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2010 DIGILAW 358 (UTT)

Kichha Sugar Company Ltd. v. Gulshan Kumar

2010-06-02

J.S.KHEHAR, SUDHANSHU DHULIA

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JUDGMENT : J.S. Khehar, J. The respondent, who was engaged as Assistant Cashier with the appellant company, was served with a charge sheet dated 12.07.2004. He submitted a reply thereto on 24.07.2004. Having found the reply unsatisfactory, the appellant initiated a regular departmental inquiry against the respondent. The Enquiry Officer submitted his report on 09.11.2005. Based on the aforesaid report, the respondent was dismissed from service vide an order dated 22.02.2006. The respondent assailed the order of his dismissal from service by filing Writ Petition (S/S) No. 349 of 2006. The aforesaid writ petition was allowed by a learned Single Judge of this Court on 21.06.2006. 2. The order passed by the learned Single Judge on 21.06.2006, allowing Writ Petition (S/S) No. 349 of 2006, has been impugned by the appellant through the present Special Appeal. 3. The learned Single Judge made a reference to one of the charges, which had been leveled against the respondent, wherein the Enquiry Officer had not found the respondent guilty. In fact, the Enquiry Officer had recommended, that further scrutiny be made into the matter. The instant factual position is apparent from the following observations recorded by the learned Single Judge: However, in the present case there is no need to scrutinize the evidence against the petitioner as the procedure adopted by the disciplinary authority is entirely against the law and natural justice. The enquiry report submitted by Sri D.C. Pandey on 09.11.2005 shows that the enquiry officer has not reached to a definite conclusion as to whether rupees three laks were given to the delinquent employee as advance. In the last the enquiry officer has submitted that further scrutiny is required in the mater but the disciplinary authority without giving any show cause notice to the petitioner has passed the impugned order of dismissal 22.02.2006. The punishing authority did not accept the report of the Enquiry Officer, even on the charge referred to above. Having differed therefrom, the punishing authority passed the order of dismissal from service against the respondent on 22.02.2006. 4. The learned Single Judge, while allowing Writ Petition (S/S) No. 349 of 2006, arrived at the conclusion that it was imperative for the appellant to issue a show-cause notice to the respondent, depicting its reasons for differing with the findings recorded by the Enquiry Officer. 4. The learned Single Judge, while allowing Writ Petition (S/S) No. 349 of 2006, arrived at the conclusion that it was imperative for the appellant to issue a show-cause notice to the respondent, depicting its reasons for differing with the findings recorded by the Enquiry Officer. Since the aforesaid procedure had not been adhered to by the punishing authority, the learned Single Judge had set aside the order of dismissal dated 22.02.2006. 5. During the course of hearing today, learned Counsel for the appellant very fairly acceded to the fact, that the punishing authority should have recorded reasons for differing with the findings of the Enquiry Officer on one of the charges, and thereafter should have issued a show-cause notice to the respondent in terms of the law laid down by the Supreme Court in P.D. Agrawal v. State Bank of India and Ors. (2006) 110 FLR 1 . In spite of the fact, that learned Counsel for the appellant acceded to the legal position (as has been noticed hereinabove), it is the contention of the learned Counsel for the appellant, that liberty ought to have been granted to the appellant to re-initiate proceedings against the respondent from the stage of the receipt of the inquiry report dated 09.11.2005. It is submitted, that the procedure envisaged in the Judgment rendered by the Supreme Court in P.D. Agrawal's case (supra) should have been permitted to be adopted by the appellant. 6. In so far as the instant issue is concerned, we are satisfied that the submission of the learned Counsel for the appellant is fully justified. Even though the respondent had been found guilty on a number of other charges, the punishing authority, having differed with the findings recorded by the Enquiry Officer on one of the charges, should not have resulted in the complete exoneration of the respondent, as has been ordered by the learned Single Judge. It ought to have been left to the competent authority, namely, the punishing authority to re-examine the matter, either on the basis of charges provided in the inquiry report dated 09.11.2005, or alternatively with liberty to the punishing authority to record its reasons of difference of the inquiry report dated 09.11.2005, and thereafter to proceed with the matter in terms of the procedure laid down by the Supreme Court in P.D. Agrawal's case (supra). 7. 7. Learned Counsel for the respondent also accedes to the submission advanced by the learned Counsel for the appellant (as has been noticed in the foregoing paragraph). 8. In the facts and circumstances of this case, it is also necessary for us to examine whether the respondent should be allowed to continue in service during the interregnum, i.e. after the order of dismissal dated 22.02.2006 has been set aside. In this behalf, it would be pertinent to notice, that even during the course of hearing of the instant Special Appeal, it is not the submission of the learned Counsel for the appellant, that the impugned order of dismissal dated 22.02.2006 can be sustained. 9. Having given our thoughtful consideration to the issue noticed hereinabove, we are of the view that the position of the respondent at the stage of the submission of the inquiry report should be restored. Since in terms of deliberations recorded by us hereinabove, the matter has to be proceeded further from the stage of submission of the inquiry report dated 09.11.2005. At that juncture, the respondent was under suspension. The respondent shall, therefore, be deemed to be continuing under suspension till date. Arrears of subsistence allowance payable to the respondent shall be paid by the appellant within two months from today. He shall also be entitled to subsistence allowance hereafter till the finalization of the matter. In case further action has to be initiated against the respondent (on the basis of inquiry report dated 09.11.2005), the same shall be initiated within two months. A final decision in the matter shall positively be taken within a further period of three months. In case no such decision is taken within the time specified hereinabove, i.e. within five months from today, the respondent shall be reinstated in service with all consequential benefits. 10. The instant appeal is disposed of accordingly.