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Allahabad High Court · body

2008 DIGILAW 2150 (ALL)

SANJEEV KUMAR v. STATE OF U. P.

2008-10-20

S.RAFAT ALAM, SUDHIR AGARWAL

body2008
JUDGMENT By the Court.—Heard Sri Umesh Narain Sharma, learned Senior Advocate assisted by Mr. Ajal Krishna for the petitioner. 2. The only submission advanced on behalf of the petitioner is that Rule 9(4) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as “1999 Rules”) provides that after recording its own reasoned finding on the charges on disagreement with the finding of the Inquiry Officer, the disciplinary authority shall furnish a copy of the inquiry report alongwith its findings to the delinquent employee, requiring him to submit his reply and after receiving the reply, if any, shall pass a reasoned order imposing punishment, if any. He submitted that a bare perusal of the impugned order of punishment dated 9.6.2004 (Annexure 1 to the writ petition) shows that ex facie it is unreasoned and non-speaking order and, therefore, is in breach of Rule 9(2) and (4) of 1999 Rules. 3. Learned Standing Counsel on the contrary submitted that the order dated 9.6.2004 must be read along with the reasons communicated to the delinquent employee alongwith show cause notice which would be deemed to be a part and parcel of the punishment order and, therefore, it cannot be said that there is any non-compliance of Rule 9(4). 4. We have heard learned counsel for the parties. 5. Rule 9 of 1999 Rules provides for action on inquiry report and reads as under : “9. Action on Inquiry Report.—The Disciplinary Authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7. (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Officer on any charge, record its own finding thereon for reasons to be recorded. (3) In case the charges are not proved, the charged Government servant shall be exonerated the Disciplinary Authority of the charges and inform him accordingly. (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Officer on any charge, record its own finding thereon for reasons to be recorded. (3) In case the charges are not proved, the charged Government servant shall be exonerated the Disciplinary Authority of the charges and inform him accordingly. (4) If the Disciplinary Authority, having regard to its findings on all or any of the charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government servant, if any, and subject to the provisions of Rule 16 pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government servant.” 6. In the case in hand, the inquiry officer exonerated the petitioner of various charges. However, the disciplinary authority disagreed with the findings particularly in respect to charges No.1, 3 and 4, and, after recording reasons for disagreement communicated the same to the delinquent employee along with the inquiry report vide letter dated 18.7.2003 (Annexure 21 to the writ petition). The petitioner submitted his reply to the said show cause notice on 5.8.2003 a copy whereof has been placed on record as Annexure 22 to the writ petition. It is thereafter that the disciplinary authority has passed the impugned order. The question for consideration is whether the order of punishment satisfies the requirement of Rule 9(4) of 1999 Rules. 7. Rule 9, sub-rule (2) clearly provides that if the disciplinary authority disagrees with the findings of the Inquiry Officer on any charge, it shall record its own finding thereto with the reasons. Sub-rule (4) further requires that if the disciplinary authority is of the opinion that the Government servant deserves imposition of some penalty under Rule 3, he shall furnish a copy of the inquiry report along with his findings recorded, if any, under sub-rule 2 of Rule 9 to the delinquent employee and would allow him reasonable time to submit a reply/representation. After receiving the representation, again the disciplinary authority shall consider the aforesaid material along with the reply if any, and pass a reasoned order imposing one or more penalty mentioned in Rule 3 and communicate the same to the delinquent employee. 8. Therefore, there are two stages at which the disciplinary authority has to pass reasoned orders, one under sub-rule (2) and the other under sub-rule (4). Under sub-rule (2) it has to record its reasons for disagreement with inquiry report in respect to findings on certain charges and thereafter communicate the same to the latter. Under sub-rule (4) it has to pass a reasoned order for imposing penalty after the representation of the delinquent employee is received. 9. The punishment order dated 9.6.2004, impugned in this writ petition, ex facie shows that after noting down facts pertaining to communication of disagreement and receipt of reply of the delinquent employee, in para 3, respondent No.1 has recorded his conclusion that charges No. 1, 3 and 4 are proved and the petitioner is liable to pay Rs. 6,837.14 besides censure entry and withholding of increment. The aforesaid order by no means satisfy the requirement of a reasoned order as contemplated under Rule 9(4) of 1999 Rules. 10. It is well settled that reasons and conclusions are two different things. In State of Himachal Pradesh v. Paras Ram and others, JT 2008(1) SC 184 the Apex Court referring to an English case i.e. Alexander Machinery (Dudley) Ltd. v. Crabtree, 1974 LCR 120 quoted with approval the following : “Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity.” 11. In M/s Mangalore Ganesh Beedi Works v. Commissioner of Income Tax, Maysore and another, JT 2005(2) SC 442 the Court held : “Reasons are harbinger between the mind of maker of the decision in the controversy and the decision or conclusion arrived at.” 12. In the matter of disciplinary proceedings where the livelihood of a Government servant is in jeopardy, the procedure prescribed in the Rules for passing an order of punishment has to be followed strictly and if there is any infraction, the Court would intervene in judicial review since it would be a case of patent error apparent on the face of record. 13. 13. In Mathura Prasad v. Union of India and others, 2007(1) SCC 437 referring to a pari materia provision contained in Rule 10 of Railway Servants (Discipline and Appeal) Rules, 1968 the Apex Court observed as under : “When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under the sub-rules are required to be strictly followed. It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of record. If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review.” 14. Learned counsel for the respondents, however, contended that even assuming that no specific reason has been assigned in the order of punishment, the reasons contained in the disagreement note must be read alongwith impugned order of punishment and this would be a sufficient compliance of Rule 9(4) of 1999 Rules. He also contended that in any case it is not a case where the petitioner can be said to have suffered any prejudice and, therefore, this Court may not exercise its extraordinary jurisdiction under Article 226 of the Constitution by interfering with the impugned order of punishment. 15. We do not, however, agree to the above submission. When the rule framing authority itself has made separate provision making it obligatory upon the disciplinary authority to record reasons at two different stages, one, when it disagrees with the findings of the inquiry officer and, secondly, when it decides to pass an order of punishment after considering the reply given by the delinquent employee against the findings of disagreement of the disciplinary authority, then it is obligatory upon the disciplinary authority to follow such procedure strictly. This Court would not read the aforesaid provision in such a manner so as to make one or the other exercise nugatory by reading the order in the manner as suggested by learned Standing Counsel. The reasons contained in the disagreement note constitute the ex parte view taken by the disciplinary authority against the findings recorded by the inquiry officer. This Court would not read the aforesaid provision in such a manner so as to make one or the other exercise nugatory by reading the order in the manner as suggested by learned Standing Counsel. The reasons contained in the disagreement note constitute the ex parte view taken by the disciplinary authority against the findings recorded by the inquiry officer. When it is communicated to the delinquent employee and he submits its reply, the disciplinary authority is benefited with the explanation given by the delinquent employee. In order to find out as to whether it would like to stick to its earlier view of disagreement with the finding of the inquiry officer or the same needs to be changed, modified, partly or wholly in the light of explanation given by the delinquent employee, it has to apply its mind again. The reasons, therefore, are required to be recorded by the disciplinary authority as to why the explanation given by the delinquent employee is or is not satisfactory. The purpose and objective of reasons to be recorded under sub-rulea (2) and (4) of Rule 9 are different. They are to be recorded at different stages with slightly different material inasmuch as at the former stage, the stand of the delinquent employee is not available to the disciplinary authority while in the later case it is available. We, therefore, are clearly of the view that non-observance of Rule 9(4) is fatal since its compliance is mandatory. If the delinquent employee after communicating its disagreement note and inquiry officer’s finding to the delinquent employee and after receiving the reply failed to pass a reasoned order imposing punishment upon the delinquent employee, such order would not be tenable in law and has to be set aside. 16. So far as the question of prejudice is concerned, it also cannot be said that the delinquent employee is not prejudiced at all inasmuch as the order of disciplinary authority is subject to further review in appeal or revision before the departmental authority and thereafter for judicial review before the Court. 16. So far as the question of prejudice is concerned, it also cannot be said that the delinquent employee is not prejudiced at all inasmuch as the order of disciplinary authority is subject to further review in appeal or revision before the departmental authority and thereafter for judicial review before the Court. In the absence of any reasons contained in the order the delinquent employee may not be able to understand as to how and in what manner the disciplinary authority has applied its mind to hold him guilty despite of having given explanation against the disagreement note of the disciplinary authority and, therefore, will be handicapped in effectively assailing such order before the higher authorities and/or before the Court of Law. 17. We have gone through the impugned order of punishment and do not find even an iota of reasons i.e. discussion by the disciplinary authority on the explanation given by the delinquent employee and its own findings to arrive at the conclusion of guilt against him. 18. In the circumstances, the writ petition is allowed and the impugned order dated 9.6.2004 is quashed. However, it will be open to the disciplinary authority to pass a fresh order in accordance with law keeping in view the observations made hereinabove. There shall be no order as to costs. ————