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J&K High Court · body

2009 DIGILAW 561 (JK)

Satish Chander v. State

2009-11-16

SUNIL HALI

body2009
1. The services of the petitioner who is said to have remained unauthorisedly absent from duty came to be terminated vide order dt. 9th of March 94, which order was subject matter of challenge in a writ petition bearing SWP No. 2718/01. The said writ petition came to be allowed vide judgment dt. 29th of Aug02. Petitioner was directed to be reinstated in service. Liberty, however, was granted to the respondent authorities to hold a fresh enquiry, if they so desire. In pursuance to the aforesaid order passed by this court in the writ petition referred to above, the respondents after initiating the departmental enquiries, have passed the orders which have been placed on record as Annexures C, D, E and F, vide which the period of absence of the petitioner mentioned in the said orders has been directed to be treated as dies-non. It is these orders, which are thrown to challenge in the present petition. Petitioner is also seeking a direction for restraining the respondents from making any recovery from the salary of the petitioner. 2. The grievance of the petitioner is that while holding the departmental enquiry, the petitioner was not afforded proper opportunity of hearing. It is stated that there was no wilful absence on the part of the petitioner but due to the circumstances beyond his control as he had suffered from some medical problem and was under treatment. It is stated that the requisite certificates in this regard issued by the authority concerned which show that the petitioner was under treatment, have not been taken into consideration by the respondents. The said action of respondents in passing the orders impugned, is thus, said to be violative of principles of natural justice. 3. Respondents in their objections have stated that the petitioner is habitual of remaining unauthorisedly absent from duty. It is stated that after passing of the judgment by this court in the writ petition referred to above, departmental enquiries were initiated against the petitioner in which he was also associated and given full opportunity of being heard. It is thus stated that there is no violation of principles of natural justice. 4. Heard learned counsel for the parties. Petition admitted. 5. The assertion of the petitioner in the writ petition is that he has not been afforded proper opportunity of hearing in the departmental enquiries which were initiated against him. It is thus stated that there is no violation of principles of natural justice. 4. Heard learned counsel for the parties. Petition admitted. 5. The assertion of the petitioner in the writ petition is that he has not been afforded proper opportunity of hearing in the departmental enquiries which were initiated against him. The said assertion of the petitioner has been categorically denied by the respondents. In this regard, it would be apt to notice the stand taken by the respondents in reply to ground (a) of the petition, which reads as under:- "In reply to Ground (a) of the writ petition, it is respectfully submitted that the petitioner was given full opportunity to defend his case during the course of inquiry. The Inquiry Officer has categorically mentioned that the petitioner did not plead guilty and the statements of witnesses were recorded in presence of the petitioner. It may be submitted that the petitioner did not put any question since there was no force in review petition as the petitioner is habitual of remaining unauthorised absent from duty. It is further submitted that keeping in view his future service, 70 days absence period has been treated as extra ordinary leave on production of medical certificate." 6. In the present case, the period of alleged unauthorised absence of the petitioner, after the Enquiry Officer conducted the enquiry and submitted its report recommending the period of absence of petitioner to be treated as dies-non, has been directed to be treated as such by the competent authority. No doubt, treating the period of absence is not a punishment under the Civil Service Regulation but it definitely has the effect of taking away the vested rights of an employee as the period to be treated as dies-non is not to be counted for pensionary and monetary benefits. Therefore, before passing such an order it was encumbent upon the disciplinary authority to issue a notice in this regard to the delinquent official to explain his position, which in the present case has not been done by the respondents. The disciplinary authority before passing the orders impugned should have provided a copy of the enquiry report to the petitioner so that he was able to make an effective representation to the authority concerned against the proposed penalty. The disciplinary authority before passing the orders impugned should have provided a copy of the enquiry report to the petitioner so that he was able to make an effective representation to the authority concerned against the proposed penalty. Having not done so, the action of the respondents is held to be violative of Articles 14 and 21 of the Constitution of India as also the principles of natural justice. I am supported in this view by a judgment of the Apex Court reported as (1993) 4 SCC 727, Managing Director, ECIL, Hyderabad and ors v. B. Karunakar and others. What has been observed by the Apex Court in the above case is being reproduced below:- "25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment." "28. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employees reply to the enquiry officers report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer." 61. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer." 61. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice." 7. Similar view has been taken by the Apex Court in the case reported as AIR 1998 SC 2713, Punjab National Bank and Ors v. Kunj Behari Misra. 8. Again in Yoginath D. Bagde v. State of Maharashtra and another, AIR 1999 SC 3734, the Apex Court relying on Kunj Bihari Misras case (supra), has observed that a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer but also at the stage when the said findings recorded by the Enquiry Officer are considered by the disciplinary authority. 9. In the case in hand also, as noticed above, the enquiry officer after conducting the enquiry exonerated the petitioner but recommended that his unauthorized period of absence be treated as dies-non. The disciplinary authority was well within its right to accept the enquiry report but before passing the orders impugned was legally bound to issue a show cause notice to the petitioner to make an effective representation against the proposed penalty, which, as indicated above, has not been done by it. The said action of the respondents is, thus, held violative of Articles 14, 21 and 311(2) of the Constitution as also the principles of natural justice. 10. For the reasons mentioned above, this petition is allowed. Orders impugned bearing Nos. 324 of 2004 dt. The said action of the respondents is, thus, held violative of Articles 14, 21 and 311(2) of the Constitution as also the principles of natural justice. 10. For the reasons mentioned above, this petition is allowed. Orders impugned bearing Nos. 324 of 2004 dt. 19th of May04, 640 of 2004, 638 of 2004 and 639 of 2004, dated 4th of Nov04, shall stand quashed. The respondents, however, shall be at liberty to pass fresh orders after affording the petitioner proper opportunity of hearing and complying the principles of natural justice. Disposed of accordingly.