HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 14546/2008 Date of Decision: February 23, 2011 Krishan Chand ……. Petitioner Versus State of H.P. & Ors. ….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? No For the petitioner : Mr. Ranjan Sharma, Advocate. For the respondents: Mr. R. M. Bisht, Dy. A.G. with Mr. Vinod Thakur, Dy.. A.G. Sanjay Karol, J. (Oral) It is not in dispute that disciplinary proceedings were initiated against the petitioner. It is also not in dispute that before the Inquiry Officer petitioner was afforded adequate opportunity of hearing/ representation to present his case. It is also not in dispute that Inquiry Officer submitted his report whereby petitioner was held guilty of having misconducted himself of the charged offence. It is also not in dispute that Disciplinary Authority, before supplying inquiry report to the delinquent official, had come to the conclusion of the nature of the penalty which was proposed to be imposed upon him. This is evident from notice dated 12.1.2004 (Annexure A-5). It is also not in dispute that petitioner filed a detailed response to the same. However, disciplinary authority without considering the contentions raised by the petitioner passed the order of penalty on 7.4.2006 (Annexure A-8). Petitioner’s appeal was also summarily rejected in terms of order dated 10.8.2006 (Annexure A-10). 2 2. The Apex Court in Managing Director, ECIL, Hyderabad & Ors. vs. B. Karunakar & Ors. (1993) 4 SCC 727 has held as under:- “25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report. the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment. 26. The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the 3 evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.” 3. From the order dated 12.1.2004, it is quite evident that the procedure adopted by the Disciplinary Authority is contrary to the settled position of law. It is also not in consonance with the provisions of 15(1), 15(2) & 15(2)(a) of the CCS (CCA) Rules, 1965. Before supplying the inquiry report, the authority could not have, in a preconceived notion arrived at the conclusion with regard to the nature of the penalty which it had proposed to impose. In any event contentions raised by the petitioner have not been adverted to or considered while passing the order imposing penalty or dismissing the appeal. Consequently the impugned orders dated 12.1.2004 (Annexure A-5)., 7.4.2006 (Annexure A-8) & 10.8.2006 (Annexure A-10) are quashed. 4. During the pendency of the present petition, petitioner has retired. It is open for the respondents to continue with the inquiry from the stage of submission of the report by the Inquiry Officer, if so desired. In the event of the respondents deciding to continue with the proceedings, it is directed that an endeavour shall be made to complete the same expeditiously and 4 not later than six months from the date of receipt of the certified copy of this order. All consequences shall follow. 5. With the aforesaid observations, present petition stands disposed off. ( Sanjay Karol ), Judge. February 23, 2011 (rana)