Hon'ble Vedpal,J.
1. Heard Mr. Vishal Singh, learned counsel for the petitioner and learned Standing Counsel.
2. The petitioner, a police Constable, feeling aggrieved with the order of dismissal dated 21.6.1995 and the appellate order dated 29.11.1995, approached the State Public Services Tribunal, Indira Bhawan, Lucknow. The tribunal has dismissed the claim petition, bearing No.293 of 1996. Hence, the petitioner has approached this Court under Art. 226 of the Constitution of India.
3. The petitioner was appointed as Armed Constable in the year 1979 and joined duty on 24.12.1979. On account of satisfactory work and conduct, his services were confirmed. By order dated 5.5.1994, the Superintendent of Police, Muzaffarnagar placed the petitioner under suspension and later on, a charge-sheet dated 5.12.1994 was issued by the Circle Officer, Bodana, Muzaffarnagar. It shall be appropriate to reproduce relevant portion of the charge-sheet dated 5.5.1994 :
"जब आप वर्ष १९९४ में २.५.९४ को परगनाधिकारी कैराना के साथ उनकी सुरक्षा गार्ड डियूटी में थे तो दिनांक २.५.९४ को करीब ८.३० बजे सायं आप परगनाधिकारी कैराना के निवास स्थान से अपने दस्त हो जाने का बहाना बनाकर दवाइ लेने के लिये कस्बा शामली में मय सरकारी रायफल मय कारतूस के अकेले आये जबकि मेडिकल स्टोर परगनाधिकारी कैराना के निवास स्थान के समीप भी बने है । आपके द्वारा देशी शराब ठेका मण्डी से शराब लेकर उसका सेवन किया गया तथा अधिक नशा हो जाने पर आप वही सड.क सटे जामपर ठेके के समीप ही गिर पडे तथा आपकी रायफल मय ५ कारतूस के वही पर पडी थी जिसको शराब ठेकेदार श्री अजीत सिंह द्वारा लाकर थाना शामली पर दिनांक २.५.९४ को बहवाले रपट नं०-.......समय २२.०५ पी०एम० पर उसका दाखिल कराया गया जो रायफल आपके द्वारा दिनांक ५.५.९४ को थाना शामली से बहवाले रपट नं०२४ समय १०.२० ए०एम० पर प्राप्त की गयी ।
इस प्रकार आपके द्वारा डियूटी के समय बावर्दी दुरूस्त मय सशस्त्र के शराब का सेवन किया गया, जिसके लिये आप अपने कर्तव्यपालन का निर्वहन करने में विफल रहने के दोषी है ।"
4. Thus, from the plain reading of the charge-sheet, it appears that the petitioner was merely charged for consumption of liquor during the course of duty. After consuming liquor, he became unconscious and he along with his arm was brought to the police station by the Thekedar of the liquor shop.
5. After receipt of the charge-sheet, the petitioner has submitted his reply. While submitting his reply, the petitioner stated that he fell sick on 2.5.1994 and remained on leave up to 4.5.1994. The enquiry officer submitted a report dated 8.2.1995 holding that the charge with regard to consumption of liquor was not proved against the petitioner and recommended for censure entry along with stoppage of three increments for three years and non-payment of salary for the period during which the petitioner was placed under suspension. The Superintendent of Police did not agree with the recommendation of the enquiry officer and issued a show cause notice dated 13.3.1995 proposing the punishment of dismissal from service. While serving the show cause notice, the Superintendent of Police has enclosed the enquiry report also for service on the petitioner. While serving the show cause notice, the Superintendent of Police took note with regard to the petitioner's previous conduct and being impressed therefrom, the petitioner was held liable for major penalty.
6. In response to the notice, the petitioner submitted his reply and stated that since the charge with regard to consumption of liquor has not been proved, hence the punishment cannot be enhanced on other ground. It was also submitted by the petitioner that the finding recorded by the enquiry officer is arbitrary and beyond the ambit of the charge. However, after receiving reply from the petitioner, the Superintendent of Police dismissed the petitioner from service. Feeling aggrieved, an appeal was preferred before the Deputy Inspector General of Police, Meerut on 25.8.1995. That too was dismissed vide order dated 29.11.1995. Thereafter, the petitioner approached the tribunal and the tribunal dismissed the claim petition. Hence, the present writ petition.
7. Mr. Vishal Singh, learned counsel for the petitioner submitted two fold argument - firstly, while enhancing the punishment, the Superintendent of Police was not justified in taking contrary view against the finding recorded by the enquiry officer with regard to punishment. Second submission of the petitioner's counsel is that the impugned order of punishment has been passed after taking into account the allegation which was not part and parcel of the charge-sheet. The petitioner's counsel has relied upon the cases reported in (2010)2 SCC 169 Kamal Nayan Mishra versus State of Madhya Pradesh and others, [2009(27)LCD 990 Lucknow Kshetriya Gramin Bank and others versus Shri Devendra Kumar Upadhyay, (1998)7 SCC 84 Punjab National Bank and others versus Kunj Behari Misra, (1999)7 SCC 739 Yoginath D. Bagde versus State of Maharashtra and another, (2006)9 SCC 440 Lav Nigam versus Chairman & MD, ITI Limited and another, judgment and order dated 11.8.2010 passed in writ petition No.5632(S/S) of 2010 Rajesh Kumar Tyagi versus State of U.P. And others, [2010(28)LCD 528 Krishna Kishore Srivastava versus State of U.P. And another and [2001(19)LCD 1159] Hulashi Ram Sagar versus State of U.P., Lucknow and others.
8. On the other hand, learned Standing Counsel submits that in the event of difference of opinion with regard to quantum of punishment, it is not necessary to serve a show cause notice or assign reason. The disciplinary authority is required to give reason only when he/she disagrees with the finding recorded by the enquiry officer with regard to charges and not when it concurs with the finding. She further submits that there is no disagreement between the disciplinary authority and the enquiry officer with regard to the finding. She relied upon the cases reported in (2005)7 SCC 597 National Fertilizers Limited and another versus P.K. Khanna, (1998)2 SCC 400 Nagar Palika, Nataur versus U.P. Public Services Tribunal, Lucknow and others, (2007)8 SCC 656 Government of A.P. And others versus Mohd. Taher Ali and (1996)2 SCC 12 Additional District Magistrate(City), Agra versus Prabhakar Chaturvedi and another.
9. The case of Kamal Nayan Mishra(supra) does not seem to be applicable under the facts and circumstances of the present case. In the case of Kamal Nayan Mishra(supra), their Lordships of Hon'ble supreme Court held that the services of a probationer cannot be terminated without giving him an opportunity to show cause against the proposed order of termination.
10. In the present case, a notice was given to the petitioner by the disciplinary authority, in response to which, the petitioner submitted a reply.
11. In the case of Lucknow Kshetriya Gramin Bank and others (supra), a Division Bench of this Court after considering various pronouncements of Hon'ble Supreme Court held that once an order of dismissal is set aside, the government employee has got right to resume duty. It has been further held by the Division Bench of this Court that consideration of irrelevant material by the disciplinary authority shall vitiate the order so passed. It shall be appropriate to reproduce relevant portion from the Lucknow Kshetriya Gramin Bank (supra), to quote:
"17. The disciplinary authority before issuing show cause notice was under legal obligation to satisfy himself, whether the charges stood proved on the basis of material on record and whether there is any procedural defect in holding the Inquiry and after being satisfied on these two counts, the show cause notice could have been issued but that too on the basis of charges on which the Inquiry has been held and after taking into consideration the inquiry report and the material available on record relating to the inquiry, but the disciplinary authority was having no power or authority to introduce any new charge in the show cause notice and require the delinquent to submit his explanation.
18. The introduction of new charge that, too of financial irregularity persuades us to hold that while issuing show cause notice, the disciplinary authority did not apply his own mind and was guided by extraneous consideration.
19. It can not be speculated, that if charge of financial irregularity had not been mentioned in the show cause notice, the disciplinary authority still would have proposed, the major punishment of dismissal from service, as it is not possible to gauge in what manner and to what extent, this charge had influenced the mind of the disciplinary authority."
12. In the case of Kunj Behari Mishra(supra), Hon'ble Supreme Court ruled that where ever there is difference of opinion between the enquiry officer and the disciplinary authority with regard to the charges, it shall be incumbent on the disciplinary authority to serve a notice indicating therein the difference of opinion with regard to the charges.
However, the case of Kunj Behari Misra(supra) does not seem to relate to a situation where there is difference of opinion with regard to quantum of punishment. Hence, present controversy does not seem to be covered by the judgment of Kunj Behari Mishra(supra).
13.In the case of Yoginath D. Bagde(supra), Hon'ble Supreme Court held that the disciplinary authority before forming his final opinion, has to convey to charged employee his tentative reasons for disagreeing with the findings of the enquiry officer. Issuance of notice with regard to proposed punishment shall not meet the requirement of the law because final decision to disagree with the enquiry officer may not have been taken before issuing the show cause notice. From a perusal of this judgment also, it appears that only in the event of disagreement with regard to the charges or finding recorded by the enquiry officer, it shall be obligatory on the part of the disciplinary authority to issue a show cause notice giving therein the grounds on which the disciplinary authority is in disagreement with the enquiry officer.
14. In the case of Lav Nigam(supra), their Lordships of Hon'ble Supreme Court held that in the event of difference of opinion, it shall be obligatory on the part of the disciplinary authority to give a notice setting out his tentative conclusions to the charged employee with opportunity of hearing. It is only after hearing the employee the disciplinary authority can arrive at a final finding of guilt. Thereafter the employee would again have to be served with a notice relating to the punishment proposed. It shall be appropriate to reproduce relevant portion from the judgment of Lav Nigam(supra) which is as under :
"10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in caase the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed."
Their Lordships Hon'ble Supreme Court have relied upon its earlier judgment in the case of Yoginath D. Bagde(supra) while holding that after communicating the difference of opinion and providing personal hearing, another show cause notice should have been served upon the delinquent employee with regard to the proposed punishment.
15. The aforesaid proposition of law has been followed by an Hon'ble Single Judge of this Court in the case of Rajesh Kumar Tyagi(supra).
16.In the case of Krishna Kishore Srivastava (supra), decided by a Division Bench of this Court, of which one of us(Hon'ble Devi Prasad Singh, J) was a member, it has been held that the order of removal from service passed without holding oral enquiry and without proving the charges shall be violative of principle of natural justice.
17.In view of above, it appears to be settled proposition of law that in the event of difference of opinion, it shall be necessary for the disciplinary authority to serve a notice specifying therein the points of disagreement with the enquiry officer and thereafter opportunity of hearing should also be provided. Thereafter, again fresh show cause notice should be issued explaining therein the reasons for disagreement with the enquiry officer after considering the reply submitted by the delinquent employee. Denial of these procedural formalities shall amount to denial of reasonable opportunity to defend the cause, hence violative of Article 14 of the Constitution of India.
18.So far as the quantum of punishment is concerned, learned Standing Counsel has rightly relied upon the judgment of P.K. Khanna(supra) where Hon'ble Supreme Court held that in the event of difference of opinion with regard to quantum of punishment, it shall not be necessary to issue show cause notice. The enquiry officer is supposed to submit a report with regard to the charges contained in the charge-sheet and unless provided by rules or regulations, recommendation given by the enquiry officer with regard to punishment seems to be an act of exceeding of jurisdiction. In case the statutory rule provides that the enquiry officer shall also make his or her recommendation with regard to proposed punishment, then in the event of difference of opinion, it shall be obligatory on the part of the disciplinary authority to send a show cause notice even with regard to the punishment proposed explaining the reason of difference of opinion with the enquiry officer for the proposed punishment.
19. In the case of Nagar Palika(supra) also, the aforesaid proposition of law has been reiterated. Same has been reiterated by the Hon'ble Supreme Court in the case of Mohd. Taher Ali(supra). Their Lordships of Hon'ble Supreme Court held that there cannot be any hard and fast rule that merely because earlier mis-conduct was not mentioned in the charge-sheet, it cannot be taken into consideration by the punishing authority.
20.So far as the present case is concerned, the argument advanced by the petitioner's counsel is entirely different one. As we have observed above, the charge-sheet contains charges with regard to consumption of liquor by the petitioner. The enquiry officer recorded a finding that there is no evidence which may prove that the petitioner was guilty for consumption of liquor; rather a finding has been recorded by the enquiry officer that the petitioner has taken some intoxicating drug and he was absent from duty without sanctioned leave from 2.5.2004 to 4.5.2004. A perusal of the charge-sheet shows that no charge was framed against the petitioner with regard to absence from duty without sanctioned leave from 2.5.2004 to 4.5.2004, i.e. for three days. Thus, it appears that the enquiry officer as well as the disciplinary authority have travelled beyond the allegations contained in the charge-sheet. In case the respondents were of the view that the petitioner was absent from duty for three days without sanctioned leave and in addition to liquor, he had also consumed intoxicating drugs, then that should have been part and parcel of the charge-sheet. Since the charges were not framed with regard to consumption of intoxicating drugs and absence from duty without sanctioned leave, it appears that the disciplinary authority as well as the enquiry officer have travelled beyond the charges contained in the charge-sheet.
21. We may take note of the fact that since the charges with regard to consumption of liquor was not proved and the enquiry officer observed that the petitioner may have taken some intoxicating drugs, he recommended for a lenient view awarding minor punishment. There is no evidence on record which may prove that the petitioner had taken intoxicating drugs also. A presumption has been raised by the enquiry officer that the petitioner may have taken intoxicating drugs that too without framing of charges. In absence of specific charge with regard to consumption of intoxicating drug and the petitioner's absence of duty without sanctioned leave for three days, the respondents seem to have travelled beyond the allegations levelled in the charge-sheet. In view of above, we are of the opinion that the petitioner has been punished on the charge which was not a part of the charge-sheet. Hence, the decision taken by the respondents while awarding the impugned punishment seems to be vitiated and not sustainable under law. Accordingly, the U.P. Public Service Tribunal seems to have failed to exercise jurisdiction vested in it.
22. The writ petition deserves to be and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 1.10.2002, passed by the State Public Services Tribunal, Lucknow. The order of dismissal dated 21.6.1995, passed by the disciplinary authority is also set aside with all consequential benefits. However, though the petitioner shall be entitled for continuity of service but he shall not be entitled for payment of back wages keeping in view the fact that he has not discharged duty. However, he shall be restored in service forthwith with all service benefits available under the rules.
23. The writ petition is allowed accordingly. No order as to costs.
Order Date :- 8.9.2010 kkb/