Maghar Singh vs The State of Punjab

K. Kannan, J.—The writ petition is required to be allowed on a singular consideration that the order of punishment removing the petitioner from service was issued on 6.3.1990 without either serving the inquiry officer''s report finding him guilty of the charges or affording to the petitioner an opportunity to show cause why the report shall not be accepted and why the proposed action of removal from service cannot be issued. This is a fundamental requirement of natural justice and the position is too well settled for requiring an elaborate statement. The Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., has ruled that the notice requirement of the inquiry officer''s report is a constitutional imperative. There could be exceptions where an employee would still be required to show a prejudice for the fact that the report was not supplied to him. This could be a situation where even though inquiry officer''s report is not served, a disciplinary authority has examined the report and had come to a provisional conclusion that the report had to be accepted and if a show notice is issued at the second stage against the proposed action, it cannot possibly cause prejudice for an employee. At such a stage, the employee could join issues on the findings on the report as well as the proposed action against removal. The employee will have then an opportunity to rebut the basis of such conclusion by the disciplinary authority as not established. It secure an employee an indirect method of meeting the issues, which are put out against him by the disciplinary authority who purports to act on the report of the Inquiry Officer. The relevant portion of the judgment of the Supreme Court in this regard would require to be re-produced for deriving a final answer to the untenability of the order passed by the authorities.

...Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer''s findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.

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Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officer''s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee''s right to defend himself against the charges levelled against him. A denial of the enquiry officer''s report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

Learned counsel appearing on behalf of the State would still argue that the impugned order itself refers to the reply of the charged officer. The reply which the impugned order refers to is the reply given by him on 24.12.1982 on the charge sheet issued to him before the conduct of inquiry. The reply subsequent to the report for an opportunity for an employee to point out that it had no basis for its finding was simply not given. The petitioner has made pointed contentions as regards the violation of principles of natural justice and the violation of the relevant rule 9.4 of the Service Rules 1970 that mandated service of notice of the inquiry officer''s report and a show cause notice to explain before decision for dismissal is taken. The respondent has not countered this point even by filing reply inspite of the fact that the case has been brought for hearing after nearly 23 years of its initial institution.

The impugned order is untenable and requires to be quashed. Ordered accordingly. The employee must have reached the age of superannuation and hence there is no scope of reinstatement. There shall be no purpose served for continuing with the stage of receiving objections to the Inquiry Officer''s report and allowing for fresh consideration. Considering the circumstances that the inquiry was instituted nearly 5 years after the submission of M books and payments issued to the contractor and the employee had been proceeded against after an unjustified delay, there ought not to be any denial of the petitioner''s financial entitlements. There is a justification for not applying ''no work, no pay'' norm. The petitioner is entitled to all consequential monetary benefits by treating himself as a person in employment during the entire period of his service. All the benefits shall be calculated and released to the petitioner with interest @ 6% per annum from the date of dismissal till the date of payment, within a period of 12 weeks from the date of receipt of a copy of the order. Writ petition is allowed on the above terms.