Hon'ble Mahendra Dayal,J.
Heard Sri P.K. Khare, learned counsel for the petitioner, and Sri Krishna Chandra for the respondents.
These two petitions arise out of an order of dismissal passed by the respondent-authority removing the petitioner from service. Writ Petition No.3748 of 1992 was filed questioning the correctness of the dismissal order dated 9.6.1992 whereby referring to a charge sheet dated 12.1.1987 the petitioner came to be dismissed from service. The said writ petition was drafted and presented on the ground that so far as the charge sheet dated 12.1.1987 was concerned, the same had already concluded with a censure warning to the petitioner and secondly the impugned dismissal order was hit by double jeopardy. The other ground taken was with regard to the procedure of the inquiry and the third and ultimate ground that was taken in paragraph 10 of the writ petition was with regard to the procedural flaw in proceeding to award the punishment without putting the petitioner to show cause and giving him an opportunity to file a response to the same along with a copy of the inquiry report.
The writ petition was entertained and an interim order was passed on 29.6.1992 staying the operation of the said dismissal order.
It appears that the respondents on having discovered this incorrect of the charge sheet mentioned in the dismissal order, issued a corrigendum on 27.6.1992. This corrigendum indicates that the date of the charge sheet has been wrongly mentioned and that the order of dismissal has proceeded on the basis of the charge sheet dated 17/31.5.1987. It was accordingly corrected and the case of the respondent is that this charge sheet was entirely different from that of 12.1.1987.
A counter affidavit has been filed in the first writ petition and in reply it has been stated that there was no fault in the procedure of inquiry and the petitioner had participated in the same whereafter one of the charges, namely, charge no.1 in relation to the preparation of the list of contractors, the petitioner was found to be negligent and guilty. The other charges relating to alleged financial irregularities were not found to be proved. Secondly the stand taken by the respondent in the counter affidavit was that no prejudice was caused to the petitioner and that the order of dismissal was fully justified. It is further stated in the counter affidavit that the claim of the petitioner about double jeopardy is absolutely unfounded inasmuch as there is neither any fact borne out to that effect nor any prejudice has been caused to the petitioner as alleged. The entire writ petition having been drafted on the strength of the issue of double jeopardy, therefore, cannot succeed.
So far as the issue of non-supply of inquiry report and putting the petitioner to show cause notice is concerned, Sri Krishna Chandra submits that under the rules it is not obligatory and can be supplied on the request of the delinquent employee. He secondly contends that even if it is assumed that the inquiry report was not brought to the notice of the petitioner he has not been prejudiced. No prejudice has been demonstrated even before this Court so as to warrant interference with the order of dismissal and he has relied on three judgments of the Apex Court to support his submissions, namely, Debotosh Pal Chaudhary Vs. Punjab National Bank and others, 2002 (8) SCC Page 68, U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another, 2005 (8) SCC Page 264 and Sarva Uttar Pradesh Gramin Bank Vs. Manoj Kumar Sinha, 2010 (3) SCC Page 556. All the three decisions have followed the ratio of the Constitution Bench in the case of ECIL, Hyderabad Vs. B. Karunakaran.
We have considered the submissions raised at the bar and we find that so far as the charges are concerned, particularly, the charge no.1 on which the petitioner was found to be guilty is not identical to the charges mentioned in the charge sheet dated 12.1.1987. It is a different charge sheet and the error of the date of the charge has been subsequently corrected by way of a corrigendum to that effect. Therefore, we are not in agreement with the submission raised by the learned counsel for the petitioner that the proceedings are hit by the principle of double jeopardy.
So far as the proceedings of inquiry are concerned, we find from the inquiry report that the petitioner had been given full opportunity to participate during the inquiry proceedings and he had examined his witnesses and had cross examined the witnesses produced by the respondent-department. The inquiry report exhaustively deals with all the documents and the report of the inquiry officer. In such circumstances, there is no fault so far as the proceedings of inquiry are concerned.
It appears that the petitioner was continuing on the basis of an interim order that was also passed in the second writ petition on 30.7.1992. However, from the record, it is clear to us that the petitioner was not given any show cause notice along with the copy of the inquiry report before proceeding to award the punishment of dismissal. It is on this ground that the learned counsel for the respondents insists that no prejudice having been demonstrated or caused, there is no occasion to interfere once it is found that the inquiry proceedings have been fair.
We are unable to agree with this submission after having perused all the judgments inasmuch as the petitioner was facing inquiry in respect of several charges including financial irregularities. The graver charge relating to financial irregularity was not found to be proved. There was only charge no.1 that was held to have been proved relating to having not correctly verified the list of contractors that was prepared by one of the subordinate officials. The charge therefore which was found to be proved was only to the extent of negligence in verifying the list prepared by a subordinate official.
Sri Krishna Chandra insists that this charge is also serious inasmuch as it has resulted in inviting a contractor for award of a contract who had not been earlier listed and was rather blacklisted.
From the charge, we find that this issue as against the other charges was not grave enough and, therefore, the doctrine of proportionality comes to the aid of the petitioner for the purpose of awarding punishment in respect of such a charge. We, therefore, find that having not followed this procedure, prejudice has been caused to the petitioner on the facts of the present case. The petitioner on being put to show cause could have raised submissions on the ground of proportionality.
Consequently, the judgments relied upon by the learned counsel for the respondents does not in any way take away the right of the petitioner on the facts as indicated hereinabove to be put to show cause notice before awarding punishment. Consequently, we hold that this procedure having not been followed, the order of dismissal dated 9.6.1992 cannot be sustained.
However, we uphold the proceedings of inquiry and we direct the respondents to put the petitioner to show cause and then after receiving his explanation proceed to pass an appropriate order in accordance with law.
The writ petition is allowed. The order dated 9.6.1992 is quashed subject to the aforesaid directions.
Order Date :- 24.7.2014 Lalit Shukla