The petitioner has filed the writ petition, challenging the order, dated Nil August, 2000 passed by the second respondent, confirming the order of the first respondent, dated 19.4.2000.
2.By the order, dated 19.4.2000, the first respondent held that charges against the petitioner were proved. Therefore, he was removed from service. The charge against the petitioner was that he overstayed from leave and also produced fake documents in support of his illness. As against the order of removal, the petitioner filed a statutory appeal with the second respondent. The second respondent vide his order, dated Nil (August, 2000) confirmed the order of punishment and dismissed his appeal.
3.The petitioner had earlier filed a writ petition being W.P.No.3432 of 2001, challenging the original order of removal. However, the said writ petition was disposed of by an order, dated 22.2.2001, directing the appellate authority to deal with the case.
4.The ground of attack made by the petitioner was that the first respondent being the disciplinary authority, while agreeing with the findings of the enquiry officer, disagreed with the same without providing an opportunity to the petitioner. The following passages found in the removal order reads as follows:
"5.I have carefully gone through the report of enquiry officer and its relevant records and agree with enquiry officer that the article of charge-I stand proved beyond any doubt. However I do not agree with the findings of the EO that the articles of charge-II has not been proved due to the following reasons:
i)Overwriting and cuttings has been done on the dates and name mentioned in the following certificates and cash memos/bills produced by the delinquent after his rejoining from overstayal:-
a)Prescription Slip dated 27.3.99 issued by Dr.N.Rajkumar MD, D.P.M.
b)Medical Certificate dated 28.3.99 issued by Dr.N.Rajkumar M.D., D.P.M.
c)Cash bill No.2600 dated 23.8.99 M/s.Karlin medicals, Chetput, Madras-31.
d)Cash receipt No.81838 dated 23.8.99 of M/s.International Diagnostic Centre, Kilpauk, Madras.
e)Report dated 20.8.99 of M/s.Kilpauk Laboratory Service, Vasu Street, Madras-10.
f)Bio-Chemical report dt.23.4.99 of M/s.International Diagnostic Centre, Kilpauk, Madras-10.
g)Report dtd.17.5.99 of M/s.Kilpauk Laboratory services, Kilpauk, Madras-10.
If it was a genuine mistake, as stated by Dr.N.Rajkumar in his certificate dated 3.2.2000 and produced by the delinquent in his defence, the overwriting and cutting should have been only in one or two certificate bills. Thus the overwriting and cuttings have been done by the delinquent purposely to justify his overstayal from leave and the certificate date 3.2.2000 new issued by Dr.N.Rajkumar and Produced by the delinquent in his defence cannot be accepted as genuine.
ii)The delinquent had submitted a cash bill No.2711 dated 28.5.1999 of M/s.Karlin Medicals, Chetput, Chennai for Rs.28.50 on account of medicine purchased by him. On verification by the EO the above firm vide letter dated 7.2.2000 has confirmed that they had no such serial of bills.
iii)The delinquent was sanctioned 15 days CL w.e.f.27.3.99 and he left from Ashmugam, Anantnag(J&K) by 26.3.99 convey to Jammu. Thus there is no way he can reach Chennai by 28.3.99 after travelling by train from Jammu. Thus the medical certificate now produced by him showing his date of treatment from 28.3.99 instead of 27.3.99 also cannot be relied upon and is fake.
Thus the articles of charge-II framed against the delinquent also stand proved beyond any doubt."
5.Therefore, while the enquiry officer held that the first charge alone was proved and the second charge was not proved, the first respondent held both the charges proved. This point was also referred to in the appellate authority's order in the following lines:
"3.Shri H.B.Gurang, Second Commandant Officer, 85 Battalion conducted the departmental investigation. The investigation officer found the person as accused in First Complaint according to the enclosed documents and witnesses affidavit and declared the accused as non-accused in the Second Complaint and presented the report to the Administrative Officer. The Administrative Officer not accepting the report presented by the investigation officer on Complaint 2, considering him as accused and his continuing in work as not acceptable, through his order No.P8.14/99.85.Sta.2 Dt. 19.4.2000 expelled him from work. Distressed by the above said order No.850829186, previous Ct S.Subramaniam, appealed against the order of Commandant 85 Battalion, to the appeal officer...."
But, he has not given any finding regarding the same.
6.A counter affidavit, dated 12.7.2004 has been filed by the respondents. In paragraph 11(f) of the counter affidavit, it was averred as follows:
"11(F)It was not necessary for the punishing authority to agree with the report of Enquiry officer. The facts reflected in final order D.E. crystal instigate that Enquiry Officer has not diverted their mind minutely towards the documents produced by the delinquent during the course of enquiry. The respondent No.1 differs from the opinion of the E.O. as per statement of witnesses, documents produced by the delinquent and there was no need to afford another opportunity to delinquent to make any representation...."
7.Mr.M.Md. Ibrahim Ali, learned counsel appearing for the petitioner stated that the second respondent did not consider the valid ground raised and hence the appellate authority's order is liable to be set aside.
8.In this context, it is necessary to refer to the judgment of the Supreme Court in Yoginath D.Bagde Vs. State of Maharashtra and another reported in 1999 (7) SCC 739. The following passages found in paragraphs 28, 29 and 31 o the said judgment may be usefully extracted below:
"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 enquiring authority, it may record its own findings. Where the enquiring 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 enquiring 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 enquiring 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 enquiring 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 enquiring authoritys 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 enquiring 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.
29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the disciplinary authority to disagree with the findings of the enquiring authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The rule does not specifically provide that before recording its own findings, the disciplinary authority will give an opportunity of hearing to a delinquent officer. But the requirement of hearing in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the TENTATIVE reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of not guilty already recorded by the enquiring authority was not liable to be interfered with.
.....
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 levelled 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."
9.The said question came to be considered further by the Supreme Court in Lav Nigam Vs. Chairman & MD, ITI Ltd. and another reported in 2006 (9) SCC 440. After referring to Yoginath D.Bagde's case (referred to above) and following the same, set aside the order in that case as can be seen from paragraphs 13 and 14, the Supreme Court observed as follows:
13. We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside.
14. The proceedings may be recommenced from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the appellant indicating his tentative disagreement with the findings of the inquiry officer."
10.In the light of the above, the writ petition will stand allowed. However, there will be no order as to costs. The impugned order passed by the second respondent, dated Nil (August, 2000) stands set aside. The appeal is remitted back to the second respondent for a fresh disposal in accordance with law in the light of the above judgments referred to herein. The second respondent is hereby directed to pass an appropriate order within a period of three months from the date of receipt of copy of this order and communicate the result to the petitioner.
12.11.2009 Index : Yes Internet : Yes vvk To
1.The Commandant, 85 Battalion, Central Reserve Police Force, Boka Jaan (Assam).
2.Deputy Inspector General of Police, Central Reserve Police Force, Allahabad, Uttar Pradesh.
3.Deputy Inspector General of Police, Central Reserve Police Force, Avadi, Chennai-600 035.
4.Director General of Police, Central Reserve Police Force, CGO Complex, Lodhi Road, New Delhi K.CHANDRU, J.
vvk W.P.NO.39246 OF 2003 12.11.2009