Madhya Pradesh High Court
B.S. Jaiswal S/O Shri Badri Prasad ... vs State Of Madhya Pradesh Through ... on 31 October, 2007
Author: Shantanu Kemkar
Bench: Shantanu Kemkar
ORDER Shantanu Kemkar, J.
1. The petitioner had filed O.A. No. 2679/1991 before the M.P. State Administrative Tribunal, Jabalpur (for short 'the Tribunal') challenging the order dated 14.02.1990 (Annexure A-10) passed by the Divisional Forest Officer, Balaghat. On abolition of the Tribunal the said O.A. has been transferred for adjudication to this Court and on its transfer has been renumbered as W.P. No. 7061/2003.
2. Briefly stated, the petitioner was appointed on the post of Forester in the Forest Department of the State of M.P. While he was posted as Range Assistant, Chouria Circle in East Lanji a charge sheet dated 11.8.1989 was issued to him leveling following two charges against him.
(a) While posted at Chouria Circle on 11.03.89 he allowed five persons to carry Bullock Cart wood load by illegally receiving Rs. 50/- for each Bullock Cart.
(b). While he was posted at Chouria Circle on 11.03.89 he allowed three persons to use wrong names for taking out Bullock Cart load of wood by accepting illegally Rs. 50/- per Bullock Cart.
3. Dis-satisfied with the reply of the charge sheet submitted by the petitioner a disciplinary inquiry was conducted against him for the aforesaid charges of misconduct. The Inquiry Officer after conclusion of the inquiry submitted the inquiry report dated 6.12.1989 before the disciplinary authority. In the inquiry the Inquiry Officer did not find the petitioner guilty of both the charges and held that both the charges are not proved. The Disciplinary Authority after going through the inquiry report dated 6.12.1989 submitted by the Inquiry Officer, disagreeing with the findings of the Inquiry Officer on both the charges, recorded the finding of guilt of the petitioner in regard to both the charges and imposed penalty of reduction of pay of the petitioner to the minimum of the pay scale for a period of ten years and further ordered that the petitioner shall not be entitled for any increment during the said period of ten years and the period of suspension for all purposes shall be treated as period of suspension vide its order dated 14.2.1990 (Annexure A/10).
4. Feeling aggrieved by the order of the disciplinary authority, the petitioner filed an appeal before the appellate authority, Conservator of Forests. The appellate authority vide order dated 3.11.1990 (Annexure A/1) reduced the penalty imposed against the petitioner holding it to be excessive and substituted the penalty by ordering that the pay scale of the petitioner be fixed to the minimum of the pay scale for a period of five years and that during this period he shall not be entitled for any increment. Feeling aggrieved, the petitioner filed the O.A. as aforesaid.
5. Heard learned Counsel for the parties and perused the record pertaining to disciplinary inquiry produced by the respondents at the time of hearing
6. The contention of the petitioner is that the Inquiry Officer vide his report dated 6.12.1989 held that both the charges levelled against the petitioner are not proved. In the circumstances, if the disciplinary authority was not in agreement with the findings of the Inquiry Officer he was required to communicate the petitioner the tentative reasons for disagreeing with the findings of the Inquiry Officer and the petitioner was required to be given an opportunity to explain and persuade the disciplinary authority to accept the favourable conclusion of the Inquiry Officer. Having not done so the order of the disciplinary authority is violative of the principles of natural justice. In support of his contention the petitioner placed reliance on the judgment of the Supreme Court in case of Punjab National Bank and Ors. v. Kunj Behari Mishra , Yoginath D. Bagde v. State of Maharashtra and Anr. , State Bank of India and Ors. v. K.P. Narayanan Kutty and a judgment of this Court in case of Ram Prasad Mandal v. Regional Manager, Central Bank of India (2006) 3 M.P.H.T. 93.
7. The respondents placing reliance on Rule 15(2) of M.P. Civil Services Classification Control and Appeal Rules 1966 (for short MPCCA, Rules, 1966') contended that the disciplinary authority if disagrees with the findings of the inquiring authority on any article of charge is required to record its reasons for such disagreement and record its own finding on such charge if the evidence on record is sufficient for the purpose. In the circumstances it is contended that having regard to the rule position there is no infirmity in the decision of the disciplinary authority and it was not obligatory on the part of disciplinary authority to have given opportunity to the petitioner to submit representation before disagreeing with those findings of the Inquiry Officer.
8. On going through the inquiry report dated 6.12.1989 submitted by the Inquiry Officer before the disciplinary authority, I find that the Inquiry Officer in its aforesaid report reached to the conclusion that both the charges levelled against the petitioner are not proved. The disciplinary authority after going through the aforesaid inquiry report recorded his disagreement with the findings of the Inquiry Officer and on appreciation of evidence, recorded in the inquiry, held the petitioner guilty of both the charges and imposed the penalty as aforesaid.
9. Rule 15(2) of the MPCCA, Rules 1966 on which the respondents have placed reliance reads as under:
15(2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose.
This Rule 15(2) is identical to Regulation 7(2) of the Punjab National Bank Officer Employees (Discipline and Appeal) Regulation, 1977 (for short 'Regulation of 1977'). While dealing with the aforesaid Regulation of 1977 the Supreme Court in case of Punjab National Bank and Ors. v. Kunj Behari Mishra has held that when the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. Principles of natural justice will have therefore to be read into Regulation 7(2). Whenever the disciplinary authority disagrees with the inquiring authority on any article of charge then before it records its 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 Inquiry 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 Inquiry Officer. The principles of natural justice 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.
10. In case of Yoginath D. Bagde v. State of Maharashtra and Anr. it has been held as under:
Where the Rules in regard to giving opportunity to officer are silent and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent officer and records findings, different from those of the Inquiring Authority that the charges against the officer were established, "an opportunity of hearing" may have to be read into the Rule by which the procedure for dealing with the Inquiring Authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be `not guilty' by the Inquiring Authority, is found `guilty' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded. In such a case, the Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" on consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.
11. In case of State Bank of India and Ors. v. K.P. Narayankutty the Supreme Court reiterated its view taken in case of Kunj Bihari Mishra (supra), the Supreme Court having noted that Rule 50(3)(ii) of the State Bank of India (Supervising Staff) Service Rules being identical to Regulation 7(2) of the Regulation of 1977 held that is not necessary for the petitioner to show that some prejudice was caused to him and held that it is the duty of the punishing authority to afford the delinquent employee an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the Inquiry Officer.
12. In view of the aforesaid legal position, even though Rule 15(2) of MPCCA Rules, 1966 is silent about giving of opportunity to the delinquent employee but in case the Inquiry Officer held the employee not guilt of any or all the charges and the disciplinary authority is disagreeing with the findings of Inquiry Officer, it is the requirement of the principles of natural justice for the disciplinary authority to communicate the delinquent employee the tentative reason for disagreeing with the findings of Inquiry Officer. The principles of natural justice will have to be read into Rule 15(2) of MPCCA Rules, 1966. In the present case the disciplinary authority having not communicated to the petitioner the tentative reasons for disagreeing with the findings of the Inquiry Officer, the impugned order of the disciplinary authority being in violation of principles of natural justice is liable to be quashed and consequently the order of the appellate authority is also liable to be quashed.
13. The judgment of the Supreme Court in the case of the High Court of Judicature at Bombay v. Shashikant S. Patil and Anr. relied by the respondents is of no help to the respondents. On the other hand in the said case also the disciplinary committee of the High Court on their disagreement to the inquiry report proposed to proceed into the matter after issuing the respondent a show cause notice calling upon him as to why the findings of the Inquiry Officer on the crucial points be not repudiated.
14. In view of the aforesaid, the petition deserves to be and is hereby allowed in part. The impugned order dated 14.2.1990 (Annexure A/10) and 3.11.1990 (Annexure A1) are quashed. The matter is remitted to the disciplinary authority to communicate to the petitioner the tentative reasons for disagreeing with the findings of Inquiry Officer enabling the petitioner to indicate that the finding recorded by the Inquiry Officer do not suffer from any error and that there is no occasion to take a different view. Thereafter, the disciplinary authority shall proceed with the matter in accordance with law. No orders as to costs.