S.P. Saxena And R.S. Sahdev vs Union Of India
2000 Latest Caselaw 710 Del

ORDER

M.S.A. Siddiqui, J.

1. Challenge in these writ petitions filed under Article 226 of the Constitution of India is to the order dated 18th December, 1997 passed by the Central Administrative Tribunal (for short "the Tribunal") dismissing the petitions filed by the petitioners. Though the petitioners have filed separate petitions, the common features in these petitions, which alone are relevant for dealing with the question involved therein can be culled out from the petition filed by the petitioner S.P.Saxena.

2. A departmental enquiry was initiated against the petitioner S.P.Saxena, Scientist "C" in defense Electronics Application Laboratory, Dehradun for contravening the provision of Rule 3(1)(i) of the CCS (Conduct) Rules, 1964. At the conclusion of the enquiry, a report was submitted by the Enquiry Officer exonerating the petitioner from the charge No.2. As regards the charge No.1, the Enquiry Officer held that the petitioner's indirect involvement in the trade and business was partly proved. On receipt of the report from the Enquiry Officer, the disciplinary authority, to whom the report was submitted, did not agree with the findings of the Enquiry Officer in respect of the charge No.2 framed against the petitioner. He, therefore, imposed the penalty of removal from service after holding that both the charges framed against the petitioner were proved. The petitioner challenged the order of removal from service by filing a petition before the' Tribunal, which was dismissed by the impugned order. Not being satisfied with the dismissal of the petition by the Tribunal, the petitioner has come up before this Court under Article 226 of the Constitution.

3. The main contention of the petitioner was that the disciplinary authority, who had disagreed with the conclusions arrived at by the Enquiry Officer, could not have come to adverse conclusion without giving him an opportunity of being heard and the order of removal passed against him was liable to be quashed. This contention did not find favour with the Tribunal. The Tribunal dismissed the petition holding that the departmental enquiry was conducted in accordance with the relevant rules and the petitioner was afforded an opportunity of being heard before imposition of the penalty of removal from service.

4. The only contention urged by learned counsel for the petitioner is that admittedly the tentative reasons for disagreement recorded by the disciplinary authority were not furnished to the petitioner and so principles of natural justice were violated inasmuch as the right of the petitioner to make representation against the tentative reasons for disagreement recorded by the disciplinary authority was denied to him. According to the learned counsel, the action of the respondent in not conveying the said findings of the disciplinary authority to the petitioner renders the punishment void. In support of the said contention reliance has been placed on the decision of the Supreme Court in Punjab National Bank and others Vs. Sh. Kunj Behari Misra, . On the other hand, learned counsel for the respondent submitted that the requirement of furnishing tentative reasons for disagreement recorded by the disciplinary authority to the petitioner could not be read into the relevant rule and no prejudice could be said to have been caused to the petitioner inasmuch as the disciplinary authority had given adequate opportunity to the petitioner before imposition of the penalty in question.

5. In the case of Punjab National Bank (supra) a departmental enquiry was initiated against the charged officers in respect of shortage of cash of Rs.1/- lakh. The enquiry officer, who conducted the enquiry against them completely exonerated one of the charged officers and the other was held guilty of only one charge, namely, that he did not sign the relevant register from 20th October, 1981 to 9th November, 1981 but absolved him of the remaining five charges. On receipt of the reports from the enquiry officer, the disciplinary authority, did not agree in the case of the charged officer, namely, Kunj Behari Misra with the findings the enquiry officer in respect of charges 2 to 6 and accordingly held him responsible for the shortage in question. The disciplinary authority accordingly imposed a minor penalty on Kunj Behari Misra. Kunj Behari Misra challenged validity of the said order and the matter went up to the Supreme Court and the question for consideration arose: "When the enquiry officer, during the course of disciplinary proceedings comes to the conclusion that all or some of the charges alleging misconduct against an official are not proved then can the disciplinary authority differ from that and give a contrary finding without affording any opportunity to the delinquent officer." This question was considered with reference to Regulation 7(2) of the Punjab National Bank Officers' Employees' (Discipline and Appeal) Regulations which is as under:-

(2) The disciplinary authority shall, if it disagrees with the findings of the enquiry authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

6. It was contended before the Supreme Court that there was no rule requiring supply of tentative reasons for disagreement recorded by the disciplinary authority to the delinquent officer nor was the delinquent officer shown to have suffered any prejudice for lack of it, the court cannot therefore, interfere with the decision of the disciplinary authority on that ground. Rejecting the said contention, their Lordships of the Supreme Court held that non-furnishing of tentative reasons for disagreement recorded by the disciplinary authority to the delinquent officer amounted to violation of the principles of natural justice. This was expressed by their Lordships in the following words:-

"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."

Sub-rule (2) of Rule 15 of the CCS (Classification Control and Appeal) Rules 1965, is as under:-

"The disciplinary authority shall, if it disagrees with the findings of the enquiry authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose."

7. Thus, Sub-rule (2) ibid is in pari materia with regulation 7(2) of the Punjab National Bank Officers' Employees' (Discipline and Appeal) Regulations. Applying the dictum of the case of Punjab National Bank (supra) to the facts of the present case, we have no hesitation to hold that the principles of natural justice have to be read into sub-rule (2) of Rule 15 of the CCS (Classification Control and Appeal) Rules. In the instant case, admittedly, the tentative reasons for disagreement recorded by the disciplinary authority were not furnished to the petitioner and so the impugned order of removal from service passed by the disciplinary authority is vitiated by non-observance of the principle of natural justice. In the facts and circumstances of the present case, the non-observance of principles of natural justice is itself prejudice to the petitioner and proof of prejudice independently of proof of denial of natural justice is unnecessary. Consequently, the impugned order of removal from service passed by the disciplinary authority cannot be sustained in law.

For the foregoing reasons, we allow the writ petitions and issue a writ of certiorari quashing the impugned order of removal dated 18th August, 1992. The petitioners shall be reinstated. Keeping in view the judgment of the Supreme Court in U.P. (Madhya) Ganna Beejevam Vikas Nigam Ltd. and Others Vs. Prem Chandra Gupta and others, 1999 SCC (L&S) 623, we consider it appropriate to direct that after reinstatement of the petitioners, the respondent shall have the liberty to proceed with the enquiry, if they so consider it appropriate and in that event, they may even place the petitioners under suspension if found necessary by them and continue the enquiry from the stage of furnishing the petitioners with copies of the tentative reasons for disagreement recorded by the disciplinary authority. We make an Order accordingly. Insofar as the grant of consequential benefit of back-wages is concerned, that will be decided, in case an enquiry is held, at the conclusion of that enquiry. The enquiry, if any, shall be concluded within six months from the date of direction by the respondent to hold such an enquiry after the reinstatement of the petitioners. In that event, the petitioners shall co-operate in the enquiry proceedings and not cause any hindrance in its completion. Both the writ petitions are disposed of accordingly. No costs.