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2005 DIGILAW 91 (GAU)

Dwijendra Nath Choudhury v. State of Assam

2005-02-03

BROJENDRA PRASAD KATAKEY

body2005
JUDGMENT B.P. Katakey, J. 1. The writ petitioner by this writ petition has challenged the order dated 30.10.2000 passed by the Commissioner and Secretary to the Government of Assam, Personnel Deptt. (Personnel A) inflicting punishment of reduction in rank to the post of Lower Grade that is the ACS, Junior Grade from his present Grade of ACS Sr. Grade with immediate effect. 2. Heard Mr. G.N. Sahewalla, learned Sr. counsel assisted by Mr. P. Bora, learned counsel for the petitioner and Mr. Gani, learned counsel appearing on behalf of the respondents. 3. The facts leading to the filing of the present case is that the petitioner who was an ACS officer of Sr. Grade II, while serving as Project Director ITDP and Additional Deputy Commissioner, Dibrugarh was served with a show cause notice dated 20th September, 1997 asking him to show cause as to why the disciplinary action shall not be taken against him for the mis-conduct alleged in the said show cause notice under the Provisions of Assam Services (Discipline and Appeal) Rules, 1964. Along with the said show cause the statements of allegations/list of documents and list of witnesses were furnished. The petitioner on receipt of the said show cause notice submitted his reply denying the charges leveled against him. The disciplinary authority being not satisfied with the reply submitted by the petitioner, decided to hold the enquiry and accordingly the enquiry officer was appointed to conduct the enquiry against the petitioner into the charges levelled against him, vide the said show cause notice dated 20.9.1997. The enquiry officer, upon completion of the enquiry submitted the report dated 3rd August, 1999 by holding that the charges levelled against the writ petitioner could not be proved. However, the disciplinary authority, that is, the Commissioner and Secretary to the Government of Assam, by disagreeing with the findings recorded by the enquiry officer passed the impugned order awarding punishment on 30.10.2000. 4. Mr. Sahewalla learned Sr. counsel for the writ petitioner submits that the impugned order awarding punishment is patently in violation of the principles of natural justice as no opportunity was ever granted to the petitioner to represent against the tentative view of the disciplinary authority about disagreeing the findings of the enquiry officer, which according to Mr. 4. Mr. Sahewalla learned Sr. counsel for the writ petitioner submits that the impugned order awarding punishment is patently in violation of the principles of natural justice as no opportunity was ever granted to the petitioner to represent against the tentative view of the disciplinary authority about disagreeing the findings of the enquiry officer, which according to Mr. Sahewalla is available to the writ petitioner in view of the fact that the enquiry officer has found that the charges, levelled against the writ petitioner, have not been proved. Mr. Sahewalla, in support of his contention has relied upon the decision of the hon'ble Supreme Court in Punjab National Bank and Ors. v. Kunj Bihari Mishra, reported in. 5. Mr. Gani learned State counsel referring the affidavit in opposition filed on behalf of the respondents submits that the disciplinary authority can disagree with the findings recorded by the enquiry officer and inflict punishment upon scrutinising the evidences on record examined during the enquiry. According to Mr. Goni no illegality has been committed by the Commissioner and Secretary to the Government of Assam in inflicting the punishment by the order dated 30.10.2000, as the disciplinary authority has recorded the categorical findings that the writ petitioner is guilty of misconduct. 6. I have considered the rival submissions put forward by the learned counsel for the parties and also the statements made in the writ petition as well as annexures appended there to. 7. In the instant case, it is an admitted position that the enquiry officer in the report dated 3.8.1999 has recorded the categorical findings that the charges levelled against the petitioner have not been proved. The disciplinary authority in the present case before issuing the order dated 30.10.2000 has not given any opportunity to the writ petitioner to represent, against the tentative findings of the disciplinary authority and the reasons thereof as to why he differs with the findings of the enquiry officer recorded in the report, so that the petitioner can make representation before the disciplinary authority to convince the disciplinary authority that the findings recorded by the enquiry officer was just and proper. 8. 8. The Apex Court in Punjab National Bank Ltd. (supra) has held that whenever the disciplinary authority disagrees with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted to the delinquent. It will be most unfair and iniquitous if the delinquent is deprived from representing to the disciplinary authority before he differs with the enquiry officer's report and while recording of a finding of guilt, imposes the punishment on the officer. The Apex Court has further held that whenever the disciplinary authority disagrees with the enquiring officers findings in any of the article of charges, 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 findings has to be conveyed so that the concerned officer gets an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. 9. Rules of natural justice demand that nobody is condemned unheard. When the enquiry officer, on the basis of the evidence recorded during the proceeding, come to a definite finding that the charges against the delinquent officer is not proved, the disciplinary authority has the power and authority to disagree with the findings recorded by the enquiry officer for just and sufficient ground. Even though the disciplinary authority has such power to differ with the findings of the enquiry officer, the rules of natural justice demand that the disciplinary authority before inflicting any punishment discarding the findings of the enquiry officer, is required to give the delinquent officer an opportunity to make representation intimating the tentative reasons for such disagreement and only thereafter, the disciplinary authority can record findings holding the officer guilty of misconduct alleged and impose punishment, upon consideration of the representation, if any, filed by the delinquent officer. 10. In the instant case, as stated above, the enquiry officer recorded the categorical findings that the charges have not been proved, but the disciplinary authority by disagreeing with the findings of the enquiry officer, directly inflicted the punishment vide order dated 30.10.2000 by holding that the writ petitioner is guilty of misconduct, without affording any opportunity to represent, as stated above, thereby violating the principles of natural justice. 11. 11. In view of the above, the order dated 30.10.2000 is liable to be set aside, which I hereby do. The disciplinary authority shall be at liberty to proceed with the disciplinary proceeding from the stage of allowing the delinquent officer an opportunity to represent by intimating the tentative reasons for such disagreement of the findings of the enquiry officer. 12. Writ Petition is accordingly allowed. Petition allowed.