Asheesh Pathak vs State Of U.P. Through Prin. Secy. ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved on 16.7.2018.
 
Delivered on 14.8.2018.
 

 

 
Case :- SERVICE SINGLE No. - 143 of 2015
 

 
Petitioner :- Asheesh Pathak
 
Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Home Affairs Lko
 
Counsel for Petitioner :- Ranjeet Singh,Manish Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

1. Heard Sri Manish Kumar, learned counsel for the petitioner and Sri Saharsh, learned Government Counsel for all the respondents.

2. By means of the present petition, the petitioner has prayed for the following reliefs:-

"(i) Issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned orders dated 16.3.2013 passed by the Deputy Inspector General of Police, Vindhyachal Range, Mirzapur, U.P., the opposite party No.4 whereby the petitioner has been dismissed from service under Sub Rule 14(1) read with Rule 4(1)(K) of the U.P. Police Officers of the Sub Ordinate Ranks (Punishment and Appeal) Rules, 1991, the order dated 7.9.2013 passed by the Additional Director General of Police/Inspector General of Police, Varanasi Zone, U.P., Varanasi, the opposite party No.3 whereby the appeal of the appellant/petitioner has been rejected and the order dated 14.2.2014 passed by the Director General of Police "Training", Police Training Directorate, U.P. Indira Bhawan, 4th Floor, Ashok Marg, Lucknow, the opposite party No.2 whereby the revision petition of the revisionist/petitioner has been rejected illegally and arbitraqrily as contained in annexures No. 1, 2 and 3 respectively to this writ petition.

(ii) issue a writ, order or direction in the nature of Mandamus commanding and directing the opposite parties to pay the petitioner his salary on his post as he was earlier getting each and every month when it falls due and the arrears of his salary along with all consequential benefits.

(iii) issue such other suitable writ, order or direction deemed fit and necessary in the circumstances of the case as also in the interest of justice; and;

(iv) allow the writ petition with costs."

3. The case set forth by the petitioner is that while he was working on the post of Assistant Sub Inspector (M) at Bhadohi, a complaint dated 22.7.2009 was submitted to the Additional Director General of Police, Special Branch (Adhisoochana Vibhag), Lucknow against the petitioner by one Sri Shyam Lal and other constables alleging that the petitioner, while being posted as Clerk in the office of the Superintendent of Police, Sant Ravidas Nagar, used to have the employees suspended and thereafter took money from such suspended employees for reinstatement in the name of his superior officers. It was also alleged that he is owner of Truck No.U.P.75J 9762 and has contracted a second marriage with one constable Gunjan Seth who is posted in district Ballia. Copy of the complaint dated 22.7.2009 is Annexure-4 to the writ petition. On the basis of the said allegations, the petitioner was suspended vide order dated 31.10.2009. A preliminary inquiry was conducted against the petitioner by one Dr. B.N. Tiwari, Additional Superintendent of Police, Mirzapur and the said report was submitted on 16.1.2010 against the petitioner wherein the allegations levelled against the petitioner were found established and the Inquiry Officer recommended the punishment of dismissal from service. Copy of the preliminary inquiry report dated 16.1.2010 is Annexure-5 to the writ petition.

4. Subsequently, the petitioner was issued with a charge-sheet dated 15.3.2010 under the provisions of Rule 14(1) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the 1991 Rules) by the Additional Superintendent of Police on various charges. Copy of the charge-sheet is Annexure-6 to the writ petition. The petitioner alleges to have submitted his reply/explanation dated 24.5.2010 wherein he denied the charges levelled against him. Thereafter the inquiry Officer/Additional Superintendent of Police submitted his inquiry report dated 10/30.1.2012 against the petitioner wherein he found the petitioner guilty of the charges levelled against him and proposed the punishment of dismissal from service. Copy of the inquiry report dated 10/30.1.2012 is Annexure-7 to the writ petition.

5. After the inquiry report was submitted, the petitioner was issued with a show cause notice dated 25.6.2012 along with the copy of the inquiry report and the petitioner was asked to submit his explanation within 15 days. In pursuance thereof, the petitioner submitted several representations dated 16.7.2012, 21.8.2012 and 3.10.2012 to the Inspector General/Deputy Inspector General of Police, Vindhyachal Range, U.P., Mirzapur to provide various documents to the petitioner for submitting his reply/explanation against the said show cause notice. However, it is contended by the petitioner, that the documents demanded by him were not provided and the dismissal order dated 16.3.2013 was issued against the petitioner. Copy of the dismissal order dated 16.3.2013 is Annexure-1 to the writ petition.

6. Being aggrieved against the said dismissal order, the petitioner submitted an appeal to the Inspector General of Police, Varanasi Zone, Varanasi on 29.5.2013 but the appeal came to be rejected by the appellate authority vide order dated 7.9.2013. Copy of the order dated 7.9.2013 is Annexure-2 to the writ petition. Being aggrieved against the appellate order, the petitioner submitted revision petition before the Director General of Police, Lucknow which too came to be rejected vide order dated 14.2.2014. Copy of the order dated 14.2.2014 is Annexure-3 to the writ petition. Being aggrieved with the aforesaid orders, the present petition has been filed.

7. While seeking to challenge the aforesaid orders, the grounds which have been taken by the petitioner can be briefly summarised as under:-

(a) The impugned dismissal order was passed without holding proper inquiry, without production/examination of evidence cited in the charge-sheet and without associating the petitioner in any manner whatsoever; (b) the impugned order was passed in disregard of the rules regarding disciplinary proceedings; (c) reasonable opportunity of hearing was not afforded to the petitioner; (d) the Inquiry Officer did not call the witnesses cited in the charge-sheet; and (e) the appellate authority and the revisionary authority did not consider the appeal and revision of the petitioner properly. A few other general grounds have also been taken.

8. However, during the course of arguments Sri Manish Kumar has also raised two additional grounds namely that the Inquiry Officer while submitting the inquiry report dated 10/30.1.2012 could not have proposed the punishment of dismissal and that the preliminary inquiry held against the petitioner was defective as the petitioner was never associated in the same and even the officer holding the preliminary inquiry has recommended punishment of dismissal from service.

9. With regard to the aforesaid grounds, learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Ram Pal Singh vs. Director of Agriculture, U.P. and others reported in 2012(30) LCD 843 to contend that the Inquiry Officer has no role in awarding punishment. Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of State of Uttaranchal and others vs. Kharak Singh reported in (2008)8 SCC 236 to contend that the Inquiry Officer cannot make a recommendation for imposition of a particular punishment as the decision on quantum of punishment lies within the jurisdiction of disciplinary authority. Reliance has also been placed on the Division Bench judgment of this Court in the case of Shahjahan Khan vs. State of U.P. and others reported in (2002)1 UPLBEC 902 as regards the allegation of second marriage that the department could not prove the second marriage and consequently because the petitioner was residing with some other woman for sometime during existence of first wife, no charge of bigamy can be made out. Sri Manish Kumar has also placed reliance on a judgment of this Court in the case of Sri Nath Upadhya vs. State of U.P. and others reported in 1996(14) LCD 25 to contend that where the punishment has been awarded without affording opportunity to cross examine the witnesses and without furnishing copies of the documents then the proceedings shall be vitiated and liable to be quashed. Reliance has also been placed on a judgment of this Court in the case of Shyam Lal vs. State of U.P. and others reported in 1993(11) LCD 302 to contend that reasonable opportunity of hearing is not a mere formality to obtain reply rather it includes consideration of reply and determination of facts. Thus placing reliance on the aforesaid case laws, Sri Manish Kumar has summed up his argument by contending that once the preliminary inquiry was held without associating the petitioner yet the Inquiry Officer recommended punishment of dismissal from service which was followed by even the Inquiry Officer who recommended the punishment of dismissal from service and the same was also followed in toto by the disciplinary authority without application of mind and without even considering that the documents which had been asked for by the petitioner during the course of inquiry, were never made available to the petitioner as such the entire inquiry is a farce and all the impugned orders merit to be quashed.

9. Per contra Sri Saharsh, learned Government Counsel, on the basis of the averments contained in the counter affidavit, argued that during the course of preliminary inquiry it came out that the petitioner had conducted three marriages, firstly with one Smt. Seema Pathak, daughter of Sri Amarendra Nath Sharma in the month of May/June, 1995, the second marriage with one lady constable Smt. Gunjan Seth on 18.10.2002 with whom he has three children and third marriage with one Smt. Khushbu Pathak daughter of late Sri Ram Bihari Pathak in the month of December, 2008. It has also been come out during the course of inquiry that petitioner has purchased a truck bearing registration No. U.P.75-J 9762 in the name of Smt. Khushbu Pathak on 10.3.2008. It was on the basis of the said allegations, which were inquired into during the course of preliminary inquiry and veracity of the said allegations were found true, that it was decided to initiate and conduct proceedings under the provisions of the 1991 Rules against the petitioner. Accordingly a charge-sheet dated 15.3.2010 was issued to the petitioner, inter alia, charging him of (a) having indulged in corruption of taking illegal gratification from constables etc. for their transfer; (b) having purchased a truck; (c) having married second time despite having a wife; and other related charges was issued to him. The petitioner in pursuance thereof participated in the inquiry and examined/cross examined the witnesses which would be apparent from a perusal of the inquiry report dated 10/30.1.2012. The Inquiry Officer recommended the punishment which was in consonance with the provisions of the 1991 Rules and thereafter the petitioner was issued a show cause notice dated 25.6.2012. The petitioner instead of submitting his reply, again demanded certain documents and thereafter dismissal order dated 16.3.2013 was passed against him whereby he was dismissed from service. The grounds taken in the appeal preferred by the petitioner were not found feasible and consequently the appellate authority rejected the appeal of the petitioner. Being aggrieved against the appellate order a revision was preferred which too was rejected on 14.2.2014. Thus, it is contended that there is no illegality or infirmity in the impugned orders and none of the grounds are legally tenable in the eyes of law and consequently the writ petition is liable to be dismissed.

10. The Court has heard the learned counsel appearing for the parties, considered the submissions and perused the record.

11. It is an undisputed fact that the preliminary inquiry was conducted against the petitioner in which the Inquiry Officer did not associate the petitioner and at the same time proposed a punishment of dismissal. It is settled proposition of law that preliminary inquiry is conducted only for the purpose to ascertain as to whether any of the charges are made out against the delinquent employee for the purpose of initiating departmental proceedings. Learned counsel for the petitioner has failed to indicate any provision of the 1991 Rules which mandates association of the delinquent employee during the preliminary inquiry inasmuch as, as already indicated above, the scope of preliminary inquiry is to ascertain the feasibility of a regular departmental inquiry against the delinquent employee. No rule stipulates association of the delinquent in a preliminary inquiry and consequently even if the Inquiry Officer during the course of preliminary inquiry never associated the petitioner or recommended the punishment of dismissal, no benefit can be derived from the same. Hence the challenge to the preliminary inquiry and the recommendation of punishment made by the Inquiry Officer merits to be rejected and the same is accordingly rejected.

12. With regard to the contention on the part of the petitioner that the inquiry proceedings against him, which were held in pursuance to the charge-sheet dated 15.3.2010, were not held properly and without production/examination of evidence cited in the charge-sheet, without associating the petitioner in any manner whatsoever, without furnishing the copy of evidence and without affording reasonable opportunity of hearing to the petitioner, this Court has itself gone through the inquiry report dated 10/30.1.2012. A perusal of the inquiry report would indicate that the petitioner initially failed to submit his reply/explanation to the charge-sheet within the specified time. Thereafter the petitioner by means of a registered letter sought further time to submit his reply and also wanted a copy of the preliminary inquiry report. The Inquiry Officer recorded that the same patently amounted to dilatory tactics on the part of the petitioner inasmuch as it was recorded that despite the petitioner being available at the Headquarter, instead of personally requesting for time, there was no occasion for requesting of some more time by registered letter and thus the application for extension of time was rejected and a date for examination of the prosecution witnesses was fixed and the petitioner was informed at his residential address to be available on the said date. The said letter was refused to be received by his mother with the result that the same was pasted on his door on 22.4.2010 in presence of two witnesses and thus the notice of date was deemed to have been known to the petitioner. The inquiry proceeded on which date the prosecution witnesses were examined by the Inquiry Officer. Again the petitioner appears to have turned up in the inquiry on 1st of May, 2010 wherein he requested time for submitting his explanation to the charge-sheet. On the next dates fixed i.e. 12th May, 2010 and 24th May, 2010, the petitioner failed to turn up. Thereafter the petitioner sent the reply to the charge-sheet on 28th May, 2010 wherein he denied the charges and submitted his explanation to the charges. On the next few dates the petitioner again failed to turn up. Again the petitioner turned up on 6th August, 2010 wherein he stated that the charge-sheet and the inquiry report have been misplaced by him and prayed for being given copies of the same so that he could participate in the inquiry and submit his explanation. The said documents were duly provided to the petitioner on 6.8.2010 and his statement in this regard was recorded on 7.8.2010. The petitioner participated in the inquiry and was examined and cross-examined by the Presenting Officer wherein his statement and cross-examination were recorded pertaining to the charges levelled against him. The petitioner was also given opportunity to examine/cross examine the witnesses. It was only after examining and cross-examining the witnesses as well as the petitioner that the Inquiry Officer summed up the matter and submitted his report dated 10/30.1.2012 per which he arrived at a finding that the petitioner was guilty of the charges levelled against him and also recommended a punishment of dismissal from service. A perusal of the inquiry report would thus indicate that the defence taken by the petitioner has been considered, the witnesses have been examined in his presence and due opportunity given to him to examine/cross examine the witnesses. The petitioner was also examined and the documents which were appearing against him have also been examined in his presence during the course of inquiry and his examination and cross-examination has taken place whereafter the Inquiry Officer arrived at the finding of the charges against the petitioner being found proved and simultaneously recommended the punishment of dismissal from service.

13. The Court now proceeds to examine the contention on the part of the petitioner that the Inquiry Officer is precluded from recommending any punishment against him and in this regard reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of State of Uttaranchal and others vs. Kharak Singh (supra) as well as the judgment of this Court in the case of Ram Pal Singh (supra). The inquiry proceedings against the police officers are held under the 1991 Rules. Rule 14(1) reads as under:-

14. Procedure for conducting departmental proceedings.-- (1) Subject to the provisions contained in these Rules, the departmental proceedings in the cases referred to in sub-rule (1) of Rule 5 against the police officers may be conducted in accordance with the procedure laid down in Appendix-I."

14. Appendix-I of the 1991 Rules, which is also relevant for the purpose, reads as under:-

"APPENDIX--I

PROCEDURE RELATING TO THE CONDUCT OF DEPARTMENTAL PROCEEDINGS AGAINST POLICE OFFICER

[See RULE 14(1)]

UPON institution of a formal enquiry such police officer against whom the enquiry has been instituted shall be informed in writing of the grounds on which it is proposed to take action and shall be afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be used in the form of a definite charge or charges as in Form-1 appended to these Rules which shall be communicated to the charged police officer and which shall be so clear and precise as to give sufficient indication to the charged police officer of the facts and circumstances against him. He shall be required, within a reasonable time, to put in, in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the Inquiry Officer so directs an oral enquiry shall be held in respect of such of the allegation as are not admitted. At that enquiry such oral evidence will be recorded as the Inquiry Officer considers necessary. The charge police officer shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish:

Provided that the Inquiry Officer may, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the ground thereof. The Inquiry Officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged police officer."

15. Thus a perusal of Rule 14(1) of the 1991 Rules indicates that the departmental proceedings against the police officers are to be conducted in accordance with the procedure laid down in Appendix-I which provides that the Inquiry Officer may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the charged police officer. Thus the Inquiry Officer is perfectly empowered to recommend the punishment to be imposed on the charged police officer. The mere fact that the punishment could be recommended separately from the proceedings but in the instant case was recommended in the inquiry report itself would not cause any prejudice to the petitioner inasmuch as the copy of the Inquiry report containing the proposed punishment had already been made available to the petitioner through the show cause notice dated 26th May, 2012. The petitioner was thus fully aware about the recommendation of the Inquiry Officer and merely because the Inquiry Officer, instead of giving his recommendation of punishment separately, included the said recommendation in the inquiry report itself would not, in the opinion of this Court, vitiate the inquiry report. In this regard this Court may refer to a judgment of this Court in the case of Laxmi Kant Saxena vs. Krishi Nirdeshak U.P. and others reported in MANU/UP/2119/2005 where the Inquiry Officer has recommended the punishment in the inquiry report itself and this Court held that the recommendation of punishment by the Inquiry Officer will not vitiate the whole inquiry report and such recommendation is to be ignored having no value in law.

16. Likewise the Hon'ble Supreme Court in a case pertaining to the 1991 Rules itself has considered this aspect of the matter in the case of State of U.P. and others vs. Harendra Kumar reported in (2004)13 SCC 117. In the said case, the disciplinary proceedings were initiated against the delinquent employee under the provisions of the 1991 Rules after a preliminary inquiry had been conducted. Subsequently a regular departmental inquiry was conducted and the charges were found proved against the delinquent employee and at the same time the Inquiry Officer recommended the punishment of dismissal from service. The disciplinary authority concurred with the findings of the Inquiry Officer and proceeded to dismiss the delinquent employee from service. Upon a challenge being made to the said dismissal order before the State Public Services Tribunal, though the Tribunal held that no prejudice was caused to the delinquent employee in the inquiry, yet the Tribunal found fault with the order of dismissal on the ground that the disciplinary authority did not apply his mind and merely passed the order on the basis of the recommendation made by the Inquiry Officer and in that view of the matter, the Tribunal held that dismissal was vitiated and quashed the dismissal order giving liberty to the department to pass fresh order. The writ petition preferred by the department against the order of Tribunal was dismissed by the High Court and being aggrieved, the department preferred special leave petition before the Supreme Court. The Supreme Court after considering the 1991 Rules, the recommendation made by the Inquiry Officer in the inquiry report itself and the fact that the disciplinary authority had concurred with the findings of the Inquiry Officer held that the disciplinary authority while concurring with the Inquiry Officer need not write a detailed judgment. The ground pleaded on behalf of the employee that the disciplinary authority had acted upon the recommendation of the Inquiry Officer while passing the order of dismissal and did not apply his mind was also negated by the Hon'ble Supreme Court and it was held as under:-

"1. When certain misconduct came to the notice of the competent authority, a preliminary enquiry was ordered to ascertain as to whether there was any need to initiate disciplinary proceeding or not. After preliminary enquiry and in the light of the preliminary enquiry report, disciplinary proceedings were initiated against the respondent on the charge that while he was on duty he has consumed liquor and abused another constable when he was on duty. Thereafter, a regular enquiry was held and on the basis of the material placed in the enquiry, the enquiry officer having recorded a finding that the charge levelled against the respondent was proved, made the following recommendations:

"Task Force Battalion is armed with sophisticated weapons and a minor diversion or negligence can prove fatal. Therefore it is dangerous if an employee is on duty while in inebriated state.

Being in an intoxicated state while reporting on duty and showing indiscipline is not something appreciated or desired in Tas Force or PAC, a disciplinary force. Therefore it is recommended that this constable Harendra Kumar 56306 may be dismissed from service under the provision of Rule 14(1) of the U.P. Police Officers of the Subordinate Services (Punishment and Appeal) Rules, 1991."

2. Looking to the report and recommendations of the enquiry officer and on consideration, the disciplinary authority passed an order of dismissal of the respondent from service. Aggrieved by and not satisfied with the said order, the respondent approached the State Public Services Tribunal challenging it raising three contentions:

1. Prejudice was caused to him during the enquiry.

2. There has been non-application of mind by the disciplinary authority while passing the order of dismissal.

3. The imposition of extreme penalty of dismissal from service was too harsh and disproportionate to the charges held proved against him.

3. The Tribunal after considering the rival contentions on their relative merits held that there was no prejudice caused to the respondent in the enquiry, the punishment imposed on the respondent was not disproportionate to the charge held proved. However, the Tribunal found fault with the order of dismissal on the ground that the disciplinary authority did not apply its mind and merely passed the order on the basis of the recommendations made by the enquiry officer. In that view, the Tribunal felt that the order of dismissal was vitiated and accordingly allowed the application and set aside the order of dismissal, however, gave liberty to the appellants to pass fresh order of punishment in accordance with law after giving full opportunity of hearing, if so desired. The appellants aggrieved by the order passed by the Tribunal, approached the High Court by filing a writ petition challenging its correctness and validity. The High Court unfortunately dismissed the writ petition without even broadly noticing the contentions and/or the questions of law raised before it. The order passed by the High Court in the writ petition reads thus:

"Heard counsel for the petitioner.

Learned Standing Counsel could not assail the finding recorded by the Tribunal. The writ petition is dismissed."

Hence this appeal.

4. Learned counsel for the appellants contended that the Tribunal committed a manifest error in setting aside the order of dismissal having held that no prejudice was caused in the enquiry conducted against the respondent and the punishment imposed on him was not disproportionate; the Tribunal was wrong in holding that there was non-application of mind by the disciplinary authority. In support of this, he drew our attention to the order of dismissal passed by the disciplinary authority.

5. .....

6. .....

7. It is clear from the portion of the order extracted above that there has been proper application of mind by the disciplinary authority. The disciplinary authority has also stated in the order that after receiving the conclusions from the enquiry officer he closely studied the entire case and found himself in agreement with the report of the enquiry officer. It is clear from the same order that a show-cause notice was given to the respondent to make any written submission by ways of explanation.

8. Having regard to the nature of the charge i.e. that the respondent had consumed liquor on duty, that too on a duty in relation to terrorist activities and had abused another constable driver, proved by the evidence which is not challenged, we fail to understand what more consideration was required by the disciplinary authority. This apart, as we have already stated above, bare reading of the entire order of dismissal clearly shows that there has been proper application of mind. The disciplinary authority agreeing with the enquiry officer need not write a detailed judgment. In this view, the Tribunal committed a serious error in holding that there has been non-application of mind in passing the order of dismissal. The Tribunal having found that no prejudice was caused to the respondent in enquiry proceedings and punishment imposed was not disproportionate, we not at all justified in setting aside the order of dismissal. It is unfortunate that the High Court, as stated above, did not look into the matter at all in exercising the power of judicial review and had simply passed a non-speaking order. Looking to the entire facts and circumstances, we do not find any good ground to sustain the impugned order affirming the order of the Tribunal."

17. Consequently, when the facts of the instant case was tested on the touchstone of the law laid down by the Hon'ble Supreme Court in the case of Harendra Kumar (supra) what this Court finds is that the Inquiry Officer was perfectly empowered to recommend punishment while submitting the inquiry report. Merely because instead of recommending the punishment separately, the same become a part of the inquiry report would not vitiate the inquiry report inasmuch as no prejudice is caused nor has been pleaded by the petitioner to have been caused as a copy of the inquiry report had obviously been given and served upon the petitioner and the petitioner was asked to submit his explanation thereof. Further, the judgments over which reliance has been placed by the learned counsel for the petitioner namely in the case of Ram Pal Singh (supra) and Kharak Singh (supra) are not applicable in the instant case as both the cases were not dealing with the inquiry conducted under the 1991 Rules.

18. So far as the argument on the part of the learned counsel for the petitioner that the inquiry report given by the Inquiry Officer would become vitiated as the proposed punishment has not been recorded separately rather has been recorded in the inquiry report itself, suffice to state that the petitioner has failed to indicate any prejudice that may have been caused to him by the fact that the Inquiry Officer recommended the punishment in the inquiry report itself and not separately. Prejudice caused to the petitioner has neither been pleaded in the petition nor argued by the learned counsel for the petitioner. In this regard this Court may refer to the judgment of the Hon'ble Supreme Court in the case of Managing Director ECIL Hyderabad and others vs. B. Karunakar and others reported in AIR 1994 SC 1074 wherein the Hon'ble Supreme Court has held as under:-

30. .....

(i) .....

(ii) .....

(iii) .....

(iv) .....

(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non- furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a ''unnatural expansion of natural justice' which in itself is antithetical to justice."

19. Accordingly when the argument of prejudice is tested on the touch stone of the law laid down by the Supreme Court in the case of Managing Director ECIL Hyderabad (supra) what this Court finds is that if the proposed punishment by the Inquiry Officer would have been indicated separately even then it could not have made any difference to the inquiry report more particularly when the disciplinary authority has not been influenced by the recommendation made by the Inquiry Officer of the proposed punishment rather has applied his own mind while imposing the impugned judgment. Consequently, even this argument is rejected.

20. So far as the argument on the part of the petitioner that the inquiry proceedings were not held properly and were held without associating the petitioner in any manner whatsoever and without giving copy of evidence etc. is concerned, this Court has already examined the inquiry report and found that the petitioner was well associated during the inquiry proceedings and the witnesses were examined and cross-examined in his presence. Merely because the Inquiry Officer did not agree with the explanation given by the petitioner in the inquiry would not vitiate the inquiry proceedings and consequently even this ground taken by the petitioner is rejected. As such, the judgment in the case of Sri Nath Upadhyay (supra) referred by the learned counsel for the petitioner would not be applicable.

21. As regards the order of the disciplinary authority dated 16.3.2013 by which the punishment of dismissal was imposed upon the petitioner being bad, what this Court finds is that the disciplinary authority has applied his mind to the entire inquiry report and thereafter arrived at a finding of imposition of punishment. A perusal of the order dated 16.3.2013 does not indicate that the disciplinary authority has been swayed or persuaded by the recommendation made by the Inquiry Officer of proposed punishment of dismissal upon the petitioner, rather the order dated 16.3.2013 is a reasoned and speaking order having considered the entire matter threadbare and thereafter the disciplinary authority decided to impose the punishment of dismissal from service upon the petitioner.

22. Further, it is a settled proposition of law that in a departmental inquiry the disciplinary authority is expected to prove the charges on preponderance of probability and not on proof beyond reasonable doubt [see (2013)2 SCC 740]. A perusal of the inquiry report would indicate that the Inquiry Officer has considered all aspects of the matter and has arrived at a finding of guilt of the petitioner and the disciplinary authority has concurred with the findings of the Inquiry Officer. As such challenge to the order passed by the disciplinary authority merits to be rejected on this ground also. As such, the dictum of law in the case of Shyam Lal (supra) over which reliance has been placed by the learned counsel for the petitioner would have no applicability in the facts of the instant case.

23. Even otherwise the dismissal order dated 16.3.2013 shall come within the ambit of the law laid down by the Hon'ble Supreme Court in the case of Harendra Kumar (supra) and consequently the challenge to the dismissal order dated 16.3.2013 is also rejected.

24. Though the learned counsel for the petitioner has not argued anything against the order passed by the appellate authority dated 7.9.2013 and the revisionary authority dated 14.2.2014, this Court itself has gone through the aforesaid two orders and what this Court finds is that both the orders are reasoned and speaking and do not reflect non application of mind by any stretch of imagination.

25. Accordingly, keeping in view the detailed discussion made above as well as the law laid down by the Hon'ble Supreme Court, this Court finds no illegality or infirmity in the impugned orders.

26. The writ petition lacks merit and is accordingly dismissed.

Order Date :- 14.8.2018

Rakesh

(Abdul Moin, J.)