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Jharkhand High Court · body

2015 DIGILAW 1464 (JHR)

Sunil Kumar v. State of Jharkhand

2015-11-24

APARESH KUMAR SINGH

body2015
Order : Heard counsel for the parties. 2. Petitioner who is an incumbent of the Jharkhand Agriculture Service Cadre, was proceeded against in a Departmental Proceeding bearing Memo No.5301 dated 10.08.2009 for certain charges by the respondent-Agriculture and Sugarcane Development Department. He was also placed under suspension. One Mr. Nitin Madan Kulkarni, IAS, Director, Welfare, Government of Jharkhand, was appointed as an Inquiry Officer. A supplementary charge sheet was also served upon the petitioner containing eight charges on 03.10.2009 which is also part of Annexure-1. The original charge sheet contains seven charges. Inquiry Report was submitted by the Inquiry Officer on 30.08.2010 which is enclosed as Annexure-2 to the writ application. Out of the seven charges in the original charge sheet, four were found to be fully established, while one was found to be partially proved. Out of the eight supplementary charges, five were found to be fully established while one was found to be partially proved. Thereafter, deliberation have taken place in the department leading to issuance of the second show-cause notice enclosing the copy of the Inquiry Report vide Memo No. 3357 dated 02.09.2015 (Annexure-16). According to the second show-cause notice, on account of serious charges of irregularities of grave nature found to have been established against the petitioner, a decision has been taken to dismiss him from service. 3. Petitioner has challenged the entire Departmental Proceedings and also the second show-cause notice. One fact which needs to be noticed here is that the petitioner was also proceeded in a Vigilance Case No. 37/2010 relating to execution of the project of Soil Health Smart Card. Vigilance Bureau has submitted a final form on 06.02.2015 bearing no. 5/2015 with a finding that the petitioner has not been found to have caused any wrongful gain or loss in execution of the said project, nor any deviation of Government rules or misuse of Government money. The Special Court of Vigilance has accepted the final form after notice to the informant by order dated 03.07.2015 (Annexure-14). 4. Challenge to the impugned proceedings and the second show-cause notice has been made by the petitioner inter-alia on the following grounds: i. that the Departmental Proceeding cannot be sustained on the same and similar set of charges once the criminal case against the petitioner in relation to the same acts of omission and commission has ended up in his exoneration, ii. that the Inquiry Officer Mr. Nitin Madan Kulkarni who has earlier indicted the petitioner, in a different capacity as the Secretary of the Department of Agriculture, Animal Husbandry and Cooperative, Government of Jharkhand, recommended imposition of punishment of dismissal from service which amounts to becoming a judge in his own cause. This is in violation of basic tenets of principles of natural justice. iii. That notings of the file relating to the Departmental Proceeding of the petitioner obtained under the RTI and enclosed to the supplementary affidavit goes to show that the copy of the Inquiry Report has not been served upon the petitioner and straightaway a decision has been taken to impose a major punishment of dismissal from service by issuance of second show-cause notice which is an empty formality. This is in teeth of the ratio laid down by the Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad vs. B. Karunakar & others reported in [ (1993) 4 SCC 727 ]. 5. It is urged that the notings in the file show that the Hon’ble Minister has recommended a minor punishment while the Secretary of the Department has proposed a Major punishment and routed the file to the Hon’ble Chief Minister in a premeditated state of mind. This has vitiated the decision making process also. Learned counsel for the petitioner has relied upon the judgments rendered by the Hon’ble Supreme Court in the case of Corporation of the City of Nagpur, Civil Lines, Nagpur and another vs/ Ramchandra & others [ (1981) 2 SCC 714 , para-6 thereof], G.M. Tank vs. State of Gujarat & others [ (2006) 5 SCC 446 , para-22-24] and Anil Kumar Mahajan vs. Union of India through Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi & others [ (2013) 7 SCC 243 para-13-16] and Punjab National Bank and others vs. Kunj Behari Misra [ (1998) 7 SCC 84 ] in support of the aforesaid contentions. Counsel for the petitioner has submitted that at times, the Secretary of the Department has noted contrary to the actual state of facts that the vigilance inquiry has indicted the petitioner. Counsel for the petitioner has submitted that at times, the Secretary of the Department has noted contrary to the actual state of facts that the vigilance inquiry has indicted the petitioner. It is submitted that the Disciplinary Authority should have accorded him an opportunity to represent against the findings recorded in the Inquiry Report before a decision on his guilt or innocence was arrived at and the next course of decision on the proposed punishment is undertaken. In that exercise, petitioner could have also had an opportunity to show that the findings in the inquiry are unsupported by evidence or on the same set of allegations and evidence petitioner has been acquitted in the criminal case which requires a more serious standard of proof. Therefore, the petitioner has prayed that the instant proceedings itself should be quashed and the petitioner be protected from impending major punishment of dismissal from service which seems to have already been taken by the respondents. 6. Learned counsel for the respondents, has in response submitted that the petitioner was facing serious charges, which were in the nature of dereliction of duty in execution of Government works, acts of causing loss to the Government. Omission and Commission on the part of the petitioner led to wasteful expenditure amounting to Rs.2.49 Crores. It is submitted that the position in law is well settled that disciplinary enquiry can still proceed even in case of initiation of criminal prosecution if the charges relates to official misconduct. In such circumstances, the Employer has the right to take appropriate decision if the charges are established. Mere exoneration of the petitioner in the vigilance enquiry cannot dilute the gravity of the official misconduct committed by him as Government Servant in discharge of duties. Reliance has been placed upon the judgment of B. Karunakar (Supra) to submit that mere non furnishing of the enquiry report would not vitiate the proceeding if petitioner is not able to show any prejudice. In the instant case petitioner has been served with second show cause along with the enquiry report. He is at liberty to make his representation to dislodge the findings of Enquiry Officer and also oppose the proposed punishment. In the instant case petitioner has been served with second show cause along with the enquiry report. He is at liberty to make his representation to dislodge the findings of Enquiry Officer and also oppose the proposed punishment. It is submitted that the Departmental Secretary has followed the Rules of Executive Business, specifically Rule 15 read with Rule 28 of the 3rd Schedule, which provides that decision relating to dismissal, removal or compulsory retirement of Government Servant enjoying a particular scale of pay and above is to be taken by the Hon'ble the Chief Minister of the State. It is submitted that at no point of time in the deliberations undertaken by different Officials in the Department, any final decision has been taken and the opinion expressed by one or the other Officer at different points of time should not be treated to be a final say in the matter relating to the departmental proceeding or any punishment based upon that. He has placed the notings also to show that the Departmental Secretary has only placed full facts before the Chief Secretary of the State for taking an appropriate decision through the competent authority on the question of guilt of the petitioner and also the punishment upon him. Learned counsel for the respondent-State submits that no interference should be accorded at this stage when the proceeding is underway at the stage of second show cause notice as the petitioner has not been able to show any lack of jurisdiction of the authority. Counsel for the respondents has also placed reliance upon the judgment in the case of State of Bihar vs. Kripalu Shankar reported in [ (1987) 3 SCC 34 ]. 7. I have considered the submissions of the parties in some detail and the relevant material facts pleaded. At the outset, it is necessary to notice the nature of the charges alleged against the petitioner in two charge sheets in which he was proceeded. Findings of the Enquiry Officer on the respective charges are indicated against each of the charges. Charge no. 1 relates to the delay in preparation of the SREP in 14 district, as a result of which, farmers of the said district could not avail the benefit of Government of India funds totaling Rs. 576.08 lakhs. ; - Partially proved Charge no. Charge no. 1 relates to the delay in preparation of the SREP in 14 district, as a result of which, farmers of the said district could not avail the benefit of Government of India funds totaling Rs. 576.08 lakhs. ; - Partially proved Charge no. 2 is in relation to execution of RKVY project for the year 2007-08, whereunder it is alleged that the petitioner failed to give details of the accounts of Rs. 55.68 crores drawn and kept in the bank as also interest earned thereupon. ;- Proved Charge no. 3 also relates to RKVY Stream No. 2 for the year 2008-09 where it is alleged that on account of negligence and dereliction of duty on the part of the petitioner, amount of Rs. 10.46 crores to be released under Stream No. 1 by Government of India, could not be released in favour of the State. This shows lack of knowledge of guidelines in execution of such scheme on the part of the petitioner. ;-Not proved Charge no. 4 is in relation to the NFSM Project where it is alleged that for the year 2008-09, petitioner without obtaining permission and contrary to the guidelines, gave responsibility of its purchase at a previous rate to Birsa Agriculture University, whereas Government of India guidelines provided for payment of supply of seed mini kit straightaway to the Seed Company. This also depicted negligence and lack of knowledge of guidelines on the part of the petitioner. ;- Proved Charge no. 5 relates to making available the Seed and Hybrid Paddy for the Session 2008-09 at the prescribed rates as also supply of micro nutrients. It is alleged that the petitioner showed zero progress in that, whereas micro nutrients were provided in cent percent to him. This again reflected lack of knowledge and dereliction of duty on his part. ;-Proved Charge no. 6 relates to violation of NFSM guidelines and selection of manpower where also, it is alleged that he contravened the rules and without roster clearance, published advertisement which was misleading.;- Proved It has been alleged in the 7th Charge that the petitioner had failed to cooperate with the Accounts Reconciliation Committee of the Department, as would appear from the report of the then Deputy Secretary of the respondent Department. ;-Not Proved. 8. In the supplementary charge sheet, the first charge relates to the execution of Mudra Smart Card Project of Rs. ;-Not Proved. 8. In the supplementary charge sheet, the first charge relates to the execution of Mudra Smart Card Project of Rs. 249 lakhs. It is alleged that in the expression of interest and opening of technical and financial bid, petitioner did not follow the rules, the established procedure and the conditions of E.O.I, which makes his action suspicious with tendency to accord benefit to someone.; Proved. The second supplementary charge relates to the issuance of work order in respect of Smart Card Reader, in execution of which also, it is alleged that the same could not be executed in effective manner which may have caused benefit to the supplier.;-Proved The third supplementary charge relates to the execution of MOU without approval from the competent authority (State) which again shows intention of misusing the Government funds with an object to benefit the private firms ;- Partially proved The fourth supplementary charge relates to the Government Order No.73 dated 16.03.2007 and procurement order no. 104 dated 26.03.2007 which indicates improper intention of the petitioner. ;- Not proved The Vth supplementary charge also relates to the Government Order No. 73 for the financial year 2006-07, the amount of which was withdrawn in the relevant financial year but was expended in the next financial year 2007-08 which again raises suspicion and was not in consonance with the financial rules.;- Proved in respect of violation of Financial Rules. The 6th supplementary charge related to issuance of work order of Smart Card, which is contrary to Government order and as a result, has caused loss of 29.50 times beyond the value of the work ;- proved in respect of issuance of work order of Smart Card purchase and entering into M.O.U but charges of personal gain or loss to State not proved The 7th charge alleged that payment of Rs.249.00 lakhs have been made to M/s Swastik Coke whereas the enquiry committee found the execution of entire work against the procedure and with no use for the farmers. Execution of this project was without involvement of the concerned District Agriculture Officer, Assistant Soil Chemist or other Agriculture Officials;-Proved. Allegations have also been made in the final charge under the supplementary charge sheet relating to the furnishing of annual statement of Extension Reforms Scheme for the financial year 2008-09, where his physical performance was zero. Execution of this project was without involvement of the concerned District Agriculture Officer, Assistant Soil Chemist or other Agriculture Officials;-Proved. Allegations have also been made in the final charge under the supplementary charge sheet relating to the furnishing of annual statement of Extension Reforms Scheme for the financial year 2008-09, where his physical performance was zero. It is alleged that wrong statements were sent to Government of India as a result of which, relevant fund for the year 2009-10 could not be released and projects were inhibited;-not proved 9. Charges in the Departmental Proceedings, as have been culled out hereinabove, show that they not only relate to the acts which might be bordering on financial irregularities leading to wrongful loss or gain to any person, but also acts of negligence in discharge of official duties, dereliction of work, lack of knowledge of guidelines of Government of India in execution of the projects, etc. Allegations in the aforesaid charges also show that public projects of the said Department could not be executed within the time leading to wasteful expenditure. The FIR in the vigilance case has not been brought on record by the petitioner. However, the final form by which he has been exonerated has been brought on record as Annexure-13 to the writ petition. Perusal of the final form shows detailed discussions in the matter of the charges relating to causing wrongful loss or gain to the individuals or firms on the part of the petitioner against the various projects being undertaken by him. These projects are essentially the Soil Health Smart Card Project, matters relating to execution of expression of interest and entering of MOU, etc. The findings of prosecuting agency in the final form show that on investigation, allegations of wrongful gain or loss have not been established against the petitioner in the matter of execution of Government projects and the allegation of violation of Government rules is not made out. 10. From the aforesaid analysis, it can be safely concluded that merely upon exoneration of the petitioner in the criminal case on submission of final form, Departmental Proceeding could not abate as the charges were beyond what was alleged in the criminal case. Charges in the Departmental Proceedings relate to the various acts of negligence, dereliction of duty, omission and commission which have resulted in delayed execution of project and wasteful expenditure also. Charges in the Departmental Proceedings relate to the various acts of negligence, dereliction of duty, omission and commission which have resulted in delayed execution of project and wasteful expenditure also. Nothing more needs to be observed on the aforesaid issue at the present. Any observation made hereinabove, so far as continuance of the Departmental Proceeding is concerned, is only meant for the purposes of arriving at a prima facie opinion that the Departmental Proceedings relate to charges which were beyond the charges alleged in the criminal case. In this regard, while considering the import of the judgment relied upon by the petitioner, it is considered worthwhile to refer to the judgment rendered by the Hon’ble Supreme Court in the case of Divisional Controller, Karnataka State Road Transport Corporation vs. M.G. Vittal Rao [ (2012) 1 SCC 442 ]. The Hon’ble Supreme Court in the said case, has taken note of the two lines of decisions on the issue relating to continuance of the Departmental Proceeding in the wake of honourable acquittal of delinquent employee in the criminal case on similar charges. Para-23 of the report is quoted hereunder. “23. In Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan, this Court reconsidered the issue taking into account all earlier judgments and observed as under: (SCC pp. 766-67, paras 21-22)” 21. There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.and G.M. Tank v. State of Gujarat. However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when: (i) the order of acquittal has not been passed on the same set of facts or same set of evidence; (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered (see Commr. of Police v. Narender Singh, or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court (see G.M. Tank, Jasbir Singh v. Punjab & Sind Bank and Noida Entrepreneurs Assn. v. Noida, SCC at p. 394, para 16). 22. … ‘41. of Police v. Narender Singh, or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court (see G.M. Tank, Jasbir Singh v. Punjab & Sind Bank and Noida Entrepreneurs Assn. v. Noida, SCC at p. 394, para 16). 22. … ‘41. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points out that the same would depend upon other factors as well. (See e.g. Krishnakali Tea Estate and RBI v. S. Mani. Each case is, therefore, required to be considered on its own facts.” 11. As it appears from the opinion of Apex Court, quoted hereinabove, various consideration are to be gone into in the matter of taking a decision on the question of continuance of the Departmental Proceeding, such as (i) where charges in the Departmental Proceeding go beyond what has been alleged in the criminal case, (ii) where the order of acquittal has not been passed on the same set of facts or evidence and (iii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding, etc. The Hon’ble Apex Court has clearly observed that each case has to be considered on its own set of facts. It is therefore clear that the challenge to the entire Departmental Proceedings on the part of the petitioner on the strength of his claim that he has been acquitted in the criminal case, is not justified. 12. In support of the second ground of challenge urged by the petitioner, notings in the file have been profusely relied upon by the learned counsel for the petitioner. They show deliberations relating to the decision making process after submission of Inquiry Report on 30.08.2010 by the Inquiry Officer Mr. Nitin Madan Kulkarni finding a number of charges established against the petitioner, while some of them having not been established. Notings on the file show that on 11.10.2010, the then Departmental Secretary had proposed a punishment of dismissal from service upon the petitioner on the basis of the charges established against him in the matter of execution of the projects totaling Rs. 2.49 crores. Notings on the file show that on 11.10.2010, the then Departmental Secretary had proposed a punishment of dismissal from service upon the petitioner on the basis of the charges established against him in the matter of execution of the projects totaling Rs. 2.49 crores. The sequence of notings show that the Hon'ble Minister of the Department had opined that the entire matter be re-examined through the Joint Secretary of the Department. After the opinion of the Joint Secretary, it appears that the Hon’ble Minister of the Department opined that there was no reason to keep the petitioner under suspension in the light of the progress report of the Vigilance Bureau and close the Departmental proceedings. On 02.01.2012, the Departmental Secretary had forwarded the file to the Chief Secretary for a consideration on the aforesaid opinion of the Hon’ble Minister of the Department. It appears that the file came back from the office of Hon’ble Chief Minister and was again placed by the Departmental Secretary relying upon Rule 32 of the Rules of Executive Business, whereunder the matter could be placed before the Hon’ble Chief Minister. The notings of the Chief Secretary dated 7.4.2012 show that it was proposed that the Vigilance enquiry be concluded within one month. The Hon'ble Chief Minister had put his signature in the aforesaid note on 24.04.2012. The notings dated 07.02.2014 are of Mr. Nitin Madan Kulkarni who by then had become the Secretary of the Department. After taking note of the findings in the Inquiry Report and the previous deliberations in the file, he had proposed the penalty of dismissal from service or compulsory retirement upon the petitioner and for that purpose, second show-cause notice be issued. 13. The Hon’ble Minister however on 25.03.2015 had opined that the decision on the aforesaid issue could await the outcome of the Vigilance Case No. 37/2010. Thereafter, the matter was once again placed before the Hon’ble Minister of the Department. However, he proposed withholding of three increments with cumulative effect and also that the petitioner should not be posted on a responsible post i.e. vide his notings dated 15.05.2014. The final form had been submitted in the meantime by the Vigilance Bureau on 06.02.2015 which had exonerated the petitioner. However, he proposed withholding of three increments with cumulative effect and also that the petitioner should not be posted on a responsible post i.e. vide his notings dated 15.05.2014. The final form had been submitted in the meantime by the Vigilance Bureau on 06.02.2015 which had exonerated the petitioner. Taking into account the submission of final form by the Vigilance Bureau exonerating the petitioner, the lower level of the departmental hierarchy, proposed the punishment of censure, withholding of three increments with cumulative effect vide noting dated 07.07.2015. Upon perusal of the subsequent notings of the Departmental Secretary and the Hon’ble Minister of the Department, it appears that vide noting dated 19.08.2015, the Departmental Secretary forwarded the file to the Chief Secretary of the State for placing the matter before the competent authority on the question of taking a decision on the proposed penalty. The noting dated 19.08.2015 of the Departmental Secretary Mr. Nitin Madan Kulkarni records the sequence of facts from issuance of charge sheet, the Inquiry Report finding four out of the seven charges fully proved in the first charge sheet, one being partially proved; five out of the eight charges in the supplementary charge sheet have been fully proved, one being partially proved. Representation of the wife of the petitioner made earlier before the Chief Secretary has also been taken note of. Exoneration of the petitioner by the Vigilance Bureau on submission of final form in absence of evidence is also recorded, though it is not known whether the competent court has accepted the final form or not. The noting also recorded that the Hon’ble Minister had proposed a punishment of withholding of three annual increments with cumulative effect and censure, whereafter the matter is being placed before the Hon’ble Chief Minister for taking a final decision on the question of major punishment of compulsory retirement or dismissal from service of the petitioner in view of the charges against the petitioner found established. The Chief Secretary of the State has recorded his opinion thereupon on 24.8.2015 that considering the charges that have been established against the petitioner in the Departmental Proceeding were of grave financial irregularities and final decision in the matter has been extraordinarily delayed, dismissal from service, as earlier recommended also, was proposed. This has been approved by the competent authority on 27.08.2015 i.e. the Hon’ble Chief Minister of the State. This has been approved by the competent authority on 27.08.2015 i.e. the Hon’ble Chief Minister of the State. Thereafter second show-cause notice has been issued upon the petitioner enclosing the Inquiry Report as well. 14. The movement of the file and the notings recorded therein, noticed hereinabove, show that the hierarchy of officials at different levels have given one or the other opinion either on the question of punishment of the petitioner or on the question of awaiting any final decision on punishment awaiting the outcome of the Vigilance Inquiry. However, opinion expressed by one or the other authority cannot be treated as final say in the matter as the decision is to be taken by the competent authority. Though the Principal Secretary, Mr. Nitin Madan Kulkarni who was the Inquiry Officer earlier, had become the Secretary of the Department by then and in that capacity, processed the file with his own observation, it cannot be said that his opinion or the notings recorded on the file by him can be treated as the final decision in the matter. On the issue relating to the significance of the notings recorded on a file, the Hon’ble Supreme Court had made the following observation in the judgment rendered in the case of State of Uttranchal vs. Sunil Kumar Vaish [ (2011) 8 SCC 670 at paragraph-24, which is quoted hereunder: 24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, can such noting be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. (See State of Punjab v. Sodhi Sukhdev Singh, Bachhittar Singh v. State of Punjab, State of Bihar v. Kripalu Shankar, Rajasthan Housing Board v. Shri Kishan, Sethi Auto Service Station v. DDA and Shanti Sports Club v. Union of India.) 15. As would appear from the opinion of the Hon’ble Supreme Court, the notings recorded in the file is merely a noting simplicitor and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, can such noting be treated as a decision of the Government. The contention of the petitioner that the Inquiry Officer in the capacity of the Departmental Secretary has proposed the punishment of dismissal from service and has thereby vitiated the entire decision making process on account of his bias in the subject matter therefore, cannot be countenanced as he is not the competent authority to take a final decision in the matter. Perusal of notings by the Departmental Secretary shows that it recorded the state of facts as it is and gave his opinion in his capacity as the Departmental Secretary on the basis of the charges found to have been established in the Inquiry Proceeding against the petitioner. Therefore, this ground to challenge the impugned second show-cause notice is not made out. 16. Now, let us dwell upon the third ground urged by the counsel for the petitioner that the inquiry report has not been served on conclusion of the Inquiry Proceeding upon the petitioner and that straightaway a decision has been taken to impose major penalty of dismissal from service by issuance of a second show cause notice. 16. Now, let us dwell upon the third ground urged by the counsel for the petitioner that the inquiry report has not been served on conclusion of the Inquiry Proceeding upon the petitioner and that straightaway a decision has been taken to impose major penalty of dismissal from service by issuance of a second show cause notice. On the background facts noticed hereinabove and borne out of the notings on the file, it has not been shown by the respondents that the petitioner was accorded any opportunity to represent against the findings recorded in the Inquiry Report before the Disciplinary Authority arrived at an opinion on the proposed punishment. The second show-cause notice is quoted hereunder, ^^funs'kkuqlkj dguk gS fd funs'kd] lfefr ds in ij jgrs gq, vkids }kjk dh x;h vfu;ferrk rFkk lalk/ku izca/ku dh jkT; ;kstuk vUrxZr Soil Health Smart Card dh ;kstuk esa cjrh x;h vfu;ferrk ds fy, lapkfyr foHkkxh; dk;Zokgh es vkidks nks"kh izekf.kr fd;k x;k gSA mDr nks"kksa ds xaHkhj iz—fr gksus ds dkj.k vkidks lsok ls c[kkZLr djus dk fu.kZ; fy;k x;k gSA vr,o lapkyu inkf/kdkjh }kjk lefiZr tk¡p izfrosnu dks layXu djrs gq, vuqjks/k gS fd i= izkfIr ds 15 fnuksa ds vUnj viuk Li"Vhdj.k foHkkx dks lefiZr fd;k tk;A ;fn fu/kkZfjr vof/k ds vUnj Li"Vhdj.k foHkkx dks izkIr ugha gksrk gS] rks foHkkx ,d i{kh; fu.kZ; ysrq Lora=a gksxkA^^ It indicates a premeditated state of mind. A decision to dismiss the petitioner from service appears to have already been taken and show-cause notice appears to be an empty formality. However, the deliberation and second show cause notice impugned, show that the petitioner, in fact, has not been given any opportunity to represent against the findings of the Enquiry Officer while the Disciplinary Authority has chosen to take a decision on the question of punishment to be imposed upon him. 17. The Hon’ble Supreme Court in the case of B. Karunakar (Supra), while considering two stages of Inquiry Proceeding, had rendered the following opinion at para-26 of the report, which is quoted hereunder: 26. 17. The Hon’ble Supreme Court in the case of B. Karunakar (Supra), while considering two stages of Inquiry Proceeding, had rendered the following opinion at para-26 of the report, which is quoted hereunder: 26. The reason why the right to receive the report of the enquiry 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 enquiry 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. 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 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 enquiry 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 enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry 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. If the enquiry 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 enquiry 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 conclusions. 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 enquiry officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. (Underline supplied to add emphasis, not part of original text.) In the concurring opinion, His Lordship K. Ramaswamy, J has also held that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. Principles of natural justice are integral part of Article 14. Opinion of the Court at Paragraph-61 are also quoted hereunder for better appreciation. 61. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by ‘evidence’ in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both. (Underline supplied to add emphasis, not part of original text.) 18. As it appears that though, the Inquiry Report was submitted on 30.08.2010, but the Disciplinary Proceedings remain unconcluded and second show-cause notice has been issued only on 02.09.2015. As has been held by the Hon’ble Supreme Court in the case of B. Karunakar (Supra), the right to receive the report of the enquiry 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 enquiry 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 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 enquiry officer without giving the employee an opportunity to reply to it. It therefore appears that the requirements of law has not been followed in the decision making process. The Disciplinary Authority, on the basis of the findings in the Inquiry Report, has chosen to undertake the second course by arriving at a decision in respect of the proposed penalty against the petitioner. In essence, petitioner has been denied a reasonable opportunity to represent against the findings in the Inquiry Report. Therefore, for the instant reason, the decision making process has suffered and requires interference by this Court in exercise of writ jurisdiction. 19. It is pertinent to reiterate here that the second show-cause notice enclosing the copy of the Inquiry Report, is the requirement of principles of natural justice and as per the dictates of reasonable opportunity, so that the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings and the proposed penalty to be imposed before the Disciplinary Authority reaches any conclusion either on the proof of charges or the nature of penalty to be imposed on the proved charges or on both. Therefore, the Disciplinary Authority should not arrive at a final conclusion on the findings of guilt based upon the Inquiry Report before awarding an opportunity to the employee to reply to the said findings of the Inquiry Officer. Therefore, the Disciplinary Authority should not arrive at a final conclusion on the findings of guilt based upon the Inquiry Report before awarding an opportunity to the employee to reply to the said findings of the Inquiry Officer. It would not be out of place to state here that the second show-cause notice enclosing the copy of the Inquiry Report is issued to enable the delinquent employee to represent against the findings of the Inquiry Officer and against the penalty proposed by the Disciplinary Authority and till that stage, consideration of the Disciplinary Authority should only be provisional or tentative in nature. As has been held hereinabove, deliberation and the second show-cause notice impugned show that the petitioner, in fact, has not been given any opportunity to represent against the findings of the Inquiry Officer while the Disciplinary Authority has chosen to take a decision on the question of punishment to be imposed upon him. In the conspicuous facts and circumstances of the case, second show-cause notice, though enclosing the copy of the Inquiry Report, has failed to stand the test of judicial scrutiny in the decision making process. There has been a distinct negation of principles of natural justice and reasonable opportunity to the petitioner to represent against the findings in the Inquiry Report. While issuing second show-cause notice, the Disciplinary Authority has already come to the conclusion that the charges against the petitioner have been found to be established and therefore, a decision to dismiss him from service has been taken, which is certainly to the prejudice of the petitioner. 20. Accordingly, the second show-cause notice dated 02.09.2015 (Annexure16) is quashed. The copy of the Inquiry Report has already been served upon the petitioner. Therefore, a fresh second show-cause notice be issued allowing the petitioner to represent before the Disciplinary Authority in respect of the findings contained in the Inquiry Report and the proposed penalty. The Disciplinary Authority after consideration of the Inquiry Report, materials adduced during the inquiry and the representation of the petitioner, would take a final decision on the guilt or innocence of the petitioner and the penalty to be imposed. 21. In view of the elaborate discussions made hereinabove, the reasons recorded and in the light of the law laid down on the subject by the Apex Court, the impugned second show-cause at Annexure-16 dated 02.09.2015 stands quashed. 21. In view of the elaborate discussions made hereinabove, the reasons recorded and in the light of the law laid down on the subject by the Apex Court, the impugned second show-cause at Annexure-16 dated 02.09.2015 stands quashed. Writ petition is partly allowed in the manner and to the extent indicated hereinabove.