Satya Narain vs State

Sandeep Mehta, J.—Heard on the instant writ petition preferred on behalf of the petitioner. The petitioner who at the relevant time was posted on the post of Patwari Dadawat, Tehsil Ashind, District Bhilwara has approached this court against the order dated 13.7.1992 (Annex.-P/5) (communicated to him on 29.07.1992) imposing penalty of stoppage of five grade increments with cumulative effect upon him.

The said order was challenged in appeal before the Divisional Commissioner and the Divisional Commissioner rejected the petitioner''s appeal vide order dated 29.06.1993 (Annex.-P/8).

The petitioner, thereafter, preferred a revision before the Hon''ble Governor and the revision preferred by the petitioner too was dismissed vide order dated 27.03.1996 (Annex.-P/10).

The petitioner has now approached this court by filing this writ petition assailing the orders dated 13.7.1992 (Annex.-P/5), and order dated 29.06.1993 (Annex.-P/7) and the order dated 27.03.1996 (Annex.-P/10).

The counsel for the petitioner attacked the order Annex.-P/5 imposing penalty on the sole ground that the order passed by the disciplinary authority suffers from blatant breach of principles of natural justice. He submits that pursuant to the institution of the disciplinary proceedings against the petitioner, the Sub Divisional Officer, Gulabpura was appointed as the enquiry officer in the case. The enquiry officer concluded in his inquiry report dated 19.05.1992 that the petitioner was not guilty of the delinquency alleged.

The disciplinary authority being District Collector, Bhilwara gave a notice of hearing to the petitioner for 13.07.1992. The petitioner submitted an application that he would not be able to attend the proceedings on 13.07.1992 because of an ailment. Rejecting the prayer made by the petitioner and without giving any further opportunity, the District Collector in a perfunctory fashion disagreed with the finding recorded by the enquiry officer in the inquiry report and without communicating the petitioner of the reasons of disagreement with the enquiry officer''s report, he passed an order imposing penalty of stoppage of five grade increments with cumulative effect upon him.

The learned counsel relies on the decision rendered by the Hon''ble Supreme Court in the case of S.P. Malhotra Vs. Punjab National Bank and Others, and submits that whenever the enquiry officer''s report is favourable to the delinquent, upon receiving such report, the disciplinary authority is required to record reasons for disagreeing with the findings recorded in the enquiry officer''s report. The reasons so recorded have to be communicated to the delinquent employee and he has to be provided an opportunity to show cause before passing any adverse order.

The learned counsel submits that as in the case in hand, admittedly, the disciplinary authority did not record any reason for disagreeing with the findings recorded in the enquiry officer''s report, the order Annex.-P/5 imposing penalty on the petitioner is totally illegal and unjust. He further submits that as the reasons for disagreement were never recorded, there arises no question of communicating the same to the petitioner and, therefore, also the impugned order Annex.-P/5 imposing penalty upon the petitioner is unjust, arbitrary and was passed in a total disregard to the principles of natural justice and is thus liable to be set aside on the basis of law laid down by the Hon''ble Apex Court in S.P. Malhotra''s case.

Per contra, the learned AGC appearing on behalf of the respondent opposed the submissions advanced by the petitioner''s counsel. He drew the court''s attention towards the proceedings conducted by the disciplinary authority and submitted that the petitioner was admittedly given a notice for the proceedings to be held by the disciplinary authority on 13.07.1992. The petitioner failed to appear without any reasonable cause whereafter the matter was considered in detail by the disciplinary authority and the order imposing penalty was passed. She further submits that the petitioner has already challenged the order imposing penalty before the appellate authority as well as the revisional authority and was unsuccessful. Thus, as per her, it is not such a case wherein this court is required to exercise its extraordinary powers for interfering the order imposing penalty. She further submits that there are serious allegations against the petitioner that he demanded and accepted illegal gratification from the poor farmers for making allotment of land and, thus, this court should refrain from interfering in the order imposing penalty. She submits that penalty imposed on the petitioner i.e. stoppage of five grade increments is rather on the lighter side because looking to the nature of the delinquency committed by the petitioner, the appropriate punishment would be nothing short than dismissal from service. She submits that the disciplinary authority has given cogent reasons for disagreeing with the inquiry officer''s report while passing the order Annex.P/5 and, thus, no interference is warranted in the matter. She, thus, prays that the writ petition be dismissed with cost.

I have heard the arguments advanced at bar and gone through the material available on record.

The sole question to be examined in the matter is as to whether the disciplinary authority followed the procedure prescribed by law while imposing penalty upon the petitioner. Rule 16(9) of the CCA Rules prescribes that the disciplinary authority shall, if it is not the Inquiry Authority, consider the record of the inquiry and record its finding on each charge. [The Disciplinary authority may while considering the report of the Inquiring Authority, for just and sufficient reasons to be recorded in writing remand the case for further/de-novo enquiry, in case it has reason to believe that the enquiry already concluded has been laconic in some respect or the other].

After the disciplinary authority records its reasons for disagreeing with the favourable findings of the enquiry officer, a notice of hearing is required to be given to the delinquent and after providing him an opportunity of hearing, the disciplinary authority acting under Rule 16(11) can pass an order imposing penalty. Undisputedly, while passing order Annex.P/5, the disciplinary authority did not record reasons for disagreeing with the findings recorded by the enquiry officer on each aspect of the enquiry officer''s report. Furthermore, as the reasons were not even recorded, there remains no question of the same being communicated to the delinquent i.e. the petitioner herein.

The Hon''ble Apex Court considered the import of a similar set of Service Rules in the case of S.P. Malhotra Vs. Punjab National Bank and Others, and held as below:

"4. After conducting and concluding the enquiry, the enquiry officer submitted report dated 27.2.1985 exonerating the appellant on all the charges and in support of the findings sufficient reasons had been given on each charge. The Disciplinary Authority partly agreed with the findings on charge Nos. (ii) and (iii), but disagreed with the findings qua charge Nos. (i) and (iv), and vide order dated 27.4.1985 imposed the punishment of dismissal from service.

Aggrieved, the appellant preferred an appeal against the said order under Regulation 17 of the Punjab National Bank Officers Employees (Discipline and Appeal) Regulation, 1977 (hereinafter referred to as the "the Regulations"), and the appeal was dismissed vide order dated 14.8.1985 by the appellate authority. The appellate authority also concurred with the findings on two charges recorded by the enquiry officer.

Being aggrieved of the order of the appellate authority, the appellant filed review petition under Regulation 18 of the Regulations and the said review petition was also dismissed vide order dated 19.8.1987.

The appellant challenged the said orders of punishment by filing a Writ Petition No. 1201 of 1988 before the High Court of Punjab and Haryana at Chandigarh. The said writ petition was contested by the respondent Bank. The learned Single Judge allowed the said writ petition vide judgment and order dated 20.5.2011, holding that in case the Disciplinary Authority disagrees with the findings recorded by the enquiry officer, he must record reasons for the disagreement and communicate the same to the delinquent seeking his explanation and after considering the same, the punishment could be passed. In the instant case, as such a course had not been resorted to, the punishment order stood vitiated.

Aggrieved, the respondent Bank preferred LPA before the Division Bench which has been allowed taking a view that as the punishment had been imposed prior to the date of judgment in ECIL v. B. Karunakar i.e. 20.11.1990, and as there was no requirement of issuing a second show cause notice before the punishment was imposed, the question of serving the copy of the reasons recorded for dis-agreement to the delinquent would not arise. Hence, this appeal.

Mr. P.S. Patwalia, learned senior counsel appearing for the appellant has submitted that the Division Bench has not examined the case in correct perspective and failed to appreciate that the judgment in ECIL had no application in the instant case. The matter was squarely covered by the judgment of this court in Punjab National Bank Vs. Kunj Behari Mishra and the ratio thereof had correctly been applied by the learned Single Judge. Thus, the appeal deserves to be allowed.

Per Contra, Mr. Rajesh Kumar learned counsel appearing for the respondent Bank has defended the judgment of the Division Bench contending that there was no requirement of serving the recorded reasons for disagreement by the disciplinary authority to the delinquent if such a decision was taken prior to the date of decision of ECIL i.e. 20.11.1990, and therefore, no interference is required in the appeal.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

In view of the rival submissions made by the learned counsel for the parties, two separate issues are involved in the instant case, namely:

(a) requirement of issuing a second show-cause notice by the disciplinary authority to the delinquent before imposing the punishment; and

(b) serving the copy of the reasons recorded by the disciplinary authority disagreeing with the findings recorded by the enquiry officer.

In ECIL only the first issue was involved and in the facts of this case, only second issue was involved. The second issue was examined and decided by a three-Judge Bench of this Court in Kunj Behari Mishra wherein the judgment of ECIL has not only been referred to, but extensively quoted, and it has clearly been stipulated that wherein the second issue is involved, the order of punishment would stand vitiated in case the reasons so recorded by the disciplinary authority for disagreement with the enquiry officer had not been supplied to the delinquent and his explanation had not been sought. While deciding the said case, the Court relied upon the earlier judgment of this Court in Institute of Chartered Accountants of India v. L.K. Ratna.

Kunj Behari Misra itself was the case where the disciplinary authority disagreed with the findings recorded by the enquiry officer on 12.12.1983 and passed the order on 15.12.1983 imposing the punishment, and immediately thereafter, the delinquent officer therein stood superannuated on 31.12.1983. In Kunj Behari Misra this Court held as under: (SCC p.97, para 19)

"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."

[emphasis supplied]

It was held by the Hon''ble Supreme Court in unequivocal terms that if the Disciplinary Authority proposes to disagree with the enquiry officer on any article of charge, then it must record its own tentative reasons and convey the reasons of disagreement to the delinquent. The delinquent thereafter has to be afforded an opportunity to show cause before the Disciplinary Authority considers the matter for imposing penalty upon him.

In view of the aforesaid discussion, this court has no hesitation in holding that the order dated 13.07.1992 (Annex.-P/5) passed by the disciplinary authority imposing penalty of stoppage of five annual grade increments upon the petitioner with cumulative effect is violative of principles of natural justice and also runs contrary to the principles laid down by the Hon''ble Supreme Court in the aforesaid judgment and cannot be sustained. As the order dated 13.7.1992 (Annex.-P/5) imposing penalty is itself unsustainable, the order passed by the appellate authority (the Divisional Commissioner, Ajmer) dated 29.06.1993 (Annex.-P/8) and order dated 27.03.1996 (Annex.-P/10) passed by the Hon''ble Governor in revision are also liable to be set aside.

Consequently, the writ petition deserves to be and is hereby allowed. The order dated 13.07.1992 (Annex.P/5) passed by the disciplinary authority as well as the order dated 29.06.1993 (Annex.-P/8) passed by the appellate authority i.e. Divisional Commissioner and the order dated 27.03.1996 (Annex.-P/10) passed by the Hon''ble Governor in revision are quashed and set aside. The petitioner shall be entitled to all consequential benefits flowing from the quashing of the impugned order within a period of three months from today. No order as to costs.