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2021 DIGILAW 313 (JHR)

Shankar Kumar Bahadur v. State of Jharkhand

2021-03-18

DEEPAK ROSHAN

body2021
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred by the petitioner for following relief :- (a) For quashing Memo No.364 dated 23.05.2007 issued by respondent No.4 whereby the respondent No.4 has differed from the findings of the Inquiry Officer and without issuing fresh show cause or giving further opportunity of hearing inflicted punishment of stoppage of six month yearly increment to the salary of the petitioner for the alleged act of indiscipline. (b) For quashing of Memo No.190/Sa Sa dated 04.02.2008 issued by respondent No.3 whereby appeal preferred by the petitioner against order dated 23.05.2007 has been dismissed. (c) For quashing of Memo NO.888/D dated 20.09.2008 issued by respondent No.2 whereby the revision preferred by the petitioner against order dated 23.05.2007 and 04.02.2008 has been dismissed. (d) For a direction upon the respondents to provide the petitioner all consequential benefits including monetary as well as promotional benefit. 3. The relevant facts necessary for disposal of the instant writ application is that on 12.09.2006, petitioner was served with memo of charge and he was informed that an enquiry is sought to be held against this petitioner and on 06.09.2006 he was served with the charge-sheet along with relevant documents. The Inquiry Officer during enquiry proceeding has exonerated this petitioner; however the disciplinary authority has imposed punishment upon him. 4. Mr. Indrajit Sinha, learned counsel for the petitioner assisted by Mr. Arpan Mishra submits that a short question is involved in this case i.e. whether the action of the disciplinary authority is justified; who while disagreeing with the view of Inquiry Officer; who had exonerated the petitioner from the charge, did not issue any show-cause notice to the petitioner and simply after disagreeing with the report of Inquiry Officer, passed the impugned order. He further submits that now the law in this regard is no more res-integra and it is a settled principle that disciplinary authority has every right to disagree with the finding of the Inquiry Officer but in that case he will have to issue notice to the petitioner before imposing penalty. 5. Mr. He further submits that now the law in this regard is no more res-integra and it is a settled principle that disciplinary authority has every right to disagree with the finding of the Inquiry Officer but in that case he will have to issue notice to the petitioner before imposing penalty. 5. Mr. Ashok Yadav, learned counsel for the respondent-State tries to defend the impugned order and submits that when for the similar cause of action; charge against one Officer was proved and this petitioner was exonerated, was certainly illegal and that is the reason that the disciplinary authority had also recommended for enquiry against that Inquiry Officer. He further contended that only for technical reason, the case should not be allowed and the instant writ application should be dismissed for the sole reason which has been mentioned in the impugned order itself. 6. Having heard learned counsel for the parties and after going through the documents annexed and the averments made in the respective affidavits, it appears that the Inquiry Officer in its report had exonerated the petitioner from the charges; however, the disciplinary authority while disagreeing with the opinion of the Inquiry Officer, punished this petitioner. It is true that the disciplinary authority has every right to disagree with the view of the Inquiry Officer; but the law says that before imposing penalty the delinquent must be given an opportunity to show-cause. 7. In this regard reference may be made to the case of Punjab National Bank & Ors. v. Kunj Behari Misra reported in (1998) 7 SCC 84 . Relevant part of paragraph Nos. 17 and 19 are quoted herein below:- “17……………………… 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. 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. 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. Recently, the same position has been reiterated by the Hon’ble Apex Court in the case of Deputy General Manager & Ors. v. Ajai Kumar Srivastava reported in 2021 SCC OnLine SC 4 at page 627. Relevant paragraph is quoted herein below:- “26. Recently, the same position has been reiterated by the Hon’ble Apex Court in the case of Deputy General Manager & Ors. v. Ajai Kumar Srivastava reported in 2021 SCC OnLine SC 4 at page 627. Relevant paragraph is quoted herein below:- “26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.” 8. In view of the aforesaid facts and settled proposition of law, the instant writ application deserves to be allowed. Consequently, the impugned order as contained in Memo No.364 dated 23.05.2007 issued by respondent No.4, Memo No.190/Sa Sa dated 04.02.2008 issued by respondent No.3 and Memo NO.888/D dated 20.09.2008 issued by respondent No.2, are hereby, quashed and set aside. The matter is remitted back to the disciplinary authority to take a fresh decision after serving the show-cause notice to the petitioner and pass a fresh order. 9. It goes without saying that since the matter is very old; as such the fresh order must be passed within a period of three months from the date of receipt/production of a copy of this order; failing which, the petitioner shall be entitled for all benefits which have been denied to this petitioner pursuant to the impugned order. At this stage it is also relevant to indicate that the fresh order shall be passed without being prejudice to the previous orders. 10. Accordingly, the instant writ application stands allowed.