^ HIGimOyRZCECHHATnSGARyATBILASPUR SiNQLE BENCH : HON'BLE SHRI H.L. DATTU, CJ. WRIT PETITION No. 3746 of 1996 PETITIONER Ramji Lal Verma, aged about 30 years, Resident of Vi'lage Banerakhon Post Office Semra, Distt Bhind (Madhya Pradesh) Pin Code. No.477227. RESPONDENTS VERSUS 1. The Directorate General, Central Industriat Security Force Block No.13 C.G.O. Complex Lodhi Road, New Delhi. 2. The Deputy Inspector Qaieral, Central Industrial Security Foree, Bhilai Steel Plant, Bhiiai Nagar, Distt. Durg (M.P.). 3. The Commandant, Central Industrial Security Force, Bhilai Steei Plant, Distt.Bhi!ai (M.P). 4. The Enquiry Officer/ Dy. Commandant Bhilai Steel Plant, Bhilai, Distt. Durg (Madhya Pradesh). Writ Petition under Articles 226 & 227 of the Constitution of India. Present: Shri F.S. Khare, oounsel for the petitioner. Shri S.K. Beriwal, Standing counsel forthe respondents. ORAL ORDER (Passed on 4"' Ntey, 2007) The petitioner was working as Barber in Central Industnal Seourity Force. He was posted at Bhilai Steel Plant, Bhilai. By an order passed on 17.06.1994 he was kept under suspension in contemplation of the departmental enqulry proceedings. The Disciplinary Authority of the Toree has issued a charge-memo dated 23.06.1994. Along with the oharge-memo the delinquent employee was served with, statement of imputations, list of witnesses and llst ofdocuments, the Disciplinary Authority would be relying on in support of the eharge-memo. , (2) The Disciplhary Authority by order dated 15.07.1994 had appointed the Enquiry Officer to enquire into the allegations oontained in the oharge-memo. Before the Enquiry Officer, the Disciplinary Authority had examlned five witnesses in support of the allegations made in the charge-memo. The Enquiry Officer had permitted the delinquent emptoyee to cross-examine all the five witnesses who were produced before the Enquiry OfRcer by the Disciplinary Authority. The Enquiry Officer thereafter after obtaining certain clarifications from ttie delinquent employee had submitted his enquiry report and other relevant records to the Disciplinary Authority. The Enquiry Officer In his report has observed : "None ofthe proseoution witnesses No. 1,2,3,4, 5 namely Constable Shyam Paul, Head Constable A.M.V. Pitley, Constable Banwari Lal, Constable N.K. Sharma and Constable B.N. Jaiswal has seen Bartser Ramji Lal Verma committing theft nor caught him red handed. Commission oftheft of Rs. 3000/- belonging to Constable B.N. Jaiswal, by accused/ Barber Ramji Lal Verma appears to be only suspicion." Thereafter, the Enquiiy Offlcer has observed that the eharge against the deiinquent employee Is partly proved. The Disciplinary Authority thereafter with the available evidence on record has come to the conclusion that the Enquiry Officer was not justified in coming to the conclusion to the effect that the charge against the delinquent employee is partly proved. The oplnion of the Disciplinary Authority is that the charge leveled against the delinquent employee is fully proved. Having come to that conclusion and keeping in view the gravity of the charge leveled against the delinquent employee has proceeded to pass an order dated 27.09.1994 terminating the servioes of the delinquent employee. The order passed by the Disoiplinary Authority is as under: •Though the stolen money of Rs.3,000/- of B.N. Jaiswai was not recovered from Barber Ramjilal Verma, but two hundred rupee notes wherein '899' and 'Banwari gave two ^r thousand 08.06.1994, 2000' written by Constable B.N. Jaiswal in his handwriting before the theft, were recovered. From the above all faets it is evident that the accused onty had stolen the money of Constabie B.N. Jaiswal. Therefore. I hold the oharae leveled aaainst the accused Barber Ramii Lal Verma to be fullv proved aaainst him," (umlerlined by me)." (3) Aggrieved by the aforesaid order passed by the Disciplinary Authorlty, the delinquent employee had filed an appeal before the First Appellate Authority who by his order dated 09.05.1995 has rejected the appeal and thereby oonflnned the orders passed by the Disciplinary Authority. (4) The delinquent employee being aggrieved by the aforesaid order passed by the Disclpiinary Authority dated 27.09.1994 and afso the order passed by the Appellate Authority dated 09.05.1995 is before this Court in this petition under Articles 226/227 ofthe Constitution of India. (5) Learned counsel appearing for the petitioner would contend that the Disciplinary Authority before disagreeing with the findings of the Enquiry Offioer ought to have issued an appropriate notice to the petitioner and it is only thereafter, should have disagreed with the flndings of the Enquiry Officer. Since that has not been done, the same is oontrary to Rule 34 (11) of the Central Industrial Security Force Rules, 1969 (for short "the Rules") and also contrary to the obsewations made by the Apex Court in the case of Ranjit Stngh Vs. Union of India and others, reported in ^006) 4 SCC 153. (6) Shri S.K. Beriwal, learned counsel appearing tor the responderts sought to justify the impugned orders. According to the teamed counsei, the Disciplinary Authority with the availabie evidence on record has oome to the conclusion that the charge leveled against frie delinquent employee is fully proved and therefore, was justified in passing the impugned order terminating the sen/ices ofthe delinquent emptoyee. 4 ^ (7) The first issue that requires to be considered is that when the Discipiinary Authority disagrees wlth the findings ofthe Enquiry Officer what is procedure that requires to be followed by him. (8) Rule 34 of the Rules provides for preoedure for imposing major penatties. Sub-rule (11) of Rule 34 of the Rules provides as under: " 34. Procedure for imposing major penaHies. - (1)xxxx (11) Ordere passed by the disciplinary authortty shall be communioated to the member of the Force who shall also be supplied with a copy of the report of the Inquiring Authority referred to above and, where the Disciplinary Authority is not the said Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, aiong with the findings of the said Inquiring Authority shall also be supplied to that member." (9) The order passed by the Disoiplinary Authority shall be communicated to the member of the force who shalt also be supplied with a copy of the report of the Inquiring Authority referred to above and, where the Disciplinary Authority is not the said Inquirlng Authority, a statement of its findings together wlth brief reasons for disagreement, if any, along with the findlngs of the said Inquiring Authority shall also be supplied to that member. (10) The Supreme Court jn the case of Ranjit Singh Vs. Union of India and othersfSupra; has observed as under: "The principles of natural justice are required to be complled with by the disclplinary authority in the event he intends to differ with the findings of the enquiry officer and in such an event the prejudice doctrine would not be applicable." (11) The Supreme Coiirt in the case Punjab NaConal Bank and others Vs. Kunj Behari Mtsra, reported in (1998)7 SCC 84 has observed as under: "The Principles of natural justice would demand that the authority which proposes to deoide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciptinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent offioer but the disciplinary authority proposes to differ with such conclusions then that authority which is deeiding against the delinquent officer must give him an opportunity of belng heard, for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance isthefinding ofthedisciplinaryauthority." (12) Keeping in view Sub-rule (11) of Rule 34 of the Rules and also the law taid down by the Apex Court, let me once again notice the fact situation. The Disciplinary Authority had issued a charge-memo. In the said charge-memo specific allegation that was made against the delinquent employee was that he has committed an act of theft of Rs.3,000/- of one B.N. Jaiswal. The Disciptinary Authority had appointed an Enquiry Officer to enquire into the altegations made In the charge-memo. The Enquiry Offlcer after recording the evidence of the prosecution witnesses has positively come to the concluslon that the charge alleged against the delinquent employee is not proved. l^^t, < Though in his report hepbserved that the charge is partly proved, a reading of the enquiry report of the Enquiry Officer would give a clear indication that the Enquiry OfRcer was of the opinion that the prosecution had failed to prove the allegation made In the charge-memo. (13) After receipt of the report of the Enquin/ Officer, the Disciplinary Authority with the available evidence on record has come to the conclusion that the charge alleged agalnst the detinc^ient employee is proved. Before doing so, in my opinion, the Disciplinary Authority has to form a tentative opinton and that tentative oplnion along with the copy of the report of the Enquiry Officer requires to be supplied to the detinquent employee. It is only 6 \c?o after receiving the reply from the delinquent employee, the Disciplinary Authority is required to pass an order, may be, disagreeing with the findings of the Enquiry Offlcer. This procedure requires to be followed for the simple reason that the Enquiry OfRcer has given a clean-chit to the delinquent employee and if that clean-chit requires to be reversed by the Dlsciplinary Authority, he has to give an opportunity of hearing to the delinquent employee to support the report of the Enquiry Officer. In the instant case, as 1 have already noticed that the Enquiry Officer had given a clean-chit to the delinquent employee, but the Disciplinary Authority is not willing to aocept the findlngs of the Enquiry Officer. It is not necessafy for the Disciplinary Authority in all the cases to accept the findings of the Enquiry OfRcer, he can also disagree with the flndings ofthe Enquiry Officer, but before doing so it is expected of him to issue a notice of the tentath/e opinion of disagreeing with the findings of the Enquiry Officer along with the report of the Enquiry Offlcer to the delinquent employee. In the instant case, the Disciplinary Authority without following the procedure prescribed under Sub-rule (11) of Rule 34 of the Rules and without noticing the dicta of the Apex Court has proceeded to hold the delinquent employee guilty of the charge alleged in the charge- memo. The procedure so adopted is contrary to Sub-rute (11) of Rule 34 of the Rules. Therefore, impositian of penalty by the Disciplinary Authority cannot be sustalned by me for the reason that the same is in violation of Sub- rule (11) of Rule 34 of the Rules and also the dicta of ffie Apex Court. Therefore, the order passed by the Disciptinary Authority requires to be set aside. These aspects of the matter ought to have been noticed by the Disciplinary Authority as well as by the Appellate Authority before conflrming the order passed by the Disciplinary Authority. Since that has not been done, the order passed by the Disciplinary Authority as well as the order passed by the Appellate Authority cannot be sustained by me. Accordingly, the following: ORDER (i) The petition is allowed. 7 \D\ V.-,' (ii) Rule made absolute. (iii) The impugned order passed by the Disoipllnary Authority dated 27.09.1994 and the order passed by the Appellate Authority dated 09.05.1995, are set aslde. (iv) Liberty is reserved to the Disciptinary Authorily to proceed frem the stage the defects are notfced b^ this Court. (14) With these obsenations and dlrections, the writ petitton is disposed of. Ordered accordingty. Sd/- ChiefJustice