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2022 DIGILAW 552 (PAT)

Parmeshwar Rai v. State of Bihar

2022-07-05

SANJEEV PRAKASH SHARMA

body2022
JUDGMENT SANJEEV PRAKASH SHARMA, J.:– Heard the learned counsel for the petitioner at length. 2. The petitioner by way of this writ petition assails the order dated 22.08.2017 passed by the Director, Secondary Education, Government of Bihar, Patna, whereby the petitioner has been punished stopping of two increments with cumulative effect. 3. Learned counsel for the petitioner limits his submission to the legality of the order on the ground that the petitioner had faced the departmental enquiry and the enquiry officer exonerated the petitioner from all the charges in his enquiry report. The disciplinary authority, namely, the Director, Secondary Education, Government of Bihar, Patna, has however proceeded to punish the petitioner solely on the basis of directions issued by the State Government. The order does not reflect any application of mind. That apart learned counsel for the petitioner submits that it is settled law if the disciplinary authority does not agree with with the findings of the enquiry officer and the enquiry report he shall mention the reasons for disagreeing from the findings of the enquiry officer and will send a show cause notice to the delinquent giving out the reasons of disagreement. He relies on the judgment of the Supreme Court reported in (1988) 7 SCC, 84 (Punjab National Bank & Ors. Vs. Kunj Behari Misra) and 2013 (3) PLJR, 408 (SC) [S.P. Malhotra Vs. Punjab National Bank & Ors.). 4. Learned counsel appearing for the State submits that the disciplinary authority has examined the enquiry report and has thereafter passed the order of punishment. As the Division Bench was competent to pass the same, no interference is warranted. The punishment of stopping two increments was passed keeping in view the gravity of charges of employee’s using unfairmeans at the examination hall. 5. I have considered the submissions. 6. The charges levelled against the petitioner were subject matter of enquiry and the enquiry officer was appointed where the petitioner led his evidence and after considering the entire facts of the case and evidence which had come on record, the enquiry officer did not find the charges prov ed against the petitioner. In view thereof, the enquiry officer submitted the enquiry report to the concerned disciplinary authority for taking a decision thereto. It is noticed that the disciplinary authority did not send any notice of disagreement with reasons to the petitioner. In view thereof, the enquiry officer submitted the enquiry report to the concerned disciplinary authority for taking a decision thereto. It is noticed that the disciplinary authority did not send any notice of disagreement with reasons to the petitioner. From the perusal of the impugned order dated 22.08.2017, disciplinary authority, namely, the Director, Secondary Education, Government of Bihar, Patna, was influenced by some extraneous directions issued by the State Government in passing of the order of stopping two grade increments with cumulative effect. 7. This Court is satisfied that the Director, Secondary Education, Government of Bihar, Patna, the disciplinary authority, has not given out any reasons for disagreement in his order and it is not sustainable. 8. Thus, no purpose will therefore be served in remanding the matter to the Director, Secondary Education, Government of Bihar, Patna. 9. In the case of PNB Vs. Kunj Bihari Mishra (supra), the Supreme Court has held as under:— “17……….. When, like in the present case, the inquiry 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 findings of the disciplinary authority” 18. Under Regulation - 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry 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 inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording of guilt, imposes punishment on the officer. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording 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 inquiry as explained in Karunakar's 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 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 favorable 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.“ 10. The same view has been reiterated in S.P. Malhotra Vs. Punjab National Bank & Ors. (supra) which followed in PNB Vs. Kunj Bihari Mishra (supra) verbatim. 11. In view of the above, the order passed by the Director, dated 22.08.2017, is, accordingly, quashed and set aside. The petitioner would be entitled to all consequential benefits. No costs.