IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:4541/2008 Decided on:4.6.2009 Jag Mohan Lal. …Petitioner. Versus Himachal Pradesh State Electricity Board. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the petitioner : Mr. Raman Sethi, Advocate. For the Respondent : Ms. Anjula Khajuria, Advocate. Rajiv Sharma, J. The disciplinary proceedings were initiated against the petitioner vide memorandum dated 26.9.1992. The Inquiry Officer was appointed on 9.12.1992. He exonerated the petitioner vide his report dated 15.2.1994. The Disciplinary Authority, however, differed from the views of the Inquiry Officer and held the petitioner guilty of the charges levelled against him. He has found the petitioner negligent in the performance of his duties. He imposed the penalty of recovery of Rs. 26,144/- from the pay of the petitioner @ 1/3rd of his monthly salary and remaining amount from his gratuity in lump sum on 29.4.1994. He was also censured. He preferred an appeal before the appellate authority. The appellate authority rejected the appeal on 17.1.1996. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Mr. Raman Sethi, Advocate has strenuously argued that the imposition of penalty upon the petitioner by the disciplinary authority is in contravention of the principles of natural justice. He has further argued that the Inquiry Authority has exonerated his client. However, the disciplinary authority has not heard the petitioner before differing from the views of the Inquiry Officer. He lastly contended that the appellate order is neither self-contained nor reasoned. Ms. Anjula Khajuria, Advocate has supported the orders passed by the disciplinary authority as well as by the appellate authority. I have heard the learned counsel for the parties and perused the record carefully. The disciplinary proceedings were initiated against the petitioner. The Inquiry Officer has exonerated the petitioner. The disciplinary authority, as noticed above, has differed from the views of the Inquiry Officer. It was incumbent upon the disciplinary authority to record tentative reasons while differing from the views of the Inquiry Officer. Thereafter, the disciplinary authority was required to send its comments to the petitioner to enable him to make the representation against the same. This procedure was mandatory. Their Lordships of the Hon’ble Supreme Court in Punjab National Bank and others versus Kunj Behari Misra, (1998) 7 SCC 84 have held 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 3 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 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 4 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.” Ms. Anjula Khajuria 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 5 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 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 6 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.” Accordingly, it is held that it was mandatory for the disciplinary authority to afford reasonable opportunity to the petitioner of being heard before disagreeing with the views of the Inquiry Officer. Thus the imposition of penalty of recovery from the salary of the petitioner and censure is bad in law. Mr. Raman Sethi has also argued that the order passed by the appellate authority is not speaking. I have gone through the appellate order Annexure A-10 dated 17.1.1996. The order is neither speaking nor self-contained. It is settled by now that the appellate order should be reasoned and self-contained. Their Lordships of the Hon’ble Supreme Court in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank versus Jagdish Sharan Varshney and others, (2009) 4 SCC 240 have held that though the order of affirmation need not contain elaborate reasons as an order of reversal, but that does not mean, it need not contain any reasons thereon. Their Lordships have held as under: “In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said 7 decision in Prabhu Dayal Grover case has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority. The view we are taking was also taken by this Court in Divl. Forest Officer v. Madhusudhan Rao (vide SCC para 20:CJ para 19), and in M.P. Industries Ltd. v. Union of India, Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India (vide SCC para 6: AIR para 6) etc. In the present case, since the appellate authority’s order does not contain any reasons, it does not show any application of mind. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation. Hence, we agree with the High Court that reasons should have been contained in the appellate authority’s order, but we cannot understand why the High Court has set aside the order of the disciplinary authority, in addition to setting aside the appellate order.” 8 Accordingly, order dated 17.1.1996 is declared bad in law. The appellate authority should always pass a speaking and self-contained order. The necessity for passing the speaking orders is also due to the fact that the same are subject to judicial review by the higher courts. Consequently, in view of the observations made hereinabove, the petition is allowed. Annexures A-8 dated 29.4.1994 and A-10 dated 17.1.1996 are quashed and set aside. The petitioner has superannuated on 30.6.1994. More than 14 years have elapsed since the petitioner has superannuated. In these circumstances, it will not be in the interest of justice to remand the case to the disciplinary authority. Accordingly, the proceedings shall stand closed. There shall, however, be no order as to costs. 4.6.2009 (Rajiv Sharma ), J. *awasthi*