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2001 DIGILAW 687 (RAJ)

Jagmohan Singh v. State of Rajasthan

2001-04-23

J.C.VERMA

body2001
Honble VERMA, J.–The petitioner had joined the State of Rajasthan service as a Constable in 1959. He was promoted as Head Constable and then Assistant Sub-Inspector of Police in the year 1973. (2). The petitioner was placed under suspension on 10.3.1987 under Rule 13 of the CCA Rules in contemplation of the disciplinary enquiry. He was issued a charge-sheet on 23.6.1987 under Rule 16 of the CCA Rules vide Annexure-2. The allegations as levelled against the petitioner were denied. Initially one Deputy Superintendent of Police was appointed as Enquiry Officer, but later on Addl. S.P. was appointed as Enquiry Officer vide order dated 11.3.1988. The enquiry officer had given a finding that none of the allegations levelled against the petitioner were proved, rather the enquiry officer had commented against the conduct of the U.P. Police from Bundelshahar who had come to take one accused Shyalu Bewaria @ Netrapal Singh who was in the custody of Kumher Police in connection with dacoity case. Show cause notice was issued on 8.8.1989 along with the report of enquiry as Annexure-4. Even though the enquiry report was attached with the show cause notice, but it was the grievance of the petitioner that complete Enquiry report had not been given as as many as 5-6 pages were missing and for that purpose he has been making representation to the respondent vide Annexures 6 and 7. However, show cause notice was replied and was handed over in the office of S.P., Alwar on 23.9.1989 for onward transmission to respondent No.3. As he was to answer the show cause notice, he had also applied for extension of time which was to expire on 27.9.1989 as per petitioner. Vide order dated 29.9.1989, the petitioner was imposed a penalty of compulsory retirement with further penalty of forfeiture of the remaining salary during the period of suspension vide Annexure-9. The petitioner submitted the appeal vide Annexure-10 which appeal was also dismissed on 26.4.1990. (3). Vide order dated 29.9.1989, the petitioner was imposed a penalty of compulsory retirement with further penalty of forfeiture of the remaining salary during the period of suspension vide Annexure-9. The petitioner submitted the appeal vide Annexure-10 which appeal was also dismissed on 26.4.1990. (3). The petitioner is challenging the impugned action on the grounds; (1) that the enquiry officer had totally exonerated the petitioner of the charges and it was held by the enquiry officer that the charges were concocted with the intention to involve the petitioner when UP Police had come to take the custody of a dacoit who was in the custody of the concerning police station; (2) that the petitioner had forwarded his reply to show cause notice on 23.9.1989 in the office of S.P., Alwar and it was the duty of the S.P., Alwar to have informed the competent authority and thus there is a total non-consideration of show cause notice in the impugned order. (4). I have gone through the enquiry report and the enquiry officer after a very detailed discussion had totally exonerated the petitioner from all the charges. (5). In the case of Yoginath D. Bagde vs. State of Maharashtra & Anr. (1), relying on Punjab National Bank vs. Kunj Behari Misra (2), it was held that the requirement of affording opportunity of hearing as laid in Kunj Behari Misra case, being in consonance with Art. 311(2) and being a constitutional right to be heard, has to be read into a rule which does not make specific provision to this effect. Disciplinary Authority before forming its final opinion, has to covery to charged employee its tentative reasons for disagreeing with the findings of the Enquiry Officer. Mere issuance of show cause notice to the delinquent official with regard to proposed punishment could not meet the requirement of law because final decision to disagree with the Enquiry Officer had already been taken before issuing show cause notice. It was held that the post decisional hearing was of no avail, atleast, in the circumstances of the case. (6). In the case of Punjab National Bank (supra), it was held that the principle of natural justice as enuntiated in B. Karunakar case (3) require such opportunity to be given to the officer. It was held that the principles of natural justice have to be read into Regulation 7(2) though it is silent on this aspect. (6). In the case of Punjab National Bank (supra), it was held that the principle of natural justice as enuntiated in B. Karunakar case (3) require such opportunity to be given to the officer. It was held that the principles of natural justice have to be read into Regulation 7(2) though it is silent on this aspect. Regulation 7(2) of the Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977 provides that whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its 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. The Supreme Court in Kunj Behari Misras case had held that the disciplinary enquiry is divided into two stages; the first stage ends when the disciplinary authority arrives at its conclusions on the basis of evidence, enquiry officers report and the delinquent employees reply to it; second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When, like on the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard, for otherwise he would be condemned unheard. (7). It was further held that the principles of natural justice will have, therefore, to be read into Regulation 7(2). Whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its 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. The report of the enquiry officer containing its finding 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. (8). The report of the enquiry officer containing its finding 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. (8). While considering merits of Rule 16(9), 16(10) and 16(12) Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 this court in the case of Mahendra Dixit vs. State of Rajasthan & Ors. (4), had held that the copy of the report and the reasons for disagreement had not been made available to the petitioner and relying in Hari Narain Goyal vs. R.S.W.H. Corporation & Others (5), wherein it was held that where the disciplinary authority disagrees with the finding of `not guilty recorded by the inquiry officer, it must record reasons for its disagreement and communicate the same to the delinquent and give an opportunity of submitting explanation to the delinquent in regard to those reasons for disagreement. It was held that every quasi judicial authority is under an obligation to furnish all adverse materials to a party against whom an order affecting his/its civil rights is passed. The party against whom the order is sought to be made has a right to know about the adverse material and to offer his/its explanation. If the disciplinary authority disagrees with the findings recorded by the inquiry officer which are favourable to the delinquent, it has to record its reasons. If the disciplinary authority imposes the punishment without communicating those reasons to the delinquent, the disciplinary authority will be held to have acted on the basis of adverse circumstances without giving an opportunity of explanation to the delinquent. Even in cases, where the statutory Rules are not applicable, compliance of the principles of natural justice is implicit and in the present case, apart from the rules of natural justice, even the bare requirement of rule 16(9) warrants that the disciplinary authority must consider the record of inquiry as referred to in Rule 16(8) and record its findings on the charges levelled against the delinquent together with its reasons for disagreement. (9). A Division Bench of this court in the case of Vasudeo K. Hardasani vs. The State of Raj. & Anr. (9). A Division Bench of this court in the case of Vasudeo K. Hardasani vs. The State of Raj. & Anr. (6), had held that the disciplinary authority who had not considered whole of the record including defence of petitioner and also failing to record finding on each charge had violated the mandatory rules of 1969. (9). In the case of D.L. Chauhan vs. State of Rajasthan & Ors. (7), it was held that the competent authority had passed the impugned order without following the basic principles of natural justice. He had not applied his mind to the report of the Enquiry Officer nor he had given any reasons for disagreement with the report of the Enquiry Officer. It was held that it was not sufficient for the disciplinary authority to say that he disagrees with the enquiry officers report. Because of the fact that no reasons for disagreement have been given either in the show cause notice or in the impugned order and thus it was held by the High Court that the basic order imposing punishment was not held to be valid in the eyes of law. (11). In the case of High Court of Judicature at Bombay vs. Shashikant S. Patil and another (8), it was held by the Supreme Court as under:- ``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 we cannot overlook 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. But we cannot overlook 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. (12). It was further held that the findings of the inquiry officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry Officer. But it is not necessary that the disciplinary authority should discuss materials in detail and contest the conclusions of the Inquiry Officer. Otherwise, the position of the disciplinary authority would get relegated to a subordinate level. In the case of High Court of Judicature at Bombay (supra), the Full Court of all Judges of Bom- bay High Court which had authorised the disciplinary Committee of five Judges of that High Court to exercise the functions of the High Court in respect of punishment of judicial officers; the Disciplinary Committee enumerated all the reasons in its proceedings for dissenting from the inquiry officers conclusions, which reasons had been set out in the notice issued by the Disciplinary Committee to the first respondent requiring him to show cause why the conclusions of the Inquiry Officer be dissented from. (13). After hearing learned counsel for the petitioner and in view of the facts that the petitioner had been exonerated in the inquiry held against him but the disciplinary authority had not agreed with the findings of the inquiry, but without complying with the mandatory provisions and in violation of the principles of natural justice, had without issuing any show cause notice of disagreement with reasons, punished the petitioner, which punishment order cannot be sustained in the eyes of law being violative of principles of natural justice as has been settled in the principles laid down by the Apex Court and by this court and as such the order Annexure-9 is quashed. (14). (14). For the reasons that the writ petition is being allowed on the above-said grounds there is no necessity to go into the other aspects of the matter in challenging the impugned order and, therefore, the impugned order cannot be sustained and is liable to be quashed. The punishment order Annexure-9 dated 29.9.1989 and second appellate order Annexure-11 dated 26.4.1999 are quashed being in violation of the principles of natural justice. The petitioner shall be entitled to all consequential benefits as may be applicable to him. (15). The writ petition is allowed with the above-said observations. No order as to costs.