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2012 DIGILAW 8 (HP)

Suresh Sankhyan v. State of H. P.

2012-01-03

RAJIV SHARMA

body2012
JUDGEMENT Justice Rajiv Sharma, Judge (oral). Disciplinary proceedings were initiated against the petitioner vide Annexure P-2 dated 19.5.2009. Petitioner filed reply to the same. Sh. Ajay Sharma, Director Ayurveda was appointed as Inquiry Officer vide office order dated 16.9.2009. The Inquiry Officer conducted the inquiry. The copy of the inquiry report is Annexure P-5. The Inquiry Officer has exonerated the petitioner by categorically holding that all six charges levelled against the petitioner were not proved. He submitted the report to the Disciplinary Authority. The Disciplinary Authority passed order Annexure P-6 on 29.7.2010 disagreeing with the inquiry report. According to order dated 29.7.2010, the Disciplinary Authority has proposed to impose major penalty upon the petitioner. The petitioner was permitted to make representation within a period of 15 days. The petitioner submitted detailed reply to order dated 29.7.2010 on 20.8.2010. He also submitted additional reply to order dated 29.7.20 10, vide Annexure P-7-B. The Disciplinary Authority vide Annexure P-8 dated 29.10.2010 has imposed the penalty of compulsory retirement from the Government service upon the petitioner with immediate effect. The writ petition was admitted on 7.9.2011. The State has not chosen to file reply till date. 2. Mr. Ajay Mohan Goel has strenuously argued hat his client has been exonerated by the Inquiry Officer of all the charges. He then argued that in case the Disciplinary Authority has to disagree with the inquiry report, he was required to record its tentative reasons and the same were required to be furnished to the petitioner to enable him to make representation against the same. He then argued that the Disciplinary Authority had already made up its mind to impose major penalty upon the petitioner vide order dated 29.7.2010 even without supplying the reasons to the petitioner of disagreement with the inquiry report. He further contended that the Disciplinary Authority has passed a mechanical order without due application of mind. He lastly argued that the order ought to have been speaking/detailed after taking into consideration the averments contained in reply to order dated 29.7.20 10. 3.Mr. Vikas Rathore, learned Deputy Advocate General has supported the order dated 29.10.2010. He then argued that no prejudice has been caused to the petitioner. 4.I have heard the learned counsel for the parties and have perused the pleadings carefully. 5.It is not in dispute that the petitioner has been exonerated by the Inquiry Officer. 3.Mr. Vikas Rathore, learned Deputy Advocate General has supported the order dated 29.10.2010. He then argued that no prejudice has been caused to the petitioner. 4.I have heard the learned counsel for the parties and have perused the pleadings carefully. 5.It is not in dispute that the petitioner has been exonerated by the Inquiry Officer. The Disciplinary Authority, as per law, was required to record its tentative reasons of disagreement with the inquiry report and the same were required to be supplied to the petitioner for enabling him to make representation. Thereafter, the Disciplinary Authority could impose the penalty upon the petitioner only after receiving the representation by the petitioner against the tentative reasons. In the case in hand, though the petitioner has been supplied with the order dated 29.7.20 10 with the inquiry report and the grounds of disagreement but at the same time, the Disciplinary Authority had already made up its mind to impose major penalty upon the petitioner. This was not permissible under law. The Disciplinary Authority, as noticed above, was required to supply the copy of tentative reasons to the petitioner and only after receiving the representation to the same and considering them objectively, it could impose the penalty. The petitioner has filed detailed reply to the order dated 29.7.2011 vide Annexures P-7-A and 7-B. The order passed by the Disciplinary Authority whereby the major penalty of compulsory retirement has been imposed upon the petitioner dated 29.10.2010 is very laconic. The Disciplinary Authority was required to pass a detailed/speaking order, that too, after taking into consideration the replies filed by the petitioner to order dated 29.7.20 10. Merely stating that the reply filed by the petitioner to order dated 29.7.20 10 is not satisfactory, is not sufficient. The grounds taken in the reply were required to be discussed at length. The Disciplinary Authorities are quasi judicial in nature. There has to be fairness, more particularly, when it affects the livelihood of an incumbent. 6. Their Lordships of the Hon’ble Supreme Court in Punjab National Bank and others versus Kunj Behari Misra, (1998) 7 SCC 84 have held that whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its 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 findings are required to be conveyed to the delinquent official. Their Lordships have held as under: “19. 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 inquiry 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 inquiry 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 inquiry 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 representation before the disciplinary authority records its findings on the charges framed against the officer.” 7. In the instant case, the Disciplinary Authority arrive at tentative findings. The Disciplinary Authority had already proposed to impose major penalty upon the petitioner as per office order 29.7.2010. 8. Their Lordships of the Hon’ble Supreme Court in Yoginath D. Bagde versus State of Maharashtra and another, (1997) 7 SCC 739 have reiterated that the Disciplinary Authority before forming its final opinion, has to convey to charged employee its tentative reasons for disagreeing with the findings of the Enquiry Officer. In this case show cause notice was issued to the appellant with regard to proposed punishment. Thus, the final decision had already been taken before issuing show cause notice. Their Lordships have held as under: “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. 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 in any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution. 37. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by the learned counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show-cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show-cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank (1998 AIR SCW 2762 : AIR 1998 SC 2713 : 1998 Lab IC 3012 : 1998 All LJ 2009) (supra) in which it had been categorically provided, following earlier decisions, that if the Disciplinary Authority does not agree with the findings of the Enquiry Officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the Disciplinary Authority that the findings already recorded by the Enquiry Officer were just and proper. Post- decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case.38.The Disciplinary Committee consisted of five Seniormost Judges of the High Court which also included the Chief Justice. The Disciplinary Committee, took a final decision that the charges against the appellant were established and recorded that decision in writing and then issued a notice requiring him to show cause against the proposed punishment of dismissal. The findings were final; what was tentative was the proposal to inflict upon the appellant the punishment of dismissal from service. 9. The Disciplinary Authority instead of recording tentative reasons and supplying the same to the petitioner to enable him to make representation, has only proposed the penalty, which is against the definitive law laid down by their Lordships of the Hon’ble Supreme Court, as noticed above. 10. Their Lordships of the Hon’ble Supreme Court in SBI and others versus Arvind K. Shukla, (2004) 13 SCC 797 have again reiterated that the Disciplinary Authority taking a different view is required to record its tentative reasons therefore and give it to the delinquent officer for giving him an opportunity to represent before recording its ultimate findings. 11. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexures P-8 and P-9 both dated 29.10.2010 are quashed and set aside. 11. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexures P-8 and P-9 both dated 29.10.2010 are quashed and set aside. It shall be open to the respondent to proceed in the matter in accordance with law.Pending application(s), if any, also stands disposed of. No costs.