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Bans Narain Rai v. U.P.State Electricity Board & Others - WRIT - A No. 7592 of 1994  RD-AH 10115 (25 May 2007)
Court No. 10
Reserved on 24.4.2007
Delivered on 25.5.2007
Civil Misc. Writ Petition No. 7592 of 1994
Bans Narain Rai
U.P. State Electricity Board through its
Chairman & others
Hon'ble Anjani Kumar, J.
Hon'ble Sudhir Agarwal, J.
Aggrieved by the punishment order dated 20.9.1989, Annexure-2 to the writ petition, passed by the Chairman, U.P. State Electricity Board, imposing punishment of reduction of pay to lower stage in the time scale for one year and the order dated 4.6.1992, Annexure-8, whereby rejection of his appeal has been communicated, the petitioner has preferred this writ petition under Article 226 of the Constitution of India. He has further sought a writ of mandamus commanding the respondents to grant him due promotion with all consequential benefits.
At the outset, learned counsel for the petitioner has stated that he is not pressing relief no. 4, since the same has already been granted and to that extent, the writ petition, therefore, stand dismissed as infructuous.
The facts in brief, as stated in the writ petition, are that the petitioner was appointed as Assistant Engineer in U.P. State Electricity Board (hereinafter referred to as ''UPSEB') in the year 1971 and in the seniority list of Assistant Engineers, he was at Sl. No. 54. A charge sheet was issued on 19.9.1985 containing four charges regarding flouting of Board's order, dereliction of duty in exercising proper supervisory duty causing loss to UPSEB, by not tallying NP of cash-book. A departmental inquiry was conducted by the inquiry committee which submitted its report holding charges no. 1, 2, 3 fully proved and charge no. 4 partly proved, i.e. Items no. 4,5,6,7 and 10 of charge no.4 proved. It also recommended punishment of withholding of increment without cumulative effect. The disciplinary authority, i.e., Chairman UPSEB, however, imposed punishment of reduction of pay scale in the time scale by one year vide order dated 20.9.1989, whereagainst he preferred an appeal, which has been rejected by the appellate authority.
Learned counsel for the petitioner contended that the punishing authority disagreed with the recommendations of the inquiry committee in certain aspects but neither any reason was recorded nor after disagreement, the petitioner was given any opportunity of show cause and, therefore, the order of punishment is vitiated in law.
On the contrary, Sri A.K. Mehrotra, learned counsel appearing on behalf of the respondents contended that after 42nd amendment of the Constitution in 1976, the requirement of second show cause notice was already dispensed with and the law that before passing punishment order, inquiry report must be communicated to the delinquent employee has been held prospective. A Constitution Bench of the Apex Court in Managing Director ECIL & others Vs. B. Karunakar & others, 1993 (4) SCC 727 has held that the order passed without communicating copy of the inquiry report to the delinquent employee prior to 20.11.1990 will not be vitiated only on the ground that the inquiry report was not supplied to the delinquent employee. He, therefore, submitted that the disciplinary authority was right in passing order of punishment without giving any further opportunity to the petitioner.
We have hared learned counsels for the parties and perused the record.
It is not disputed that the procedure of disciplinary inquiry of the officers of UPSEB at the relevant time was governed by UPSEB (Officers & Servants) (Conditions of Service) Regulations, 1975 (hereinafter referred to as 1975 ''Rules'). Rule 3(1) of 1975 Rules provides as under :
"3. (1) No such person as aforesaid shall be dismissed, removed or reduced in rank except after inquiry in which he has been informed of the charges against him and given a reasonable opportunity of hearing being heard in respect of those charges :
Provided that where it is proposed after such inquiry to impose upon him any such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty imposed."
Rule 6(3) provides procedure for inquiry to be followed by the inquiry committee and Rule 6(4) provides procedure of passing final order by the disciplinary authority. It would be appropriate to reproduce Rule 6(3), (4), (5) and (5-A) of 1975 Rules as under :
"6 (3) The Chairman of Secretary, U.P. State Electricity Board may refer an inquiry against an officer or servant or against a group of officers or servants of the Board to the inquiry Committee constituted under Sub-regulation (1) and it shall be lawful for the Inquiry Committee of the hold an conduct the inquiry and take such action, including framing of chargesheet, as may be necessary under the rules or orders referred to in Regulation 2, and forward its report together with recommendations, if any, regarding action to be taken against the person or persons proceeded against, to the Chairman or Secretary of the Board, as the case may be :
Provided that where at the time of commencement of this regulation any disciplinary proceedings against Board Officers or servants covered by sub-regulation (1) are hereby pending under Regulation 2 and 3, the Chairman or, in the case of servants and officers not below the rank of Superintending Engineer, the Secretary, U.P. State Electricity Board, may, in his discretion, in the interest of just and expeditions disposal of the case transfer such proceedings to the Inquiry Committee constituted under sub-regulation (1). On such transfer, it shall be open to the Inquiry Committee to proceed with the inquiry from the stage at which it was at the time of such transfer :
Provided further that no inquiry or proceedings shall be referred or transferred as the case may be, under this sub-regulation unless at least on of the officers involved in such inquiry or proceedings is of the rank of Assistant Engineer or above.
(4) The Chairman shall in relation to officers and servants upto the rank of Superintending Engineer deal with the report and recommendations of the Inquiry Committee in accordance with the relevant regulations and pass final orders. In the case of officers above the rank of Superintending Engineer, the Chairman shall place the report of the Inquiry Committee alongwith it recommendations, if any, before the Board, who shall pass final orders.
(5) An appeal or representation, as the case may be, from the orders of the Chairman passed under sub-regulation (4) shall lie to the Board
(5-A) A copy of the report of the authority which conducted the departmental inquiry, including the records of oral evidences, if any, may be supplied to the charged Board's servants on payment by him in cash of charges at the rage of Rs. 5/- (Rupees Five) for every 1500 words or part thereof.
A perusal of the aforesaid provisions makes it clear that the inquiry committee while submitting its report is entitled to submit recommendation regarding action to be taken against the delinquent employee considering its findings on the nature of charges. The disciplinary authority has to pass final order after considering the report and recommendations of the inquiry committee as provided under Rule 6(4) of 1975 Rules. The report and recommendation thus, both constitute integral part of inquiry report, if the inquiry committee has submitted both. The issue raised by the petitioner is not that before passing order of punishment, he was not issued a second show cause notice against the penalty proposed. On the contrary, learned counsel for the petitioner contended that on disagreeing with a part of the report of the inquiry committee, which contains its recommendation also, it was incumbent upon the disciplinary authority to record its reasons for such disagreement and, thereafter communicate the same to the petitioner giving him an opportunity to submit his representation since the recommendation and disagreement both constitute material on the basis whereof the disciplinary authority has to take its decision. In our view the contention is well founded and deserves to sustain. The Apex Court in Punjab National Bank & others Vs. Kunj Behari Misra, AIR 1998 SC 2713 held as under :
"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 finding 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's case (supra)."
The aforesaid law has been reiterated and followed in Yoginath D. Bagde Vs. State of Maharashtra & another, AIR 1999 SC 3734, wherein the Apex Court held has under :
"37. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to findings on the two charges framed against him, the principles of natural justice, as laid down by a Three-Judge Bench of this Court in Punjab National Bank Vs.Kunj Behari Mishra (1998) 7 SCC 84 : AIR 1998 SC 2713 : (1998 AIR SCW 2762 : 1998 Lab IC 3012 : 1998 All LJ 2009), referred to above, were violated."
Again, in SBI & others Vs. Arvind K. Shukla, JT 2001 (4) SC 415, the Apex Court reiterated and followed Kunj Behari Misra (supra).
In State Bank of India & others Vs. K.P. Narayanan Kutty, 2003 (2) SCC 449, the Apex Court held as under :
"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 Regulations 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 presuade the disciplinary authority to accept the favourable conclusion of the inquiry 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."
In the case in hand, it is admitted that the inquiry committee as provided under the Regulations, submitted its recommendation for punishment of withholding of one increment without cumulative effect since in its view, the charges found proved were technical in nature and were not serious. The disciplinary authority, however, disagreed with the said recommendation of the inquiry committee as is evident from the following part of the punishment order passed by the Chairman :
"..................but do not agree with recommendation of the Committee in regard to the punishment of withholding of one increment without cumulative effect as charges proved against him are quite grave. Keeping in view the seriousness of the charge No. 1, 2, 3 and parts of charge No. 4 established against him, I am of definite opinion that Dr. Rai. A.E. deserves punishment of reduction to a lower stage in the time scale for one year."
The disciplinary authority, therefore, while disagreeing with the inquiry committee not only is required to record reasons for such disagreement, but also to communicate the same to the employee concerned, giving him opportunity to submit representation against such disagreement. Only thereafter, the final order ought to have been passed by the disciplinary authority. Since, the aforesaid procedure has not been followed by the disciplinary authority, in our view, the order of punishment cannot sustain. The appellate authority has also passed a wholly non speaking order and it is difficult for the Court to ascertain as to what aspect has been considered by the appellate authority and whether this aspect has been considered or not, but since it has rejected the appeal of the petitioner, we presume that the appellate authority has failed to consider this aspect and, therefore,has erred in law.
In the result, the writ petition partly succeeds and is allowed. The order of punishment dated 20.9.1989 and the appellate order dated 4.6.1992 are hereby quashed. However, the respondent shall be at liberty to pass a fresh order after giving due opportunity to the petitioner against disagreement, if any, of the disciplinary authority and in accordance with law. The entitlement of the petitioner for consequential benefits would be subject to final order, if any, passed afresh after giving opportunity to the petitioner as directed above.
However, it is made clear that since the matter is already almost one and half decade old, the respondents are directed to take fresh decision in case they decide to proceed further in the matter in accordance with the law and observations made in this judgment within four months from the date of production of a certified copy of this order.
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