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2005 DIGILAW 2187 (RAJ)

Kirtan Singh v. State of Rajasthan

2005-08-18

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-The petitioner, a member of Rajasthan Police holding the post of Constable preferred the instant writ petition giving challenge to the order dated 28.01.1997 passed by the Supdt. of Police, Udaipur imposing a penalty of stoppage of three annual grade increments with cumulative effect and also the order dated 111.1998 passed by the Dy. Inspector General of Police, Udaipur Range, Udaipur affirmed the order passed by the disciplinary authority by rejecting the appeal preferred by the petitioner under Rule 23 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter to be referred to as, the Rules of 1958). 2. The facts necessary for adjudication of present writ petition are as follows: 3. A memorandum under Rule 16 of the Rules of 1958 was served upon the petitioner alongwith a statement of allegation charging the petitioner for misconduct that he was found keeping relations with the persons involved in the acts of extortion and dacoity and his conduct too was found of criminal nature. The petitioner denied the charges, therefore, the disciplinary authority appointed an inquiry officer to hold an inquiry with regard to the allegations of misconduct levelled against him. 4. The inquiry officer after holding the inquiry submitted his report to the disciplinary authority on 08.08.1996. The inquiry officer after considering the evidence available on record did not find the petitioner guilty for the allegation of misconduct. A copy of the inquiry report was supplied to the petitioner, however, no comment was tendered by the petitioner in pursuant thereto obviously for the reason that he was exonerated by the inquiry officer. 5. The disciplinary authority i.e., the Supdt. of Police, Banswara under an order dated 28.01.1997 while disagreeing with the findings given by the inquiry officer held the petitioner guilty for the charge of misconduct levelled against him under the memorandum dated 17.07.1995. The petitioner being aggrieved by the order passed by the disciplinary authority preferred an appeal under Rule 23 of the Rules of 1958 before the Dy. Inspector General of Police, Udaipur Range, Udaipur but the same came to be rejected under an order dated 111.1998. Hence, the present petition for writ is preferred by the petitioner. 6. The petitioner being aggrieved by the order passed by the disciplinary authority preferred an appeal under Rule 23 of the Rules of 1958 before the Dy. Inspector General of Police, Udaipur Range, Udaipur but the same came to be rejected under an order dated 111.1998. Hence, the present petition for writ is preferred by the petitioner. 6. A reply to the writ petition has been filed on behalf of the respondents stating therein that no illegality is committed by the disciplinary authority while imposing the punishment of stoppage of three annual grade increments with cumulative effect as the petitioner was found guilty of the charge of misconduct levelled against him. It is also averred that the petitioner himself admitted that the inquiry was conducted fairly and by providing all opportunity of hearing to him, as such, no interference by this Court under Articles 226 and 227 of the Constitution of India is required. 7. Heard Counsel for the parties. 8. The Counsel for the petitioner has given challenge to the orders impugned on two grounds which are, (i) the order passed by the disciplinary authority deserves to be quashed as no reason for disagreement with the findings of the inquiry officer was supplied to the petitioner before imposing the punishment under the impugned order, and, (ii) the order passed by the appellate authority deserves to be quashed and set aside being violative of the provisions of Rule 30 of the Rules of 1958. 9. The first contention of Counsel for the petitioner is that the inquiry officer after holding the inquiry did not find the petitioner guilty for the allegations of misconduct levelled against him as such the petitioner succeeded in proving his innocence before the inquiry officer, the disciplinary authority being in disagreement with the inquiry officer was required to supply reasons for the same but no such disagreement and reasons for such disagreement were communicated to him by the disciplinary authority before imposing the punishment, thus, violation of principles of natural justice and reasonable opportunity is apparent. To substantiate the contention, the petitioner has placed reliance upon the Judgment of the Honble Supreme Court in the case of Punjab National Bank vs. Kunj Behari Misra, reported in AIR 1998 SC 2713 . The Honble Supreme Court in the case of Punjab National Bank (Supra), while dealing with the same question held as under:- “17. To substantiate the contention, the petitioner has placed reliance upon the Judgment of the Honble Supreme Court in the case of Punjab National Bank vs. Kunj Behari Misra, reported in AIR 1998 SC 2713 . The Honble Supreme Court in the case of Punjab National Bank (Supra), while dealing with the same question held as under:- “17. These observations are clearly in tuen with the observations in Bimal Kumar Pandits case ( AIR 1963 SC 1612 ) (Supra), quoted earlier and would be applicable at the first stagte itself . The aforesaid passages clearly bring out the necessity of the authoirty which is to finally record an adverse finding to give a hearing to the delinquent officer if the inquiry officer had given an adverse finding, as per Karunakars case ( AIR 1994 SCW 1050 ) (Supra), the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry 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 the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry 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. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority. 18. Under Regulation 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself . When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded with decision of the disciplinary authority. 18. Under Regulation 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself . When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officers report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakars case ( AIR 1994 SCW 1050 ) (Supra). 10. The Counsel for the petitioner also put reliance upon the Judgment of Honble Supreme Court in the case of State Bank of India & Ors. vs. Arvind Kumar Sukhla, JT 2001 (4) SC 415, wherein the law laid down by the Honble Supreme Court in the case of Punjab National Bank (Supra), was followed and reiterated. In view of the law laid down by the Honble Supreme Court in the Judgment s above it is clear that whenever the disciplinary authority disagrees with the inquiring authority on any article of charge then before it records its own finding on such charge it must record its reasons for disagreement and to give the delinquent officer an opportunity to represent before it with regard to the reasons for disagreement before recording finding on the charge. In the present case, no such opportunity was allowed to the petitioner, therefore, the order passed by the disciplinary authority is nothing but an order passed in violation of principles of natural justice and also in violation of the principles of reasonable opportunity as enshrined under Article 311 of the Constitution of India. 11. The second contention of the Counsel for the petitioner is that the appellate authority failed to appreciate the contention of the petitioner raised in his memo of appeal in accordance with Rule 30 of the Rules of 1958. Rule 30 of the Rules of 1958 provides procedure for considering an appeal preferred under Rule 22 of the Rules of 1958. From perusal of the order impugned passed by the appellate authority it is apparent that the order of the appellate authority is not in consonance with the provisions of the rules. If the appellate authority would have considered the appeal in accordance with the Rule 30, the grievance of the petitioner would have been redressed at the stage of appeal itself . The appellate authority utterly failed to discharge his statutory duty by not deciding the appeal in accordance with the Rule 30 of the Rules of 1958. It is pertinent to note that though the order of appellate authority is running in six pages but in fact it does not show any application of mind. The appellate authority has first reproduced the allegations levelled against the petitioner then has reproduced the order passed by the appellate authority and the memo of appeal preferred by the petitioner. The appellate authority, therefore, without any application of mind and in violation of the procedure prescribed under Rule 30 of the Rules of 1958 reached at the conclusion and rejected the appeal preferred by the petitioner. The petitioner in quite unambiguous terms in his memo of appeal raised the contention that no reasons for disagreement with the inquiry report were communicated to him by the disciplinary authority but this contention has not been considered by the inquiry officer which resulted into filing of present writ petition. In view of it the order of the appellate authority is bad. 12. Accordingly, the writ petition is allowed. The order passed by the disciplinary authority dated 28.01.1997 is quashed. The order passed by the appellate authority dated 111.1998 is also quashed. The petitioner shall be entitled for all consequential benefits.