Hon'ble S.C. Chaurasia,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel and perused the record.
2. Present writ petition under Article 226 of the Constitution of India has been preferred against the impugned judgment dated 5.7.2000, passed by the State Public Services Tribunal, Indira Bhawan, Lucknow in Claim Petition No.2027 of 1997 Ram Shanker Shukla versus State of U.P. and others.
3. In brief, the petitioner, who was a Tehsildar promoted on the post of Deputy Collector from 12.11.1986, was served with two charge-sheets dated 22.8.1989 and 28.8.1989. After enquiry, the enquiry officer submitted a report exonerating the petitioner with regard to the charges. On the report dated 2.4.1992 being placed before the disciplinary authority, he was not agreed with the finding recorded by the enquiry officer. He served a show cause notice dated 11.2.1994 seeking reply as to why 25% of the pension may not be reduced as a measure of punishment. The petitioner submitted a reply but of no avail and he was punished accordingly. The punishment awarded by the disciplinary authority was subject matter of dispute before the tribunal.
4. The petitioner took two-fold pleas before the tribunal. Firstly, no finding could have been recorded by the disciplinary authority on the judicial order while discharging his obligation to award punishment and secondly, the petitioner took a plea that the impugned order of punishment was passed in violation of principle of natural justice. It was stated by the petitioner before the tribunal that the disciplinary authority has not issued a notice containing point of disagreement with the enquiry officer and straightway a show cause notice was issued referring the difference and intention to award punishment with reduction of 25% of pension. The tribunal recorded a finding that the notice dated 11.2.1994 is a combined notice which also contains the difference expressed by the disciplinary authority as well as the show cause with regard to proposed punishment.
5. While assailing the impugned order, it has been submitted by the petitioner's counsel that firstly, the disciplinary authority should have given finding after seeking reply from the petitioner on the difference of opinion from the enquiry officer and only thereafter, the show cause notice with regard to proposed punishment could have been given. Learned counsel for the petitioner has relied upon the cases reported in (1999)7 SCC 739 Yoginath D. Bagde versus State of Maharashtra and another, (1998)7 SCC 84 Punjab National Bank and others versus Kunj Behari Misra, 2008(4) ALJ 481 O.N. Srivastava versus Punjab National Bank and others and [2011(1)ADJ 762 (DB))] V.K. Pathak versus Food Corporation of India and others.
6. With regard to the second submission that no finding could have been recorded on the judicial order while discharging obligation to award punishment, the petitioner's counsel has relied upon the cases reported in (1993)2 SCC 49 Union of India and another versus R.K. Desai, (1993)2 SCC 55 V.D. Trivedi versus Union of India and (1993)2 SCC 56 Union of India and others versus K.K. Dhawan.
7. Now coming to the first limb of argument, whether a combined notice could have been given by the disciplinary authority with regard to the proposed punishment and also referring the difference of opinion. In the case of Yoginath D. Bagde (supra), their Lordships of Hon'ble Supreme Court observed as under :
"28. In view of the provisions contained in the statutory rule extracted above, it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the Inquiring Authority, it may record its own findings. Where the Inquiring Authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with those findings, there would arise no difficulty. So also, if the Inquiring Authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the Inquiring Authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the Rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the Rules are in this regard silent and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent officer and records findings, different from those of the Inquiring Authority that the charges were established, "an opportunity of hearing" may have to be read into the Rule by which the procedure for dealing with the Inquiring Authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be 'not guilty' by the Inquiring Authority, is found 'guilty' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded.
31.In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges leveled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.
34. Along with the show-cause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show-cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.
35. 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 and Ors. v. Kunj Behari Mishra referred to above, were violated."
8. Thus, from the perusal of the aforesaid judgment of Hon'ble Supreme Court, it is evident that a delinquent employee has got right of hearing not only during enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage when findings were considered by the disciplinary authority and latter, namely the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. Their Lordships further held that the right of hearing to the delinquent employee is a constitutional right and will be available to the delinquent employee up to the final stage. Meaning thereby, in the event of disagreement with the enquiry officer, it shall be incumbent on the disciplinary authority to serve a notice expressing the difference of opinion and after receiving the reply from the delinquent officer, the disciplinary authority may form final opinion after providing opportunity of hearing.
9. In the case of Kunj Behari Misra(supra), their Lordships of Hon'ble Supreme Court observed that whenever the disciplinary authority disagrees with the enquiry authority on any article of charges, then before he records his own finding on such charges, it must record a tentative reason for such disagreement and give the delinquent officer an opportunity to represent before it records its conclusive finding.
10. The other cases relied upon by the petitioner's counsel (supra) reiterate the aforesaid proposition of law with regard to service of notice indicating therein the difference of opinion by the disciplinary authority and only thereafter, a final decision may be taken.
11. In the present case, a perusal of the show cause notice at the face of record shows that the disciplinary authority formed an opinion without serving a prior notice containing the points with regard to difference of opinion with the enquiry officer. Thus, reasonable opportunity was not provided by the disciplinary authority to the petitioner to advance his argument and make representation with regard to tentative difference of opinion formed by the disciplinary authority. The purpose of service of notice containing the difference of opinion as observed by the Hon'ble Supreme Court is to give an opportunity to the delinquent employee to pursue his case before the disciplinary authority with regard to tentative opinion formed by him against the opinion of the enquiry officer. A combined notice with pre-determined mind and with finding of guilt along with show cause notice with regard to proposed punishment does not fulfill the requirement of law as propounded by the Hon'ble Supreme Court. There must be separate notice with regard to tentative opinion formed by the disciplinary authority and for the purpose of punishment with due opportunity of hearing in terms of law settled by Hon'ble Supreme Court. The tribunal has failed to discharge its obligation in accordance with the settled proposition of law.
12. So far as the submission of the petitioner's counsel based on certain judgments claiming protection under the Judicial Protection Act or any other law for the time being in force is concerned, that aspect of the matter shall be looked into by the disciplinary authority since we are of the view that the procedure adopted by the disciplinary authority while submitting the combined notice is not in conformity with the law settled by the Hon'ble Supreme Court (supra).
13. In view of above, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned judgment dated 5.7.2000 passed by the State Public Service Tribunal as well as the impugned order dated 4.10.1995 with regard to punishment awarded for reduction from the petitioner's pension with liberty to the disciplinary authority to pass a fresh order keeping in view the observation made hereinabove. In case a decision is taken to pass fresh order, then the decision be taken expeditiously and preferably within a period of three months from the date of service of a certified copy of the present order.
14. The writ petition is allowed accordingly. No order as to costs.
Order Date :- 11.3.2011 kkb/