Letters Patent Appeal No.83 OF 2001 Against the judgment and order dated 3.7.2000 passed in CWJC no.5602/1999. BIHAR STATE ELECT.BOARD & ORS---------------------------(Appellants) Versus CHANDRAMA TIWARY--------------------------------------------(Respondent) For the appellants:M/s Vinay Kirti Singh Vijay Kumar Verma For the respondent: Mr Ajay Kumar P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD -------------- Barin Ghosh C.M.Prasad, JJ Two charges were framed against the writ petitioner- respondent in a disciplinary proceeding initiated against him. The first charge was permitting one Narendra Verma to join under the petitioner- respondent as a lineman on transfer without verification from the transferring authority as to the genuiness of the transfer order on the strength of which Sri Narendra Verma was permitted to join. In relation to the said charge, it was mentioned that the appellant by various orders and circulars directed all its officers to obtain such verification. The second charge was that the writ petitioner-respondent transferred one Sri Mahendra Chaudhary, upon accepting his joining under him on being transferred, without verifying from the transferring authority the genuiness of the transfer of Sri Mahendra Chaudhary. The charges contained in the charge sheet having been replied by the writ petitioner- respondent, the truth and substance of the charges had been enquired into. In - 2 - course of enquiry it transpired that no effort was made by the writ petitioner- respondent to verify the transfer order of Sri Narendra Verma and a letter written by the writ petitioner- respondent on 11th September,1997 asking for dispatch of LPC and service record of Narendra Verma did not reach its destinations. In so far as Mahendra Chaudhary is concerned, it was found that he was permitted to join on 29th May,1998. On 6th June, 1998 a letter was sent by the registered post to obtain confirmation about the genuiness of the transfer order. On 16th June,1998 it was reported on phone by the alleged transferring authority that no such transfer was effected and as such Mahendra Chaudhary was not permitted to function thereafter and he was also not paid his remuneration . The Enquiry Officer did not go into the question whether the writ petitioner- respondent had made any endorsement on the transfer order of Mahendra Chaudhary to the effect “ order may be issued” and transferred him before obtaining confirmation of the original transfer. The Enquiry Officer held that charge no.1 stands proved, but charge no.2 does not stand proved, inasmuch as Mahendra Chaudhary was not paid any sum of money. When the enquiry report was considered by the Disciplinary authority, it felt that charge no.2 also stands proved and accordingly by a letter communicated the reasons why it felt - 3 - that the second charge also stands proved and thereby called upon the petitioner-respondent to show cause why punishment of compulsory retirement should not be imposed upon him. The petitioner-respondent gave reply to the said letter/ second show cause notice and whereupon by the order impugned in the writ petition, the petitioner – respondent was compulsorily retired from service. The order of compulsory retirement was assailed in a writ petition. It was contended that before the punishment was meted out, no personal hearing was given to the writ petitioner. In this connection reliance was placed upon a judgment of the Hon’ble Supreme Court rendered in the case of Yoginath D. Bagde vs. State of Maharashtra and another reported in 1999(7) SCC 739. In that case the Enquiry Officer exonerated the delinquent, but the Disciplinary authority differed from the opinion expressed by the Enquiry Officer and thereupon after giving a second show cause passed the final order in a disciplinary proceeding. The Hon’ble Supreme Court in paragraph 28 of the judgment has held that difficulties arise when the enquiry authority has exonerated the delinquent , but the Disciplinary authority has disagreed with those findings and recorded its own findings and thereby held out that the charges stand established, and such difficulties can be resolved by giving - 4 - an opportunity of hearing to the delinquent at that stage by making Rule under Article 309 of the Constitution or Disciplinary authority may, of its own ,provide such an opportunity, but where the rules in this regard are silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent and records findings different from those of the enquiring authority that the charges are established, an opportunity of hearing may have to be read into the Rule by which the procedure for dealing with enquiring authority’s report is provided, principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be not guilty by the enquiring authority, is found guilty without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of “not guilty” has already been recorded. On the principle so enunciated by the Hon’ble Supreme Court in the said judgment, a learned Single Judge dealing with the writ petition allowed the same since admittedly no opportunity of hearing was given before or after the disciplinary authority expressed contrary view than that of the Enquiry Officer. In the case dealt by the Hon’ble Supreme Court, the delinquent also faced two charges and in both the charges - 5 - he had been exonerated by the Enquiry Officer. In the instant case, out of two charges, the delinquent had been found guilty in respect of one charge. Under the circumstance, without taking note of the fact that one of the charges stands proved, we do not think that the judgment rendered by the Hon’ble Supreme Court in the above case could be applied. Further more on a given state of facts, pleadings and evidence, it is possible for two people to express totally contrary views. It is not unknown that an order passed by the first authority is up set by the appellate authority on the basis of the same facts, pleadings and evidence, to which they look from different angles. An order disposing of a disciplinary proceeding can be challenged either on the ground of malice on facts or on the ground of malice in law. Malice on facts would be when it is established by placing the materials on record that on the basis thereof no prudent person could ultimately come to the conclusion as has been arrived at by the disciplinary authority. Malice in law would be failure on the part of the authority to discharge legal obligations pertaining to the disciplinary proceeding. When the Disciplinary authority has not enquired himself and has authorized some one else to enquire, the opinion of the Enquiry Officer given on the - 6 - basis of the materials collected during the course of enquiry, is not binding on the Disciplinary authority. If the Disciplinary authority is of the view that the opinion expressed by the Enquiry Officer is not acceptable to him, law requires him to furnish reasons in support thereof in order to enable the delinquent to point out to the disciplinary authority that his views may not be sustainable on the materials collected in course of enquiry proceeding. This opportunity, it is well settled the delinquent gets by way of entitlement to make a representation .At that stage, the choice is of the delinquent . He may make a written representation or he may ask for giving him an opportunity to make an oral representation, but not both. If it is thought that the delinquent is entitle to make a written representation as well as an oral representation to the same effect, the same would tantamount to construe that in order to make the disciplinary authority to read the written representation, the oral representation is necessary. In the instant case a written representation was not only made, but opportunity to make the same was expressly given and the delinquent did not ask for an opportunity to make an oral representation. Be that as it may, the fact that one of the charges had been proved is not in dispute and therefore, the one and the only question that is to be taken note of is whether proof - 7 - of that charge justified the order of punishment. In the charge sheet it was stated that by reason of failure on the part of the petitioner-respondent to verify the alleged transfer order of Sri Verma, Sri Verma was permitted to work in the establishment of the appellant without ever being appointed by the appellant. The fact is that the petitioner-respondent did not verify the genuiness of the transfer order with which Mr Verma approached the appellant is not in dispute. Whereas Mr Verma actually joined on 29th July,1997, a letter was said to have been written by the petitioner -respondent only on 11th September,1997 asking for LPC and service record of Sri Verma but service of the said letter was not established. In view of non-verification of the transfer order of Sri Verma by the petitioner- respondent a non-employee worked and received remuneration. It is true that there was no allegation that this action on the part of petitioner- respondent caused loss to the appellant, but the fact remains that even if it was a slip, it was not an error of judgment and surely negligence on the part of petitioner- respondent. The question is can it be said that negligence was such that same would not tantamount to misconduct. It is now well accepted in law that every negligence would not tantamount to misconduct, but negligence of grave nature having catastrophic effect - 8 - would come within the four corners of misconduct. By reason of negligence on the part of the petitioner-respondent a non-employ of the appellant employer could work for a long time. It has come on record that this non-employee has served as lineman and obtained salary of Rs 1,00,863/- until it was discovered that the person concerned is a non- employee . It is not only a mere loss of money but it is permitting in non-employ to work as an employee of a statutory institution. In the circumstance, only on the basis of charge no.1, which stands proved, as reported by the Enquiry officer and accepted by the Disciplinary authority, the disciplinary proceeding could be concluded by issuing a punishment order. The question is whether punishment as meted out was proper. In the matter of quantum of punishment, unless the punishment is utterly disportionated, the writ court would not interfere. Learned counsel for the petitioner-respondent submitted that the petitioner respondent, before the instant complaint, had an unblemished record. He further submitted that in that back ground it may be appropriate to reconsider the punishment order .Despite the finding recorded as regards proof of misconduct, the petitioner- respondent has not been removed from service by - 9 - terminating his service or by dismissing him from service, but instead he has been compulsorily retired and thereby relationship of employer and employee between the appellant and the petitioner-respondent stands terminated a few years before the date of superannuation of the petitioner-respondent. This suggests that while awarding punishment the Disciplinary authority noticed the good conduct of the petitioner-respondent but having regard to the negligence or carelessness on the part of the petitioner, it was decided not to continue the relationship of employer and the employee any further. In the circumstance, we do not feel that the punishment as awarded needs reconsideration. In the circumstance, the appeal is allowed. Judgment and order under appeal is set aside. The writ petition is dismissed. (Barin Ghosh, J) (C.M.Prasad, J) The Patna High Court The 28th July,2008 Shahid/ NAFR