Ramesh Kumar Choudhary vs State Of Jharkhand And Ors

Petitioner has invoked writ jurisdiction under Article 226 of Constitution of India for the reliefs as prayed for in para-1 of the writ petition.

During pendency of the writ application, I.A. No. 6903 of 2019 was filed on 24.07.2019, which was allowed on 08.08.2019 by this Court whereby

petitioner had challenged the order dated 01.03.2016 at Annexure-11 to the memo of writ petition issued under the signature of the Joint Secretary,

Water Resources Department, Government of Jharkhand, whereby the appeal filed by the petitioner, pursuant to punishment awarded after holding

regular departmental proceeding, in which he was imposed punishment of stoppage of two increments of salary with cumulative effect and further

promotion for three years was also stopped, was dismissed and the punishment was confirmed by appellate authority.

Learned counsel for the petitioner during course of argument referred to Annexure-8, which is memo no.1688 dated 31.05.2010 issued under the

signature of the respondent no.3, the Joint Secretary, Water Resources Department, Government of Jharkhand by which petitioner has been awarded

punishment of stoppage of two increments of salary with cumulative effect and further promotion for three years was also stopped. Thereafter

petitioner had filed an appeal against the said order which was dismissed vide order dated 01.03.2016 contained at Annexure-11, issued under the

signature of the Joint Secretary, Water Resources Department, Government of Jharkhand.

Learned counsel for the petitioner relying upon a judgment in the case of Lav Nigam Vs. Chairman & MD. ITI Ltd. & Anr. reported in (2006) 9

Supreme Court Cases 440 and relevant paragraphs are as under:-

Challenging the orders of the respondent authorities the appellant filed a writ petition before the High Court. The appellant specifically

raised the issue that the disciplinary authority was obliged to give a separate show-cause notice if the disciplinary authority differed with

the inquiry officer. The High Court also held that there was no need to give two separate show-cause notices one before the disciplinary

authority found against the employee while differing with the view of the inquiry officer, and another against the proposed punishment. It

was further held that the two notices could be combined in one. The writ petition was accordingly dismissed.

The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs

with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after

hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again

have to be served with a notice relating to the punishment proposed.

In Punjab National Bank v. Kunj Behari Misra a Bench of this Court considered Regulation 7(2) of the Punjab National Bank Officer

Employees (Discipline and Appeal) Regulations, 1977. The Regulation itself did not provide for the giving of any notice before the

disciplinary authority differed with the view of the enquiry officer. This Court held: (SCC p.97, para 19)

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 enquiry 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 enquiry 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 favourable conclusion of the enquiry 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.

This view has been reiterated in Yoginath D. Bagde v. State of Maharashtra. In this case also Rule 9(2) of the Maharashtra Civil

Services (Discipline and Appeal) Rules, 1979 did not specifically provide for a disciplinary authority to give an opportunity of hearing to

the delinquent officer before differing with the view of the enquiry officer. The Court said: (SCC p.758, para 29)

But the requirement of hearing in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it

has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an

opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring

authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time,

has to communicate to the delinquent officer the TENTATIVE reasons for disagreeing with the findings of the enquiring authority so that the

delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the

findings recorded by the enquiring authority are not germane and the finding of not guiltyalready recorded by the enquiring authority was

not liable to be interfered with"".

We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It is clear that no notice at all was

given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to

show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High

Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside.

The proceedings may be recommenced from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the

appellant indicating his tentative disagreement with the findings of the inquiry officer.

A supplementary counter affidavit dated 02.12.2019 has been filed on behalf of the respondents wherein at para 7, it has been stated that no second

show cause along with enquiry report has been issued to the petitioner in connection with departmental proceeding initiated against him.

In view of the judgment (supra), impugned order dated 01.03.2016, issued under the signature of the Joint Secretary, Water Resources Department,

Government of Jharkhand i.e. respondent no.3, contained in Annexure-11 to the memo of the writ petition is hereby quashed and the matter is remitted

to the respondent no.3 i.e. Joint Secretary, Water Resources Department, Government of Jharkhand with a direction to pass a fresh order in

accordance with law after giving due notice to the petitioner, preferably within 12 weeks.

Accordingly, this writ petition is hereby disposed of with a cost of Rs.5,000/- to be deposited in the account of Advocates' Sports Club, Jharkhand

High Court being A/c No.495810110005600, IFSC Code:- BKID0004958, Bank of India, Branch Jharkhand High Court within two weeks.

Let a copy of this order be handed over to the counsel for the petitioner and Secretary/President of Advocates' Sports Club, Jharkhand High Court.