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2007 DIGILAW 1833 (PAT)

Kishori Lal v. State Of Bihar

2007-11-29

NAVIN SINHA

body2007
Judgment Navin Sinha, J. 1. Heard learned counsel for the petitioner and the State. 2. Two departmental proceedings were initiated against the petitioner. Punishment was then imposed upon him in both the proceedings. The petitioner preferred two separate appeals. A common appellate order dated 26.8.1996 was passed rejecting both the appeals. 3. One proceeding was initiated on charges of short supply in purchase of brick tiles when full payment was released. The second proceeding related to acceptance of supply of inferior quality valves and illegal issuance of approximately six hundred bags of cement from the store. 4. Learned counsel for the petitioner submitted that the first departmental enquiry was based on a preliminary inquiry which formed the basis of the memo of charges. This preliminary inquiry was exparte in nature. The petitioner was not given a copy of the preliminary report on which the memo of charges were based. The enquiry officer has based his findings on this preliminary enquiry report. During the departmental proceedings he was not given a personal hearing. Prosecution witnesses were examined behind his back and he was not made aware of the dates of the departmental proceedings. He was thus denied the right to cross-examine the witnesses. After the inquiry officer submitted his report the disciplinary authority before imposing punishment did not serve him a copy of the enquiry report and any notice of the punishment proposed. In the second proceeding the petitioner was also denied any personal hearing, prosecution witnesses were examined behind his back denying the opportunity to cross-examine and likewise no copy of the inquiry report alongwith the show cause notice of the punishment proposed was given to him before imposing of punishment. The common appellate order was non-speaking, cryptic and does not reflect application of mind. There is no consideration of the subject matter of the first proceeding. On face of the patent illegality, the enquiry reports, the orders of punishment and the appellate order were fit to be set aside and the petitioner be reinstated. 5. Learned counsel for the State urged that the preliminary enquiry report in the first proceeding was served as an enclosure to the memo of charges. The show cause filed by the petitioner did not take any such objection. This objection has been raised belatedly by the petitioner for the first time before the appellate authority. 6. 5. Learned counsel for the State urged that the preliminary enquiry report in the first proceeding was served as an enclosure to the memo of charges. The show cause filed by the petitioner did not take any such objection. This objection has been raised belatedly by the petitioner for the first time before the appellate authority. 6. In so far as other procedural "illegalities are concerned, no objections have been raised before the inquiry officer. The appellate order was, therefore, in order and required no interference. 7. A punishment based on a preliminary enquiry not made available to the delinquent was set aside by the Tribunal. The High Court declined to interfere. On appeal by the Employer, the Apex Court in Union of India & Ors. V/s. Mohd. Ibrahim, 2004 10 SCC 87 upheld the order of the Tribunal that the order of dismissal was vitiated on that ground. 8. The need to furnish copy of such preliminary enquiry report when the same is taken into consideration by the enquiry officer was again emphasized by the Supreme Court in South Bengal State Transport Corporation V/s. Sapan Kumar Mitra, 2006 2 SCC 584 holding that in absence of the same the punishment shall be vitiated. 9. The procedure to be followed after completion of the enquiry in a departmental proceeding has been succinctly summed up in Union of India V/s. Mohd. Ramzan Khan, 1991 1 SCC 588 at paragraph 18 as follows: "We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter." 10. This has been eloquently explained by the Constitution Bench in Managing Director, ECIL V/s. B. Karunakar, 1993 4 SCC 727 . This has been eloquently explained by the Constitution Bench in Managing Director, ECIL V/s. B. Karunakar, 1993 4 SCC 727 . The materials and evidence before the enquiry officer on which he bases his findings are required to be made available to the delinquent as part of procedural reasonableness and natural justice to enable the delinquent to reply to the enquiry officers findings co-related with the evidence and materials before the enquiry officer. "The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it". It has then been held in the relevant extract of paragraphs 30 and 31 of the same that where the departmental proceedings and punishment were vitiated for failure to do so, reinstatement not be mechanically ordered, but that appropriate directions should be given to have the same made available to the delinquent and the matter decided afresh by the disciplinary authority. 11. In the present case, the petitioner disputes the supply of the preliminary enquiry report upon which the enquiry officer has based his findings in the first enquiry. In both the enquiries, there are serious allegations of procedural irregularities to vitiate the findings of the enquiry officer. The allegation in both enquiry are of nonsuppiy of the enquiry report and absence of a second show cause notice to represent against the same. The counter affidavit by its silence on the aforesaid pleadings leaves this Court satisfied of serious procedural violations in the departmental proceedings having caused serious prejudice to the petitioner. 12. The right to prefer an appeal against the order of the disciplinary authority of punishment vests a valuable right in the delinquent. It cannot be reduced to an empty formality. The appellate authority is required to take notice of the case of the parties, objections raised by them, including procedural violations, application of his mind to the materials on record all of which must be reflected in the appellate order, and the conclusion then recorded. In the absence of materials in the appellate order reflecting application of mind by him by a brief discussion of the case, the material evidence before him and the conclusion arrived at by him the order is vitiated. 13. The Supreme Court in Director (Marketing), Indian Oil Corpn. In the absence of materials in the appellate order reflecting application of mind by him by a brief discussion of the case, the material evidence before him and the conclusion arrived at by him the order is vitiated. 13. The Supreme Court in Director (Marketing), Indian Oil Corpn. Ltd. and Another V/s. Santosh Kumar, 2006 11 SCC 147 , was considering the challenge to the orders of the High Court setting aside the punishment on the ground that the appellate order was cryptic and nonspeaking to the prejudice of the delinquent. Reinstatement had consequently been ordered by the High Court. In appeal by the employer while interfering with the order of reinstatement, the Supreme Court nonetheless arrived at the conclusion at paragraph-11 of the judgment as follows: "A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority. We, Jherefore, have no other option except to set aside the order passed by the disciplinary authority and the Appellate Authority and remit the matter for fresh disposal to the disciplinary authority. The disciplinary authority shall consider the detailed representation made by the respondent and also consider the detailed report of the enquiry officer and the records placed before him in its proper perspective and decide the matter afresh on merits. The disciplinary authority is directed to consider the entire case only on the basis of records already on record. The respondent is not permitted to place any further material or record before the disciplinary authority. The order passed by the High Court is set aside for the above reason. We also set aside the direction issued by the High Court ordering rein-statement into service with continuity in service and all consequential benefits. The disciplinary authority is also directed to dispose of the matter, within three months from the date of receipt of this order, after affording an opporunity to both the parties. The civil appeal is disposed of accordingly. No order as to costs." 14. Additionally, this court finds that the appellate order dated 26.8.1996 does not deal at all with the appeal preferred by the petitioner in so far as the punishment in the departmental proceedings with regard to the purchase of brick tiles is concerned. Quite obviously it cannot be said that there has been any disposal of the appeal. 15. Additionally, this court finds that the appellate order dated 26.8.1996 does not deal at all with the appeal preferred by the petitioner in so far as the punishment in the departmental proceedings with regard to the purchase of brick tiles is concerned. Quite obviously it cannot be said that there has been any disposal of the appeal. 15. In the result, the orders of punishment dated 25.8.1985 and 30.1.1990 and the appellate order dated 26.8.1996 stand set aside. The matter is remitted back to the disciplinary authority. The disciplinary authority shall now proceed afresh from the stage of submission of the enquiry report in accordance with law and after grant of proper opportunity to the petitioner pass final orders within a period of four months from the date of issuance of such notice, provided the petitioner himself cooperates. The application is allowed to the extent indicated with directions.