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2001 DIGILAW 61 (ALL)

JAGDISH PRASAD YADAV v. STATE OF UTTAR PRADESH

2001-01-19

PRADEEP KANT, R.D.SHUKLA

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PRADEEP KANT, R. D. SHUKLA, JJ. ( 1 ) THE petitioner being aggrieved by an order passed by U. P. Public Services Tribunal dated 31. 3. 1994, has approached this Court under Article 226 of the Constitution of India. ( 2 ) THE petitioner was appointed as peon in the year 1960 in the Sales Tax Department, but while being posted in the office of the Commissioner Sales Tax, Lucknow, was placed under suspension vide order dated 31st January, 1985 and the Assistant Commissioner, Sales Tax (Administration) was appointed as Enquiry Officer. The petitioner was served with it charge-sheet in which the petitioner was charged that he was directly or indirectly giving cooperation to a Firm namely; M/s. Shanti Enterprises and has violated the Government Servant conduct Rules 3 and 15. ( 3 ) A reply was submitted to the charge-sheet denying all the charges by stating that he has no concern or interest in the business of his son who was actually the owner of the said Firm. In the reply the petitioner requested for personal hearing and cross-examination of the witnesses. The enquiry Officer, however, exonerated the petitioner from all charges. The punishing authority did not agree with the findings recorded by the Enquiry Officer and after considering the entire material on record he came to the conclusion that the charges are proved against the petitioner and passed the order of dismissal of the petitioner from service. The petitioner has raised various pleas including the plea that the punishment order of dismissal was passed against the evidence on record. But it has been mainly urged before the Court that when the enquiry officer had exonerated the petitioner from all the charges, the disciplinary authority or appointing authority could not have inflicted the punishment of dismissal from service after disagreeing with the findings of the Enquiry Officer without affording any opportunity of hearing to the petitioner. ( 4 ) THE Public Service Tribunal after perusing the enquiry report, though observed that the petitioner was exonerated from the charges and, therefore, a notice should have been given if the punishing authority was willing to disagree with the report of the Enquiry Officer, even then, dismissed the claim petition. ( 4 ) THE Public Service Tribunal after perusing the enquiry report, though observed that the petitioner was exonerated from the charges and, therefore, a notice should have been given if the punishing authority was willing to disagree with the report of the Enquiry Officer, even then, dismissed the claim petition. ( 5 ) THE Tribunal took note of the judgment passed by the Apex Court in the case of Narain Misra v. State of Orissa, reported in (1969) SLR 657, where it has been held that when there is difference of opinion between the Enquiry Officer and the Disciplinary authority a notice should be given to the employee about the attitude of the punishing authority, upheld the order of dismissal of the petitioner on a queer reasoning that although the petitioner was not heard and natural justice demands that the petitioner should have been given an opportunity by the punishing Authority but since all the enquiry proceedings took place in his presence where he did not raise any objection and there is no provision of issuance of a second show-cause notice, therefore, the impugned order need not be set aside. The Tribunal further observed that the impugned order of dismissal from service was a very detailed order in which the Punishing authority has assigned his own reasons for arriving at his conclusion and, therefore, the submission of the petitioner that he has not been issued a show-cause notice, has lost its significance. Further according to the Tribunal that since the petitioner has filed an appeal which has also been dismissed, the plea of lack of opportunity was not open to the petitioner any more. ( 6 ) IN the case of Punjab National Bank and Ors. v. Kuni Behari Misra, reported in (1998) 7 SCC 84 , the Apex Court has held that if there is disagreement in the opinion of the Enquiry Officer and Disciplinary Authority/appointing Authority, the delinquent would be entitled to an opportunity before any order of punishment could be passed. ( 7 ) IN Yoginath D. Bogde v. State of Maharashtra and Anr. ( 7 ) IN Yoginath D. Bogde v. State of Maharashtra and Anr. , reported in (1999) 7 Supreme Court cases 739, their Lordships of the Supreme Court had again an occasion to consider the said question and while considering the question, their Lordships took note of the case Punjab national Bank and others (supra), Kunj Behctri Mishra (supra), State of Assam v. Bimal Kumar pandit, reported in AIR 1993 SC 1612, Institute of Chartered Accountants of India v. L. K. Ratna, reported in (1986) 4 SCC 537 , Managing Director, ECIL v. B. Karunakar, reported in (1993) 4 scc 727 , and Ram Kishan v. Union of India, (1995) 6 SCC 157 and held that the delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the later, namely the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311 (2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent upto the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the constitution. ( 8 ) IN view of the dictum of the Honble Supreme Court there is manifest error in the view taken by the Tribunal and the same cannot be sustained. The Tribunal has taken the view that although the Enquiry Officer has exonerated the petitioner but the Disciplinary Authority had jurisdiction to disagree with the view taken by Enquiry Officer. It has been submitted that the petitioner was not afforded any opportunity of hearing before the Punishment of dismissal was inflicted upon him by the Disciplinary Authority, the view taken by the Tribunal that since the petitioner has participated in the enquiry proceedings, therefore, he must be familiar with the facts and also because he has filed the appeal which has been dismissed, the petitioner has lost his right of challenging the order on the ground of violation of principle of natural justice, is palpably erroneous. ( 9 ) IT was the duty of the Disciplinary Authority to give an opportunity of hearing to the petitioner before passing the order. Even though the petitioner may or may not have asked any such opportunity before the Disciplinary Authority/appointing Authority. It is also not possible for a delinquent to know as to how the mind of Disciplinary Authority/appointing Authority is working on the report of the Enquiry Officer. It is the attitude of the Disciplinary Authority which must be brought to notice of the delinquent when be tentatively forms an opinion to record his own reason to disagree with the report of the Enquiry Officer. It is the attitude of the Disciplinary Authority which must be brought to notice of the delinquent when be tentatively forms an opinion to record his own reason to disagree with the report of the Enquiry Officer. Thus the obligation lies upon the Disciplinary Authority to afford opportunity to such a delinquent where it proposes to disagree with the findings recorded by the Enquiry-Officer who has exonerated the delinquent from the charges leveled against him. In the case of Yoginalh D. Bogde (supra) the Supreme court observed that the "right to be heard" would be available to the petitioner upto the final stage. This right being a Constitutional right of the employee cannot be taken away by any legislative Enactment of Service Rules including Rules made under Article 309 of the constitution. That being the position. The order passed in the claim petition cannot be sustained. ( 10 ) FOR the reasons stated above we quash the order passed by the U. P. Public Service Tribunal dated 31. 3. 1994 and the order of dismissal from service dated 9/13. 12. 1985. The petitioner shall be reinstated in service. Let a certiorari be issued accordingly. The writ petition is allowed. No orders as to cost. .