IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 7981 of 2008. Decided on: 12.5.2009. ___________________________________________________________ Shri Ghanshyam Singh Chauhan. … Petitioner. Versus H.P. Agro Industries Corporation Ltd. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For the Respondent : Mr. S.C. Sharma, Advocate. __________________________________________________________ Rajiv Sharma, Judge. The disciplinary proceedings were initiated against the petitioner vide memorandum dated 23.5.1996. He filed reply to the Articles of Charge on 11.6.1996. Another memorandum was issued to him on 9.8.1996. The petitioner filed reply to the same on 20.8.1996. The Inquiry Officer was appointed by the Disciplinary Authority. He submitted report dated 7.8.1997 to the Disciplinary Authority. The petitioner was supplied with the copy of the inquiry report vide memorandum dated 3.9.1997. He filed representation against the inquiry report on 25.9.1997. He was served with another memorandum on 25.5.1998 whereby he was permitted to file representation against the inquiry report dated 18.5.1998. He filed reply to the same on 11.6.1998. The Disciplinary Authority imposed penalty of stoppage of two annual grade increments due 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 to him on 1.1.1999 and 1.1.2000 with cumulative effect vide order dated 8.7.1999. He preferred an appeal before the Board of Directors of the respondent-Corporation on 6.10.1999. The same was rejected and the petitioner was informed on 11.8.2000. Mr. D.P. Gupta has strenuously argued that the Disciplinary Authority had disagreed with the report furnished by the Inquiry Officer on 7.8.1997 without recording any tentative conclusions. He then argued that the Disciplinary Authority had remitted the case to the Inquiry Officer with certain observations which were not disclosed to his client. He then contended that the petitioner was required to be heard before the Disciplinary Authority had remitted the case back to the Inquiry Officer. He lastly contended that neither the order passed by the Disciplinary Authority dated 8.7.1999 nor order dated 11.8.2000 are self-contained. Mr. S.C. Sharma has supported the impugned orders. I have heard the parties and have gone through the pleadings carefully. The disciplinary proceedings were initiated against the petitioner, as noticed above, vide memorandum dated 23.5.1996 and 9.8.1996. The Inquiry Officer had submitted the report dated 7.8.1997 to the Disciplinary Authority. The petitioner was supplied with copy of the inquiry report. He filed representation against the same on 25.9.1997. However, it is apparent from the opening portion of the second inquiry report dated 18.5.1998 that the Managing Director had remitted the case back to the Inquiry Officer with certain observations pointed out at pages 189 to 192. This procedure adopted by the Managing Director was in contravention 3 of the principles of natural justice. In case, he had dis-agreed with the Inquiring Authority on any articles of charge, then before recording his findings on such charge, he was required to record tentative reasons for such agreement and to give the petitioner an opportunity to represent before it recorded its final conclusions. In the present case, the respondents have failed to prove any tangible evidence on record that the Disciplinary Authority had recorded tentative conclusions and heard the petitioner before recording final reasons. The petitioner has not been informed about the contents of pages 189 to 192. The procedure adopted has violated the principles of natural justice. Their Lordships of the Hon’ble Supreme Court have held in Punjab National Bank and others versus Kunj Behari Misra (1998) 7 Supreme Court Cases 84 that it is necessary for the Disciplinary Authority to arrive at a tentative conclusion while disagreeing with the Inquiring Authority and thereafter to convey those tentative conclusions to the delinquent and only thereafter, the final conclusions could be recorded. Their Lordships have held as under: “The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable 4 conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” The petitioner in his representation made to the second memorandum dated 25.5.1998 had high-lighted that the case could not be remitted back by the Disciplinary Authority without hearing the petitioner. This aspect has also been over-looked by the Disciplinary Authority while issuing impugned order dated 8.7.1999. The Court is of the opinion that there was violation of the principles of natural justice which has resulted in grave miscarriage of justice. There is sufficient merit in the submissions of Mr. D.P. Gupta that the order passed by the Disciplinary Authority dated 8.7.1999 is not speaking/self-contained. A bare perusal of order dated 8.7.1999 reveals that it is neither speaking nor reasoned. Their Lordships of the Hon’ble Supreme Court have held in Roop Singh Negi versus Punjab National Bank and others, (2009) 2 Supreme Court Cases 570 that the order passed by the Disciplinary Authority should be speaking one. Their Lordships 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 been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal 5 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 inferences 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 a substitute for legal proof. The petitioner has preferred an appeal against order dated 8.7.1999. The same has been rejected by the Board of Directors without passing a speaking order. The appellate order must be speaking/reasoned. The petitioner was required to be conveyed the grounds which have weighed with the appellate authority while rejecting his appeal. It is necessary for the appellate authority to take into consideration all the grounds mentioned in the appeal before deciding the same. Their Lordships of the Hon’ble Supreme Court in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank versus Jagdish Sharan Varshney and others, (2009) 4 Supreme Court Cases 240 have held that though the order of affirmation need not contain elaborate reasons as an order of reversal, but that does not mean, it need not contain any reasons thereon. Their Lordships have held as under: 6 “In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover case has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority. The view we are taking was also taken by this Court in Divl. Forest Officer v. Madhusudhan Rao (vide SCC para 20:CJ para 19), and in M.P. Industries Ltd. v. Union of India, Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India (vide SCC para 6: AIR para 6) etc. In the present case, since the appellate authority’s order does not contain any reasons, it does not show any application of mind. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation. Hence, we agree with the High Court that reasons should have been contained in the appellate authority’s 7 order, but we cannot understand why the High Court has set aside the order of the disciplinary authority, in addition to setting aside the appellate order.” Accordingly, in view of the above observations, the writ petition is allowed. The impugned orders Annexure A-15 dated 8.7.1999 and Annexure A-19 dated 11.8.2000 are quashed and set aside. However, it is open to the respondent-Corporation to proceed with the matter in accordance with law on the basis of observations made hereinabove. No costs. (Rajiv Sharma), J. May 12, 2009. (cr)