RSA No.4864 of 2001 1 In the High Court of Punjab and Haryana at Chandigarh RSA No.4864 of 2001 Date of decision: March 14, 2011 Puran Singh .....Appellant Versus Punjab State Civil Supplies Corporation Ltd.,Chandigarh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Vivek K.Thakur, Advocate for the appellant. Ms.Deepali Puri, Advocate for the respondent. **** SABINA, J. Plaintiff had filed a suit for declaration to the effect that the orders dated 15.7.1994/28.7.1994 passed by defendant No.2 whereby it was held that the plaintiff shall not be entitled to anything over and above the subsistence allowance which he had already received during the period of his suspension was illegal, null and void. The case of the plaintiff, in brief, was that he was working with the defendants and had been placed under suspension vide order dated 22.7.1988. A charge-sheet was issued to the plaintiff and RSA No.4864 of 2001 2 he was placed under suspension. Plaintiff filed reply to the charge- sheet. The Inquiry Officer, after conducting departmental inquiry, found that the plaintiff was not guilty of the charge levelled against him. Defendant No.2 disagreed with the finding of the Inquiry Officer and without giving any show cause notice to the plaintiff passed the impugned order. Hence, the suit was filed by the plaintiff. Defendants, in their written statement, averred that the plaintiff was working as a Chowkidar with the defendants. In the year 1988, he was put under suspension on account of shortage detected in the stock. A charge-sheet dated 05.9.1988 was served on the plaintiff and he submitted his reply on 1.10.1988. The Inquiry Officer was appointed to go into the allegations levelled against the plaintiff. The Inquiry Officer, however, held that the plaintiff was not guilty of the charge levelled against him. Plaintiff was reinstated during the pendency of the inquiry. The District Manager, Pansar differed with the findings of the Inquiry Officer and after giving detailed reasons ordered that the plaintiff be censured and he shall not be paid anything over and above the subsistence allowance. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiff is entitled to declaration that the order dated 15.7.94/28.7.94 passed by defendant no.2 is illegal, wrong and against the principles of natural justice and further whether the plaintiff is entitled to all the emoluments as claimed by him?OPP 2.Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP RSA No.4864 of 2001 3 3.Whether the plaintiff is estopped by his act and conduct to file the present suit?OPD 4.Whether the suit is bad for non-joinder and misjoinder of necessary parties?OPD 5.Whether the suit is not maintainable?OPD 6.Relief.” The Civil Judge(Junior Division) Jalandhar vide judgment and decree dated 28.10.1998 dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was dismissed by the Additional District Judge, Jalandhar, vide judgment and decree dated 13.8.2001. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that once the Inquiry Officer had exonerated the plaintiff, the Punishing Authority could not pass the impugned order without issuing the show cause notice to the plaintiff and without affording an opportunity of hearing to the plaintiff. In support of his arguments, learned counsel has placed reliance on State Bank of Patiala vs. Ram Gopal Gupta 1997(4)SCT 158 wherein para 10 of the judgment reads as under:- “10.In a nut-shell, it can be said that no material can be relied upon against an employee without giving him an opportunity to controvert it. The reasons which may be recorded by the disciplinary authority for disagreeing with the conclusions recorded by the enquiry officer form a part of the material which has to be taken into consideration. It cannot be used against the employee unless he gets an opportunity to controvert it. The failure of the disciplinary authority to afford such an RSA No.4864 of 2001 4 opportunity to the employee would be violative of the principles of natural justice. The fact that the rule does not specifically provide for the grant of such an opportunity, is of no consequence. It is implicit in the provision that the reasons recorded by the disciplinary authority shall be communicated to the employee.” Learned counsel has further placed reliance on State Bank of india and Others vs. N.P.Narayanan Kutty 2003 AIR (SC) 1100 wherein para 6 of the judgment reads 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(2) SCT 382(SC): (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 out attention to para 9 of the said judgment. As is evident from the said paragraph this Court having regard to the facts of that RSA No.4864 of 2001 5 case, taking note of 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 principles of natural justice have to be read into Regulation 7(2) [Rule 50(30)(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.” Learned counsel has also placed reliance on Punjab National Bank vs. Kunj Behari Misra 1998(3) SCT 833 wherein para 16 of the judgment reads as under:- “16. 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 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 RSA No.4864 of 2001 6 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 a representation before the disciplinary authority records its findings on the charges framed against the officer.” Learned counsel for the respondents,on the the other hand, has submitted that the Punishing Authority had passed the impugned order after giving detailed reasons and, hence, the Courts below had rightly dismissed the suit of the plaintiff. In support of her arguments, she has placed reliance on State of Rajasthan vs. M.C.Saxena 1998(2)SCT 502 wherein it has been held under:- “The grievance of the delinquent government servant is based upon a thorough misconception about the rights of the government servant concerned. It is undisputed that the enquiry officer did not rely upon the FSL report on the ground that the procedures prescribed for taking sample have not been followed and therefore exonerated the delinquent government servant. But the disciplinary authority recorded reasons for disagreeing with the findings of the enquiry officer and held that the charges against the respondent have been established. It is well settled that the disciplinary authority can disagree with the findings arrived at by the enquiry officer and act upon his own conclusion, but the only requirement is that the said disciplinary authority must record reasons for his disagreement with the findings of the enquiry officer. If the disciplinary RSA No.4864 of 2001 7 authority gives reasons for disagreeing with the findings of the enquiry officer then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said findings. In this view of the matter, the disciplinary authority was well within his powers to award punishment on the findings arrived at by him. We do not find any force in the submission of the learned counsel appearing for the delinquent government servant that before the disciplinary authority proceeds to award punishment, the delinquent government servant should have been afforded a further opportunity of hearing. As it appears, the punishment of stopping two increments without cumulative effect is a minor punishment under CCA Rules. Then again the delinquent government servant filed review petition and State Government allowed the review petition and reduced the punishment to stoppage of one increment without cumulative effect. In such circumstances the argument that there as been a gross violation of principle of natural justice is devoid of force. A set of charges having been framed and the delinquent government servant having filed his show cause to the set of charges, the regular enquiry having been held and the enquiry officer having recorded his findings and thereafter the disciplinary authority having disagreed with the findings by recording the reasons therefore and ultimately awarding minor punishment of stoppage of one increment without cumulative effect, there is no procedural irregularity therein nor can it be said that there has been any violation of principle of natural justice. Thus, the RSA No.4864 of 2001 8 punishment imposed upon by the authority has rightly not been interfered with by the High Court.” The substantial question of law that arises in this appeal is whether the plaintiff was entitled to be given an opportunity of hearing before passing of the impugned order as the Inquiry Officer had exonerated him of the charge framed against him. In the present case, the facts are not in dispute. Plaintiff is put under suspension on account of the shortage detected in the stock. The Inquiry Officer exonerated the plaintiff of the charge framed against him. The Punishing Authority, however, disagreed with the inquiry report and passed the impugned order (Exhibit P5) wherein the punishment of censure was imposed on the plaintiff. It was further held that the plaintiff shall not be paid anything over and above the subsistence allowance. Plaintiff was reinstated in service, during the pendency of the departmental proceeding, vide order dated 2.8.1990. The legal position that emerges after going through the judgments relied upon by the learned counsel for the appellant is that in case, the Punishing Authority wants to disagree with the report of the Inquiry Officer and impose some punishment on the delinquent official, then the Punishing Authority must record its reason for such punishment and the delinquent official must be given an opportunity to represent before the Punishing Authority records any finding. The principle of natural justice requires the authority to give an opportunity to the Officer charged of misconduct. This is the view taken by the Bench headed by three Judges of the Apex Court in Punjab National Bank etc. (supra). The said decision was followed by the Apex court in a later decision in State Bank of Patiala and RSA No.4864 of 2001 9 others (supra). In view of the judgments relied upon by the learned counsel for the appellant, the judgment relied upon by the learned counsel for the respondents does not advance the case of the respondents. The substantial question of law stands answered accordingly. Hence, this appeal is allowed. The impugned judgment and decree passed by the Courts below are set aside. Consequently, the suit filed by the plaintiff is decreed. ( Sabina ) Judge March 14,2011 arya