1. The petitioner, a Government Servant, has challenged the order passed by the Disciplinary Authority dated 28.09.1999 by which, he imposed punishment of withholding of one increment without future effect.
2. Petition has arisen in following factual background:
2.1 The petitioner, at the relevant time, was discharging duties as Police Sub-Inspector. He was served with charge-sheet dated 26.05.1998, in which, as many as five different charges were levelled against him.
Principally, all these charges pertained to his alleged negligence and laxity in carrying out investigation in connection with FIR bearing C.R. No. 34 of 1997 registered before Sami Police Station in which offences punishable under Sections 325, 323, 452, 294(B) read with Section 114 of IPC were disclosed.
2.2 The charges were that he had not made any efforts to arrest the accused, that he had not sent the weapons allegedly used in the commission of offence for FSL testing and, that he had not seized the blood stained clothes of the injured witness nor sent them for laboratory testing. In connection with the said investigation, it was further alleged that he had not remained present before the court, though instructed to do so by the Public Prosecutor.
2.3 The petitioner denied the allegations, upon which Inquiry Officer was appointed. He submitted his inquiry report; a copy of which is produced at Annexure-B, in which he held that all, except the charge of not sending the weapons for FSL testing and the clothes of the witnesses not being seized and sent for FSL, were not proved. Even with respect to this charge, which was numbered as charge No. 2 in the charge-sheet, his conclusion was that the weapons did not have any blood stains, and therefore, not sending the same for laboratory testing cannot be held to be a mala fide action on his part.
2.4 A copy of the Inquiry Officer's report was supplied to the petitioner. The Disciplinary Authority issued a detailed notice dated 12.07.1999. In such notice he called upon the petitioner to state why punishment of withholding of one increment should not be imposed. Significantly, in such notice, the Disciplinary Authority gave detailed conclusive reasons why he disagreed with the findings of the Inquiry Officer exonerating the petitioner from various charges contained in the charge- sheet. I say significant because the Disciplinary Authority did not give any opportunity to the petitioner to represent why the Disciplinary Authority should not overrule the findings of the Inquiry Officer. Be that as it may, the petitioner filed a reply to such show-cause notice and opposed the proposal for imposition of penalty.
2.5 The Disciplinary Authority, however, proceeded to impose punishment of withholding of one increment without future effect by his order dated 28.09.1999.
2.6 The petitioner preferred revision petition against such order before the State Government. Such revision petition, however, came to be dismissed by an order dated 24.12.1999. Hence, this petition.
3. Counsel for the petitioner pointed out that by virtue of the punishment order, the petitioner was denied his promotion which had fallen due during the time when the departmental inquiry was pending. He pointed out that apart from the direct effect of such penalty, the suspension period of the petitioner between 30.07.1997 and 24.11.1997 also was not regularized. Counsel submitted that the Disciplinary Authority had not given any opportunity to the petitioner why the Inquiry Officer's findings should not be overruled. Without any notice and supporting tentative reasons for the Disciplinary Authority's opinion that such conclusions should not be accepted, he proceeded to hold against the petitioner that all charges levelled against him were proved. In this respect, the counsel relied upon the decision of Apex Court in case of Punjab National Bank and Ors. Vs. Shanti Prasad Goel reported in AIR 1998 SC 2713.
4. Learned AGP, on the other hand, submitted that after following the procedure, the departmental inquiry was conducted, punishment was imposed bearing in mind all relevant factors, show-cause notice was also issued by the Disciplinary Authority before imposing such penalty.
5. Having thus heard learned counsel for the parties it clearly emerges that the Inquiry Officer, in his report at Annexure-B, exonerated the petitioner of all except one charge. With respect to such charge also he held that there was total lack of mala fide on the part of the petitioner in not sending the weapons for FSL testing. The Disciplinary Authority had full power to disagree with such findings, if from the material on record, he could come to a different conclusion. However, the law required that before doing so, he had to state his tentative reasons and convey the same to the petitioner calling upon him to represent why such findings of the Inquiry Officer be not differed with. Such position emerges from the decision of the Apex Court in case of Punjab National Bank and Ors.
Vs. Shanti Prasad Goel (supra) in which it was held and observed as under:
“18. Under Regulation - 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. 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 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 inquiry as explained in Karunakar's case(supra).
There are catena of decisions of the Supreme Court reiterating such ratio. It is not necessary to refer to all of them in this order.
6. It is clear from the record that the Disciplinary Authority did not follow above procedure in his show-cause notice dated 12.07.1999. He detailed his reasons why he disagreed with the findings of the Inquiry Officer. Such reasons were not tentative. In the concluding portion, he granted opportunity to the petitioner to state why penalty of withholding of one increment be not imposed. He did not permit the petitioner to make a representation regarding the findings of the Inquiry Officer. Thus, the show-cause notice was only with respect to quantum of punishment and not with respect to the question whether the charges should be held to have been proved or not. To my mind, the Disciplinary Authority was not required to hear the petitioner separately on the quantum of punishment. What essential was that the petitioner be given the opportunity to convince the Disciplinary Authority that the Inquiry Officer's conclusion was correct and that his tentative opinion that such conclusion should be overruled was not justified.
7. Under the circumstances, only on this count, the Disciplinary Authority's order dated 28.09.1999 is quashed. Resultantly, the revisional order also does not stand.
8. The proceedings are placed back before the Disciplinary Authority to proceed further in accordance with law from the stage of giving tentative reasons to the petitioner why the findings of the Inquiry Officer to the extent he exonerated the petitioner should not be disagreed with and thereafter, appropriate punishment be not imposed. If the petitioner makes his representation in respect to such a notice it would be open for the Disciplinary Authority to pass such order as may be found necessary in accordance with law.
9. Rule is made absolute to the above extent. No costs.
[AKIL KURESHI, J.]
JYOTI