Gujarat High Court
Jiteshkumar Vallabhdas Chotai vs Principal District Judge And ... on 23 December, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/13003/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13003 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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JITESHKUMAR VALLABHDAS CHOTAI....Petitioner(s)
Versus
PRINCIPAL DISTRICT JUDGE AND DISCIPLINARY AUTHORITY &
1....Respondent(s)
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Appearance:
MR NIKHIL S KARIEL, ADVOCATE for the Petitioner(s) No. 1
LAW OFFICER BRANCH, ADVOCATE for the Respondent(s) No. 2
MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 23/12/2016
CAV JUDGMENT
The question which arises for consideration is whether the delinquent-employee is entitled to a notice by the disciplinary authority when the Page 1 of 22 HC-NIC Page 1 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT disciplinary authority disagreeing with the exoneration of the delinquent by the inquiry officer, records tentative finding of guiot, or whether the disciplinary authority could straightway proceed by issuing the notice for imposition of penalty.
2. The petitioner has prayed for setting aside of order of penalty dated 28th March, 2005 passed by the disciplinary authority in Departmental Inquiry No.03 of 2001 as well as the appellate order dated 31st March, 2011 passed by the second respondent in Departmental Appeal No.05. It is further prayed to set aside order dated 30th January, 2012 of the second respondent whereby prayer of the petitioner to reopen the departmental appeal was rejected. The petitioner has further prayed to set aside order of suspension dated 29th March, 2001 and pay to him the salary and intervening increments during the suspension period. It is prayed to reduce the penalty of withholding of two increments with cumulative effect, to withholding of one increment without cumulative effect.
2.1 An alternative prayer is made seeking a direction to remand the Departmental Inquiry to the first respondent for disposal thereof in accordance with law from the stage where the inquiry was vitiated.
3. The petitioner had been serving as English Stenographer, Grade II, and thereafter had been serving as Private Secretary (English Stenographer, Grade I) under the District Court, Rajkot. The petitioner faced departmental inquiry. Respondent No.1 Page 2 of 22 HC-NIC Page 2 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT was the Disciplinary Authority whereas respondent No.2 was the Appellate Authority. The charges levelled against the petitioner were related to an incident which, according to the petitioner, took place on 14th August, 2001 when one Mr.Zala, co-employee and the colleague who was working as Gujarati Stenographer, demanded from the petitioner copy of the merit list for the children of the court employees prepared for the purpose of prize distribution programme. The petitioner refused as the same was required to be kept confidential. The incident resulted into heated altercation and also into physical attack on the petitioner by said co-employee The complaint and cross-complaint were filed. The said co-employee as well as the petitioner were subjected to departmental inquiry under Rule 9(2) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971.
3.1 The memorandum of article of charges dated 29th August, 2001 given to the petitioner alleged commission of misconduct of unbecoming of a government servant by acting in quarrelsome way, using indecent language, offensive words and behaviour against the said co-employee and that a criminal case was also registered by the said co-employee against the petitioner. With allegations about such acts of misconduct while on duty, the petitioner was given a show cause notice calling upon him as to any of the charge levelled if proved, should not be considered sufficient for imposing any of the penalties specified in the Gujarat Civil Services (Conduct, Discipline and Appeal) Rules, 1971.
Page 3 of 22HC-NIC Page 3 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT 3.2 The petitioner filed statement of defence on 27th Noevmber, 2001. It appears that the petitioner addressed an application-cum-representation dated 13th March, 2002 to the first respondent-disciplinary authority in which he appears to have raised objection and grievance about appointment of inquiry officer. At the end of the departmental inquiry, the inquiry officer submitted his report dated 26th March, 2004. The charges against the petitioner were found to have not been proved and from all the four charges, the petitioner was exonerated. The inquiry officer recorded his findings, extracting the relevant part, as under.
"25. Looking to the above entire evidence, it clearly appears that it has been established that on the day of the incident, i.e. 14-8-2001, a list with regards to prize distribution amongst the children of Judicial staff members was being persued by Shri Jadeja. It also appears that in fact originally the list was of present complainant Shri Zala. It also appears that Shri Parmar requested to give said list for his perusal, but Shri Chotai took away the list with him and kept it with him. But thereafter, it appears that present incident had taken place.
26. The present inquiry is solely based on complaint dated 18-8-2001 for the incident taken place on 14-8- 2001. The complainant Mr.M.B. Zala as well as present delinquent Shri Chotai both at present under suspension were working as the stenographers in teh court of learned Civil Judge (Sr. Dn.), Rajkot. Mr.Zala has alleged against present incumbent for the offence punishable under Section 504, 506 of I.P.C., but one of the witness Mr. Dilip Parmar has not supported the say of the complainant. Of course, some of the witnesses have tried to support the case of the another stenographer, Mr.Zala, but it shoudl not be forgetten that in a Criminal Case No.6705/2001, the present delinquent is ordered to be acquitted, he is acquitted for the offences for which Mr.Zala has lodged the complaint before police on 18-4-2001.
27. It is further necessary to note here that there is Page 4 of 22 HC-NIC Page 4 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT no nexus between the alleged act committed by the incumbent for hwich Mr.Zala has lodged the complaint before police and the official duty to be discharged by the incumbent. It is further necessary to note here that whatsoever incident has taken place between Mr.Zala and present incumbent, it has been arisen for the reason of snatching away a list of educational programme of teh children of the employees working in courts in Rajkot District and with this list of educational programme, there is no connection of the duties of his both employees. The route cause of the incident or complaint is not any act to be performed by either of the employees. There is no nexus between the cause of action and the duties, service work etc. Of the employees which they were performing at the relevant time of the incident.
28. It is pertinent to note here that in view of certified copy of teh judgment delivered in Criminal Case No.6705 of 2001 in whcih the present incumbent was the accused as well as the true copy of the deposition given by th ewitnesses in teh said case, the present delinquent has been acquitted for the charge leveled. This was main case of initiating inquiry against the dleinquent.
29. It also appears from the evidence on record that now Mr.Zala and present delinquent has settled the matter out of the court and they have compromised for alleged incident taken place on 14-8-2001.
30. The presenting officer has vehemently relied upon the depositio of Mr. Dilip Parmar and has submitted before this court to hold the present delinquent liable for the misconduct committed on his part. But if we go through the dpeosition of Mr.Dilip Parmar on oath before the Criminal Court, he has nothing stated for the offence punishable under Section 324, 504 and 506 of I.P.C. and for the first time in cross-examination, this Mr.Parmar says something against the delinquent in the present inquiry upon which reliance cannot be placed.
31. It is also necessary to note here that the statement of Mr.Parmar has been recorded for the inquiry purpose on 14-8-2001 and on 24-8-2001 and in these both statements, Mr. Parmar has stated nothing against the delinquent for the alleged offence.
32. In view of above said discussion and reasoning, i am ofthe view that even the department has not been able to prove connecting the delinquent with the charge. Therefore, I hold that the charge No. (i) to
(iv) have not been proved by the department against delinquent. I, therefore, answer point No.1 in affirmative and point No.2 and 3 in negative and in my Page 5 of 22 HC-NIC Page 5 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT views, the present delinquent is required to be exonerated from the charges leveled against him.
RAJKOT DATE: 23-6-2004 Sd/-
(H.R. Thakore) Joint District Judge & Inquiry Officer, Rajkot"
3.3 The disciplinary authority-the first respondent herein, upon going through the inquiry report and the material along with the report, concluded that the findings recorded by the inquiry officer were flimsy and not in consonance with the Rules. The disciplinary authority recorded its own reasons for disagreeing with the findings of the inquiry officer which could be noticed as elaborated in paragraph 3 to 13 in his concluding report dated 09th August, 2004.
3.4 In the concluding part of the report of disagreement, the disciplinary authority stated in last two paragraphs thus, "12. For the reasons recorded above, the disciplinary authority, i.e. Undersigned relying upon the above report as well as evidence available in the record and proceedings of inquiry, clearly comes to the conclusion that the delinquent has assaulted and misbehaved with his colleage Mr. Zala during the course of employment which has clear nexus with the duty and which renders him unbecoming of a government servant and his act is clearly illegal and indicative of derelication of the duties on the part of him and consequently therefore, I hold the charges leveled against the delinquent are proved against him and he has become liable for punishment as provided in Gujarat Civil Services (Discipline and Appeal) Rules, 1971.
13. This report shall be communicated to the delinquent. The office is directed to communicate this report to the delinquent along with the notice for the infliction of punishment, why he should not be inflicted with the major punishment as provided under Rule 6 of The Gujarat Civil Services (Discipline and Page 6 of 22 HC-NIC Page 6 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT Appeal) Rules, 1971."
3.5 Thereafter followed on the next day, a notice for infliction of punishment, wherein the disciplinary authority stated as to why the major penalty as provided under Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 should not be imposed.
4. Learned advocate for the petitioner Mr.Nikhil Karreil submitted that disciplinary authority disagreed with the findings of the inquiry officer to hold the petitioner guilty, it was required to proceed afresh in the sense that a notice with intimation of tentative findings of disagreement ought to have been communicated to the petitioner and the petitioner ought to have been asked to submit his explanation. He submitted that this was essential part of natural justice to be followed in the inquiry, in absence of which, the inquiry stood vitiated. Learned advocate pressed into service, in order to support his submission, decision of the Supreme Court in Lav Nigam Vs Chairman and MD, ITI Limited [(2006) 9 SCC 440] in which it was held, submitted learned advocate, that the employee had a right to get a show cause notice and defend at the said stage. He submitted that a specific contention was raised by the petitioner for not giving such opportunity. Another decision of Division Bench of this Court in State of Gujarat Vs Shri G.A. Patel [1994 (2) GLH 194] was relied on. A judgment of this Court in D.K. Dave Vs Secretary, Government of Gujarat being Special Civil Application No.2092 of 2002 decided on 23.02.2016 was also relied Page 7 of 22 HC-NIC Page 7 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT on which was in the context of Rule 10 of the Gujarat Civil Services (Discipline and Appeal) Rules and addressed the similar issue.
4.1 On the other hand, learned advocate Mr.Mehul Shah submitted that natural justice contemplates the basic requirement of giving notice. According to his submission, this requirement was satisfied as the petitioner was given notice of penalty and therefore knew about the disciplinary authority having disagreed. The petitioner, submitted learned advocate, filed reply also. He had an opportunity to defend and put-forth his case at the stage of show cause notice as well as at the stage of second notice. It was submitted that in the totality of circumstances, it amounted to giving adequate opportunity. He submitted that Rule 10(2) contemplated recording of reasons by the disciplinary authority and the disciplinary authority had recorded its reasons of disagreement. He submitted that as the petitioner availed opportunity to reply notice as to proposed penalty, in the said reply he also dealt with the disagreement part as he had knowledge by virtue of notice that the disciplinary authority wanted to differ with the inquiry officer's report. By making such submissions and elaborating them, learned advocate for the respondents wanted to emphasise that taking a total picture, no prejudice could be said to have occurred to the petitioner-delinquent.
5. Sub-rule (2) of Rule 10 of Gujarat Civil Services (Discipline and Appeal) Rules reads as under.
Page 8 of 22HC-NIC Page 8 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT "10. Action on the Inquiry report:
(1) ... ... ...
(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry 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.
(3) ... ... ...
(4) ... ... ..."
5.1 The above Rule contemplates that if the disciplinary authority disagrees with the findings of the inquiry authority on any article of charge, the disciplinary authority would be enjoined to record its reasons for such disagreement and record its own findings on such charge. The aforementioned concluding report by the Disciplinary Authority whereby it disagreed with the findings of the inquiry report, is an exercise under the said Rule. The disciplinary authority recorded its reasons for disagreement, and thereafter proceeded to issue notice to the petitioner-delinquent for the proposed penalty.
5.2 The law on the aspect whether the delinquent is entitled to a notice at the stage when the disciplinary authority considers the report of the inquiry officer and disagrees with it seeking to hold the delinquent guilty of charges, is reiterative in favour of the delinquent. In Punjab National Bank Vs Kunj Behari Mishra [(1998) 7 SCC 84], the question for consideration before the Supreme Court was-"when the inquiry officer during the course of disciplinary proceedings, comes to a conclusion that all or some of Page 9 of 22 HC-NIC Page 9 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT 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". The aforesaid question was considered in the context of Regulation 7(2) of the Punjab National Bank Officers Employees' (Discipline and Appeal) Regulations, which provided that the disciplinary authority shall, if disagrees with the findings of the inquiry authority on any article of charge, record its own findings on such charge, if evidence on record is sufficient for purpose.
5.2.1 Referring to and relying on the decision in Managing Director, ECIL Vs B. Karunakar [(1993) 4 SCC 727] it was observed In paragraph 17 of the decision in Kunj Behari Mishra (supra), "According to the Constitution Bench decision in Karunakar case, a delinquent officer is entitled to represent to the disciplinary authority where the findings in the enquiry report are against him. It will not therefore stand to reason that when the findings are in favour of the delinquent officer but they are proposed to be overturned by the disciplinary authority then no opportunity should be granted. According to Karunakar case, disciplinary enquiry is divided into two stages. The first stage ends when the disciplinary authority arrives at its conclusion on the basis of evidence, enquiry officer's report and the delinquent employee's reply to it. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved then that report has to be given to the delinquent officer Page 10 of 22 HC-NIC Page 10 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry 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. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority." (Para 17) 5.2.2 It was observed further, "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." (Para 18) 5.3 It was held that principles of natural justice was required to be read into Regulation 7(2) and when the disciplinary authority disagrees with the inquiring authority, the delinquent officer must have an opportunity to represent before the disciplinary authority records its findings. In Yoginath B. Bagde Vs State of Maharashtra [(1999) 7 SCC 739] was a case with reference to Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 in which Page 11 of 22 HC-NIC Page 11 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT there was no provision requiring the disciplinary authority to give opportunity of hearing to the delinquent before differing with the inquiry officer. The Apex Court observed to hold, "But the requirement of 'hearing' in consonance with the principles of natural justice even at that stage has to be read into R. 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would given an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring 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 enquiring authority so that the delinquent officer may further indicate that the reason on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with." (Para 12) 5.4 In S.P. Malhotra Vs Punjab National Bank [(2013) 7 SCC 251] the appellant was appointed as Clerk-cum-Cashier in the respondent Bank. It was held that in the event the Disciplinary Authority disagrees with the findings recorded by the inquiry officer, it must record reasons for disagreement and communicate the same to the delinquent. In that case the said court not having been resorted to, punishment of dismissal was set aside. Here also, the Apex Court relied on in ECIL (supra) and other decisions on the point, to record as under.
"The view taken by this court in the aforesaid case has consistently been approved and followed as is evident from the judgments in Yoginath D. Bagde vs. State of Maharashtra & Anr. AIR 1999 SC 3374; State Bank of India & Ors. v/s K.P.Narayanan Kutty, AIR 2003 SC 1100;Page 12 of 22
HC-NIC Page 12 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT J.A. Naiksatam vs. Prothonotary and Senior Master, High Court of Bombay & Ors., AIR 2005 SC 1218; P. D. Agrawal vs. State Bank of India & Ors., AIR 2006 Sc 2064; and Ranjit Singh vs. Union of India & ors. AIR 2006 SC 3685." (Para 9) 5.5 The decision in Lav Nigam (supra), a similar question arose as regards the procedure to be followed by the disagreeing disciplinary authority. It was held that the disciplinary authority is bound to give notice setting out his tentative conclusions to the charged employee, whereafter the petitioner would again have to be served with a notice relating to punishment proposed, in the event the disciplinary authority stands not satisfied after considering the explanation of the delinquent.
5.5.1 It was held, "The conclusion of the High Court was contrary to the consistent view taken by this court that in case the disciplinary authority differs with the view taken by the inquiry ofrficer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed." (Para 10) 5.5.2 It was further stated and it covers the facts of this case to apply squarely, "... It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside." (Para 13) 5.5.3 The Court also showed manner of granting Page 13 of 22 HC-NIC Page 13 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT relief by stating, "The proceedings may be recommenced from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the appellant indicating his tentative disagreement with the findings of the inquiry officer." (Para 14) 5.6 In D.K. Dave (supra), the Court held that requirements of Rule 10(2) of the Discipline and Appeal Rules were not met with as no reasons were recorded and communicated to the delinquent by the disciplinary authority. It was held that due to non- communication of tentative reasons to the petitioner, the petitioner was unable to make a representation addressing the specific reasons. It was held that it could not be said that effective opportunity was availed by the petitioner.
5.7 This principle clearly apply in the present case where the facts are clear that the disciplinary authority failed to supply the reasons to the petitioner for its disagreement and without affording such important opportunity to the petitioner, adverted itself to the question of penalty. A stage was missed which was a necessary juncture for compliance of natural justice on that count.
6. Rule 10(2) of the Rules contemplate giving of reasons in the event the disciplinary authority disagrees with the inquiry report exonerating the delinquent-employee. The requirement of giving reasons would indicate that when certain reasons have weighed with the disciplinary authority, the delinquent must be put to notice of those reasons. Keeping the Page 14 of 22 HC-NIC Page 14 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT delinquent-employee in dark about the reasons of disagreement but communicating to him that the disciplinary authority had proposed to inflict penalty by not accepting the findings of the inquiry report, would undoubtedly amount to denial of reasonable opportunity.
6.1 Unless the delinquent is made aware as to what reasons and which considerations weighed with the disciplinary authority to take a differing view, the delinquent would be deprived of raising his defence in the context of the findings of inquiry report which had exonerated him, in general and would be further denied the opportunity to properly put-forth his case about the proposed penalty in particular. Opportunity to reply to and explain the reasons of disagreement, and an opportunity in respect of proposed penalty constitute two different sets of opportunities and cannot be combined into a one notice. They are the two stages of defence to be made available to the delinquent in law.
6.2 When a disciplinary authority disagrees with the findings in the inquiry report that the charge was not proved, wanting to come to a contrary conclusion for its own reasons, at that stage, the delinquent becomes entitled to a fresh opportunity to show cause in respect of the reasons which the disciplinary authority has been holding for itself to treat the delinquent guilty. A renewed procedure of communicating the tentative reasons of disagreement, consideration of the defence of the petitioner, Page 15 of 22 HC-NIC Page 15 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT weighing and comparing the reasons recorded by the inquiry officer vis-a-vis the petitioner's case as well as the view of the disciplinary authority and thereafter if the disciplinary authority is not satisfied with the explanation of the petitioner, to proceed with a notice with regard to the proposed penalty, becomes imperative so as to meet with the natural justice. It could be said that another and separate stage arrives in the departmental inquiry proceedings when the disciplinary authority differs with the findings of the inquiry officer and the conclusion of exonerating the delinquent. The principles of natural justice therefore assumes significance with an added emphasis to make the opportunity to petitioner to defend his case, reasonable, adequate and effective.
7. It was a preferred contention on behalf of the petitioner that the petitioner had filed his replies and in that he dealt with the content of notice and that when he was aware of disagreement by the Disciplinary Authority and when he had an occasion to reply on all aspects in response to the notice for the penalty, which he did by detailed reply, no prejudice was caused to him and therefore no vitiating factor arose. Kunj Behari Mishra (supra) stated "in that context it was held that the denial of opportunity to hearing was per se violative of the principles of natural justice".
7.1 The ratio of Kunj Behari Mishra (supra) was explained in Canara Bank Vs Shri Debasis Das [AIR Page 16 of 22 HC-NIC Page 16 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT 2003 SC 2041] wherein the Apex Court highlighted and underlined the aforesaid proposition of law. In S.P. Malhotra (supra), the Supreme Court further explained to hold as under.
"In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes the prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL (supra)." (Para 11) 7.2 In Ranjitsinh Vs Union of India [(2006) 4 SCC 153] the disciplinary authority had differed with the finding of the inquiry officer which had exonerated the delinquent from the charges. The disciplinary authority issued notice to show cause within the time stipulated and at the request of the delinquent time was twice extended. However the delinquent sought further extension, in the meantime however the punishment order was already prepared. The delinquent submitted detail reply but without considering the same, the dismissal was ordered on the presumption that non-filing of show cause notice by the delinquent meant his acceptance of the points on the basis whereof the disciplinary authority had disagreed with the findings of the inquiry officer. Such presumption was held to be unjustified and it was held that the disciplinary authority ought to have complied with natural justice by giving opportunity to the delinquent. It was held obligatory on the part of the disciplinary authority to analyse afresh the materials on record.
7.3 Reverting to the facts of the present case, Page 17 of 22 HC-NIC Page 17 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT the Disciplinary Authority clearly recorded that he was not agreeing with the findings of the inquiry officer, and had its own reasons for not agreeing. The disciplinary authority thereafter proceeded immediately to issue notice as to why the major penalty should not be imposed on the petitioner as contemplated under Rule 6 of the Rules. From the facts it could seen that the petitioner had taken a specific contention while replying to the notice on penalty that he did not have the opportunity of meeting with the tentative findings recorded by the disciplinary authority.
7.4 The ratio of decision in Ranjitsinh (supra) indeed underlines and highlights importance and significance in law of affording opportunity to the delinquent in respect of disagreeing finding by the disciplinary authority. In Ranjitsinh (supra) the principle was also stated that in such a case the doctrine of prejudice was not attracted.
7.5 In State Bank of India Vs K.P. Narayan Kutti [(2003) 2 SCC 449], "In para 19 of the judgment in Punjab National Bank case extracted above, when it is clearly stated that the principles of natural justice have to be read into Regulation 7(2) [Rule 50(3)(ii) of the State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case] and the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court." (Para 6) Page 18 of 22 HC-NIC Page 18 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT 7.6 Thus, contention of the learned advocate for the respondent that in overall view no prejudice was caused to the pt and further that in absence of prejudice, the action and decision was not liable to be set aside, could hardly hold good. As held above, in such a case the theory of prejudice cannot have a play for the reason that non-supply of the tentative disagreeing findings itself would amount to deprivation to the delinquent of the important opportunity at a vital juncture, when his exoneration from the charge/s by the inquiring authority is being differed with by the disciplinary authority taking a contrary view.
7.7 Therefore, when the disciplinary authority disagrees with the findings of the inquiry officer which were favourable to the delinquent, but does not give show cause notice while taking a contrary view, that is not to be treated as non-compliance of principles of natural justice simplicitor, but the same is, by its own, constitutes a prejudice. Non- supply of the differing reasons of the disciplinary authority under which the exonerated delinquent is being held to be guilty, tantamounts to occasioning a clear prejudice.
8. In U.P. State Spinning Company Limited Vs R.S. Pande [(2005) 8 SCC 264] is a case helpful for considering the proper relief which could be granted to the employee when such breach of natural justice occurs in course of the inquiry, to vitiate the proceedings. It was held that the proper relief to be Page 19 of 22 HC-NIC Page 19 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT granted is to direct reinstatement to employee with liberty to the employer to proceed with inquiry, by placing the employee under suspension and continuing the inquiry from the stage of breach of natural justice-in the said case, the breach of natural justice was non-supply of inquiry officer's report to the delinquent employee. The Apex Court stated that in such circumstances the employee would not be entitled to back wages and other benefits on the basis of such reinstatement and would have to bide the culmination of the disciplinary proceedings and all further entitlements shall depend on the final outcome of the proceedings.
8.1 In the case on hand, the facts are that the petitioner came to be imposed with penalty of stoppage of two increments with cumulative effect. As it was not a case of dismissal or removal, he continued in service. He was suspended during the disciplinary proceedings, however later his suspension was revoked and was taken back in service. It was stated in course of the hearing that the petitioner has now been even further promoted.
9. Summing up, not giving a show cause notice by Disciplinary Authority when it opted to disagree with the findings of inquiry officer wanting to take a view that the charges against the petitioner were proved, was such kind of breach of natural justice which by itself lead to a prejudice to the pettioner. It was obligatory in law for the disciplinary authority to supply the tentative reasoning of Page 20 of 22 HC-NIC Page 20 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT disagreement asking the petitioner to show cause thereon, thereby, giving a due and reasonable opportunity of defence and purge the prejudice caused to the petitioner. It was only after considering the reply of the petitioner-delinquent that the Disciplinary Authority could have decided in respect of the penalty. Non-issuance of notice by the disciplinary authority in respect of the tentative findings recorded by him against the inquiry report, was vitiative to the inquiry as well as the ultimate penalty imposed on the petitioner, and it is from the said stage that the inquiry stood vitiated.
10. Therefore, the present petition is allowed in part by issuing following order and the directions.
(i) Order dated 28th March, 2005 passed by the first respondent-disciplinary authority in Departmental Inquiry No.03 of 2001 is hereby quashed and set aside. The order dated 31st March, 2011 passed by the second respondent-the appellate authority in Departmental Appeal No.05 as well as order dated 30th January, 2012 passed by the second respondent, are set aside;
(ii) The quashing of the aforesaid orders shall not result into setting aside of the entire Departmental Inquiry No.03 of 2001 held against the petitioner;
(iii) The proceedings of inquiry are held to be vitiated from the stage when the disciplinary authority after recording the findings of disagreement Page 21 of 22 HC-NIC Page 21 of 22 Created On Fri Apr 28 00:47:14 IST 2017 C/SCA/13003/2013 CAV JUDGMENT with the inquiry report on 09th August, 2004, did not issue show cause notice to the petitioner and straightway proceeded with notice to impose penalty.
The inquiry shall stand set aside from the aforesaid stage;
(iv) The respondents are at liberty to proceed with the inquiry against the petitioner from the aforementioned juncture and the stage;
(v) The respondent shall complete the proceedings in accordance with law within a period of four months from the date of receipt of writ of this order.
11. Ther petition stands disposed of as above.
(N.V.ANJARIA, J.) Anup Page 22 of 22 HC-NIC Page 22 of 22 Created On Fri Apr 28 00:47:14 IST 2017