IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 8070/2008 Reserved on: 20.7.2010 Decided on:2.8. 2010 _____________________________________________ Pinjar Singh. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mrs. Ranjana Parmar, Advocate. For the Respondents: Mr. Vikas Rathore, Deputy Advocate General with R.P. Singh, Asstt. Advocate General. _____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was appointed as Patwari on 21.2.1984. He assumed his duties on 28.2.1984. A memorandum was issued to the petitioner on 27.4.1994, to which he filed reply on 29.4.1994. He was served with a charge-sheet under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 on dated 23.6.1995. He filed reply to the same on 22.7.1995. Settlement Officer was appointed as Inquiry Officer to look into the charges levelled against the petitioner. He submitted report to the Disciplinary Authority. He was exonerated by the Inquiry Officer. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 However, respondent No.2 entrusted the inquiry to Director Departmental Enquiries, Himachal Pradesh on 13.5.1998. Director Departmental Enquiries submitted his report on 4.3.1999. He has exonerated the petitioner. However, the same was remitted to Director Departmental Inquiries for further inquiry as per Annexure A-8 dated 19.7.1999 purportedly under rule 15 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Respondent No.2 has not recorded tentative reasons while disagreeing with the inquiry report of the Director, Departmental Enquiries and has remitted the same to the Director, Departmental Enquiries vide letter dated 19.7.1999. Thereafter vide letter dated 1.9.1999, Disciplinary Authority partially modified the charge sheet issued on 23.6.1995 with Annexures III and IV. Thereafter Additional Director Consolidation of Holdings was appointed as Inquiry Officer on 23.12.1999. However, the gist of the charge- sheet remained the same. Only Annexure-III, complaint of Sh. Jai Kumar and selection list of Patwari’s of 1994 was added and as per Annexure IV, list of six witnesses was supplied. Inquiry Officer submitted the report dated 31.1.2001 to the Disciplinary Authority. The Disciplinary Authority supplied the copy of the inquiry report to the petitioner for making representation on 5.5.2001. Petitioner filed reply to the same on 14.6.2001. Petitioner was served with a notice on 20.8.2001 whereby penalty of removal was proposed. Petitioner filed reply to the same on 19.9.2001. He prayed that the copies of earlier two inquiries conducted by Settlement Officer and Director, Departmental Inquiries be supplied to him. However, the 3 fact of the matter is that vide letter dated 15.10.2001, petitioner was removed from service. 2. Mrs. Ranjana Parmar has strenuously argued that there is violation of principles of natural justice. She further contended that the petitioner has already been exonerated in two inquires furnished by the Settlement Officer as well as Director, Departmental Inquiries. However, without recording any tentative reasons and supplying the same to the petitioner, the matter was remitted to the Inquiry Officer. She further contended that once the petitioner had been exonerated by two Inquiry Officers, unique method was adopted by the Disciplinary Authority by adding Annexures III and IV vide Annexure A-9 and the inquiry was entrusted to the Additional Director Consolidation, who furnished the inquiry report dated 31.1.2001 on the basis of which penalty of removal has been inflicted upon the petitioner. She lastly contended that the petitioner was not permitted to file any reply to Annexure A-9 vide letter dated 1.9.1999. 3. Mr. R.P. Singh, learned Assistant Advocate General has supported the impugned order whereby the petitioner has been removed from service on 15.10.2001 (Annexure A-17). 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. What emerges from the facts enumerated hereinabove is that petitioner was served with a charge-sheet on 23.6.1995. The Settlement Officer has exonerated the petitioner on 12.9.1995. It has come in the reply that the Disciplinary 4 Authority has not agreed with the report of the Inquiry Officer on the ground that he has not taken pains to study the relevant provisions/rules and enquiry report suffers from legal fragilities and in these circumstances, the matter was referred to the Director Departmental Inquires to get the inquiry as per charge-sheet dated 23.6.1995. It was necessary for the Disciplinary Authority while disagreeing with the inquiry report furnished by the Settlement Officer to record tentative reasons and to supply the same to the petitioner. The procedure adopted by the Disciplinary Authority of referring the matter to the Departmental Inquiry on 13.5.1998 in these circumstances was not warranted. It is evident from the contents of Annexure A-8 dated 19.7.1999 that the Director Departmental Inquiries has exonerated the petitioner. However, the Disciplinary Authority again without recording its tentative reasons and supplying the same to the petitioner remitted the matter to the Director Departmental Inquiries. This course was also not warranted. It appears that in a very biased manner, Disciplinary Authority modified the charge-sheet by inserting Annexure III and IV whereby only the copy of the complaint and list of witnesses were supplied. New Inquiry Officer, Additional Director Consolidation Department was appointed on 23.12.1999. It is evident that the sum and substance/gist of the charge-sheet remained the same. The Additional Director Consolidation Department furnished the report to the Disciplinary Authority. Petitioner was permitted to file reply to the inquiry report, which was supplied to him on 5.5.2001. He made representation against 5 the same on 14.6.2001 (Annexure A-14). The Disciplinary Authority without discussing the representation made by the petitioner in depth and that too without taking into consideration the pleas/grounds taken by the petitioner in his representation served the petitioner with notice dated 20.8.2010, whereby the penalty of removal was proposed. Petitioner again submitted the representation on 19.9.2001. Ultimately, the penalty of removal was inflicted upon the petitioner vide order dated 15.10.2001. The Court is of the considered view that the purpose of making representation against the inquiry report is to point out deficiencies/fragility/shortcomings in the inquiry report. Petitioner has been given this opportunity on 5.5.2001 to which he made representation, as noticed hereinabove, on 14.6.2001. The Disciplinary Authority has not taken into consideration the representation made by the petitioner and has proposed the penalty of removal on 20.8.2001. 6. It is settled law by now on the basis of definitive law laid down by their Lordships of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and Others versus B. Karunakar and Others (1993) 4 SCC 727 that the copy of inquiry report has to be supplied to an employee before the disciplinary authority makes up his mind to impose penalty. The purpose of supplying the copy of inquiry report is to enable an individual to represent against the short-comings, deficiencies and violation of mandatory rules during the course of departmental inquiry. Their Lordships have held as under:- 6 “The reason why the right to receive the report of the Inquiry 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 Inquiry 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 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 require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the 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 Inquiry 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 Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry 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 7 delinquent employee has no knowledge. However, when the Inquiry 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 conclusion. 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 Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.” 7. It is settled law by now as per law laid down by their Lordships of the Hon’ble Supreme Court in G. Vallikumari versus Andhra Education Society and others, 2010 (2) SCC 497 that the disciplinary authority must record reasons while passing the order 8. 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 8 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.” 9. 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 9 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 10 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.” 10. 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. 11. 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 11 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.” 12. It is admitted by the respondents in the reply that earlier two inquiries were not accepted by the Disciplinary Authority. Once he has not accepted the inquiry reports, it was necessary for him on each occasion to give his tentative reasons while disagreeing with the inquiry reports and the reasons were required to be supplied to the petitioner. The decision to remit the charge-sheet to the Director Departmental Inquires ought to have been taken after supplying the reasons to the petitioner and after taking into consideration the representation made by him. The Disciplinary Authority has not passed a speaking order. 13. Their Lordships of the Hon’ble Supreme Court in Roop Singh Negi versus Punjab National Bank and others (2009) 2 Supreme Court Cases 570 have held as under: “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 assigned. If the enquiry officer had relied upon the confession made by the appellant, 12 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 inference 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 substitute for legal proof. 14. Mr. R.P. Singh, learned Assistant Advocate General has strenuously argued on the basis of the documents available on record that the petitioner has admitted his guilty in the third inquiry. The Court is of the considered opinion that there was no occasion for the respondents to hold third inquiry once the petitioner had already been exonerated in two inquiries held by Settlement Officer and Director Departmental Inquiries. It is also not evident from the record whether the petitioner has made volunteer statement or it was under some coercion or influence. The purpose of the Disciplinary Authority is to ensure that the disciplinary proceedings are conducted in a just and fair manner and they conform to the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The sole purpose of the Disciplinary 13 Authority cannot be to punish an employee by all means. The attitude of the Disciplinary Authority must be of a man of prudent intelligence. He has to ensure that the employee is not harassed unnecessary and is not vexed twice over the same issue. The Court has noticed the manner in which the Disciplinary Authority has ordered second inquiry and thereafter, third inquiry on the same charge-sheet except the modification carried out on 1.9.1999 whereby Annexure III and IV were added. The Disciplinary Authority cannot be permitted to keep the disciplinary proceedings pending in perpetuity and the same must be concluded in time bound manner. The Disciplinary Authority must be aware of the fact that the disciplinary proceedings cause lot of financial and monetary burden on the delinquent. 15. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-17 dated 15.10.2001 is quashed and set aside. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 2.8.2010 *awasthi*