Dev Dutt vs State of Haryana and Others

Ranjit Singh, J.—The Petitioner was appointed as Assistant Draftsman on 22.02.1980. He was promoted as Sub Divisional Engineer on 29.12.1992 under AMIE quota on adhoc basis. Subsequently, w.e.f. 01.01.1993, he was regularly promoted as Sub Divisional Engineer (Civil). In the seniority list issued, the Petitioner appears at serial No. 72. Departmental Promotion Committee held its meeting on 29.05.2006, to consider the claim of promotion of the Petitioner and another person to the post of Executive Engineer.

The grievance of the Petitioner is that he was ignored and his juniors were promoted. The Petitioner has also disclosed that the reason for which he was ignored for promotion was the pendency of disciplinary proceedings. The Petitioner would contend that in one of the disciplinary proceedings, he was simply warned. However, in another proceedings, charge sheet was issued to him on 07.05.2004 under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules. The Petitioner had already submitted his reply on 16.06.2004. Thereafter, inquiry officer was detailed. He held the inquiry and gave his report on 19.07.2007, exonerating the Petitioner all the charges levelled against him.

The grievance of the Petitioner further is that he was still awarded punishment of stoppage of one increment without cumulative effect without recording any note of dissent or without following the procedure in this regard for award of punishment as given in the policy instructions. In this regard, the counsel would refer to the contents of notification dated 06.07.2007 (Annexure R-2) issued by the Government and relevant instructions in this regard are as under:

After the enquiry against a Government employee has been completed, the disciplinary authority shall forward or cause to be forwarded a copy of the enquiry report, and where the disciplinary authority does not agree with the enquiry report or any part thereof, the reasons for such disagreement shall be communication alongwith the enquiry report, to the Government Employee who may submit, if he so desire, a written representation to the disciplinary authority within a period of one month from the date of such communication.

The Petitioner, accordingly, filed this writ petition to challenge the award of punishment and also the decision whereby he was ignored for promotion to the post of Executive Engineer and his juniors were promoted.

The counsel for the parties differ in their submissions regarding consideration of the case of the Petitioner for promotion. Counsel for the Petitioner would maintain that the Petitioner was not considered for promotion on the ground of pendency of inquiry whereas the State counsel would urge that the case of the Petitioner was considered but he was ignored for promotion, in view of the two punishments which had been awarded to him apart from the punishment ultimately imposed of stoppage of one increment which is impugned in the present writ petition.

Leaving that aspect aside, I find that the manner in which the Petitioner has been imposed this punishment of stoppage of one increment is in violation of the instructions issued as well as in violation of principle of natural justice. Once the Petitioner was exonerated by the inquiry officer and the disciplinary authority wished to differ with the finding then the principle of natural justice as well as the requirement of instructions was to serve him a show cause notice and to provide him the disagreement note giving reasons for which the disciplinary authority had come to disagree with the finding recorded by the inquiry officer. Concededly, no such dissent note was aver recorded and the Petitioner was straightway awarded this punishment without even serving a show cause notice.

Learned Counsel for the Petitioner would place reliance on Punjab National Bank and Ors. v. Sh. Kunj Behari Misra 1998 (3) RSJ 641 in this regard, where it has been held that 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 then given to the delinquent officer to represent an opportunity, before it records its finding and can then proceed to impose punishment, if so required. This proposition of law is not under any serious dispute, in view of the instructions issued by the State of Haryana, reference to which has been made to the above part of the order. Only on this short ground, the punishment of stoppage of one increment awarded to the Petitioner, vide Annexure P-12, which is challenged in the present writ petition, cannot be sustained. The order, Annexure P-12 is, accordingly, quashed as being in violation of principle of natural justice as well as in violation of instructions.

At this Stage, Mr. Nalwa, counsel appearing for the State would point out that it was only the procedural violation, which was not followed and that in fairness the disciplinary authority should be given an opportunity to follow the correct procedure and see, in case the Petitioner''s misconduct is required to be dealt with in any manner by award of punishment or the finding returned by the inquiry officer is required to be accepted. I see justification in the plea made. It is only the procedural requirement which has not been followed. The State would be at liberty to follow the procedure as required as per the instructions and under the law.

To remove the ambiguity, it is directed that the disciplinary authority would be at liberty to record the dissent note and then serve the same to the Petitioner before recording any final order. Thereafter, if it is felt that the Petitioner is required to be punished in any manner, it would be entirely in the discretion of the disciplinary authority to so order. Otherwise, if the Petitioner is able to justify that the finding returned by the inquiry officer was fair then the disciplinary authority would also be at liberty to take action to accept the finding of the inquiry officer. If any adverse order is passed against the Petitioner, he would be at liberty to challenge the same. Further consequences about the consideration of the case of the Petitioner for grant of promotion would depend upon the outcome of the disciplinary proceedings. If the Petitioner is imposed any punishment, he would accordingly be considered by taking this aspect into consideration. If on the other hand, the Petitioner is not punished then he may have considered for promotion by placing him in the same position as was existing at the time his juniors were so promoted.

The present writ petition is, accordingly disposed of. Let the exercise be carried out within the period of 4 months from the date of receipt of copy of this order.