JUDGMENT Bharati Sapru, J.
1. Heard learned Counsel for the petitioner Sri Manish Kumar Nigam and the learned standing counsel for the respondents No. 1 and 2.
2. The petitioner has filed present writ petition seeking a writ of certiorari quashing the order dated 24.5.2002, which is the appellate order by which the petitioner has been removed from service and the order dated 22.9.2001 passed by the respondent No. 2 which is the order passed by the disciplinary authority terminating the services of the petitioner.
3. The facts of the case are that the petitioner was working in the Department of Sericulture as a Demonstrator. The petitioner was posted at Kanpur Nagar and he was transferred to Bahraich on 22.1.1999.
4. Since the petitioner did not comply with the order of transfer, he was served with the order of suspension on 22.3.2000. The petitioner submitted a reply against the order of suspension and prayed for recalling of the same on 25.3.2000.
5. The order of suspension was not recalled and the chargesheet was issued to the petitioner on 18.8.2000 in which he was charged with being guilty of indiscipline for not complying with the transfer order. The petitioner replied to the chargesheet on 29.9.2000 in which the petitioner adopted a stand that the order of transfer was never given to the petitioner. He also raised a plea that his wife was suffering from serious illness and he also offered that at the time of enquiry, the petitioner would produce all relevant evidence in support of his plea.
6. The petitioner has averred in para 9 of the writ petition that after the petitioner submitted his reply on 29.9.2000, he received no further communication. According to the petitioner, he was not given any notice to participate in any enquiry, which was set up against him and also was not given any list of witnesses or the documents, which was to be used against him.
7. On the other hand, the petitioner states that suddenly the petitioner was served with a show cause notice on 4.4.2001 stating why the order of suspension should not be confirmed against the petitioner. The petitioner states that a show cause notice dated 4.4.2001 was not accompanied by an enquiry report. However having received the show cause notice dated 4.4.2001, the petitioner submitted his reply on 2.5.2001 and asked for a copy of the enquiry report. The enquiry report was sent to the petitioner along with a letter dated 27.6.2001. An order was passed against the petitioner on 22.9,2001. Against that order, the petitioner filed an appeal to the department concerned. The appeal has also been decided against the petitioner by the impugned order dated 24.5.2002.
8. Learned Counsel for the petitioner has made threefold submissions. The first submission of the petitioner is that no enquiry was held against him in pursuance of the chargesheet dated 18.8.2000. He has argued that no notice of enquiry was ever given to the petitioner and he never participated in the enquiry. The list of witnesses and list of documents to be used against the petitioner were never supplied to the petitioner. The enquiry report is on record as Annexure 8 to the writ petition.
9. Learned Counsel for the petitioner has argued that from a plain reading of the enquiry report dated 27.6.2001, it is apparent that the petitioner has never actually participated in the enquiry and he has also argued that his contention that list of the witnesses and documents to be used against him were never supplied to him, is also abundantly clear from the enquiry report as the enquiry report does not record any examination or recording of any evidence.
10. Learned Counsel for the petitioner has also drawn an attention of the Court to the fact that so called enquiry report records ultimately that the petitioner was guilty of dereliction of duty of disobeying the transfer order and therefore recommended the punishment that the petitioner should be given an adverse entry in his service record and his wage increase for a period of two years should be stopped.
11. The first argument of the learned Counsel for the petitioner is that enquiry made against the petitioner was no enquiry in the eyes of law, as the petitioner was not given an opportunity of hearing in said enquiry.
12. The second argument of the argument of the learned Counsel for the petitioner is that under Rule 9(2) of the U.P. Government (Discipline and Appeal) Rules, 1991 which applies to the petitioner lays down that the disciplinary authority shall, if it disagrees with the findings of enquiry officer on any charge, record its own finding thereon for reasons to be recorded. Sub-Rule (4) also enjoins that if the disciplinary authority is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the enquiry report and requires the delinquent to submit a representation. Thereafter under the said Rule, it is also a requirement that the disciplinary authority will record reasons for imposing one or more penalties mentioned in Rule 3 and communicate the same to the charged Government servant. Rules 3 and 9 are quoted hereinbelow-
3. Penalties - The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon the Government servants:
Minor Penalties
(i) Censure;
(ii) Withholding of increments for a specified period;
(iii) Stoppage at an efficiency bar;
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders;
(v) Fine in case of persons holding Group 'D' posts: provided that the amount of such fine shall in no case exceed twenty five per cent of the month's pay in which the fine is imposed.
Major Penalties
(i) Withholding of increments with cumulative effect;
(ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale;
(iii) Removal from the service which does not disqualify from future employment.
(iv) Dismissal from the service which disqualifies from future employment.
Explanation - The following shall not amount to penalty within the meaning of this rule, namely ;-
(i) Withholding of increment of a Government servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service;
(ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar ;
(iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation.
(iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation.
9. Action on Inquiry Report. - (1) The Disciplinary Authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7.
(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Officer or any charge, record its own finding thereon for reasons to be recorded.
(3) In case the charges are not proved, the charged Government servant shall be exonerated the Disciplinary Authority of the charges and informed him accordingly.
(4) If the Disciplinary Authority, having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under Sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing on or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government servant.
13. The third argument of the learned Counsel for the petitioner is that the impugned order dated 22.9.2001 is also bad as the petitioner was removed from service, which is an extreme punishment to the delinquent for charges that were not so serious and for which he had a proper explanation.
14. Learned Counsel for the petitioner has also argued that if the disciplinary authority was disagreeing with the punishment recommended by the enquiry officer, then while differing with the punishment recommended to be imposed the disciplinary authority should have recorded clear reasons for disagreeing with the punishment so recommended.
15. Learned Counsel for the petitioner has argued that even otherwise punishment imposed by the disciplinary authority is very harsh and disproportionate to the alleged misconduct of unauthorized absence without leave.
16. Learned Counsel for the petitioner in support of this argument has relied on two decisions of the Hon'ble Supreme Court. The first decision is in the case of Punjab National Bank and Ors. v. Kunj Behari Misra wherein the Hon'ble Court held that if the disciplinary authority differs with the punishment recommended by the enquiry officer and seeks to impose another punishment, then the requirement of rule of natural justice is that the person concerned such as the delinquent employee must be given an opportunity of hearing.
17. In another decision as relied by the learned Counsel for the petitioner Hon'ble Supreme Court in the case of State Bank of India v. K.P. Narayanan Kutty , has reiterated the rule of natural justice to the delinquent employee where the disciplinary authority differs with the punishment proposed by the enquiry officer.
18. Learned Counsel for the petitioner has next relied on an unreported judgment of this Court in the case of Zakir Hussain v. The Commandant, 66th Battalion, Central Reserve Police Force (Special Appeal No. 870 of 2005) wherein the Division Bench of this Court has held that it would be wholly iniquitous for the disciplinary authority to reverse the favourable finding behind the back of the person who is to suffer final and heavy civil consequences such as termination.
19. In reply to the contentions as made by the learned Counsel for the petitioner, the learned standing counsel has argued that one fact is irresistible that the petitioner remained unauthorized leave for a period of more than a year. This fact has not been denied by the petitioner except that he has given explanation and has shown circumstances under which he was not on duty for more than one year.
20. Having heard learned Counsel for the petitioner at length and the learned standing counsel and have perused the material evidence on record, it is clear from the reading of the counter affidavit filed by the State as well as enquiry report which is on record of the case that in fact an enquiry was held against the petitioner ex parte. Even the counter affidavit filed by the State does not spell out reason why the enquiry was held ex parte against the petitioner except for saying in para 11, 13 and 15 that opportunity was given. The enquiry report itself does not record that the petitioner participated in the enquiry.
21. The other thing which is also clear from the record of the case is that disciplinary authority did not record any reason for differing with the punishment proposed by the enquiry officer as it was recommended in the enquiry report that the adverse entry be recorded against the petitioner and also withholding the increments of two years.
22. Learned standing counsel has also brought to the notice of this Court a recent decision of the Hon'ble Supreme Court in the case of Ranjit Singh v. Union of India and Ors. reported in (2006) 2 UPLBEC 1538 wherein also the case of similar nature enquiry officer had arrived at findings which were in favour of the delinquent. The disciplinary authority however had passed an order of punishment differing from the findings arrived at by the enquiry officer but did not record reasons for doing so. In that case, the Apex Court found it appropriate that the matter be remanded to the disciplinary authority giving to the delinquent an opportunity of hearing. I quote para 24 of the reports -
24. We are therefore, of the Opinion that interest of justice will be sub-served if the Disciplinary Authority is directed to consider the matter afresh in the light of the show cause filed by the appellant herein before him. It will be desirable that an opportunity of personal hearing is also given to the appellant herein. We make it clear that although we are setting aside the order of Disciplinary Authority and consequently all other orders, we direct that the appellant shall be deemed to be under suspension till an appropriate order is passed by the Disciplinary Authority. The question of payment of back wages, it is directed, would depend upon the ultimate order that may be passed by the Disciplinary Authority. For the views we have taken, it is not necessary for us to consider the other contentions raised by Mr. Tripathi.
23. In view of the facts and circumstances of the case as stated above, it would be wholly in the interest of justice that the petitioner be granted an opportunity of hearing and be permitted to adduce such evidence or material or document, which may be necessary in order to defend himself. As such the matter is remanded to the disciplinary authority that will grant to the petitioner an enquiry. The matter before the disciplinary authority should be concluded within a period of six months from the date of production of a certified copy of this order. The disciplinary authority will permit the petitioner to participate freely before himself. The petitioner undertakes to co-operate in the enquiry and will not seek unnecessary adjournment.
24. For a period of six months or till the hearing is concluded whichever is earlier, the impugned orders dated 22.9.2001 and 24.5.2002 shall be kept in abeyance. It is made clear that this order is only being passed for the purposes of allowing to the petitioner an opportunity of hearing and will not be treated as an order of reinstatement. In case, after the hearing, the petitioner is exonerated, it will be open to the disciplinary authority to pass appropriate orders in accordance with law and all benefits thereafter shall be released to the petitioner within three months of the passing of such order.
25. The write Petition is disposed of as above.