Writ Petition No.5447 of 2002

13th July, 2010

Petitioner Counsel: Mr. SANJEEV J. RAIRKAR
Respondent Counsel: Mr. A. B. VAGYANI,Smt. A.R.S. BAXI

Cases Cited:
Punjab National Bank Vs. Kunj Behari Misra, (1998)7 SCC 84 [Para 8]

JUDGMENT

P. B. MAJMUDAR, J. :- By way of this petition filed under Section 226 of the Constitution of India, the petitioner has challenged the order passed by the Disciplinary authority i.e. respondent No.4 dated 28-04-1997, which is confirmed in Departmental Appeal by the First Appellate authority by its order dated 15-06-1999, which is also confirmed by the second appellate authority by its order dated 20-062000. The petitioner was subjected to departmental proceedings and was given charge-sheet dated 23-05-1989, wherein certain charges were levelled against the petitioner. The petitioner gave reply to the charge-sheet and pleaded innocence. An Inquiry Officer was appointed, who conducted an inquiry. The Inquiry Officer submitted his report by holding that the charges levelled against the petitioner are not proved. The Disciplinary authority disagreed with the Inquiry Officers report and came to a conclusion that the charges are proved against the petitioner. The Disciplinary authority therefore, issued a show cause notice to the petitioner on 24-04-1997. The Disciplinary Authority having differed with the findings of the Inquiry Officer and the conclusion recorded by him, has given reasons for its conclusion in the said notice. The said notice along with the findings arrived at by the Disciplinary authority, was served upon the petitioner. In the said notice, the petitioner was called upon to show cause within four days from the receipt of the notice as to why proposed punishment regarding withholding of increments with cumulative effect, should not be imposed upon him.

2. It is pertinent to note that the said show cause notice was issued on 24-04-1997. The petitioner gave reply to the said show cause notice on 28-04-1997, which was sent through proper channel. It is not in dispute that 28-04-1997 was the last date by which the petitioner was required to give reply to the show cause notice. However, the Disciplinary Authority on that very day i.e. 28-04-1997, passed the impugned order of punishment withholding five increments with cumulative effect. The said order of the Disciplinary Authority finds place at Exh.N page 67 of the compilation. It is found by the Disciplinary authority that till the date i.e. 28-04-1997, no reply was received by the disciplinary authority from the petitioner. In the impugned order, it is recorded that it is presumed that the petitioner has nothing to say in the matter, since he has not given any reply to the show cause notice. On the above premises, the disciplinary authority has passed the impugned order, which was also confirmed by the first and second appellate authority.

3. The learned counsel for the petitioner submitted that even though the petitioner gave a reply on 28-04-1997, the disciplinary authority has wrongly recorded that no reply was given by the petitioner and therefore, it was presumed by the disciplinary authority that the petitioner has nothing to say in the matter. It is contended by the learned counsel for the petitioner that on 28-04-1997, the reply was given by the petitioner and it was even received by the respondents on that very day. The reply given by the petitioner is annexed at Exh.M, which is dated 28-04-1997. The said reply bears an endorsement of Mr. P. M. Nadkarni, UDC, of having received the reply of the petitioner. The said reply was given in the office of the concerned department on the last date. In spite of the same, the disciplinary authority has ignored the same and has said that the petitioner has not given any reply to the show cause notice.

4. On the other hand, the learned counsel appearing for the respondents, would contend that the petitioner should not have given reply on the last date. In the affidavit-in-reply, it is averred that a copy of the show cause notice was sent to the petitioner on 24-04-1997 and the same was accepted on the same day by the petitioner, for which he gave an acknowledgment. It is further averred that the petitioner has not submitted any reply to the same and he is trying to take advantage on the ground that the department has received a procedural copy on 28-04-1997. The learned counsel for the respondents further submitted that the petitioner cannot blame respondent No.4 as he has not directly handed over a copy of the reply to the disciplinary authority.

5. We have heard the learned counsel for the petitioner and the learned counsel for the respondents at some length. It is not in dispute that the inquiry officer in its report, found that the charges against the petitioner are not proved. It is true that the disciplinary authority disagreed with the said findings and issued show cause notice to the petitioner, stating that the disciplinary authority is not agreeing with the finding of the inquiry officer. It is also true that the petitioner has received the said show cause notice on 24-04-1997.

6. It is required to be noted that the disciplinary authority was required to wait upto the last date i.e. 28-04-1997 and could have passed the final order subsequent to the said date, as the petitioner was required to give reply upto 28-04-1997. On the 4th day itself on which the petitioner gave reply, the disciplinary authority has passed the impugned order thereby withholding the five increments with cumulative effect. The petitioner had already given reply on 28-04-1997 through proper channel and submitted reply to the concerned Clerk of respondent No.4 on 28-04-1997.

7. The learned counsel for the respondents submitted that the petitioner could have given reply directly to the disciplinary authority and the petitioner could not have submitted reply through the office. In our view, such objection raised by the learned counsel for the respondents is not at all tenable and justifiable as the concerned receiving Clerk, who has received the reply from the petitioner, was duty bound to place it before the concerned authority. In the instant case, even though, the petitioner gave reply to the show cause notice within the stipulated time, the disciplinary authority found that no reply is filed by the petitioner and that is the basis for passing the impugned order of punishment. On a query put by the Court to the learned counsel for the respondents that as to why the impugned order of punishment was passed hurriedly and why only four days time was given to the petitioner to give his reply, the learned counsel for the respondents submitted that since the petitioner was going to retire on 30-04-1997, it was decided by the respondents to expedite the matter and to pass the order i.e. on 28-04-1997. In our view, the principles of natural justice are required to be followed in the real sense and it must not be a matter of just formality. It is surprising to note that as to why the disciplinary authority did not give reasonable time to the petitioner, even though the disciplinary proceedings could have been continued even after the retirement of the petitioner and disciplinary authority could have passed the order after considering the reply of the petitioner and after considering the material on record. By the impugned order, the disciplinary authority withheld five increments with cumulative effect, there was no necessity for the Disciplinary authority to proceed in the manner done as the inquiry could have been continued even after superannuation of the petitioner. The disciplinary authority not only acted in a hasty manner and has passed the impugned order without giving reasonable opportunity to the petitioner by not considering the reply given by the petitioner on record, even though it was submitted within the stipulated period. It is explicitly clear that the disciplinary authority was in hurry to pass the impugned order by the end of the day. In our view, the order of the disciplinary authority is not sustainable, as even though the petitioner has given reply, which was tendered in the office, the disciplinary authority passed the impugned order on the very day by holding that no reply has been tendered by the petitioner. The impugned order passed by the disciplinary authority is therefore, contrary to the principles of natural justice. It is required to be noted that this is a case in which the inquiry officer had exonerated the petitioner from all the charges levelled against him and the disciplinary authority though, within its right, issued show cause notice differing with the inquiry officer report. However, while passing the impugned order, the disciplinary authority was required to follow the principles of natural justice in its proper perspective and in a meaningful manner.

8. At this stage, a reference is required to be made to the ruling of the Apex Court in the case of Punjab National Bank and Ors. Vs. Kunj Behari Misra, (1998)7 SCC 84. In the said case, the Supreme Court found that the disciplinary authority differed from the findings of the inquiry officer, which report was in favour of the charge-sheeted employee. It is found that in such cases, the disciplinary authority is required to give opportunity to the concerned delinquent. The Supreme Court in Para No.18 of its judgment, held as under:

"18. Under Regulation 6, the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impost the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar case."

9. Considering the aforesaid aspect, the impugned orders are not sustainable and are required to be set aside. In the normal circumstances, we would have remanded the matter back to the disciplinary authority for passing fresh orders. However, it is pointed out that the petitioner has already attained the age of superannuation on 30-04-1997 i.e. two days after passing of the impugned order. It would now not be just and proper to remand the matter back to the disciplinary authority, as the petitioner already stands retired since more than 13 years. It is required to be borne in mind that the inquiry was initiated against the petitioner in the year 1989 and it was continued for more than 8 years while the petitioner was in service. In our view, it would not be just and proper to remand the matter back to the disciplinary authority and to start the proceedings from the stage from which it is found to be vitiated. The impugned orders of disciplinary authority as well as subsequent orders passed by the 1st and 2nd appellate authority, are accordingly set aside. Rule is made absolute in the aforesaid terms. Whatever benefits the petitioner is entitled to by virtue of this order, the same may be released to him within a period of twelve weeks from today.

Petition allowed.