Anand Sagar vs State of U.P.

Heard the learned counsel for the petitioner, Sri Prashant Chandra and Sri Harshvardhan, learned Standing Counsel.

The petitioner while posted as Executive Engineer in P.W.D., Kheri was subjected to disciplinary proceedings in pursuance of the Office Memorandum dated 22.6.99. The matter relates to the period commencing 11.7.92 to 6.7.94 when the petitioner was posted as Executive Engineer at Kheri for loss of recovery of toll tax, which amount was assessed to the tune of Rs.6,65,014/. It is stated that earlier disciplinary proceedings were sought to be initiated after preliminary enquiry being conducted by the Department but the Governor vide its order dated 24.7.1995 dropped the proceedings/cancelled the departmental proceedings. Thereafter it appears that proceedings were reinitiated as per the aforesaid Office Memorandum dated 22.6.1999. The petitioner participated in those proceedings and the Chief Engineer, World Bank, who was appointed enquiry officer, submitted his enquiry report dated 23.2.2001 exonerating the petitioner from all charges. The enquiry officer thus found that the charges levelled against the petitioner could not be proved and consequently gave his report. On receipt of the aforesaid report, a show cause notice dated 30.4.2001 was issued to the petitioner requiring him to show cause against the enquiry report within 21 days failing which it will be presumed that he has nothing to say against the enquiry report and appropriate orders would be passed on the basis of the report. The petitioner submitted his reply to the aforesaid show cause notice on 7th August, 2001. Thereafter the impugned order of punishment i.e. awarding of censure entry and stoppage of one increment for a period of three years besides recovery of the amount to the tune of 15% of the total loss said to have occurred in the collection of toll tax during the aforesaid period have been ordered.

Learned counsel while challenging the order of punishment raised the following two questions (i) the Governor having once decided to drop the initiation of disciplinary proceedings vide its order dated 24.3.1995, the disciplinary proceedings for the same charges could not have been either reinitiated or continued, once such a decision was taken by the Governor; and (ii) once the enquiry officer, namely, Chief Engineer, World Bank, in the instant case, has submitted his report holding that the charges levelled against the petitioner could not be established and thus exonerated the petitioner from all charges, the disciplinary authority/appointing authority was legally obliged to provide opportunity to the petitioner at the appropriate stage i.e. at the time when it intended to differ with the findings of the enquiry officer and only thereafter could have proceeded to punish the petitioner for a charge which might have been found proved by the disciplinary authority for the reasons disclosed by him.

In response to the aforesaid arguments, learned counsel for the State has submitted that so far as reinitiation or continuing of the proceedings by means of the Office Memorandum dated 22.6.1999 is concerned, the State has taken a specific case in the counter affidavit that in the order passed by the Governor on 24.3.1995, by mistake the words "Etaddwara Nirast Kiye Jane" were wrongly mentioned instead of the words "Wapas Liye Jane". It has further been submitted in the counter affidavit that the order also stated that the State would be at liberty to hold an enquiry afresh or reinitiate the enquiry for the matters aforesaid. A challenge being made by Sri Prashant Chandra that no such order has been brought on record, we required the learned State Counsel to bring the order on record. Learned Standing counsel has produced the order dated 26.7.1995 before this court in which we find that the statement made in the counter affidavit regarding the correction being made in the order by substituting the words "Etaddwara wapas liye jane" and also giving right to the State Government to reinitiate the disciplinary proceedings has been ordered. We place this order on record. We would like to observe that Sri Prashant Chandra, after perusing the aforesaid order, fairly stated that in view of the aforesaid order, the first point urged by him may not be considered, as that point does not survive and, therefore, does not press that point. We accordingly do so.

With respect to the other argument that once the enquiry officer has exonerated the petitioner from all charges, the disciplinary authority/appointing authority could not have proceeded to differ with the enquiry officer''s report without disclosing any reasons and without affording any opportunity to the petitioner while forming the tentative opinion and reasons for differing with the enquiry officer''s report, the submission of the learned counsel is that in case the disciplinary authority intended to differ with the findings of the enquiry officer, the disciplinary authority should have communicated its tentative opinion with the reasons therefor for differing with the report of the enquiry officer and opportunity should have been given to the petitioner at that stage to put his case in defence against his tentative opinion and reasons, which otherwise would be sufficient to award any punishment to the petitioner, may be minor or major.

Drawing the attention of the court to the show cause notice, particularly paras 4, 5 and 6, learned counsel submitted that it remains undisputed rather admitted from the record that the charges were not found proved by the enquiry officer and in para 4 a mention has been made by the disciplinary authority that the enquiry officer has found that no charges have been proved against the petitioner. In para 5 of the notice a clear recital is, that on examining the charges, reply of the petitioner and the enquiry report of the enquiry officer, the State has found that the conclusion drawn by the enquiry officer is not proper because the loss of revenue in the matter of realization of toll tax to such a great extent does not appear to be natural so as to justify the loss of 6,65,014/ within the period commencing 11.7,1992 to 6.7.1994. After the aforesaid recital, the very next line in the aforesaid show cause notice says that in this way, the loss of government money is involved in the aforesaid charge, which has been found proved against the delinquent officer. To be more precise, last two lines of the aforesaid para reads as under:

"Is prakar ukt aarope, jismen shashkiya chhati bhi nihit hai, ko apchari adhikari ke viruddh siddh paya gaya hai."

In para 6 of the show cause notice a copy of the enquiry report has been forwarded to the petitioner with the direction that in case the petitioner wants to submit any representation against the enquiry report, he may do so within 2 days failing which appropriate orders would be passed on the basis of the report.

A bare perusal of the show cause notice establishes beyond doubt that the petitioner was exonerated by the enquiry officer, the appointing authority did not give any reasons even in the show cause notice as to why and under what circumstances and on what evidence it differed with the findings recorded by the enquiry officer nor it gave any opportunity to the petitioner to submit his explanation or to put his case against the tentative opinion or reasons for differing with the findings recorded by the enquiry officer. On the contrary, the show cause notice specifically says that the charges have been found proved against the petitioner. In case the charges have already been found proved against the petitioner by the disciplinary authority on the alleged examination of the charges, reply submitted by the petitioner and the enquiry report, for which the reasons having not been disclosed to the petitioner, affording of opportunity by issuance of show cause notice would be an empty formality, rather would be no opportunity in the eye of law. Opportunity to show cause is afforded with a view to provide opportunity to the delinquent officer to put his defence before the disciplinary authority, before the axe falls upon him. The findings of the enquiry officer was in favour of the petitioner and there was no reason nor justification to forward a copy of the enquiry report in which he has been exonerated and ask the petitioner to submit his reply to such an enquiry report. Even in the show cause notice the disciplinary authority did not take care that the reply of the petitioner/ representation is to be called for against the findings of the disciplinary authority by virtue of which the charges have been found to be proved by the disciplinary authority himself.

Non giving of opportunity at all at any stage i.e. at the time of forming opinion for differing with the findings of the enquiry officer and also while recording a finding that the charges stand proved makes the show cause notice per se illegal.

In the case of Yoginath D. Bagde v. State of Maharashtra and another. (1999) 7 SCC 739, the Supreme Court reaffirmed the law laid down in the case of Punjab National Bank v. Kunj Behari Mishra, (1998) 7 SCC 84 and found that since the Disciplinary Committee took the final decision without giving opportunity of hearing to the appellant at the stage at which it proposed to differ with the findings of the enquiry officer, the order passed by the disciplinary authority was bad.

In the case of Yoginath D. Bagde (supra) after completion of the enquiry, the enquiry officer submitted his report to the disciplinary authority. It was held by the enquiry officer that the charges against the appellant were not established and, therefore, he recommended the reinstatement of the appellant. The Disciplinary Committee of the High Court considered the report of the enquiry officer and disagreeing with the findings of the enquiry officer held that the charges against the appellant were proved. The Disciplinary Committee, therefore, tentatively decided to impose the penalty of dismissal from service upon the appellant. Accordingly, the appellant was called upon by a notice to show cause why the proposed penalty be not imposed upon him. A copy of the reasons recorded by the Disciplinary Committee for not agreeing with the findings submitted by the enquiry officer as also a copy of the enquiry officer''s report was sent to the appellant who filed his reply to the show cause notice. This reply was considered by the disciplinary authority, namely, the High court, which decided to impose the major penalty of dismissal from service and accordingly recommended to the Government of Maharashtra that the appellant be dismissed from service. Acting upon this recommendation, the Government of Maharashtra dismissed the appellant from service. The argument of the appellant, that the Disciplinary Committee, which had disagreed withthe findings recorded by the enquiry officer and held that the charges against the appellant were proved, had acted in violation of the principles of natural justice inasmuch as it did not give an opportunity of hearing at the stage when it developed the inclination that the findings recorded by the enquiry officer were not acceptable, has been upheld by the Supreme court. The action of the Disciplinary Committee in already making up its mind and issuing notice with respect only to the proposed punishment has not been found to be valid in the aforesaid case.

In the case in hand before us, after recording the necessary finding that despite exoneration of the petitioner by the enquiry officer, at no point of time the petitioner was afforded any opportunity to meet the reasons for taking a contrary view or for differing with the enquiry officer''s report, even the reasons on which the charges were found to be proved were not provided to the petitioner and admittedly no opportunity was afforded to the petitioner at the time, when the disciplinary authority developed an inclination, to differ with the findings of the enquiry officer nor any opportunity was provided against tentative opinion of the disciplinary authority. We, therefore, find that the order of punishment cannot be sustained in law and has to be quashed.

We, therefore, allow the writ petition and quash the impugned order of punishment dated 14.6.2002 contained in Annexure1 to the writ petition. The petitioner shall be entitled to all consequential benefits including the opening of seal cover, to which the petitioner is entitled as a result of the quashing of the order of punishment.

No order as to costs.

(Petition allowed)