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2005 DIGILAW 520 (PAT)

Ex. Ct. Ranvir Singh v. Union Govt. Of India

2005-05-12

R.N.PRASAD

body2005
Judgment 1. The petitioner was a Constable in C.R.P.F. At the relevant time he was posted at Mokama. A proceeding was initiated against him. Copy of the charges was furnished to him. He filed show cause in his defence. Inquiry was conducted and inquiry report was furnished to him and he was asked to file second show cause vide notice dated 3.4.97, Annexure-1C. The said notice was despatched on 4.4.97. According to the petitioner, he received the said notice on 12.4.97. In supplementary affidavit he has annexed the envelop to show that the letter was despatched on 4.4.97 and received by him on 12.4.1997, Annexure-12. No show cause was filed by the petitioner and order of punishment was passed by the Disciplinary Authority on 23.4.97, Annexure-1B. The petitioner preferred appeal against the order of punishment. The said appeal was rejected on 14.10.97, Annexure-1A. He invoked the revisional jurisdiction. The revision was also dismissed on 30.10.99, Annexure-1. The petitioner has challenged the orders of disciplinary authority, Annexure-1B, appellate authority, Annexure-1 A and the revisional authority, Annexure-1 in this writ petition on the ground that he was not allowed opportunity of hearing by the disciplinary authority. 2. A counter affidavit has been filed on behalf of the respondents wherein stand has been taken that for the misconduct of the petitioner a proceeding was initiated against him. The charge was furnished to him. He filed show cause in his defence. After completion of the inquiry, inquiry report was submitted to the disciplinary authority. The inquiry report was furnished to the petitioner and he was asked to file second show cause, if any, within 15 days from the date of receipt of the notice but no show cause was filed on his behalf and as such the disciplinary authority passed the order of punishment which was affirmed by the appellate as well as the revisional authority. There was no lapse on the part of the respondents in conducting the proceeding and passing the order of punishment. 3. The submission of the learned counsel for the petitioner is that the petitioner was not allowed to take assistance of the counsel and also that the notice, Annexure-1C asking the petitioner to file show cause within 15 days from the date of receipt of notice. 3. The submission of the learned counsel for the petitioner is that the petitioner was not allowed to take assistance of the counsel and also that the notice, Annexure-1C asking the petitioner to file show cause within 15 days from the date of receipt of notice. The said notice was despatched on 4.4.97 which was received by him on 12.4.97 but the order, Annexure-1B was passed on 23.4.97 and, as such, he could not file show cause as the petitioner was allowed time to file show cause within 15 days from receipt of the notice i.e. till 27.4.94 and as such he was not allowed opportunity of hearing to defend his case. The said point was raised in appeal as well as in revision but his prayer was rejected without taking into consideration the said aspect. On the other hand, the submission of the learned counsel for the respondents is that since the petitioner preferred an appeal against the order of punishment the question of not allowing opportunity obliterated. 4. On consideration of the submissions made by the counsel for the parties and the materials available on the record this much is obvious that the petitioner was a constable in C.R.P.F. At the relevant time he was posted at Mokamah. A proceeding was initiated for his misconduct. Charges were furnished to him. He filed a show cause in his defence. On completion of the inquiry report was submitted to the disciplinary authority. The disciplinary authority furnished the copy of the inquiry report to the petitioner and asked him to file show cause within 5 days from the date of receipt of the notice. The said notice had been despatched to the petitioner on 4.4.97, which is evident from Annexure-12 to the supplementary affidavit. A categorical statement has been made in the supplementary affidavit that the said notice was despatched to the petitioner who was at the relevant time at Bulandshahar (U.R). Annexure-12 also shows the said address. The said notice was received by him on 12.4.97. The disciplinary authority passed order of punishment on 23.4.97. Annexure-1B and as such he could not file show cause and hence the order of punishment. Annexure-1B has been passed without affording opportunity of hearing to him. The fact mentioned in the supplementary affidavit has not been controverted by the respondents in the counter affidavit. The disciplinary authority passed order of punishment on 23.4.97. Annexure-1B and as such he could not file show cause and hence the order of punishment. Annexure-1B has been passed without affording opportunity of hearing to him. The fact mentioned in the supplementary affidavit has not been controverted by the respondents in the counter affidavit. Counsel for the respondents, however, stated that since the petitioner preferred appeal the said question stands obliterated. But it is the contention of the learned counsel for the petitioner that though the said point was taken in the appeal as well as in the revision, without considering said point the appeal as well as the revision was dismissed. Moreover, in the case of Ghanshayam Pandit & Ors., 1988 PLJR 140, a Bench of this Court has held that order passed without affording opportunity of hearing to parties becomes a nullity as being violative of the principles of natural justice and such defect cannot be cured even by giving opportunity of hearing by the appellate or the revisional authority. The learned Judge has recorded the finding considering the Full Bench decision of this Court in the case of Ramnandan Prasad V/s. State of Bihar, 1983 PLJR 226 (F.B.). The said point was also raised before the appellate authority/revisional authority but misinterpreting the same both the appeal and revision were dismissed. 5. Learned counsel for the respondents in support of his submission relied upon a decision in the case of Canara Bank V/s. V.K. Awasthy, 2005 AIR SCW 2005, wherein the Apex Court in a similar nature of case has held that ground of prejudice or violation of principles of natural justice not raised by the employee either in memorandum of appeal or at the time of personal hearing before the appellate authority, the question prejudice/the post decisional hearing will obliterate. However, in the instant case it is specific case of the petitioner that he raised the question of not allowing the opportunity of hearing before the appellate authority as well as the revisional authority. In the order of the revisional authority it has been specifically mentioned that the petitioner raised the question that he was not given reasonable opportunity to defend himself. In the appellate order the question raised was not formulated but it has been stated that the petitioner was allowed opportunity to file second show cause within 15 days. In the order of the revisional authority it has been specifically mentioned that the petitioner raised the question that he was not given reasonable opportunity to defend himself. In the appellate order the question raised was not formulated but it has been stated that the petitioner was allowed opportunity to file second show cause within 15 days. Therefore, it is evident that the petitioner had raised the question of not allowing adequate opportunity before the authorities concerned but the authorities misinterpreted the said question and rejected his grievance. The law is well settled that delinquent is entitled to second show cause notice. In the instant case notice was given to the petitioner asking him to show cause within 15 days from the date of the receipt of the notice, specific averment has been made in the supplementary affidavit that the notice was received by him on 12.4.97 and the said fact has not been controverted in the counter affidavit. In the circumstance, it is established that the notice was received by the petitioner on 12.4.97 and the order of punishment, Annexure-1B was passed prior to the expiry of 15 days from receipt of notice on 23.4.97. The decision cited by the counsel for the respondents does not apply in the facts and circumstances of the case as the petitioner raised the question before the appellate authority as well as the revisional authority. 6. Thus, on consideration this writ petition is allowed, the orders impugned, Annexures 1B, 1A and 1 are hereby quashed. The matter is remitted to the disciplinary authority, who shall give an opportunity to the petitioner for filing second show cause and also to consider the question of allowing the petitioner to engage a counsel, if the rule permits, and shall proceed in accordance with law. The respondents shall themselves consider the consequence of quashing the impugned orders by this Court taking into consideration the decision in the case of Managing Director, ECIL, Hyderabad V/s. B. Karunakar, AIR 1994 Supreme Court 1074, and proceed accordingly and dispose of the case by a reasoned order in accordance with law.