Sukhendu Bikash Bhattacharjee vs Bihar State Electricity Board

The petitioner is aggrieved of order dated 26.04.1996 by which the respondent-authority has decided to recover an amount of Rs.85,848.75 from his

pension and gratuity, order dated 25.08.2000 by which penalty of forfeiture of 25%Â pension has been inflicted upon him, order dated 19.12.2001 by

which recovery of Rs.35380/and the interest of Rs.29719/- accrued thereon was forfeited towards recovery of Rs.85848.75 and order dated

12.01.2007 by which recovery of Rs.85848.75 on account of misappropriation of materials and Rs.8529.90 which was paid to him assuming that he

has passed 'Hindi Noting and Drafting Examination' has been ordered.

The petitioner who was appointed as Junior Storekeeper was proceeded departmentally on 16.04.1990 on an allegation of shortage of materials in

the store. After his superannuation from service on 31.07.1992 suffered penalty of recovery of Rs.85848.75 by an order dated 26.04.1996. In the

meantime, he came to this Court in C.W.J.C No.534 of 1996 (R) for a direction for payment of his post-retiral benefits. The writ petition stood

disposed of by order dated 02.09.1997, on the premise that departmental proceeding against the petitioner was still continuing, with a direction to the

respondents to pay all admissible post-retiral benefits to the petitioner. This order was taken in appeal by the Bihar State Electricity Board in L.P.A

No.574 of 1997 (R)Â which stood dismissed as withdrawn with liberty to file a review petition. The civil review petition filed by the respondent-

Board, however, was dismissed by an order dated 24.07.2001. In the second departmental proceeding an enquiry report was submitted on 12.12.1998

holding that charge against the petitioner has not been proved. A second show-cause notice was issued to the petitioner on 23.05.2000 indicating the

proposed penalty of forfeiture of 25% pension on the ground of misappropriation of Rs.11125722/-. This was replied by the petitioner on 19.07.2000

and thereafter on examination of the entire materials on record penalty of withholding of 25% pension and recovery of Rs.11125722/- was inflicted

upon him. Thereafter, from his gratuity and interest accrued thereon an amount of Rs.65099/- was adjusted against recovery of Rs.85848.75 and for

the balance amount it was ordered that it would be recovered from the pension payable to him @ Rs.250/- per month. Aggrieved, the petitioner has

approached this Court.

Contention raised on behalf of the petitioner is that in a departmental proceeding before differing with the findings recorded by the enquiring officer

the disciplinary authority is required to give reasons for his disagreement and afford opportunity to the delinquent to respond to the “note of

disagreementâ€, a mandatory requirement in law which admittedly has not been adopted in the second departmental proceeding against the petitioner

and while so, the impugned order dated 25.08.2000 is liable to be quashed.

The enquiring officer in its report dated 12.12.1998 has recorded that only two witnesses out of seven proposed witnesses were examined by the

department in support of the charge of misappropriation of Rs.11125722/- framed against the delinquent. The witness-A.K. Gupta has not supported

the charge against the petitioner and the witness-Ramyash Singh has deposed that the petitioner gave charge of 23 articles to his successor-Anadi

Kumar Singh, Store Assistant. The enquiring officer has noticed that the said Anadi Kumar Singh has since been dismissed from service and

another witness-Ranjit Kumar Bandopadhyay was also a material witness who has not been examined by the department. In the above state of

evidence, the enquiring officer has held that charge against the petitioner has not been proved. It is a matter of record that necessary documents were

not supplied to the petitioner during the departmental enquiry and this fact was duly recorded by the enquiring officer in the report. Still, the disciplinary

authority has not supplied the documents on which the charge against the petitioner was founded and it has also failed to give reasons for its

disagreement with the findings recorded by the disciplinary authority.

Law on the aforesaid issue is by now well-settled. In a departmental proceeding a delinquent has a right to insist on adherence to the rules of

natural justice and the Conduct and Discipline Rules. Without affording an opportunity to the delinquent why the disciplinary authority has differed

from the favourable findings recorded by the enquiring officer, simply by issuing second show-cause notice the aforesaid fatal defect in the proceeding

cannot be cured. The reason is simple. When it has been held that a delinquent has a right to respond to the adverse findings recorded by the enquiring

officer, it is more so a reason why a delinquent must be afforded an opportunity to persuade the disciplinary authority to agree to the favourable

findings recorded by the enquiring officer [refer “Punjab National Bank and Others Vrs. Kunj Behari Misra†reported in (1998) 7 SCC 84 and

“Yoginath D. Bagde Vrs. State of Maharashtra and Anr.†reported in (1999) 7 SCC 739]. This the delinquent can do only when the disciplinary

authority records its reasons for disagreement with the findings recorded by the enquiring officer and an opportunity is given to the delinquent to

respond to the “note of disagreementâ€. However, without following this procedure as required in law, the disciplinary authority has passed the

order of punishment. It also stands admitted in the enquiry report that necessary documents were not supplied to the petitioner. All that the disciplinary

authority was required to do was to direct the department to supply documents to the petitioner and seek his response thereon. Non-supply of

necessary documents to a delinquent renders the enquiry report illegal.

In the aforesaid facts, it thus become apparent that the petitioner has suffered serious prejudice during the departmental enquiry. The penalty order

has been passed in breach of the rules of natural justice and while so, the penalty order dated 25.08.2000 is quashed. Consequently, orders dated

19.12.2001 and 12.01.2007 are also quashed. The respondent-Jharkhand State Electricity Board (now Jharkhand Urja Vitran Nigam Limited)Â shall

proceed in the matter from the stage of supply of the enquiry report and the “note of disagreement†by the disciplinary authority to the petitioner.

Till a final order is passed, no recovery pursuant to the second departmental enquiry shall be affected against the petitioner.

The writ petition stands allowed, in the aforesaid terms.