Annexure-5 and the final order at Annexure-8. 17. The aforesaid proposition as laid down by the Division Bench, in my view, correctly represents the legal position. 18. For the reasons aforesaid, this Court quashes Annexure-5 and the final order at Annexure-8. The matter is remitted to the disciplinary authority with a direction that the disciplinary authority should serve upon the petitioner a notice regarding its tentative reasons for disagreement with the findings of the Inquiry Officer and to call upon the petitioner to make a representation before the disciplinary authority to record its own finding. In the facts of this case, it is not necessary for the disciplinary authority to again serve upon the petitioner a copy of the Inquiry Officers report since it has already been served upon him and after considering the representation which the petitioner may make, the disciplinary authority may impose appropriate punishment which it may think proper in the facts and circumstances of the case. It is, however, made clear that after giving notice, as aforesaid, the disciplinary authority will give the petitioner time for one month only to give his reply from the date of service of the said notice upon the petitioner. If the petitioner does not give reply within a period of one month, as aforesaid, the disciplinary authority need not wait any further and it can pass order in accordance with law. 19. For the reasons aforesaid, this writ petition is allowed to the extent indicated above. There will be no order as to cost.