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2018 DIGILAW 1364 (PNJ)

Maman Singh v. State Of Haryana

2018-03-14

B.S.WALIA, RAJESH BINDAL

body2018
JUDGMENT B.S. Walia, J. - Intra court-appeal has been filed against order of the writ court dated 13.07.2015, dismissing the writ petition, wherein the appellant had sought quashing of order dated 10.02.2014 (Annexure P-1), imposing penalty of recovery of Rs. 2,92,458/- from the retiral benefit payable to him besides imposing lifelong 2% cut in pension under Rule 2.2 (b) of the Punjab Civil Services Rules, Volume-II, as applicable to the State of Haryana. 2. The appellant retired as District Elementary Education Officer on 30.06.2008, whereafter, he was issued a charge sheet (Annexure P-2) on 23.04.2009 on the allegation that he had purchased gas stoves and its accessories from a non-approved source and at a rate higher than the market rate. The Enquiry Officer submitted enquiry report dated 23.04.2010 holding that evidence against the appellant was too weak to return a finding of guilt. No action was taken on the said report, but after 2 years and 3 months thereafter i.e on 11.07.2012, respondent No.1 vide Annexure P/7 dated 11.07.2012, disagreed with the inquiry report (Annexure P-6) along with note of dissent by holding the appellant guilty of the charges levelled in the charge sheet. The writ court dismissed the writ petition by holding that the purchase was not as per guidelines issued by the Director Elementary Education, Haryana, besides purchased items were sub-standard. 3. Learned counsel for the appellant contended that order dated 10.02.2014 (Annexure P-1) was contrary to the evidence led before the Enquiry officer, there was ample documentary evidence on record to show that the Faridabad Central Cooperative Consumers Stores Ltd., Faridabad was an approved source for making purchases, the members of the committee had admitted that they never verified any rate from the market rather they had been merely asked to put their signatures on the already prepared report about the price, respondent No.1 had relied upon a subsequent inquiry report dated 02.05.2012, which was conducted behind the back of the appellant besides the subsequent inquiry report dated 02.05.2012 was not supplied to the appellant along with note of dissent. 4. Learned counsel for the respondents, on the other hand, contended that the appellant had purchased the gas chullah/bhatti which were neither of ISI Mark nor mere purchased from approved source besides were more expensive than the prevalent market price and in the circumstances the impugned order had been rightly passed. 5. 4. Learned counsel for the respondents, on the other hand, contended that the appellant had purchased the gas chullah/bhatti which were neither of ISI Mark nor mere purchased from approved source besides were more expensive than the prevalent market price and in the circumstances the impugned order had been rightly passed. 5. We have considered the submissions made by learned counsel for the parties and are of the view that for the reasons mentioned hereunder, the appeal is liable to be allowed and the matter is remanded to respondent No.1 to conduct fresh proceedings. 6. Admittedly, the Enquiry Officer vide report dated 10.02.2014, on the basis of evidence led before him held that the charges were not proved. Thereafter, no action was taken for a period of more than 2 years. In the meantime, another report was obtained by respondent No.1 on 02.05.2012 by a committee presided over by the Additional Director (Admn), Technology Officer and XEN O/o Director Secondary Education, Haryana. Thereafter, respondent No.1 issued memo dated 11.07.2012, disagreeing with the finding given by the Regular Enquiry Officer i.e. Shri O.P. Gupta, retired District & Sessions Judge and held that the charges stood proved against the appellant. The appellant was given an opportunity to submit a representation before proceeding further in the matter. Perusal of order dated 11.07.2012 along with the dissenting note reveals that the disciplinary authority returned a finding that the onus to prove that Faridabad Central Cooperative store was not an approved source was on the appellant, whereas the regular Enquiry Officer had exonerated the appellant on the aforementioned charge on the ground that the department had not placed on record any document to show that the Faridabad Central Cooperative Store was not a approved source. Further, perusal of Annexure P-3 i.e. communication from Director, Supplies and Disposal, Haryana, mentions that the Ambala Central Cooperative Consumer Stores and Central Cooperative Store, Faridabad were not approved source for supply of gas chulla/stoves. However, it did not mention that as on date of purchase i.e. in thee year 2007, Central Cooperative Store, Faridabad was not approved for supply of gas chullah/bhatti etc. Secondly, qua charge No.2, the disciplinary authority while referring to the evidence of regular Enquiry Officer as vague and ambiguous, relied upon the report of three members committee dated 02.05.2012, for disagreeing with the findings of the regular Enquiry Officer. Secondly, qua charge No.2, the disciplinary authority while referring to the evidence of regular Enquiry Officer as vague and ambiguous, relied upon the report of three members committee dated 02.05.2012, for disagreeing with the findings of the regular Enquiry Officer. On the aforementioned basis, the disciplinary authority held that the charges clearly stood proved against the incumbent. 7. Hon'ble the Supreme Court in ' Punjab National Bank v. Kunj Behari Mishra, 1998(7) SCC 84 held that whenever a disciplinary authority disagrees with the inquiry officer on any article of charge then before it recorded its own findings on such charge, it was required to record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it recorded its findings in respect thereto and that the report of the Inquiry Officer containing its findings would have to be conveyed and the delinquent officer given an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. Relevant extract of the decision in Kunj Bihari Mishra's case (supra) is reproduced as under:- "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 a representation before the disciplinary authority records its findings on the charges framed against the officer." 8. The disciplinary authority relied upon the report given by a committee more than 2 years after the regular inquiry officer held that the charges were not proved against the appellant. Said material was not before the enquiry officer. The disciplinary authority relied upon the report given by a committee more than 2 years after the regular inquiry officer held that the charges were not proved against the appellant. Said material was not before the enquiry officer. Moreover, the appellant was neither associated with the proceedings conducted by the committee which gave its report on 02.05.2012 nor the copy of the said report was supplied to the appellant along with dissenting note, whereas copy of committee report dated 02.05.2012 ought to have been supplied to the appellant along with the note of dissent by recording tentative reasons disagreeing with the finding given by the regular Enquiry Officer and giving an opportunity to the appellant to represent against the tentative findings recorded by the disciplinary authority and it was only after the receipt of representation from the appellant that the matter ought to have been considered and decided by the disciplinary authority. The same not having been done and the note of dissent itself recording that the charges against the appellant stood proved and that too without supplying a copy of report dated 02.05.2012 for arriving at a finding than one recorded by the regular Enquiry officer exonerating the appellant, the appellant was seriously prejudiced. Resultantly the impugned order is unsustainable. Consequently, the same is set aside. The matter is remanded to the disciplinary authority to proceed afresh in the matter. Needful be done within three months from the date of receipt of certified copy of this order after supplying report dated 02.05.2012 and after affording an opportunity to the appellant to move representation, if any. Disciplinary authority would proceed to decide the matter afresh and would determine the outcome of the action, if any, to be taken against the appellant. 9. Appeal is allowed in aforementioned terms.