IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.2481/2008 Decided on:19.5.2009 Romesh Chand Verma. …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. B.C. Negi, Advocate vice Mr. H.S. Sall, Adv. For the Respondent : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Ramesh Thakur, Asstt. Advocate General. Rajiv Sharma, J. The disciplinary proceedings were initiated against the petitioner vide departmental memorandum dated 3.10.1990. The Inquiry Officer was appointed on 24.6.1991. He submitted his inquiry report to the department on 21.5.1994. The petitioner was called upon to make representation against the inquiry report on 6.6.1994. He submitted his representation against the inquiry report on 3.7.1994. The disciplinary authority imposed the penalty upon the petitioner of reversion from the post of Assistant Engineer (ad hoc) to the lower post of Junior Engineer Class-III in the pay scale of Rs. 1800-3200. Mr. B.C. Negi, Advocate has strenuously argued that the disciplinary authority has not taken into consideration the representation 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 made by his client to the inquiry report on 3.7.1994. He then argued that the order of the disciplinary authority is not a self-contained order. Mr. R.K. Sharma, learned Senior Additional Advocate General has argued that the representation made by the petitioner was taken into consideration by the disciplinary authority and the impugned order is reasoned one. I have heard the learned counsel for the parties and have perused the pleadings of the parties. What emerges from the facts enumerated hereinabove is that the departmental proceedings were initiated against the petitioner. He was permitted to file reply to the inquiry report. He filed the representation to the inquiry report on 3.7.1994. The purpose of permitting the delinquent to file representation against the inquiry report is to enable him to point out shortcomings/deficiencies and violation of the mandatory provisions of law committed during the course of inquiry. Once the petitioner has made representation against the inquiry report, the same was required to be taken into consideration by the disciplinary authority as per the law laid down by their Lordships of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others, (1993) 4 SCC 727. Their Lordships have held as under: “26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry 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 3 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 required that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is 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 enquiry 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 enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the 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 enquiry 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 conclusions. 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 enquiry officer’s findings. 4 The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. 28. The position in law can also be looked at from a slightly different angle. Article 311 (2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him.” The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by over looking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that “where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed”, it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee’s reply to the enquiry officer’s report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of 5 considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer’s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrived at its conclusion with regard to his guilt or innocence of the charges.” The points/grounds raised by the petitioner in his representation to the inquiry report were required to be discussed by the disciplinary authority. The bald assertion that the representation of the petitioner has been considered by the disciplinary authority is not sufficient compliance of the law laid down by their Lordships of the Hon’ble Supreme Court. The very purpose of enabling the employee to file representation against the report would be rendered otiose/nugatory if the points raised in the representation are not discussed, in detail, in the order to be passed by the disciplinary authority. Mr. B.C. Negi, Advocate has strenuously argued that the order passed by the disciplinary authority is not reasoned one. The order dated 1.4.1995 is non-speaking order. Their Lordships of the Hon’ble Supreme Court in Roop Singh Negi versus Punjab National Bank and others (2009) 2 SCC 570 have held that the order of the disciplinary authority must be speaking/self- contained order. In case the order or the disciplinary authority is not a speaking order, it would be difficult to assail the same before the appellate authority. Their Lordships have held as under: 6 “23. Furthermore, the order of disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” Accordingly, in view of the aforesaid reasoning, the petition is allowed. The impugned order Annexure RB dated 1.4.1995 is quashed and set aside. The disciplinary authority is directed to pass fresh orders in view of the observations made hereinabove. However, while passing fresh orders, the disciplinary authority shall take into consideration that the petitioner has retired during the pendency of this petition. No costs. 19.5.2009 (Rajiv Sharma ), J. *awasthi*