Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 142 (BOM)

Ramesh v. State of Maharashtra

2012-01-20

A.P.BHANGALE, P.B.MAJMUDAR

body2012
JUDGMENT 1] By way of this petition, the petitioner who has been removed from the service, has challenged the order dated 592000 passed by the Maharashtra Administrative Tribunal, Nagpur Bench, Nagpur in Transfer Application No.1439/1992 in Writ Petition No. 82/1991. By the said order, the Tribunal has confirmed the order passed by the Appellate Authority by which the Appellate Authority dismissed the appeal against the order of punishment passed by the Disciplinary Authority. 2] The petitioner was initially appointed as Police Constable in the year 1978. In 1981 one Balkishan Paliwal made a complaint to the Department regarding illicit relationship of the petitioner with his wife. On the basis of the said complaint, preliminary enquiry was carried out which resulted into service of the charge-sheet on the petitioner in September 1986. Thereafter the departmental enquiry was conducted in connection with illicit relationship of the petitioner with the wife of the complainant. The enquiry was conducted in connection with moral turpitude and alleged illicit relationship of the present petitioner with the wife of the complainant. The Enquiry Officer found that the charges against the petitioner regarding illicit relationship with the wife of the complainant are proved. The Enquiry Officer, however, suggested penalty of bringing the petitioner in the basic pay scale for a period of two years and withholding the increments. Since the Enquiry Officer was not the Disciplinary Authority, he forwarded the report to the Disciplinary Authority. Respondent no.2 Commissioner of Police, who was the Disciplinary Authority of the petitioner, agreed with the findings given by the Enquiry Officer regarding misconduct and ultimately passed the order of removal from service against the petitioner by an order dated 27th February 1987. The aforesaid order passed by the Disciplinary Authority was challenged by the petitioner by filing departmental appeal. The said appeal was also dismissed by the Appellate Authority on 14.6.1988. Against the said order, the petitioner initially preferred the writ petition before the High Court being Writ Petition No.82/1991. However, the said petition was transferred to the Maharashtra Administrative Tribunal. The Tribunal by the impugned order has dismissed the appeal of the petitioner. Being aggrieved by the order of passed by the Tribunal, the petitioner is before this Court. Against the said order, the petitioner initially preferred the writ petition before the High Court being Writ Petition No.82/1991. However, the said petition was transferred to the Maharashtra Administrative Tribunal. The Tribunal by the impugned order has dismissed the appeal of the petitioner. Being aggrieved by the order of passed by the Tribunal, the petitioner is before this Court. 3] The learned counsel for the petitioner submits that the Disciplinary Authority while disagreeing with the punishment recorded by the Enquiry Officer, should have given an opportunity to the petitioner of being heard in the matter before imposing such a harsh punishment of removal from service. He further submits that the Disciplinary Authority has neither given show cause notice to the petitioner nor afforded an opportunity of hearing to the petitioner before imposing the penalty. He, therefore, submits that the order passed by the Disciplinary Authority is bad in law. The learned counsel for the petitioner has also relied upon the observations made by the Tribunal. The observations read thus: “However, the law or the procedure of conduct of does not require any opportunity of being heard to be given before the enhancement of punishment as demanded by the learned advocate of the petitioner.” 4] It is submitted by learned counsel that before enhancing penalty, the Disciplinary Authority was required to give hearing to the petitioner. The learned counsel further submits that the Tribunal has erred in upholding the findings recorded by the Disciplinary Authority. He further submits that the Appellate Authority has mechanically passed the order and has not given elaborate reasonings. He has, therefore, challenged the order of the Tribunal on the aforesaid two counts. 5] We have heard the learned counsel for the parties. 6] So far as the first point raised by the petitioner regarding affording an opportunity of hearing is concerned, there is absolutely no substance in the same. It is required to be noted that the Enquiry Officer is not the Disciplinary Authority in the instant case. The Enquiry Officer has no jurisdiction to inflict any penalty and even if such penalty is suggested by the Officer, the same is of no consequence, as it is the Disciplinary Authority, which is competent to impose such penalty. It is required to be noted that the Enquiry Officer is not the Disciplinary Authority in the instant case. The Enquiry Officer has no jurisdiction to inflict any penalty and even if such penalty is suggested by the Officer, the same is of no consequence, as it is the Disciplinary Authority, which is competent to impose such penalty. It is required to be noted that in a given case if the Enquiry Officer has exonerated the delinquent from the charges by holding that the charges are not proved and if the Disciplinary Authority is not in agreement with the findings recorded by the Enquiry Officer, in such an eventuality the Disciplinary Authority is required to issue show cause notice to the delinquent pointing out that he is not agreeing with the findings of the Enquiry Officer and the Disciplinary Authority is to give hearing to the petitioner in that behalf. In the instant case, the Enquiry Officer has found that the charges are proved and the Disciplinary Authority has agreed with the said findings. 7] At this stage, a reference is made to the judgment reported in AIR 1998 SC 2713 (Punjab National Bank and others Vs. Kunj Behari Misra). In the said case the Supreme Court has held that the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrive at its conclusions on the basis of the evidence, Enquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. It is also held that in case where the Enquiry Officer's report is in favour of the delinquent and if the disciplinary authority proposing to differ then the disciplinary authority must give opportunity of hearing to the delinquent before recoding its conclusions. In the instant case, the Enquiry Officer has found that the charges are proved against the delinquent and the Disciplinary Authority has agreed with it. So far as the order of punishment is concerned, the same is required to pass by the Disciplinary Authority and not by the Enquiry Officer. The Enquiry Officer is required to record the evidence and required to give his finding about guilt either proved or not. So far as the order of punishment is concerned, the same is required to pass by the Disciplinary Authority and not by the Enquiry Officer. The Enquiry Officer is required to record the evidence and required to give his finding about guilt either proved or not. In a given case even if the Enquiry Officer suggests any penalty, it is only a recommendation and the same is not binding to the Disciplinary Authority and it cannot be said that the Disciplinary Authority has differed with the findings given by the Enquiry Officer. It cannot be said that the Disciplinary Authority has enhanced the punishment as the Disciplinary Authority has passed the order of punishment for the first time. The Tribunal while making its observation has not considered the said aspect. The Tribunal has erred in observing that the procedure of conduct of enquiry does not require any opportunity of being heard to be given before the enhancement of punishment. As pointed out earlier, this is not a case of enhancing punishment by the Disciplinary Authority. We accordingly do not find merit in the submission of learned counsel for the petitioner that the Disciplinary Authority before enhancing the punishment should have given hearing to the petitioner. 8] The learned counsel for the petitioner has relied upon the decision of this Court in the case of Motilal s/o Raghudayal Srivastava Vs. State of Maharashtra and others reported in 2004(2) Mh. L.J. 277. In the aforesaid case, the Division Bench has held that whenever the Disciplinary Authority disagrees with the findings and the recommendations of the Enquiry Officer and asks to impose a higher punishment, the principles of natural justice require that the delinquent officer to put on notice. However, in our view, it can never be said that the Disciplinary Authority has disagreed with the findings given by the Enquiry Officer. At this stage, it would be relevant to refer to Rule 4(1) of Bombay Police (Punishments and Appeals), Rules 1956 which provides: “No punishment specified in clauses [*](a2), (i), (ia), (ii) and (iii) of sub-rule (1) of rule 3 shall be imposed on any Police Officer unless a departmental into his conduct is held and a note of the with the reasons for passing an under imposing the said punishment is made in writing under his signature”. 9] In the instant case, the punishment is for the first time inflicted by the Disciplinary Authority and before imposing punishment departmental enquiry is conducted into the conduct of the delinquent. In a given case, as stated earlier, if the Disciplinary Authority disagrees with the findings given by the Inquiry Officer, then opportunity of hearing is required to be given to the delinquent before setting aside the findings given by the Enquiry Officer. The Division Bench judgment is required to be considered only from the aforesaid angle. As pointed out earlier since the Enquiry Officer has no right to impose any penalty, there is no question of Disciplinary Authority to disagree with the same. The agreement or disagreement of Disciplinary Authority is only in connection with the finding of the Enquiry Officer in connection with the proof of charge and not beyond that. 10] So far as the argument of the learned counsel for the petitioner that the Appellate Authority has passed the order mechanically is concerned, the Appellate Authority has held that the charges made against the appellant are proved. The Appellate Authority has also observed that the argument of the petitioner is not worth accepting and the appeal is, therefore, dismissed. 11] The Tribunal has held that the Appellate Authority has after careful consideration of material on record and evidence, the Appellate Authority has found that the charges are proved against the petitioner. Considering the same, it cannot be said that the Appellate Authority has not considered the appeal of the petitioner in a proper manner. We accordingly do not find any substance in the said argument. Considering the aforesaid aspect, the petition is dismissed. Rule is discharged. No order as to costs.