Allahabad High Court
Ram Ratan Yadav vs State Of U.P.And Others on 27 February, 2020
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 81 Case :- WRIT - A No. - 38999 of 2012 Petitioner :- Ram Ratan Yadav Respondent :- State Of U.P.And Others Counsel for Petitioner :- Nisheeth Yadav Counsel for Respondent :- C.S.C.,Nripendra Mishra Hon'ble Yashwant Varma,J.
Heard Sri Nisheeth Yadav, learned counsel for the petitioner and Sri Nripendra Mishra, learned counsel appearing for respondent Nos. 2 and 4.
The petitioner challenges the validity of the orders dated 1 October 2010 and 13 April 2012. By the first order, the petitioner has been inflicted the punishment of stoppage of five increments permanently together with the recordal of an adverse entry.
Disciplinary proceedings were initiated against the petitioner and a charge-sheet filed levelling as many as five charges against him. The Enquiry Officer thereafter proceeded to submit a report on 14 May 2010 holding that none of the five charges stood proved. Upon submission of that enquiry report before the Disciplinary Authority, a show cause notice dated 26 August 2010 came to be issued by the Disciplinary Authority calling upon the petitioner to show cause why the punishment as ultimately recorded in the impugned order should not be inflicted upon him. That show cause notice does not record any reasons in support of the Disciplinary Authority disagreeing with the opinion formed by the Enquiry Officer.
It is in the aforesaid backdrop that Sri Yadav firstly contends that the Disciplinary Authority has clearly erred since and in case he was disagreeing with the opinion as expressed by the Enquiry Officer, it was incumbent upon him to permit the petitioner to show cause why the final conclusions recorded by him should be upheld. Sri Yadav further contends that it was also incumbent upon the Disciplinary Authority to set forth the reasons on account of which he chose to disagree with the conclusions that were recorded by the Enquiry Officer. The submission aforesaid principally rests on the principles as enunciated by the Supreme Court in Punjab National Bank v. Kunj Behari Misra1 The second argument which was advanced that the Disciplinary Authority has proceeded to impose and inflict two punishments which was impermissible in light of the language employed in Regulation 84 of the U.P. Co-operative Societies Employees Service Regulations 19752 in terms of which upon it being proved that an employee has committed breach of duty or misconduct "...any one of the following penalties" could have been inflicted. According to Sri Yadav, the impugned order evidences the twin punishments of censure and withholding of increments having been imposed thus being in violation of Regulation 84.
Sri Mishra, learned counsel appearing for the respondent Nos. 2 and 4 submitted that the Disciplinary Authority was well within his rights to proceed to impose the punishments in question since a reading of the enquiry report clearly indicates that no reasons in support of the ultimate conclusions were recorded or spelt out. He however, fairly concedes that prior to the issuance of the show cause notice dated 26 August 2010, the Disciplinary Authority did not put the petitioner to notice of his intent to disagree with the report as submitted by the Enquiry Officer. It is these rival submissions that fall for consideration.
Dealing with the second submission advanced by Sri Yadav, the Court notes that the Disciplinary Authority by his order of 1 October 2010 has imposed upon the petitioner the punishment of withholding of five increments. The second part of the order which is described by Sri Yadav to be a second punishment is clearly not a censure entry but the recordal of an adverse remark in his character roll. In that sense, it is evident that it is not the imposition of two penalties and consequently the submission that Regulation 84 was violated would not merit acceptance.
Still then the Court has to consider the principal submission of Sri Yadav that the Disciplinary Authority was obliged to follow the procedure as enunciated by the Supreme Court in Punjab National Bank v. Kunj Behari Misra. Dealing with a situation where the Disciplinary Authority chooses to disagree with the findings recorded by the Enquiry Officer, the said judgment held thus:-
"18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry 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 impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry 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 enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry 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 enquiry as explained in Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] .
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."
The procedure so evolved and enunciated was clearly not followed. In fact the show cause notice dated 26 August 2010 does not even record disagreement with the conclusions that were recorded by the Enquiry Officer. In any case, it is admitted before this Court that apart from this show cause notice of 26 August 2010 no other notice embodying the intent or the decision of the Disciplinary Authority to disagree with the findings of the Enquiry Officer was ever issued. The petitioner in that sense had no occasion to establish before the Disciplinary Authority that the conclusions as recorded in the enquiry report were liable to be accepted and upheld. In fact as this Court reads the show cause notice, the Disciplinary Authority quite apart from having failed to record any reasons for disagreement, had already formed a tentative opinion of the punishment which was liable to be inflicted. The procedure as adopted consequently clearly falls foul of the principles elucidated in Kunj Behari Misra. The impugned orders consequently deserve to be quashed and set aside on this ground alone.
The writ petition is accordingly allowed. The impugned orders dated 1 October 2010 and 13 April 2012 are hereby quashed. The matter shall in consequence stand remitted to the Disciplinary Authority for drawl of proceedings afresh and from the stage of receipt of the enquiry report. Since the Court is apprised that the petitioner has already attained the age of superannuation in the meanwhile and the authority of the respondents to revive disciplinary proceedings is disputed, the Court only provides that further proceedings shall be available to be taken by the Disciplinary Authority, if otherwise sanctioned in law. The issue of consequential benefits shall be abide by the fresh decision which the Disciplinary Authority shall now take.
Order Date :- 27.2.2020 LA/-