IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 5393 of 2008. Decided on 19.07.2010. _____________________________________________________ Brij Lal Kaundal. …Petitioners. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the petitioner. : Mr. R.P. Singh, Advocate. For the respondents. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Disciplinary proceedings were initiated against the petitioner under Rule 14 of the CCS(CCA) Rules, 1965. Executive Engineer, National Highway Division, HPPWD, Solan was appointed as enquiry officer vide office order dated 14.08.1992 to enquire into the charge framed against the petitioner. The enquiry officer submitted the report to the disciplinary authority on 31.10.1996. The disciplinary authority did not agree with the enquiry report and ordered the enquiry officer to hold fresh enquiry. The enquiry officer again exonerated the petitioner vide enquiry report dated 02.05.1997. The disciplinary authority again remanded the matter back to the enquiry officer to hold another enquiry after taking into consideration letter dated 23.02.1991 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. written by Shri Bidhi Chand, Assistant Engineer to Executive Engineer, Solan. Thereafter, the enquiry officer furnished the report dated 20.01.1998, on the basis of which memorandum dated 21.02.1998 was issued by the disciplinary authority and penalty of withholding two increments for two years without cumulative effect was imposed upon the petitioner. 2. Mr. R.P. Singh, learned counsel for the petitioner has vehemently argued that the procedure adopted by the disciplinary authority by remanding the matter twice to the enquiry officer after his client was exonerated by the enquiry officer, is not in accordance with law. He then contended that in any case, if the disciplinary authority did not agree with the report of the enquiry officer, he had to record tentative reasons and the copy whereof was required to be supplied to the petitioner. 3. Mr. Vikas Rathore, learned Deputy Advocate General has supported the imposition of penalty vide Annexure P-8, dated 21.02.1998. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner has been exonerated vide enquiry report dated 31.10.1996. The disciplinary authority did not agree with the enquiry report and remanded the matter back to the enquiry officer. The procedure adopted by the disciplinary authority was contrary to law. It is settled law by now that when the disciplinary authority disagrees with the enquiry report of the enquiry officer, he has to record tentative reasons and the copy thereof is required to be supplied to the delinquent to make representation against the same. The enquiry officer exonerated the petitioner vide enquiry report dated 02.05.1997, but the disciplinary authority again did not agree with the recommendations of the enquiry officer and remanded the matter back to the enquiry officer without recording any tentative reasons. Thereafter, the enquiry officer submitted the report on 20.01.1998, on the basis of which, the penalty was imposed on 21.02.1998. The reason assigned by the respondents to hold three enquiries on the petitioner on the same subject matter, was that the enquiry officer has not taken into consideration the letter dated 23.01.1991 and his statement was not recorded as a witness. It was not open to the disciplinary authority to direct the enquiry officer to plug the loopholes in the enquiry. 6. Their lordships of the Hon’ble Supreme Court in Union of India versus K.D. Pandey and another (2002) 10 Supreme Court Cases 471 have held that where the enquiry report submitted contains specific findings in respect of each of the charges after discussing the matter, the disciplinary authority, if not satisfied with the said report, cannot remit the matter to enquiring authority for further enquiry and it could mean a second enquiry and not a further enquiry in the same matter. Their lordships have further held that it would amount to abuse of process of law. Their lordships have held as under: “5. Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly.” 7. Their lordships of Hon’ble Supreme Court in SBI and others Versus Arvind K. Shukla, (2004) 13 Supreme Court Cases 797 have held that if in the enquiry report findings are in favour of charged employee and the disciplinary authority takes a different view, he is required to record tentative reasons therefor and give it to the delinquent officer for giving him an opportunity to represent before recording its ultimate findings. Their lordships have held as under: “2. Mr. Sundravardan, the learned senior counsel appearing for the State Bank of India contended before us that in the case in hand, in fact, there has been no disagreement with the findings of the enquiring officer by the disciplinary authority, and on the other hand, the disciplinary authority on the accepted findings of the enquiring officer has recorded his conclusion differently on the basis of the relevant provisions of the rules, and therefore the question of giving an opportunity to the delinquent at that stage does not arise. To appreciate this contention, we have been taken through the findings of the enquiring officer and charges 1(a) and 1(d) as well as the reasonings and ultimate conclusion of the disciplinary authority on those two charges. On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived at by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer an opportunity to represent before it recorded its ultimate findings. This question is concluded by a 3- Judge Bench decision of this Court in the case of Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : (1998 AIR SCW 2762 : AIR 1998 SC 2713 : 1998 Lab IC 3012 : 1998 All LJ 2009). The Bench in the aforesaid case relied upon the earlier decision in the Institute of Chartered Accountant case (AIR 1987 SC 71) as well as the Ram Kishan case (1995 AIR SCW 4027 : AIR 1996 SC 255) and came to hold that the view expressed in S. S. Koshal (1994 AIR SCW 2901) and M. C. Saxena (1998 AIR SCW 965 : AIR 1998 SC 1150 : 1998 Lab IC 1038) cases do not lay down the correct law. Mr. Sundravardan, however, brought to our notice yet another 3-Judge Bench decision in the case of Union Bank of India v. Vishwa Mohan, (1998) 4 SCC 310 : (1998 AIR SCW 2216 : AIR 1998 SC 2311 : 1998 Lab IC 2514 : 1998 All LJ 1599, and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in the Punjab National Bank case was not really there before the Court and the Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 : (1994 AIR SCW 1050 : AIR 1994 SC 1074 : 1994 Lab IC 762). In the absence of any contrary decision of a 3-Judge Bench decision on the question in issue, we are bound by the earlier judgment of this Court in Punjab National Bank case, necessarily, therefore we do not find any merit in this appeal, which stands dismissed.” 8. The Apex Court of the Hon’ble Supreme Court in Union of India and another Versus Kunisetty Satyanarayana, (2006) 12 Supreme Court Cases 28 have held that where a charge had been enquired into by a competent authority in a regular enquiry and that enquiry culminated in exoneration, a second enquiry on that very charge is not maintainable. Their lordships have held as under: “18. We agree with the learned counsel for the respondent that if the charge which has been levelled under the Memo dated 23.12.2003 had earlier been enquired into in a regular enquiry by a competent authority, and if the respondent had been exonerated on that very charge, a second enquiry would not be maintainable. However, in the present case, we are of the opinion that the charges levelled against the respondent under the Charge Memo dated 23.12.2003, had not been enquired into by any authority and he had not been exonerated on those charges. Hence we are of the opinion that it is not a case of double jeopardy. 9. Similarly, in Lav Nigam Versus Chairman & MD, ITI LTD and another (2006) 9 Supreme Court Cases 440 their lordships of the Hon’ble Supreme Court have held that when the findings are favourable to charged employee and the disciplinary authority takes the view different to the one taken by the enquiry officer, the disciplinary authority is bound to give a notice setting out his tentative conclusions to the charged employee. Their lordships have held as under: “10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed.” 10. Therefore, in view of the observations made hereinabove, action of the disciplinary authority to remand the matter twice being not satisfied with the earlier enquiry report, is declared contrary to law. 11. Accordingly, the petition is allowed. Annexure P-A dated 21.02.1998 is quashed and set aside. Since the petitioner has already retired from service, therefore, the proceedings are closed. No costs. (Rajiv Sharma) Judge July 19, 2010. (bhupender)