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2012 DIGILAW 1038 (PAT)

Laxmi Mandal v. State of Bihar

2012-07-27

CHAKRADHARI SHARAN SINGH

body2012
JUDGMENT 1. This writ application has been filed for quashing the order dated 31.12.1998(Annexure-5) passed by the Superintendent of Police, Katihar, (the Disciplinary Authority), whereby punishment of withholding of increment for two years equivalent to three black marks was imposed on the petitioner. He is further aggrieved by the order of dismissal passed by the Director General-cum Inspector General of Police, Bihar dated 7.2.2002 (Annexure-8), whereby in exercise of power under Rule 853A of the Bihar Police Manual the petitioner has been dismissed from service. 2. Petitioner at the relevant point of time was posted as Assistant Sub-Inspector of Police in Balia, Belon Police Station and was proceeded against departmentally vide Proceeding no. 39 of 1995 on the charge of converting a murder case in the U.D. cases, not preparing the inquest report properly, sending dead body for post mortem after much delay and wrongly releasing the accused Alimuddin after his arrest. The charge-sheet was issued on 1.6.1995 under the signature of Superintendent of Police, Katihar. The petitioner was given the list of witnesses and the list of documents which the department proposed to rely in support of the charge. 3. After conclusion of the inquiry the Inquiry Officer submitted his report on 15.2.1997 (Annexure-2) exonerating the petitioner from the charges and holding that the petitioner was not guilty. The disciplinary authority i.e. the Superintendent of Police, Katihar, however, while recording the disagreement from the report of the Inquiry Officer held the petitioner guilty of the charge vide his order dated 31.12.1998 (Annexure-5) and imposed punishment of withholding of increments for two years equivalent to three black marks. While imposing the order of punishment, the disciplinary authority referring to the report of the Inquiry Officer, pointed out that the Inquiry officer did not take evidence of so many important witnesses and criticized him for writing in the report that some of the witnesses did not turn up in spite of notice. He further criticized the Inquiry Officer for having not recorded the statement of the crime reader. The Superintendent of Police, Katihar thus pointed out several faults in the inquiry and defects in the conduct of the Inquiry Officer and disagreeing with his report imposed the aforesaid punishment vide order dated 31.12.1998. 4. Nearly two years thereafter the Office of the Director General-cum-Inspector General of Police issued notice to the petitioner vide memo No. 7461/P-2 dated 23.11. The Superintendent of Police, Katihar thus pointed out several faults in the inquiry and defects in the conduct of the Inquiry Officer and disagreeing with his report imposed the aforesaid punishment vide order dated 31.12.1998. 4. Nearly two years thereafter the Office of the Director General-cum-Inspector General of Police issued notice to the petitioner vide memo No. 7461/P-2 dated 23.11. 2000 (Annexure-6) asking the petitioner to show cause against the proposed punishment of dismissal from the service. The said notice dated 23.11.2000 (Annexure-6)was issued under the signature of the Assistant Inspector General of Police under the orders of the Director General-cum-Inspector General of Police in exercise of power under Rule 853A of the Bihar Police Manual. In the said notice dated 23.11.2000 (Annexure-6) the Director General-cum-Inspector General of Police while reviewing the order of punishment imposed on the petitioner, came to the conclusion that the charge against the petitioner stood proved on the basis of the material available in the disciplinary proceeding and further that the punishment imposed on him of withholding of increments for two years was not sufficient keeping in view the gravity of charge. The Reviewing authority i.e. the Director General-cum-Inspector General of Police while directing for issuance of the said show cause notice dated 23.11.2000 (Annexure-6) came to the conclusion of the petitioner’s guilt while proposing the punishment of dismissal from service. 5. Petitioner vide letter dated 15.12.2000 (Annexure-7) submitted his reply to the said show cause notice dated 23.11.2000 denying that the charge can be said to have been proved on the basis of the materials available in the disciplinary proceeding and submitted that there was no reason to differ with the report of the Inquiry Officer. He further submitted in his reply that exercise of power under Rule 853A of the Bihar Police Manual after so much delay particularly when he had already suffered the punishment of withholding of increment, the issuance of notice proposing dismissal of service could not be justified. Thereafter the impugned order dated 7.2.2002 (Annexure-8) came to be passed issued under the signature of the Deputy Inspector General of Police (HQ) Bihar, Patna under the orders of the Director General-cum Inspector General of Police, Bihar, whereby the order of punishment earlier imposed on the petitioner by the Superintendent of Police was set aside and he was ordered to be dismissed from service with immediate effect. 6. 6. Counter affidavits have been filed in this case on behalf of Respondent no.3 Director General-Cum-Inspector General of Police and Deputy Inspector General of Police (HQ) separately. There is no dispute as regards the procedure adopted for imposing the punishments which are under challenge in the present writ petition. In the counter affidavit, it has been stated that after the petitioner had submitted his response to the notice issued by the Office of the Director General of Police proposing punishment of dismissal from service, the comments of the Superintendent of Police, Katihar were called. The Superintendent of Police, Katihar in his letter dated 27.1.2001 gave his opinion that the co-delinquent, namely, Assistant Sub-Inspector of Police Suresh Prasad Singh had been dismissed from service and the petitioner was also a party to the mis-conduct. The Superintendent of Police in paragraph 3 of his said letter mentioned that the charges framed against the petitioner appeared to be true. 7. Learned counsel appearing on behalf of the petitioner contends that entire exercise of imposition of punishment on the petitioner in the facts and circumstances of the case is fully arbitrary, illegal and in violation of well known rules of the principles of natural justice. It has been submitted on behalf of the petitioner that first order dated 31.12.1998 by which the disciplinary authority imposed the punishment of withholding of increments for two years while disagreeing with the report of the Inquiry Officer was wholly illegal and contrary to law laid down and reiterated by the Supreme Court in catena of judgments, the leading case being that of Punjab National Bank Vs. Kunj Bihar Mishra reported in (1998) 7 SCC 84 . With reference to the said judgment, learned counsel for the petitioner submits that it was obligatory for the disciplinary authority to supply to the petitioner the tentative reason for disagreement from the report of the Inquiry Officer, whereby he was exonerated of the charges as they were not found proved. In the absence of any notice to the petitioner before reaching to the conclusion of guilt by the disciplinary authority, particularly in view of the Inquiry Officer’s report exonerating the petitioner of the charge, it was incumbent upon the disciplinary authority to grant the delinquent employee a reasonable opportunity to convince him that the report of the Inquiry Officer was proper and did not require interference. He has also relied upon Supreme Court judgment in case of Yogi Nath Bagde Vs. State of Maharashtra reported in (1999) 7 SCC 739 , for the proposition that before reaching to the finding of guilt the disciplinary authority as well as the authority exercising power under Rule 853A of the Bihar Police Manual were required to give opportunity to the petitioner. 8. Learned counsel for the petitioner further submits that for the same reason, the order passed by the Director General-cum-Inspector General of Police is illegal in as much as he too came to the finding of petitioner’s guilt first and pre-judged the issue by deciding punishment of dismissal from service by issuing the notice dated 23.11.2000. Issuance of said show cause notice dated 23.11.2000, in the submission of the learned counsel for the petitioner, amounts to post decisional hearing, as according to him, it has been specifically held by the Supreme Court that before reaching to the finding the disciplinary authority must have given an opportunity to the delinquent to place his case. 9. It has been emphatically submitted on behalf of the petitioner that the report of the Inquiry Officer was not supplied, and though, the petitioner was not held guilty of the charge by the Inquiry Officer, it was obligatory on the part of the disciplinary authority as well as the authority exercising power under Rule 853A of the Bihar Police Manual to supply the report of the Inquiry Officer before reaching to the conclusion of guilt for the reason that they proposed to differ with the Inquiry Officer and reached to the conclusion that on the basis of the materials available on record in the disciplinary proceeding, the petitioner was guilty of the charge framed against him. 10. Countering the submissions made on behalf of the petitioner, learned counsel for the State while justifying the impugned action of the respondents submits that it was too late for the petitioner at this stage to question the order of the disciplinary authority dated 31.12.1998, whereby he had only not disagreed with the report of the Inquiry Officer but had also held petitioner guilty of the charge framed against the same and had imposed punishment. In the submission of the learned counsel appearing for the State the finding of the disciplinary authority holding the petitioner guilty of the charge, though disagreeing with the report of the Inquiry Officer, became final as the said finding and imposition of punishment was not challenged by the petitioner and was in fact accepted. In that view of the matter the notice issued by the Office of the Director General-Cum Inspector General of Police can be treated to be a notice for enhancement of punishment only and cannot be treated to be an order differing with the report of the Inquiry Officer. In such circumstance, the petitioner submits that the Director General-cum-Inspector General of Police was not required to refer tentative reasons for his disagreement with the report of the Inquiry Officer. He further submits that in view of the nature of allegation and gravity of charge the imposition of punishment of dismissal from service is justified in the facts and circumstances of the case. 11. In reply, learned counsel appearing on behalf of the petitioner has placed reliance on a judgment of the Supreme Court reported in (2011) 5 SCC 142 (Coal India Ltd. Vs. Anant Saha) to contend that the initial order dated 31.12.1998 passed by the disciplinary authority holding the petitioner guilty of the charge itself was bad and any subsequent action taken based on such finding is per se illegal. 12. After having heard the rival contentions on behalf of the parties, the issue which required to be decided in this case are : (a) Whether the order passed by the Superintendent of Police, Katihar dated 31.12.1998 differing with the report of the Inquiry Officer can be sustained? (b) If the said order dated 31.12.1998 cannot be sustained on the ground of breach of principles of natural justice, whether subsequent action on the basis of the finding of the Superintendent of Police can be upheld? (c) Whether the issuance of show cause notice dated 23.12.2000 by the Office of the Director-General-Cum-Inspector General of Police amounts to….. post decisional hearing and if so, the impugned order dated 7.2.2002 dismissing the petitioner from service is violative of principles of natural justice and fair play? 13. (c) Whether the issuance of show cause notice dated 23.12.2000 by the Office of the Director-General-Cum-Inspector General of Police amounts to….. post decisional hearing and if so, the impugned order dated 7.2.2002 dismissing the petitioner from service is violative of principles of natural justice and fair play? 13. As regards the order dated 31.12.1998 whereby the disciplinary authority disagreeing the report of the Inquiry Officer, and finding the petitioner guilty of the charge levelled against him, there can be absolutely no doubt that the same cannot be justified. Firstly, for the reason that before recording disagreement from the report of the Inquiry Officer, petitioner was not accorded any opportunity by supplying the tentative notes of the disagreement which was required to be mandatorily done. Here is the case where the report of the Inquiry Officer was not supplied to the petitioner because the report was favourable to him. But once the disciplinary authority or any other authority decided to take action against the petitioner on the basis of material available in the disciplinary proceeding it was mandatory for the authorities exercising quasi-judicial function to supply the petitioner the report of the Inquiry Officer, though in his favour and other materials with the tentative reasons on the basis of which the authorities formed an opinion that the charge framed against the delinquent could be proved. Further, before the Disciplinary authority or any other authority recorded finding of guilt while differing with the report of the Inquiry Officer it was mandatory for such authority to give opportunity to the petitioner to convince the authority that the Inquiry report required no interference and was justifiable. 14. Reference may me made in this regard to three Judge- Bench judgment of the Supreme Court in case of Punjab National Bank Vs. Kunj Bihari Mishra (Supra), paragraph 19 of which lays down the law to the effect that whenever the disciplinary authority disagrees with the report of Inquiring authority on any article of charge, before such finding it must record tentative reasons for such disagreement and give to the delinquent Officer an opportunity to represent before it records its finding. For the benefit of quick reference paragraph 19 of the said judgment is quoted hereinbelow:- “The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). For the benefit of quick reference paragraph 19 of the said judgment is quoted hereinbelow:- “The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, 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 will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the Officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the Officer.” 15. In case of Yog Nath Bagde Vs. State of Maharashtra (Supra), the Supreme Court, dealing with the issue when the enquiry officer’s report was favourable to the delinquent and the disciplinary authority or any other competent authority proposed to disagree with the same, held that a delinquent employee has a right of hearing not only during the enquiry proceeding conducted by the enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority, and later when the disciplinary authority forms a tentative opinion that he does not agree with the findings recorded by the enquiry officer. 16. The Supreme Court held that if the findings recorded by the Inquiry Officer are favourable to the delinquent and it is being held by the Disciplinary authority that the charges are proved, it is more necessary to give opportunity of hearing to the employee. The formation of the opinion, as per the Supreme Court should at that stage be tentative and not final. 17. The Supreme Court in the case of Yogi Nath (supra) considered several other cases on the point and laid down the law to the following effect:- “30. Recently, a three-Judge Bench of this Court in Punjab National Bank Vs. The formation of the opinion, as per the Supreme Court should at that stage be tentative and not final. 17. The Supreme Court in the case of Yogi Nath (supra) considered several other cases on the point and laid down the law to the following effect:- “30. Recently, a three-Judge Bench of this Court in Punjab National Bank Vs. Kunj Behari Misra 11 relying upon the earlier decisions of this Court in State of Assam V. Bimal Kumar Pandit 12, Institute of Chartered Accountants of India V. L.K. Ratna 13 as also the Constitution Bench decision in Managing Director, ECIL V. B. Karunakar 14 and the decision in Ram Kishan V. Union of India 15 has held that: (SC p. 96, para 17) “It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent Officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.” The Court observed as under: (SCC p.96, para 18) “When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, and opportunity of hearing has to be granted by him. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, and opportunity of hearing has to be granted by him. When the disciplinary authority differs 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. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer’s report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed.” The Court further held that the contrary view expressed by this Court in State Bank of India V. S.S. Koshal 16 and State of Rajasthan v. M.C. Saxena 17 was not correct. 31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the “right to be heard” would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment of service rule including rules made under Article 309 of the Constitution.” 18. In the present case I find that the authority in its notice dated 23.11.2000 itself formed an opinion with regard to the petitioner’s guilt. It also appears from the notice that the formation of such opinion is largely based on the finding of the disciplinary authority as recorded in the order dated 31.12.1998. The show cause notice dated 23.11.2000 on the face of it appears to be giving post decisional hearing to the petitioner on both counts as regards finding of guilt as also imposition of punishment of dismissal from service. Further, as the finding of the Director General of Police is based on an order of the disciplinary authority dated 31.12.1998, it cannot be upheld because the petitioner was not given any opportunity before the disciplinary authority recorded its finding disagreeing with the report of the Inquiry Officer. Further, as the finding of the Director General of Police is based on an order of the disciplinary authority dated 31.12.1998, it cannot be upheld because the petitioner was not given any opportunity before the disciplinary authority recorded its finding disagreeing with the report of the Inquiry Officer. If the Director General-cum-Inspector General of Police applied his own mind to reach to the finding of guilt of the petitioner on the basis of the material available on record of the disciplinary proceeding, the petitioner had a right to be supplied a copy of the enquiry report though favourable to him, with the tentative reasons recorded by the Director General-cum-Inspector General of Police for differing with the report of the Inquiry Officer and reaching to a different conclusion. The assertion that the report of Inquiry Officer was not supplied to the petitioner has not been denied in the counter affidavit. I am in agreement with the submission made on behalf of the petitioner to the effect that if the initial action is not in consonance of the law, the subsequent proceeding will not sanctify the same. Once the basis of the proceeding is vitiated, all consequential acts, action, orders are automatically set aside and this principle of consequential order which is applicable to judicial and quasi-judicial proceeding, in view of law laid by the Supreme Court in the case of Coal India Ltd. Vs. Anant Saha (Supra). 19. This being the position, the issuance of notice dated 23.11.2000 (Annexure-6) amounts to giving the petitioner post decisional hearing. Further the same being based on the order dated 31.12.1998 (Annexure-5) which was passed without giving the petitioner an opportunity before recording disagreement from the report of the Inquiry Officer cannot be sustained. For the same reason the order dated 7.2.2002 dismissing the petitioner from service cannot be sustained and accordingly, the orders dated 23.11.2000 and order dated 7.2.2002 are hereby quashed. The order dated 31.12.1998 (Annexure-5) is also quashed as it was passed without recording notes of disagreement from the findings of enquiry officer and without giving any opportunity to the petitioner of hearing on such notes of disagreement. 21. The petitioner shall be entitled to all consequential benefits arising out of quashing of the impugned order dated 7.2.2002 except with regard to his back wages. 21. The petitioner shall be entitled to all consequential benefits arising out of quashing of the impugned order dated 7.2.2002 except with regard to his back wages. So far back wages are concerned, in the facts and circumstances of the case, it is directed that he will be paid 50% of the salary which he would have been entitled to, had he been not dismissed. The petitioner will be entitled to all pensionary benefits from the date when he attained the age of superannuation treating the period during which he remained out of service by virtue of the order dated 7.2.2002 to be continuous for the purpose of calculation of pension and other post retiral benefits. The Respondents shall also take into account the increment while fixing pay on the notional basis as admissible on the date of his superannuation. This direction has been made in view of the statement made at the bar that during the pendency of the writ application the writ petitioner attained the age of superannuation. 22. This writ application is accordingly allowed with the above observations.