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2018 DIGILAW 2628 (JHR)

Indradeo Bhagat v. State of Jharkhand

2018-12-03

APARESH KUMAR SINGH

body2018
JUDGMENT : Heard counsel for the petitioner and the State. 2. Scooty rider Mangali Savaiya died on spot on being crushed by the rear wheel of fire tender driven by the petitioner bearing registration no. JH-01AR-6370 between Powerganj Chowk and Baravtoli Chowk. The fire tender was allegedly driven in negligent manner and also sustained damage. Petitioner was proceeded against in departmental inquiry bearing no. 06/2014, but the Inquiry Officer did not found the charges proved. Petitioner was also proceeded against in a criminal case wherein learned Trial Court convicted him by judgment dated 31.07.2015 for the offences under sections 279 and 304A of the Indian Penal Code and sentenced him to undergo simple imprisonment for six months under section 279 IPC and one year under section 304A of IPC. Both the sentences to run concurrently. The Appellate court of Sessions Judge, Lohardaga acquitted the petitioner by judgment dated 26.07.2016 passed in Criminal Appeal No. 85/2015, holding that deficiency of the prosecution witnesses resulted in failure of the prosecution to prove the allegations beyond reasonable shadow of doubts. Any witness of rash and negligent driving by the accused was not brought by the prosecution. 3. On the other hand, Disciplinary Authority/Deputy Inspector General, Home Guard Battalion and Fire Control Service, Jharkhand disagreeing with the findings of the Inquiry Officer, straightaway proceeded to impose a penalty of withholding of one annual increment which is equivalent to two black marks and treated as major punishment under Rule 824 by Order No. 114/2016 bearing Memo no. 813 dated 27.04.2016. The Appellate Authority refused to interfere in the order and rejected the appeal by order contained in Memo No. 124 dated 13.06.2017. 4. The specific grounds raised by the petitioner at para-3(vi) read with the averments at paragraph-14 and 15 of the writ petition do not stand specifically controverted by the Respondents in their counter affidavit. Counsel for the petitioner submits that in a full dress inquiry which the petitioner was subjected to, if the Inquiry Officer exonerated him of the charges, the Disciplinary Authority should have given the reasons for difference of opinion along with a show-cause notice with the proposed punishment to enable him to reply before any punishment was imposed. This requirement of law, as held in the case of Punjab National Bank and others versus Kunj Behari Mishra [ (1998) 7 SCC 84 ] has not been followed. This requirement of law, as held in the case of Punjab National Bank and others versus Kunj Behari Mishra [ (1998) 7 SCC 84 ] has not been followed. This vitiates the impugned orders. 5. Learned counsel for the State has referred to the statements made at paragraphs-12 and 13 of the counter affidavit which are to the effect that the petitioner was accorded opportunity to defend himself before the Inquiry Officer who did not found him guilty of the charges. The Disciplinary Authority disagreeing with the findings of the Inquiry Officer, however found the charges of negligent driving which resulted in death of a lady on the spot established against the petitioner. Criminal Appeal has been allowed as the prosecution failed to prove the allegation beyond all reasonable doubts. Departmental Proceedings are proceeded on the basis of the test of preponderance of probabilities. Disciplinary Authority is entitled to take independent view in case charges are found established in a proper departmental inquiry. 6. Considered the submissions of learned counsel for the parties in the light of the relevant material facts borne on record and taken note above. From the aforesaid narrative, specific grounds questioning the impugned orders of punishment stand substantiated. Perusal of the impugned order at Annexure-5 along with the averment made in the counter affidavit clearly shows that though petitioner stood exonerated by the Inquiry Officer, but the Disciplinary Authority without recording his difference of opinion there from and without any opportunity to show-cause, proceeded to impose the impugned punishment. This approach is not warranted in law, as held by the Apex Court in the case of Kunj Behari Mishra (Supra). Para-17 to 19 containing the ratio of the case is quoted hereunder: “17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority. 18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer’s report and, while recording a finding of guilt, imposes punishment on the officer. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer’s report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case. 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 enquiry 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 enquiry 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 enquiry 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.” 7. In that view of the matter and for the reasons recorded hereinabove, impugned orders contained at Annexure-5 and 7 dated 27.04.2016 and 13.06.2017 cannot be sustained in the eye of law and on facts also. They are accordingly quashed. However, liberty is reserved with the Disciplinary Authority to proceed afresh from the stage of the show-cause notice along with the reasons containing difference of opinion from the report of the Inquiry Officer and pass order in accordance with law. 8. Writ petition is allowed in the manner and to the extent indicated hereinabove.