IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.20414 of 2008 Date of decision : 05.04.2011 Tej Kaur … Petitioner Versus State of Punjab and others …Respondents CORAM : HON’BLE MR.JUSTICE PERMOD KOHLI Present: Mr.G.S.Bal, Advocate, for the petitioner. Mr.B.S.Chahal, DAG, Punjab. Permod Kohli, J. Petitioner was serving as a lecturer in English in the College Cadre through Punjab Public Service Commission. It appears that the petitioner remained absent for some time. A memorandum of charge was served to her on 29.8.2000. Petitioner submitted her reply to the charge- sheet. The disciplinary authority having not been satisfied with the reply submitted by the petitioner, initiated disciplinary proceedings and an Inquiry officer was appointed. The Inquiry officer held the enquiry and vide his report dated 17.6.2002 (Annexure P-15) exonerated the petitioner of the charges leveled against her. It is relevant to note that the petitioner was absent from duty from 1994 onwards and was permitted to join only on 15.6.2002. The disciplinary authority on consideration of the inquiry report and after consultation with the Punjab Public Service Commission, passed the impugned order dated 4.8.2008 and imposed the major penalty of reduction of 05 stages below the last pay drawn. In the meantime, the petitioner retired on attaining the age of superannuation on 30.4.2007. The order of imposition of penalty is subject matter of challenge in the present writ petition. Though the petitioner has raised various contentions to challenge the order of imposition of penalty, however, the main contention urged at the time of arguments is that the disciplinary authority has passed the impugned order in gross violation of the principles of natural justice CWP No.20414 of 2008 without communicating the reason for disagreement with the inquiry report wherein the petitioner was exonerated. From the perusal of the impugned order itself, it appears that the inquiry officer exonerated the petitioner. There is nothing in the impugned order to even suggest any reason for disagreement with the inquiry report. However, in para 2 of the preliminary objections of the written statement, it is stated that the reasons for disagreement were not conveyed to the petitioner. However, the same are on record of file No.5/26/98-2Ed-I/35825 dated Chandigarh 28.11.2006 Learned State counsel submits that since reasons were duly recorded, the contention of the petitioner is not sustainable. Even though such plea has been raised in the written statement, reasons stated to be recorded by the disciplinary authority have not been placed on record. Assuming that reasons were recorded by the disciplinary authority before passing the impugned order, still the impugned order would be violative of principle of natural justice. Admittedly, the disciplinary authority is governed by Punishment and Appeal Rules. Rule 9 deal with action on the inquiring report and reads as under:- “Rule 9. Action on the inquiring report (1) The punishing authority, if it is not itself the inquiring authority may, for reasons, to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 8 as far as may be. (2) The punishing authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for each disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) If the punishing authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Rule 5 should be imposed on the Government employee, it shall, notwithstanding anything contained in Rule 10, make an order imposing such penalty: Provided that in every case where it is necessary to consult the commission, the record of the inquiry shall be forwarded by the punishing authority to the commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government employee. 2 CWP No.20414 of 2008 (4) If the punishing authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of opinion that any of the penalties specified in clauses (v) to (ix) of Rule 5, should be imposed on the Government employee, it shall make an order imposing such penalty and it shall not be necessary to give the Government employee any opportunity of making representation on the penalty proposed to be imposed.” Punishment and Appeal Rules impose an obligation upon the disciplinary authority to record the reasons for disagreement and its own findings on each Article of charge where the disciplinary authority disagrees with the enquiring authority. Though rules do not provide for communication of reasons to the DO, however, it is the requirement of Principles of natural Justice that reasons for such disagreement be communicated to the DO to enable him to tender his explanation and communicate the same to the petitioner seeking explanation of the delinquent official in respect to the disagreement recorded by the disciplinary authority. In the present case, even if reasons have been recorded, the same has not been communicated as per admission made in the reply. Thus, the petitioner has been deprived of an opportunity of responding to the disciplinary authority disagreeing with the inquiry report. Though the personal hearing was afforded to the petitioner but in absence of communication of reasons for disagreement, such opportunity is meaningless. The impugned order is thus, liable to be set aside for non- compliance of the mandatory provisions of rules as also gross violation of principles of natural justice. Hon’ble Supreme Court in case 1969 SLR, 657 has dealt with this question and made following observations:- “The District Court also held that when the service of the respondent was terminated and officers junior to him were retained in service, the respondent was denied equal opportunity to hold public service under Art.16 of the Constitution. But there is noting in Art.16 of the Constitution which supports the view expressed by the learned District Judge. By Art. 16 all citizen are entitled to equality of opportunity in matters relating to employment or appointment of the respondent, the respondent was not denied of equal opportunity to hold public service. Under Article 16 of the Constitution, it is not one of the fundamental rights that a person who is an employee of the State shall be entitled to continue in service and that his 3 CWP No.20414 of 2008 employment shall not be terminated so long as persons junior to him remain in service.” In view of the legal position, this petition is allowed and the impugned order dated 4.8.2008 is hereby set aside. Consequently, the petitioner shall be entitled to all retiral/pensionary benefits. ( Permod Kohli ) Judge 05.04.2011 sd 4