Kunwar Sen Jain vs Secretary, Textiles Committee, ...
2003 Latest Caselaw 1033 Bom

JUDGMENT

Nishita Mhatre, J.

1. The short question which arises for determination before us in this Writ Petition is whether the disciplinary authority can differ with the findings of the Enquiry Officer only on the grounds that senior officers would not unnecessarily indict a subordinate with their evidence and whether an explanation given by the delinquent employee as answer to the show cause notice for imposing a minor penalty can be rejected and the punishment of a major penalty can be imposed.

2. The facts giving rise to the present Petition are as follows :

The petitioner was appointed as an Inspector in the Textile Committee established on 14-3-1977. He was suspended from duty and a chargesheet was issued to him on 15-5-1978 containing two articles of charge. The first charge against the petitioner was that he had certified cotton handloom readymade garments without physically inspecting this material. The second charge against the petitioner was that he had failed to maintain absolute integrity and devotion to duty with the fraudulent intention anchor wilful negligence in his official functions as an Inspector. Not being satisfied with the reply of the petitioner, the Textile Committee appointed an Enquiry Officer to conduct an enquiry against the petitioner. Evidence was led before the enquiry officer by both the textile committee as well as the petitioner. The enquiry officer submitted his report on 19-1-1984 and came to the conclusion that neither of the charges had been proved against the petitioner. The suspension order issued earlier against the petitioner was withdrawn and he was transferred to Punjab. The disciplinary authority, respondent No. 1 herein, accepted the enquiry officer's findings in respect of charge No. 2 and held that charge No. 1 was proved against the petitioner. It was, therefore, proposed to impose a minor penalty of withholding of one increment of pay prescribed under Regulation 4(1) and (2) of the Textile Committee's employees Discipline and Appeal regulations 1968. The petitioner was given an opportunity to show cause why this penalty should not be imposed on him. The only reason given by the disciplinary authority for differing from the report of the enquiry officer was "the senior officers of the committee cannot have any intention to unnecessarily indict a subordinate. Therefore, their evidence can be fully relied upon, whereas an outsider is an interested party and, therefore, his evidence cannot be relied upon with the same force". The petitioner by his reply dated 5-10-1985 requested the disciplinary authority to review his decision in view of the fact that the enquiry officer had absolved him of all the charges levelled against him. Instead of considering the reply of the petitioner on 21-4-1987 a second show-cause notice was issued to the petitioner as it was decided that a major penalty should be imposed upon the petitioner. Reply given by the petitioner requesting the textile committee to drop the charges in view of the fact that he had been exonerated of both the charges went unheeded and the major penalty of reduction in pay to a lower stage in the time scale for a period of one year with immediate effect was imposed. Increments in pay during that period of reduction were also stopped and the reduction in pay had an effect of postponing his few increments. The appeal preferred by the petitioner against this order was dismissed.

3. The submission of the learned Counsel for the petitioner is that the disciplinary authority could not have differed from the findings of the enquiry officer on specious ground that the senior officers would not indict a subordinate for no reason. He submits that such a reason cannot be a ground for differing with the report of the enquiry officer or for imposing a minor penalty on the petitioner. The learned Counsel further urges that once a show-cause notice has been issued for imposing a minor penalty and the petitioner had replied to the same, the textile committee could not for the same charges impose a major penalty.

4. In reply to the petition, an affidavit of the Assistant Secretary of the Textile Committee has been filed. This affidavit only deals with the merits of the charge levelled against the petitioner. However, there is no answer to the specific grounds taken by the petitioner in the petition challenging the imposition of the penalty as a result of the disciplinary authority differing only on the ground that the senior officers would not unnecessarily indict a subordinate. Mr. Ramaswamy, appearing for the Respondents was not able to convince us that the disciplinary authority could differ from the findings of the enquiry officer for such a reason.

5. Having considered the submissions of the learned Counsel, we are of the view that the action of the respondents qua the petitioner is bad and must be quashed for more than one reason. To suggest that an officer would not unnecessarily indict a subordinate and that, therefore, his evidence must be believed is hardly a reason for which the disciplinary authority can differ from the findings of the enquiry officer. When the enquiry officer had exonerated the petitioner of the charges levelled against him, the disciplinary authority could differ with the same for valid, germane and justifiable reasons. The reasons given by the disciplinary authority in the order of 1st and 7-8-1995 cannot be accepted and therefore, the order is set aside.

6. When the disciplinary authority issues show cause notice for the imposition of a minor penalty after consideration of the reply of the petitioner, it would not be open for the disciplinary authority to issue another show cause notice for imposition of a major penalty for the same charges on the basis of the evidence led in the enquiry for which a minor penalty was proposed. Once the disciplinary authority decides to differ with the enquiry officer and issues a show cause notice for imposition of minor penalties on the delinquent employee, it would not be open for the disciplinary authority to change its stand and decide that major penalties should be imposed on delinquent employee especially when no compelling reasons for taking such action have been delineated. The order dated 4-12-1987 imposing a major penalty on the petitioner instead of considering his reply in the show cause notice issued imposing a minor penalty also cannot be sustained. The order of 4-12-1987 is, therefore, set aside.

7. Rule made absolute in terms of prayer Clauses (a) and (b).

8. Petition is disposed of accordingly. No costs.