Heard Sri R.M.Saggi, learned counsel for the petitioner.
List has been revised. None appears for the respondents.
The petitioner in this writ petition is challenging the order dated 10.7.2000 by which he has been dismissed from service and the order dated 12.9.2001 whereby his departmental appeal has also been dismissed.
Briefly stated the undisputed facts of the case are that the petitioner while working on the post of Cane Supervisor in the Rudra Vilas Kisan Sahkari Chini Mill Ltd. Bilaspur, Rampur was placed under suspension on uncertain charges on 23.11.1998. Thereafter an enquiry was ordered against him and the Chief Cane Officer was appointed as the Enquiry Officer. A chargesheet was issued to the petitioner on 9.1.1999 containing six charges. The petitioner submitted his reply to the chargesheet on 10.4.1999 and the Enquiry Officer gave his report on 13.8.1999 exonerating the petitioner of all the charges. The copy of the enquiry report was not supplied to the petitioner and at the same time the Appointing Authority-Managing Director, U.P. Cooperative Sugar Mills Federation, Ltd. Lucknow issued a show cause notice on 4.11.1999 disagreeing with the findings of the Enquiry Officer on all the charges except charge no.4. The petitioner submitted his reply to the show cause notice and after considering the same the Appointing Authority passed the impugned order dated 10.7.2000 dismissing the petitioner from service. Aggrieved the petitioner filed departmental appeal, which too was dismissed by the order dated 12.9.2001. Hence the present writ petition.
Although chargesheet has not been filed with the writ petition but the same has been noted in the dismissal order of Managing Director-Appointing Authority, which are as follows:-
vkjksi la0 1 Jh HkxoUr flag iq= Jh djrkj flag xzke xnk dh ifpZ;kW 'kh/kz idus okyh iztkfr dh lHkh lkrosa i{k esa yxkbZ xbZ gSA vkjksi la0 2 Jh puu flag iq= Jh c/kkok flag xzke eqfg;k [kqnZ dh igys 120 ifpZ;kW yxkbZ xbZ Fkh ftldks ckn esa 57 fd;k x;k ,oa iqu% la'kksf/kr djds 120 fd;k x;k budh 'kh/kz idus okyh tkfr dh ifpZ;kW lkros i{k esa yxkbZ xbZ] tcfd Jh eUthr flag iq= Jh dsoy flag dh NBos i{k esa yxkbZ xbZ gSaA vkjksi la0 3 Jh desZUnz flag iq= Jh c[rkoj flag o Jherh eUthr dkSj iRuh Jh desZUnz flag xzke vEcjiqj dh 'kh/kz idus okyh tkfr dh ifpZ;kW igys NBos i{k esa yxkbZ xbZ Fkh ysfdu ckn esa dkVdj lkros i+{k esa dj nh xbZ] blls d`"kdks ds lkFk leku O;ogkj u dj fu;e fo:) dk;Z fd;k gSA vkjksi la0 4 Jh dsoy flag iq= Jh Bkdqj flag xzke xnk us iSnkoj c<+ksRrjh dk izkFkZuki= fn;k FkkA d`"kd dks iSnkokj i<+ksRrjh ugh nh xbZA 25% dh lkekU; c<+ksRrjh u nsdj vki }kjk d`"kd dks gkfu igqWpkbZ xbZ] tcfd vU; dks mDr esa c<+ksRrjh dk ykHk fn;k x;k gSA vkjksi la0 5 Jh puu flag iq= Jh c/kkok flag xzke eqfg;k [kqnZ dk lV~Vk NBos i{k esa pyk gSa buds ikl vyhZ tkfr ds xUus dh 15 ifpZ;k Fkh tks fu;ekuqlkj NBos i{k esa nh tkuh Fkh ysfdu lkros i{k esa nh xbZA vkjksi la0 6 pkgy dksvkijsfVo lkslk;Vh jruiqjk dk csfld dksVk 80 dqUry gS xUuk {ks=Qy vf/kd gksus ds otg ls fo'kuiqj esa fn[kkdj vf/kd lV~Vk VwukZ dksvkijsfVo lkslk;Vh dk fn[kk;k x;k gS] tcfd VwukZ lkslk;Vh ds ikl xUus dk {ks=Qy cgqr de FkkA The petitioner participated in the enquiry proceedings and thereafter the Enquiry Officer submitted his report on 13.8.1999 exonerating the petitioner of all the charges. Not being satisfied with the enquiry report the Disciplinary Authority respondent no.2 issued a show cause notice to the petitioner on 4.11.1999 to which the petitioner also submitted his reply on 20.1.2000 and thereafter the Disciplinary Authority disagreeing with the finding of the Enquiry Officer on all the charges except charge no.4 proceeded to pass the order dated 10.7.2000 dismissing the petitioner from service. It is admitted by the respondents that the copy of the enquiry report was not supplied to the petitioner and in fact in para-7 of the counter affidavit it is stated that it was not necessary to supply copy of the enquiry report to the petitioner.
The Supreme Court in ECIL vs. B. Karunakar, 1993 (4) SCC 727. Para 31, has held that copy of the Enquiry Report must be supplied to the delinquent employee but if it has not been supplied then the penalty order should not be set aside automatically and the Court will have to consider whether non supply of the enquiry report has caused prejudice to the petitioner.
In the present case what is to be noted is that the petitioner had been exonerated of all the charges by the Enquiry Officer. The charges were of serious nature. The Disciplinary Authority disagreeing with the findings of the Enquiry Officer issued a show cause notice to the petitioner to submit his reply and after considering the reply has proceeded to hold the petitioner guilty of all the charges except charge no.4 and thereafter proceeded to dismiss the petitioner from service . The question is as to whether the petitioner has been given reasonable opportunity to meet the charges and whether he has been afforded reasonable opportunity to lead his defence before the Disciplinary Authority. It is not to be ignored that the petitioner had already gone through one round of proceedings before the Enquiry Officer where evidence had been led by him as well as by the Management and it is only thereafter the Enquiry Officer had exonerated the petitioner of all the charges. If the Disciplinary Authority found it fit not to agree with the findings recorded by the Enquiry Officer, he could hold further enquiry himself after giving an opportunity of hearing to the petitioner but the petitioner was at least entitled to the copy of the enquiry report to prepare his proper defence in order to show that the Enquiry Officer after considering his defence has exonerated him validly and to take benefit of the findings recorded by the Enquiry Officer. The stand of the respondents is that it was not necessary to supply any copy of the enquiry report to the petitioner. In my opinion, such a stand amounts to clear denial of reasonable opportunity to the petitioner to defend himself as he has been denied the benefit of the findings recorded by the Enquiry Officer in his favour and the petitioner would be definitely entitled to the benefit of discussion of facts and merits of the matter as recorded by the Enquiry Officer to set up his defence before the Disciplinary Authority. Therefore, denial of the copy of the enquiry report to the petitioner in order to prepare his defence while contesting the matter again before the Disciplinary Authority, would necessarily result in serious prejudice to the petitioner by non supply of the enquiry report. This is not a case where the petitioner was found guilty of all the charges by the Enquiry Officer, which were accepted by the Disciplinary Authority and therefore, the question would arise that if the enquiry report had not been supplied to the petitioner what prejudice had been caused to him and in terms of the judgment of B. Karunakar (Supra) burden would be upon the petitioner to establish prejudice.
In the present case where the petitioner was exonerated of all the charges by the Enquiry Officer but the copy of the enquiry report was never supplied to him, he did not have the benefit of the same when the enquiry was proceeding after the Disciplinary Authority recorded his disagreement note therefore, it follows that serious prejudice has been caused to the petitioner by non supply of the enquiry report of the Enquiry Officer and that there has been a serious infraction of principles of natural justice in the present case.
The view to which I have arrived is supported from the observations by the Supreme Court made in (1986) 4 SCC 537, Institute of Chartered Accounts of India vs. L.K.Ratna and others.
Para 12 of which reads as follow:-
"Now when it enters upon the task of finding whether the member is guilty of misconduct, the Council considers the report submitted by the Disciplinary Committee. The report constitutes the material to be considered by the Council. The Council will take into regard the allegations against the member, his case in defence, the recorded evidence and the conclusions expressed by the Disciplinary Committee. Although the member has participated in the inquiry, he has had no opportunity to demonstrate the fallibility of the conclusions of the Disciplinary Committee. It is material which falls within the domain of consideration by the Council. It should also be open to the member, we think, to point out to the Council any error in the procedure adopted by the Disciplinary Committee which could have resulted in vitiating the inquiry. S. 21(8) arms the Council with power to record oral and documentary evidence, and it is precisely to take account of that eventuality and to repair the error that this power seems to have been conferred. It cannot, therefore, be denied that even though the member has participated in the inquiry before the Disciplinary Committee, there is a range of consideration by the Council on which he has not been heard. He is clearly entitled to an opportunity of hearing before the Council finds him guilty of misconduct."
Further in (1998) 7 SCC 84, Punjab National Bank and others vs. Kunj Behari Misra in para 19 the Supreme Court has clearly held that whenever the Disciplinary Authority disagrees with the inquiry 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 inquiry 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 favorable conclusion of the inquiry officer.
Para 19 of the judgement reads as follow:-
"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 inquiry 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 inquiry 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 favorable conclusion of the inquiry 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."
Learned counsel for the petitioner has placed reliance upon a judgement of the Supreme Court reported in (2014) 7 SCC 340, Union of India vs. R.P.Singh.
Para-17 of the said judgment reads as follow:-
"17. AFTER so stating, the larger Bench proceeded to state that the court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The courts/tribunals would apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment. It is only if the court/tribunal finds that the furnishing of report could have made a difference to the result in the case then it should set aside the order of punishment. Where after following the said procedure the court/tribunal sets aside the order of punishment, the proper relief that should be granted to direct reinstatement of the employee with liberty to the authority/management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from that stage of furnishing with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of dismissal to the date of reinstatement, if ultimately ordered, should invariably left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome."
In this view of the matter, the impugned orders dated 10.7.2000 and 12.9.2001 are quashed. It will be open for the respondents to proceed afresh against the petitioner without prejudice to any findings recorded by the disciplinary authority after supplying him copy of the enquiry report. Question as to whether the petitioner has to be paid back wages between the period of dismissal and reinstatement would be subject to the result of any fresh enquiry which may be held by the respondent as already held by the Supreme Court in the case of R.P. Singh (supra).
The writ petition is allowed.
Order Date :- 13.10.2014/Asha