SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 1 of 11 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT J O D H P U R ::: O R D E R ::: Mohan Singh Inda v. Rajasthan State Electricity Board and another S.B. CIVIL WRIT PETITION NO.1627 OF 1998 ::: Date of Order: 16th March, 2009 ::: P R E S E N T HON'BLE MR JUSTICE GOVIND MATHUR Mr Mahesh Bora, for the petitioner Mr Ravi Bhansali, for the respondents BY THE COURT: As per memorandum dated 05th June, 1991 issued by the Secretary to Rajasthan State Electricity Board, Jaipur under regulation 7 of the Employees (Classification, Control & Appeal) Regulations, 1962 {herein after 'Regulations of 1962'}; the petitioner was charge-sheeted for 20 allegations. The allegations so levelled were mainly that the petitioner while working as Assistant Engineer (REC), Rajasthan State Electricity Board, SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 2 of 11 Bhinmal during the period 1989-90 arranged double payment, made purchases in violation of General Finance & Account Rules, failed to take endeavour to examine the purchase & payments and was negligent in discharge of his duties. No explanation was submitted by the petitioner in response to memorandum dated 05th June, 1991, therefore, regular disciplinary proceeding was initiated against him by appointing Mr P.K.B. Kurup as Inquiry Officer by order dated 29th November, 1991. The Inquiry Officer conducted regular inquiry and found the petitioner guilty for allegations No.1, 8, 10, 11, 18 and 19 and partial guilty for allegations No.9, 6 and 16. On receiving report of the Inquiry Officer with entire record of inquiry, the Disciplinary Authority sought comments from the petitioner on the findings given by the Inquiry Officer. An opportunity of hearing was also provided to the delinquent employee by the Disciplinary Authority on 24th June, 1996. The Secretary, Rajasthan State Electricity Board, Jaipur vide order dated 03rd July, 1996, communicated to the petitioner that the Disciplinary Authority, that is, Chairman of the Board, arrived at a conclusion that the petitioner was responsible for allegations levelled against him under memorandum dated 05th June, 1991 and therefore, chose to subject him by a penalty of stoppage of three annual grade increments with cumulative effect. An order for not SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 3 of 11 making payment of salary beyond subsistence allowance already paid was also made under the order aforesaid. Being aggrieved by the order passed by the Disciplinary Authority, the petitioner submitted an appeal and that came to be rejected by the Appellate Authority on 03rd January, 1997. Being aggrieved by the order passed by the Disciplinary Authority as well as Appellate Authority, this petition for writ is preferred with the contention, inter alia, that the order passed by Disciplinary Authority as well as Appellate Authority are not in consonance with the provisions of clause (ix) of regulation 7 and regulation 13 of the Regulations of 1962. It is also stated that the orders impugned are bad in the eye of law, being absolutely non-speaking and unreasoned orders. Per contra, as per respondents, the order passed by the Disciplinary Authority is an order in affirmation of the findings given by the Inquiry Officer, as such there was no need for him to repeat all the evidence discussed and findings given by the Inquiry Officer. It is also asserted that the Appellate Authority, as per Regulations, considered the appeal submitted by the petitioner and after careful examination of the same, reached at a definite conclusion regarding petitioner's responsibility for double payment to firms due to non-performance of duties, slackness, dereliction of duties, negligent breach of Rules etc. SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 4 of 11 I have considered the rival submissions and also examined record of the case. Inquiry against the petitioner was conducted by the respondents as per Regulations of 1962. Regulation 7 of the Regulations aforesaid prescribe procedure to hold a regular inquiry against an employee of the Board. As per clause (i) of regulation 7, no penalty as specified at items No.(e) to (h) of regulation 5 can be imposed upon an employee without holding an inquiry in accordance with the procedure given in the Regulations of 1962. The Disciplinary Authority, as per Regulations of 1962, is required to frame definite charges on the basis of allegations, of which inquiry is proposed. After holding regular inquiry, the Inquiry Officer is required to submit its report to the Disciplinary Authority and the Disciplinary Authority as per clause (ix) of regulation 7 of the Regulations of 1962 is required to consider record of inquiry and also findings given by the Inquiry Officer. The Disciplinary Authority is mandatorily required to record its findings on each charge, if it finds the employee guilty, whether he agrees with the findings of the Inquiry Officer wholly or partialy or differs from such findings. Clause (ix) of regulation 7 referred above is quoted herein after: “(ix) The Disciplinary Authority shall consider the record and findings of the Enquiry Officer and may agree with the SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 5 of 11 report or may differ, either wholly or partially, from the conclusions recorded by the Enquiry Officer in his report. The Disciplinary Authority shall record its findings on each charge, if it finds the employee guilty whether he agrees with the findings of the Enquiry Officer wholly or partially or differs from these findings.” In the instant matter, decision of the Disciplinary Authority was communicated to the petitioner under an order dated 03rd July, 1996. In the order aforesaid, at the first instance, reference of charges levelled against petitioner is given and thereafter conclusion of Inquiry Officer is referred. The Disciplinary Authority by accepting the findings given by the Inquiry Officer has imposed penalty of stoppage of three annual grade increments with cumulative effect. However, he has not given his own findings on the charges established against petitioner. As per clause (ix) of regulation 7 of the Regulations of 1962, a mandatory obligation was there for Disciplinary Authority to consider entire record of inquiry, findings given by the Inquiry Officer, the explanation given by the employee and then to record his own findings. Such mandatory exercise is conspicuously absent with the order impugned. As a matter of fact, a bare perusal of the order dated 03rd July, 1996 discloses mechanical exercise of powers and absolute non-application of mind on the part of Disciplinary Authority. SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 6 of 11 Besides Regulations of 1962, as general rule also, the Disciplinary Authority while holding an employee guilty for misconduct is required give his own findings against each and every charge. Such necessity was all the more required in the instant matter, as before imposing a major penalty, that is – withholding of three annual grade increments with cumulative effect, a copy of inquiry report was given to the petitioner with an opportunity to submit his comments. This fact clearly establishes that the Disciplinary Authority utilized report of Inquiry Officer as a material adverse to the delinquent officer and in that event the Disciplinary Authority should have considered petitioner's version while meeting with the findings given by the Inquiry Officer. This Court in S.L. Gupta v. Life Insurance Corporation & others, which is reported in 2005 (4) RDD 861 (Raj.), while dealing with similar issue, held as follows: “ In normal course, a speaking and reasoned order is required to be passed by every quasi judicial authority as it is a cardinal principle of rule of law. The action of the disciplinary authority is quasi judicial by nature, therefore, in order to enable the delinquent employee to know the reasons which weighed in the mind of the disciplinary authority in determining the guilt the order with reasons in support to the findings and conclusions is must. However, in the present case, the stand taken by the respondents is that the order passed by the disciplinary authority is in SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 7 of 11 concurrence to the findings given by the Inquiry Officer in the inquiry report which is having sufficient reasons, therefore, the order passed by the disciplinary authority need not to be a reasoned one. Hon'ble Supreme Court in Ram Kumar v. State of Haryana {1987 (Supple) SCC 582} held that when the punishing authority agrees with the findings of the inquiring authority and accepts the reasons given by him in support of such findings it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the inquiry officer and give the same reasons for the findings. In the instant case, I am to see as to whether the above principle can be applied in the present set of facts. Hon'ble Supreme Court in Union of India v. Mohd Ramzan Khan (AIR 1991 SC 471) held that the inquiry report is an adverse material if the inquiry officer records a finding of guilt and with proposed punishment so far as the delinquent is concerned. In a quasi judicial inquiry if the delinquent is being deprived of knowledge of the material against him though the same is being available to the disciplinary authority in the matter of reaching his conclusion, rules of natural justice would be affected. In view of this position of law the inquiry report wherein an employee is found guilty, is adverse material to the delinquent employee. In the present case also the inquiry report along with the notice to show cause was given to the petitioner as an adverse material and the petitioner was required to meet the same by submitting a reply. The petitioner submitted a reply to the disciplinary authority and raised various objections with regard to denial of opportunity of defence and also with regard to the SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 8 of 11 findings of the inquiry officer. As I stated above that in the light of the law laid down by Hon'ble Supreme Court in the case of Mohd. Ramzan Khan's case (supra) the inquiry report is an adverse material. Therefore, the agreements to the findings given by the disciplinary authority after receiving the order and comments by the delinquent employee is always required to reach at its own findings and conclusions. The disciplinary authority is under an obligation to deal with the objections raised by the employee and he is required to prescribe findings and conclusions supported by the reasons. In a case where a copy of the inquiry report is supplied to a delinquent employee with a notice to show cause with regard to proposed punishment, the principle laid down in the case of Ram Kumar's case (supra) can not be applied. These are not the cases of agreement with the findings of inquiry officer but in these cases the inquiry report itself has been treated as an adverse material, as such, it is all the more necessary for the disciplinary authority to record reasons in support of his findings and conclusions.” In view of whatever discussed above, specially in the light of provisions of regulation 7(ix) of the Regulations of 1962, the order passed by the Disciplinary Authority is apparently bad and therefore, unsustainable in the eye of law. After holding the order of the Disciplinary Authority bad, I am not required to examine validity of the order passed by the Appellate Authority, as error occurred in the original order by no way could have been rectified by the appellate authority. SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 9 of 11 However, the order passed by the Appellate Authority is also apparently bad being in violation of mode prescribed under regulation 13 of the Regulations of 1962 to consider an appeal. Regulation 13 of Regulations of 1962 reads as follows: “13. Consideration of appeals: (1) The Appellate Authority after giving reasonable opportunity of hearing to the appellant shall consider: (a) Whether the procedure laid down in these regulations has been complied with, and if not, whether such non- compliance has resulted in the failure of justice, or (b) Whether the findings of the disciplinary authority, or or the Enquiry Officer are warranted by the evidence on the record, or (c) Whether the penalty imposed is adequate, inadequate or severe and may pass orders: (i)setting aside, reducing, confirming or enhancing the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other officer or authority with such directions as it may deem fit in the circumstances of the case. Provided that such other officer or authority to which the case is remitted shall not be lower in rank to the Appointing Authority in relation to the delinquent. (2)The Appellate Authority shall not impose any enhanced penalty which neither such authority nor the SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 10 of 11 authority which made the order appealed against is competent in the case to impose; (3) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and (4) if the enhanced penalty which the Appellate Authority proposes to impose is one of the penalties specified in clause (e) to (h) both inclusive, of regulation-5, an enquiry in regulation 7, has not already been held, the appellate authority shall, itself hold such enquiry or direct that such enquiry be held and thereafter on consideration of the proceedings of such enquiry and after giving the appellant an opportunity of being heard, pass such orders as it may deem fit.” In the instant matter, the Appellate Authority just by referring order passed by the Disciplinary Authority gave its findings holding the petitioner guilty. Nothing reveals from perusal of the order passed by the Appellate Authority that how the record of inquiry was examined, how the procedure prescribed to conduct an inquiry was adhered to and whether the order passed by the Disciplinary Authority was proportionate to the delinquency proved. The findings are recorded by the Appellate Authority without considering record of inquiry and therefore, I am convinced with contention of learned counsel for SBCWP No.1627/98 – Mohan Singh Inda v. R.S.E.B. & another Date of Order: 16.03.2009 11 of 11 the petitioner that the order of Appellate Authority is also not as per regualtion 13, hence, is not sustainable in the eye of law. I have not considered other grounds raised to challenge the orders impugned as I am inclined to accept the petition for writ on basis of the discussion made above. Accordingly, the petition for writ deserves acceptance and therefore, the same is allowed. The order passed by the Disciplinary Authority dated 03rd July, 1996 and the order passed by the Appellate Authority dated 03rd January, 1997 are hereby quashed. No order as to costs. [GOVIND MATHUR],J. mma