IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:7932/2008 Reserved on:27.5.2009 Decided on:19.6.2009 J.K. Sharma. …Petitioner. Versus State of Himachal Pradesh. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondent : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General and Mr. Vikas Rathore, Dy. Advocate General. Rajiv Sharma, J. The disciplinary proceedings were initiated against the petitioner vide memorandum dated 28.12.1996. He filed reply to the same. He was served with a memorandum dated 8.1.2001 along with copy of the inquiry report. He was called upon to make representation against the proposed punishment of permanently withholding of 50% pension and permanently withholding of gratuity to the extent of Rs. 1,00,000/-. He filed detailed representation to the memorandum dated 8.1.2001 on 13.3.2001. However, vide order dated 10.7.2001, the disciplinary authority imposed 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 punishment of permanently withholding of 50% pension and permanently withholding of gratuity to the extent of Rs. 1,00,000/-. Mr. Dilip Sharma, Advocate has strenuously argued that the inquiry officer has exonerated/absolved the petitioner. He then contended that the disciplinary authority had disagreed from the views of the Inquiry Officer without recording separate reasons and conveying the same to the petitioner. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the impugned order dated 10.7.2001 passed by the inquiry officer and the disciplinary authority. I have heard the learned counsel for the parties and perused the record carefully. The disciplinary proceedings were instituted against the petitioner on 28.12.1996. The petitioner has superannuated on 31.12.1996. The inquiry officer had framed five issues. He has not held the petitioner guilty of any misconduct on all the five issues. The inquiry officer has submitted the report to the disciplinary authority. The disciplinary authority had issued the memorandum dated 8.1.2001 to the petitioner. He had provisionally come to a conclusion that the gravity of the article of charges proved against the petitioner warranted punishment. It was necessary, rather, incumbent upon the disciplinary authority to record separate tentative reasons before disagreeing from the views of the Inquiry Officer. Thereafter the petitioner was required to be supplied the reasons by the disciplinary authority to enable him to make representation against the same. This mandatory procedure has not been followed by the disciplinary authority. Their Lordships of the Hon’ble Supreme Court in Punjab National Bank and others versus Kunj Behari Misra, (1998) 7 SCC 84 have held 3 that it will be most unfair and iniquitous that where the charged officer succeed before the enquiry officer, he is deprived of representing to the disciplinary authority before that authority differs with the enquiry officer’s report and, while recording a finding of guilt, imposes punishment on the officer. Their Lordships have held as under: “18. Under Regulation 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not to be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case (1994 AIR SCW 1050) (supra). 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof whenever the disciplinary authority disagrees with the inquiry 4 authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer.” These principles were reiterated by their Lordships of the Hon’ble Supreme Court in Yoginath D. Bagde versus State of Maharashtra and another, AIR 1999 SC 3734. Their Lordships have held as under: “54. In the instant case, we have scrutinized the reasons of the Disciplinary Committee and have found that it had taken its final decision without giving an opportunity of hearing to the appellant at the stage at which it proposed to differ with the findings of the Enquiry Officer. We have also found that the complainant's story with regard to the place at which the demand was allegedly made by the appellant was inconsistent. We have also noticed that the trap laid by the A. C. B., Nagpur against the appellant had failed and was held by the Enquiry Officer to be a farce and not having been laid with the permission of the Chief Justice. We have also noticed that there was absolute non-consideration of the statements of defence witnesses, namely, Dr. Naranje and Mr. Bapat, advocate, by the Disciplinary Committee. This factor in itself was sufficient to vitiate the findings recorded by that Committee contrary to the findings of the Enquiry Officer.” 5 Mr. R.K. Sharma, learned Senior Additional Advocate General has argued that it was necessary for the petitioner to establish the prejudice in case he was not heard by the disciplinary authority while disagreeing with the views of the Inquiry Officer. This question is also no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in State Bank of India and others versus K.P. Narayanan Kutty, (2003) 2 SCC 449. Their Lordships have held that opportunity should be afforded to the delinquent employee irrespective of whether or not some prejudice is shown to have been caused by denial of such opportunity. Their Lordships have held as under: “6. It was also contended on behalf of the appellants that the High Court committed an error in setting aside the order of dismissal when it was not shown that any prejudice was caused to the respondent by not giving an opportunity to him by the disciplinary authority. In this regard the learned counsel cited a decision of this Court in Union Bank of India v. Vishwa Mohan ((1998) 4 SCC 310). As already noticed above, before the High Court both the parties concentrated only on one point, namely, the effect of not providing an opportunity by the disciplinary authority when the disciplinary authority disagreed with some findings of the Enquiry Officer. It was also not shown by the appellants before the High Court that no prejudice was caused to the respondent in the absence of providing any opportunity by the disciplinary authority. The aforementioned case of Vishwa Mohan is of no help to the appellants. The learned counsel invited our attention to para 9 of the said judgment. As is evident from the said paragraph this Court having regard to the facts of that case, taking note of the various acts of serious misconduct, found that no prejudice was caused to the delinquent officer. In para 19 of the judgment in Punjab National Bank case, extracted above, when it is clearly stated that the 6 principles of natural justice have to be read into Regulation 7(2) (Rule 50(3)(ii) of State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case) and the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the Enquiry Officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court. AIR 1998 SC 2311 : (1998 AIR SCW 2216 : 1998 Lab IC 2514 : 1996 All LJ 1599 7. Therefore, we are in respectful agreement with the decision of this Court in Punjab National Bank's case, being directly on the point. Moreover, in this case the High Court has given liberty to the appellants to proceed the case in accordance with law. Under these circumstances and in view of liberty given, as stated above, we do not find any good reason to upset the impugned order. Consequently, the same is affirmed and the appeal is dismissed with no order as to costs.” In the present case the petitioner has not been supplied with the copy of the inquiry report. The copy of the inquiry report for the first time was supplied to the petitioner with the memorandum dated 8.1.2001. The disciplinary authority has used the expression “provisionally came to a conclusion” while proposing the penalty as per the reply filed to the petition because the penalty could be imposed on the petitioner after obtaining the approval of the Himachal Pradesh Public Service Commission. A bare perusal of memorandum issued to the petitioner i.e. Annexure A-2 dated 8.1.2001 discloses non-recording of reasons by the disciplinary authority. He had to adopt the procedure, as discussed hereinabove, while disagreeing with the views of the Inquiry Officer. The 7 procedure adopted by the disciplinary authority is not warranted under the law. There is violation of the principles of natural justice while issuing the memorandum dated 8.1.2001 and order dated 10.7.2001. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexures A-4 dated 10.7.2001 is quashed and set aside. The petitioner has retired on 31.12.1996. More than 13 years have elapsed after the issuance of memorandum dated 28.12.1996 to the petitioner. In view of the peculiar facts and circumstances of the case and since the petitioner has retired, the proceedings shall stand closed. There shall, however, be no order as to costs. 19.6. 2009 (Rajiv Sharma ), J. *awasthi*