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2023 DIGILAW 1919 (ALL)

Akshay Kumar v. State of U. P.

2023-08-09

AJIT KUMAR

body2023
JUDGMENT : 1. Heard Sri V.K. Singh, learned Senior Advocate assisted by Sri Ajay Kumar Sharma, learned counsel for the petitioner and Ms. Akashi Agrawal, learned Advocate holding brief of Sri Rahul Agrawal, learned counsel for the respondent no.2. 2. The petitioner who has been subjected to disciplinary proceedings under the U.P. State District Court Service Rules, 2013, is aggrieved by the order dated 25.04.2023 passed by the disciplinary authority, namely, the District Judge, Saharanpur, whereby he has remitted the matter to the Enquiry Officer to clarify on certain points by giving a fresh report. 3. Learned Senior Advocate has argued that this amounts to an act of disagreement by the disciplinary authority in matter of finding returned by the enquiry officer and, therefore, he needed to be afforded an opportunity of hearing by the disciplinary authority in the first instance. He submits that in matter of enquiry if supportive findings have come to be referred in favour of the delinquent employee, any disagreement by the disciplinary authority would naturally amount to negating the findings of the Enquiry Officer and, therefore, the delinquent employee is required to be heard. 4. He has placed reliance on the judgment of the Supreme Court in the case of Punjab National Bank v. Kunj Behari Misra, JT 1998 (5) SC 548. He has referred to paragraph nos.7 and 19 of the judgment. He submits further that the judgment would be applicable in the present case as the provisions that were referred to in the judgment in that case and the provisions as contained under Rule 7 (ii) of the Service Rules, 2013 are in pari materia. It is argued that there also the provision was to the effect that if the authority disagreed with the findings returned by the Enquiry Officer and records its own finding on such charge, if the evidence on record is sufficient for purpose. The provisions as contained under Rule 7 (ii) also provide for similar provisions that the disciplinary authority shall, if disagrees with the finding of the Enquiry Officer on giving charge, records its findings for the reasons to be recorded. 5. Learned Senior Advocate has argued that this provision has been interpreted vide paragraph 19 of the judgment that runs as under : "The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). 5. Learned Senior Advocate has argued that this provision has been interpreted vide paragraph 19 of the judgment that runs 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 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." 6. Learned counsel for the respondents has argued that while laying down ratio in the judgment by the Supreme Court, Supreme Court has very specifically referred to Rule 7(ii) and not Rule 7 (i). 7. It is argued that as far as Rule 7 (ii) is concerned, that empowers the disciplinary authority to return a finding of its own showing disagreement to the findings of the Enquiry Officer on the basis of evidence already available on record. This enabling provision as contained under Rule 7 (ii) of the Rules which is in pari materia with Rule 7 (ii) of Rules, 2013 involved in the present case, meant that the disciplinary authority could have proceeded to hold the petitioner guilty of the charges on the basis of evidence available on record. It is in that context that Supreme Court interpreted that the provisions would certainly be including in it and inherently so the principles of natural justice. It is in that reference that the Supreme Court observed that the delinquent employee would certainly stand prejudiced if showing disagreement with the findings returned in favour of the delinquent employee by the Enquiry Officer, disciplinary authority still proceeds to hold such delinquent employee guilty of the charges and resultantly proceeds to punish him. 8. It is in that reference that the Supreme Court observed that the delinquent employee would certainly stand prejudiced if showing disagreement with the findings returned in favour of the delinquent employee by the Enquiry Officer, disciplinary authority still proceeds to hold such delinquent employee guilty of the charges and resultantly proceeds to punish him. 8. Having heard learned counsel for the parties, their arguments raised across the bar, having perused the records as well as the relevant rules and judgment cited by learned Senior Advocate, I find that as per Rule 7 (i) of the Rules that has been referred to by their Lordships in the case of Punjab National Bank (Supra) provided for a disciplinary authority to refer the enquiry back to the enquiry officer to hold enquiry afresh and then the authority shall be holding the enquiry accordingly as per Regulation 6, whereas under Rule 7 (ii) it empowers the disciplinary authority to disagree with the findings of the Enquiry Officer and proceed in accordance with law to hold the petitioner guilty of the charges and resultant punishment. 9. The two provisions apparently seem to be quite distinguishable and while as per Rule 7 (i) is concerned, it is an enabling provision for disciplinary authority to refer the matter back to the enquiry officer. There is no such provision as contained under Rule 23 (vii) but as the law is well laid down in several decisions of the Court that no delinquent employee should stand prejudiced by any action of the disciplinary authority, for want opportunity of hearing, in my considered view, once the matter is remitted to the Enquiry Officer to submit report afresh may be on certain specific points as have come to be mentioned by disciplinary authority in its order, it goes without saying that the delinquent employee shall be afforded an opportunity by the Enquiry Officer. 10. 10. In the circumstances, therefore, I decline to interfere with the order passed by the disciplinary authority in remitting the matter to the Enquiry Officer requiring him to submit the report afresh on certain points, I hereby provide that before the Enquiry Officer proceeds to record any fresh findings upon the points that have been referred to it by the disciplinary authority under the order impugned, it shall as of necessity provide reasonable opportunity of hearing to the petitioner and it is thereafter only any fresh report shall be submitted to the disciplinary authority. 11. With the aforesaid observations and directions, this petition stands disposed of.