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2013 DIGILAW 60 (JK)

Bipen Singh Charak v. State of J&K and others

2013-02-04

MANSOOR AHMAD MIR

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1. Petitioner has called in question disciplinary proceedings drawn against him by the respondents, show cause notice bearing No. PS/Secy./TPT/108 dated 18.10.2011 along with Enquiry Report, suspension order No. 33/TC of 2011 dated 09.03.2011 and memorandum No. TR-19/MVD/03/2011/104 dated 31.03.2011, with a further direction to respondent No.1 to reinstate him w.e.f. 09.03.2011 as ARTO with all consequential benefits, on the grounds taken in the writ petition. 2. Learned counsel for the petitioner argued that show cause notice is bad in law and requires to be quashed on the ground that Inquiry Officer has not complied with Rule 33(1) of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 (for short ‘CCA Rules’). He also argued that respondents have not furnished copy of inquiry report to the petitioner as required under law, as such, entire proceedings drawn are in breach and violation of Rules 33,34 and 35 of the CCA Rules. 3. Respondents have filed reply and resisted the petition on the ground that same is not maintainable. Respondents have contended that they have to comply with provisions of law before passing final order. Respondents have issued show cause notice to the petitioner asking him to show cause as to why proposed penalty of dismissal from service be not imposed upon him. 4. It is apt to reproduce Rules 33 and 34 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 herein :- 33.(1) Without prejudice to provisions of the Public Servants Inquiries Act, 1977, no order (other than an order based on facts which had led to his conviction in a criminal court or by a court-martial) of dismissal, removal, or reduction in rank 1[which includes reduction to a lower post and/or lower timescale, - and/or to a lower stage in time-scale] but excludes the reversion to a lower post of a person who is holding a higher post temporarily shall be passed on a person who is a member of a Civil service, or holds a Civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded and adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of tile allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be head in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard, as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish; provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. (2) The rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him, or where in the interest of the security of the State, it is considered not expedient to give to that person an opportunity of showing cause against the action proposed to be taken against him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule and those requirements can in the opinion of the inquiring officer be waived without injustice to the person charged. (3) This shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, or to dismiss, remove or reduce in rank a temporary government servant, for any specific fault or on account of his unsuitability for the service. (4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose. 34. (4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purpose. 34. After the inquiry against a government servant has been completed, and after the authority competent to impose penalty has arrived at provisional conclusions in regard to the penalty to be imposed, the government servant charged shall, if the penalty proposed is dismissal, removal or reduction in rank, be supplied with a copy of the proceedings prepared under rule 33 excluding the recommendations, if any, in regard to punishment, made by the officer conducting the inquiry and asked the show cause by a particular date with affords him reasonable time, why the proposed penalty should not be imposed on him. 5. In terms of aforesaid rules, respondents are under obligation to issue show cause notice to the petitioner to explain as to why proposed penalty be not imposed upon him and the petitioner has a right to submit his explanation to the show cause notice within the time frame. But, in the present case, petitioner instead of showing cause has invoked writ jurisdiction of this Court, thus, has stalled inquiry proceedings. Virtually, the petitioner has restrained the respondents from passing final order. 6. In view of Rules 33 and 34 of CCA Rules as quoted above, respondents have to supply copy of the proceedings prepared and also to issue show cause notice to explain as to why the proposed penalty should not be imposed upon him, which they have done in the present case. It is apt to reproduce sub para (m) of para No.6 of the reply herein:- “m) That accordingly in order to afford an opportunity of being heard to the petitioner, in accordance with Rule 34 of J&K Civil Services (CCA) Rules of 1956, the petitioner was supplied with a copy of the proceedings prepared under Rule 33 of the said Rules and a Notice was issued to the petitioner asking him to show cause as to why the proposed penalty be not imposed upon him and the petitioner was required to submit his reply within a period of one month, i.e. upto 18th of November, 2011 (copy of the show cause notice dated 18.10.2011 annexed as Annexure R-1). 7. 7. The Apex Court in case Managing Director, ECIL, Hyderabad v. B. Karunakar reported in 1993 (4) SCC 737 has held that respondents have to provide copy of proceedings to the petitioner in order to pass final order whether penalty is to be imposed or otherwise. 8. In case M/s Siemens Ltd. v. State of Maharashtra and others, reported in 2006 AIR SCW 6380, Hon’ble Supreme Court has held that petitioner cannot question show cause notice unless it appears to have been without jurisdiction. It is apt to reproduce para No.10 herein. “Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943 , Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262 ], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686 ]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause.” 8. Hon’ble Supreme Court has also laid the same principle in case Special Director and another v. Mohd. Ghulam Ghouse and another, reported in 2004 AIR SCW 416. 9. Apex Court in case Punjab National Bank and others v. K.K.Verma reported in 2010 AIR SCW 6306 also held that before imposing penalty, copy of inquiry report is to be furnished to the delinquent officer/official and he is to be provided an opportunity of hearing before arriving at final conclusion. It is apt to reproduce para No.28 as under:- 28. Apex Court in case Punjab National Bank and others v. K.K.Verma reported in 2010 AIR SCW 6306 also held that before imposing penalty, copy of inquiry report is to be furnished to the delinquent officer/official and he is to be provided an opportunity of hearing before arriving at final conclusion. It is apt to reproduce para No.28 as under:- 28. This being the position, in the instant case it is clear that the appellant had not followed their own regulations which clearly require the disciplinary authority to record the reasons where it differed from the inquiry officer. The regulations also clearly lay down that a copy of the inquiry report and the order of disagreement are to be provided to the employee. In the present case, we are concerned with the stage where the Disciplinary Authority differs with the inquiry officer on his findings. This is prior to arriving at the guilt of the employee. His right to receive the report and defend at that stage before the guilt is established is very much recognized as seen above. Counsel for the appellant submitted that Constitution Bench has held in Union of India & Anr. v. Tulsiram Patel [ 1985 (3) SCC 398 ] that after the 42nd Amendment, the employees are not entitled in law to be heard in the matter of penalty. In Karunakar's case (supra), another Constitution Bench has referred to Tulsiram Patel in paragraph 4 and then explained the legal position in this behalf in paragraph 7 as follows:- “While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment.” Thus, the right to represent against the findings in the inquiry report to prove one's innocence is distinct from the right to represent against the proposed penalty. It is only the second right to represent against the proposed penalty which is taken away by the 42nd Amendment. The right to represent against the findings in the report is not disturbed in any way. In fact, any denial thereof will make the final order vulnerable.” 10. Apex Court in case Union of India v. Y.S.Sandhu, Ex-Inspector reported in AIR 2009 SC 161 has laid down the same principle as well. 11. Apex Court in Chairman, Ganga Yamuna Gramin Bank and others v. Devi Sahai report in 2009 (11) SCC 266 held that before penalty is imposed, second show cause notice is to be issued to the employee and he has a right of hearing. It is apt to reproduce para No.19 herein :- “19. Issuance of second show-cause notice for the purpose of obtaining the views of delinquent officer in regard to quantum of punishment is not a part of the common law principles of natural justice. Such a provision could be laid down by reason of a statute. The respondent does not enjoy any status. The service conditions of employees of the Regional Rural Banks are not protected in terms of Article 311(2) of the Constitution of India.” 12. In the instant case, respondents have furnished copy of proceedings, thus, writ petition against show cause notice, is not maintainable. 13. Having glance to the aforesaid discussions, this writ petition merits dismissal and dismissed as such along with connected CMA(s).