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2019 DIGILAW 452 (JHR)

Suresh Roy v. State of Jharkhand

2019-02-14

ANANDA SEN

body2019
JUDGMENT : Petitioner is aggrieved by the order dated 18.12.2017 under Memo No.18/2013 by which in a Departmental Proceeding, the petitioner was inflicted with a punishment and it was decided to withhold 10% of his pension for a period of 5 (five) years. The petitioner has challenged the aforesaid order on the ground that three charges were leveled against the petitioner in the departmental proceeding out of which the Enquiry Officer exonerated the petitioner so far as Charge Nos.2 and 3 are concerned, but the disciplinary authority issued a second show cause notice differing with the said findings and proceeded to punish the petitioner without mentioning the reasons of such difference. 2. Counsel for the petitioner submits that there were three charges, which were levelled against the petitioner, out of which charge Nos.2 and 3 were not proved in the departmental proceeding, but, the disciplinary authority differed and inflicted the said punishment. He submits that it is well within the jurisdiction of disciplinary authority to differ with the findings of the Enquiry Officer, but for that there is a procedure, which has to be followed. He submits that second show cause notice should indicate the reasons and the grounds as to why he has differed with the enquiry report, but, in this case no reasons have been given. On this point, he challenges the entire proceedings and the order of punishment. 3. Counsel appearing on behalf of the State submits that so far as charge No.1 is concerned, same was found to be proved and the Disciplinary Authority differed with the findings of the Enquiry Officer so far it relates to charge Nos.2 and 3. Thus, he submits that there is no illegality in the impugned order and punishment can be attributed for the laches of the petitioner with regard to charge No.1. 4. After hearing the parties and going through the records, I find that three charges were levelled. Enquiry was conducted. Admittedly, the Enquiry Officer absolved the petitioner from charge Nos.2 and 3, but found the Charge No.1 to be proved. Disciplinary Authority differed with the findings of the Enquiry Officer and issued second show cause notice. 4. After hearing the parties and going through the records, I find that three charges were levelled. Enquiry was conducted. Admittedly, the Enquiry Officer absolved the petitioner from charge Nos.2 and 3, but found the Charge No.1 to be proved. Disciplinary Authority differed with the findings of the Enquiry Officer and issued second show cause notice. After going through the second show cause notice, I find that the Disciplinary Authority simply mentioned that he is differing with the findings of the Enquiry Officer so far as charge Nos.2 and 3 are concerned, but, has not placed on record any reasons or ground as to why he is differing with the findings of the Enquiry Officer. It is the duty of the Disciplinary Authority to record reasons and the grounds in the second show cause notice when he is disagreeing with the enquiry report. In absence of such reasons, the second show cause notice is rendered nullity as the same is not in proper form. Further, I find that while passing the final order in the departmental proceeding, Disciplinary Authority has taken into consideration charge Nos.2 and 3 to be proved, which could not have been in view of the fact that the second show cause notice is not in proper form. Hon’ble Supreme Court in the case of Punjab National Bank versus Kunj Bihari Misra reported in (1998) 7 SCC 84 , in paragraph 19 after considering the case laws, has held that tentative reasons must be recorded for such disagreement and there is necessity to give reasons in the second show cause notice before findings are recorded. 5. In this case, there are no reasons mentioned. Absence of reasons for disagreement in the second show cause notice amounts to violation of principles of natural justice, more so when such disagreement is taken into consideration while passing the final order of punishment. Since the reasons for disagreement has not been mentioned in the second show cause notice and charge Nos.2 and 3 have been considered for punishing the petitioner, I find that there is violation of principles of natural justice. Thus, the impugned order dated 18.12.2017 is set aside so is the second show cause notice dated 30.08.2017. The matter is remitted to the disciplinary authority to issue a fresh show cause notice giving reasons for his disagreement and proceed thereafter accordingly, strictly as per law. 6. Thus, the impugned order dated 18.12.2017 is set aside so is the second show cause notice dated 30.08.2017. The matter is remitted to the disciplinary authority to issue a fresh show cause notice giving reasons for his disagreement and proceed thereafter accordingly, strictly as per law. 6. With the aforesaid observations and directions, this writ application stands allowed.