M. C. Kaushik, Deputy Director Of Horticulture (Retired) v. State Of Himachal Pradesh
2012-03-05
RAJIV SHARMA
body2012
DigiLaw.ai
JUDGMENT : Justice Rajiv Sharma, J. 1. Petitioner was served with a memorandum under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 on 22.2.2000. The main charge levelled against the petitioner was that while he was discharging the duties of Assistant Fruit Technologist, Shamshi, District Kullu, he was given the additional charge of the post of District Horticultural Officer, Kullu from 24.4.1985 to 31.10.1985. He purchased 15 Nos. of water storage tanks from M/s. Gupta Pipe, Dharampur amounting to Rs. 85,033/-without the approval of the competent authority. The Government had to pay total amount of Rs. 1,82,737/- to the firm. The second charge levelled against the petitioner was that while he was working as Assistant Fruit Technologist, Dhaulakuan from 21.7.1997, he purchased 162 bags of apples @ Rs. 3.75 per kg. from a private party, i.e. M/s Jindal Brothers, Parwanoo without complying with the codal formalities. Petitioner filed reply to the same on 4.5.2000. Inquiry Officer furnished the report to the Disciplinary Authority on 24.7.2002. Thereafter, petitioner was served with a notice by the Disciplinary Authority to furnish the reply within a period of 15 days on 31.10.2002. Petitioner filed reply on 26.11.2002. Thereafter, the Disciplinary Authority imposed penalty of recovery of Rs. 1,89,333/- + Rs. 23,703/- from the pensionary benefits of the petitioner. Thereafter, necessary orders were passed on the same date on 14.3.2003 whereby a sum of Rs. 1,89,333.80 was directed to be deducted from the pensionary benefits of the petitioner. Mrs. Ranjana Parmar has strenuously argued that the Disciplinary Authority has erred in law by provisionally coming to a conclusion that the penalty was to be imposed upon the petitioner without permitting him to make a representation against the inquiry report. She also argued that the reply furnished by the petitioner to the show cause notice dated 31.10.2002 has not been taken into consideration in right perspective by the Disciplinary Authority. She finally argued that the order passed by the Disciplinary Authority is laconic. 2. Mr. Rajinder Dogra, learned Addl. Advocate General has supported the order of imposition of penalty. 3. I have heard the learned counsel for the parties and have perused the pleadings meticulously. 4. Inquiry report was furnished by the Disciplinary Authority on 24.7.2002. The copy of the same was supplied to the petitioner with notice dated 30.10.2002.
2. Mr. Rajinder Dogra, learned Addl. Advocate General has supported the order of imposition of penalty. 3. I have heard the learned counsel for the parties and have perused the pleadings meticulously. 4. Inquiry report was furnished by the Disciplinary Authority on 24.7.2002. The copy of the same was supplied to the petitioner with notice dated 30.10.2002. However, the Disciplinary Authority without waiting for the representation to be made by the petitioner against the inquiry report had provisionally come to a conclusion to impose penalty upon the petitioner, which is not permissible as per the definitive law laid down by their Lordships of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., AIR 1994 SC 1074 . The purpose of furnishing the inquiry report to the delinquent is to enable him to point out short comings/deficiencies during the course of the inquiry. It is only after the receipt of the representation to the inquiry report, the Disciplinary Authority has to make up his mind whether the penalty is to be imposed or the proceedings are to be dropped. 5. The Apex Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., AIR 1994 SC 1074 , has held that the copy of inquiry report has to be supplied to an employee before the disciplinary authority makes up his mind to impose penalty. The purpose of supplying the copy of inquiry report is to enable an individual to represent against the short-comings, deficiencies and violation of mandatory rules during the course of departmental inquiry. The Apex Court has held as under:- "26. The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it.
It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. 29.
The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. 29. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice." 6. In the instant case non-supply of the copy of inquiry report to the petitioner has seriously prejudiced his case. 7. The petitioner has filed a detailed reply to the show cause notice vide Annexure A-5 dated 26.11.2002. The Disciplinary Authority has not at all discussed the reply furnished by the petitioner to the show cause notice. It was incumbent upon the Disciplinary Authority to go into and discuss the reply filed by the petitioner to the show cause notice dated 31.10.2002. Merely stating that the petitioner has submitted the reply will not meet the requirement of law. Order passed by the Disciplinary Authority dated 14.3.2003 is laconic and non-speaking. It is now well settled law that the Disciplinary Authority has to pass a detailed and reasoned order. The necessity of passing a detailed and reasoned order by the Disciplinary Authority is also due to the fact that the same is amenable to appeal. There has to be application of mind by the Disciplinary Authority. In the instant case, the incident has happened between 24.4.1985 to 31.10.1985 and the charge-sheet has been issued to the petitioner on 22.2.2000. There is inordinate delay of 17 years in initiating the disciplinary proceedings as far as charge No. 1 is concerned. The proceedings must commence and be concluded at the earliest. In the case in hand, the disciplinary proceedings have been initiated against the petitioner when he was at the verge of retirement.
There is inordinate delay of 17 years in initiating the disciplinary proceedings as far as charge No. 1 is concerned. The proceedings must commence and be concluded at the earliest. In the case in hand, the disciplinary proceedings have been initiated against the petitioner when he was at the verge of retirement. Memorandum under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was issued on 22.2.2000 and the petitioner has retired on 31.7.2002. It is also borne out from the record that rule 9 of the Central Civil Services (Pension) Rules, 1972 has not been complied with before withholding the pension of the petitioner. Rule 9 is mandatory. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexures A-6 and A-7 both dated 14.3.2003 are quashed and set aside. In normal circumstances, respondents ought to have been granted opportunity to proceed with the matter; however, since the petitioner has retired from service, the proceedings are closed. There shall, however, be no order as to costs.