Madan Mohan vs The State of Haryana

Gurmeet Singh Sandhawalia, J.—Challenge in the present petition is to the order dated 22.10.1992 (Annexure P-3) whereby one annual grade increment without cumulative effect of the petitioner was stopped. The pleaded case of the petitioner is that he was issued a charge sheet under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (hereinafter referred to as "the Rules") on 23.1.1991 and the detail of allegations mentioned in the said charge sheet. The petitioner thereafter gave his detailed reply to the said charge sheet on 13.3.1991 and requested that the same may be dropped and he may be discharged from the said charges. It is further the case of the petitioner that no Enquiry Officer was appointed and the respondent adopted a short cut method and imposed penalty of stoppage of one annual increment without cumulative effect which is subject matter of the present writ petition.

State in its reply took the plea that minor penalty could be awarded if the imposition of major penalty is not warranted. Reliance was placed upon the judgment of the Hon''ble Apex Court in Shadi Lal Gupta Vs. State of Punjab, . It was further averred that the decision in State of Punjab and others v. Chandhary Manphool Singh 1986 (1) SLR 484 was not in the knowledge when the order was passed. The impugned order was defended on the ground that it is speaking one and passed with full application of mind.

Counsel for the petitioner placed reliance upon the Full Bench judgment of this Court in Dr. K.G. Tiwari v. State of Haryana 2002 (4) SLR 329 to contend that once the State had chosen to issue a charge sheet under Rule 7 for imposition of major penalty then the minor punishment could not have been imposed without holding regular departmental enquiry. The question which was for consideration before the Full Bench in Dr. K.G. Tiwari''s case (supra) reads as under:--

The legal question which arises for consideration, and has been referred to the Full Bench, is as to whether, after issuing the charge sheet under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (hereinafter referred to as the Rules), for imposition of a major penalty, for which the Rule envisages holding of a regular departmental enquiry, the authority can, after examining the reply to the charge sheet, inflict a minor punishment, without holding a regular departmental enquiry.

After examining the provisions of the Rules 7 and 8 of the Rules, the Full Bench has held that once the charge sheet has been issued for imposition of major penalty then the punishing authority cannot inflict minor penalty without holding regular departmental enquiry. Relevant portion of the judgment reads as under:--

After having heard the learned counsel for both the sides and carefully perusing the decisions relied upon by the respondents, we are unable to agree with the contentions put forward by the learned counsel for the respondents. The question is as to whether and if so, why the procedure of holding a regular enquiry should be adopted in a case where the charge sheet is issued under Rule 7 for imposing a major penalty, but ultimately a minor punishment is imposed. If we go through the Scheme for holding an enquiry under Rule 7, we find that elaborate procedure has bee prescribed by Rule 7. Sub-rule (1) of rule 7 provides that no order of imposing a major penalty shall be passed against a person to whom the rules apply, unless he has been given a reasonable opportunity to show cause against the action proposed to be taken in regard to him. Sub-rule (2) requires the grounds, on which the action is proposed to be taken, shall be reduced to the form of a definite charge or charges and it should be communicated in writing to the persons charged together with a statement of allegations. He should also be called upon to submit his explanation for defence, if any. If the explanations are not found to be satisfactory, then enquiry shall be held at which the evidence shall be heard with regard to the charges as are not admitted. The charge sheeted employee has to be given an opportunity to cross-examine the witnesses. He should be permitted to give evidence and also to examine witnesses on his side.

Therefore, we find from this elaborate procedure that the charge sheeted employee will have an opportunity to explain at the initial stage itself when he submits the reply to the charge sheet as to why no action is necessary to be taken against him. Only if his explanation is not accepted, then an enquiry has to be held by giving him opportunity to take part in the enquiry as provided for in the rules. A copy of the report of the Enquiry Officer has to be furnished to the charge sheeted employee, if he is found guilty, and if the disciplinary authority accepts it and proposes to impose the punishment on him, then, the charge sheeted employee will get a further opportunity to urge that the finding of guilt on one or more of charges is not warranted by the evidence on record, and therefore, he should not be held guilty on such of those charge, on the basis of the enquiry report for the reasons to be mentioned by him, and also to plead that a particular punishment should not be awarded to him. Whereas, in a case where the charge sheet is served under Rule 8 for the imposition of only minor penalty, the charge sheeted employee will be served with the charge sheet, and will get an opportunity to make his representations or submit his explanation against the same. He will have only one opportunity not only to say that he should not be held guilty by accepting his explanation, and that a particular punishment should not be imposed upon him. The charge sheeted employee has to anticipate the likelihood of his being punished with one of the penalties and also to make the written representation with regard to the same, as he will not get any further opportunity to make any further written representation in writing. It may be that he can be given a personal hearing also, but that will not be an effective substantiate for a written representation. But, in a case where the charge sheet is issued under Rule 7 for imposition of a major penalty, the petitioner need not assume while replying to the charge sheet that he will be held guilty, and can await the receipt of the copy of the enquiry report, to make his further submissions. Therefore, if a charge sheet is issued under Rule 7 for the imposition of a major penalty, but after receiving the explanation from the charge sheeted employee and considering the same, the disciplinary authority imposes a minor punishment, the petitioner will he deprived of the opportunity to make further representation as mentioned above, and will thus be prejudiced, unless the disciplinary enquiry, as contemplated under Rule 7 is held and completed.

If the charge sheeted employee is informed that the charge sheet is issued under Rule 8, then the charge sheeted employee will know that he will have only one opportunity to put forth his defence in writing to show that not only he is not guilty, but also that a particular type of punishment, especially like the one ordering recovery, should not be imposed. But if the charge sheet is issued under Rule 7, and if the entire procedure prescribed in Rule 7 is fully complied with by holding a complete enquiry, thereafter it will be open to the Disciplinary Authority to impose a major or minor punishment as may be called for. But, to suddenly drop the enquiry contemplated under Rule 7, after getting the explanation, and then to impose a minor punishment as per Rule 8, will cause prejudice to the charge sheeted employee, and deprive him of putting forward his case. The opportunity of making representation as provided for in Rule 8 contemplates a reasonable opportunity to pot forth his entire defence which, the charge sheeted'' employee would put forth, in case he is put on notice that the procedure under the Rule 8 only will be followed. This opportunity he will not get if the charge sheet is issued under the Rule 7 and after considering his explanation, a minor penalty is imposed as per Rule 8. This is the serious prejudice that will be caused to the charge sheeted employee when such a change of procedure is adopted.

We may also examine the contentions put forward by the learned counsel for the petitioner from another angle. In a case where a charge sheet is issued under Rule 7 for the imposition of a major penalty, if the disciplinary authority, after receiving the reply to the charge sheet, finds that there is no material against the charge sheeted employee, and therefore, after holding of a regular enquiry, it will not be in a position to punish the charge sheeted employee, but still, for its own reasons wants to impose some punishment on him, them the disciplinary authority will choose to adopt the methodology of dropping the procedure contemplated under Rule 7, and simply state that the explanation of the charge sheeted employee has been considered, and impose a minor punishment. This is not the object of having two different sets of procedures in the from of Rule 7 and Rule 8. The object of prescribing these rules for holding disciplinary proceedings is to protect the charge sheeted employee from arbitrary and capricious exercise of power by disciplinary authority and from unjust and illegal punishments. These Rules are intended to safeguard the rights of such charge sheeted employee and to comply with the principles of natural justice.

Therefore, in interpreting such beneficial provisions contained in these rules, the courts have to accept the interpretation which will advance the object of the rules rather than to defeat it, and also interpret in a manner which will protect the rights of the charge sheeted employees against arbitrary and capricious exercise of power by the disciplinary authority.

Therefore, we respectfully agree with the decisions relied upon by the petitioners, wherein it has been held that once the charge sheet is issued for imposing a major penalty, then the procedure prescribed for the same in the Rule i.e. holding a regular enquiry should be adopted and completed even if it is subsequently decided to impose a minor punishment only.

Therefore, we are unable to concur with the view expressed by the Division Benches of this Court in Samay Singh''s case 1993 (1) S.L.R. 193 (F.B.) and Puran Chand Sharma''s case, 1995 (4) S.L.R. 29 and also in the Single Bench decision of the Delhi High Court in I.D. Gupta''s case, 1973 (2) S.L.R. 1 and that of the Calcutta High Court in M.M. Dutta Vs. Union of India (UOI) and Others, , in so far as they hold that even in a case where the charge sheet is issued for imposing a major penalty, the disciplinary authority can still, without holding an enquiry under the relevant Rule for imposing a major penalty, impose a minor penalty. To that extent, we hold that they are not good law. We also hold that the decision of the Hon''ble Supreme Court in Shadi Lal Gupta Vs. State of Punjab, is not applicable to the facts of the cases our hand.

We hold that once the charge sheet is issued under Rule 7 of the Rules 1987 for the imposition of a major penalty, which envisages holding of a regular departmental enquiry, the disciplinary authority cannot by merely examining the reply to the charge sheet, inflict even a minor punishment without holding a complete departmental enquiry.

It is pertinent to mention here that the Full Bench has also considered the decision of the Apex Court in Shadi Lal Gupta''s case (supra) and taken the view that issue in the said case was only with regard to procedure adopted in cases which fall under Rule 8 of the Rules for imposition of penalty and it was not a case where a charge sheet had been issued for imposition of major penalty and after receiving the reply of the charge sheeted employee, the authority had imposed a minor penalty. Accordingly, the said judgment was distinguished. On the other hand, the view followed in Chaudhary Manphool Singh''s case (supra) was upheld in which it has been held that once the proceedings had been initiated for major penalty, then the procedure has to be followed before awarding minor punishment.

Keeping in view the above principles of law laid down, it is clear that the present case is squarely covered by the aforesaid decision of the Full Bench. Accordingly, the order dated 22.10.1992 (Annexure P-3) is quashed, the present writ petition is allowed and the petitioner shall be entitled for all consequential benefits.