IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 3776 of 2008. Decided on: 22.09.2010. __________________________________________________________ Asha Rani and others. … Petitioners. Versus State of Himachal Pradesh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioners : Ms. Ranjana Parmar, Advocate. For the Respondents : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General for respondents No.1, 2 and 4. Mr. Dilip Sharma, Advocate for respondent No.3. Rajiv Sharma, J. (Oral): The disciplinary proceedings were initiated against the husband of petitioner No.1 (hereinafter referred to as the “original petitioner”). The inquiry was entrusted to the Director, Departmental Inquiries, Himachal Pradesh. The Director, Departmental Inquiries, Himachal Pradesh was supposed to furnish the inquiry report to the disciplinary authority. However, it is evident from the contents of Annexure P-16, dated 14th May, 1996 that the Director, Departmental Inquiries, Himachal Pradesh has sent the inquiry report to the Director of Vigilance, Himachal Pradesh on 6th April, 1996. The procedure adopted 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - by the Inquiry Officer/disciplinary authority of furnishing the inquiry report to the Director of Vigilance was uncalled for. The disciplinary authority has to apply his independent mind on the report furnished by the Director, Departmental Inquiries instead of forwarding the matter for consideration by the Director of Vigilance. The Director of Vigilance sent the communication to the Administrator, Municipal Council, Dalhousie on 14th May, 1996. The Director of Vigilance came to the conclusion that charges No.1, 4, 6, 7 and 8 were also proved against the original petitioner. It is in these circumstances that memorandum dated 27th July, 1996 was issued. The disciplinary authority, i.e. the President, Municipal Council, Dalhousie had agreed with the findings of the Inquiry Officer on charges No.2, 3 and 5 and disagreed with respect of charges No.1, 4, 6, 7 and 8 while endorsing the reasoned observations given by the Director of Vigilance that charges No.1 to 8 were duly proved against the original petitioner. The copy of the inquiry report was not supplied to him before forming an opinion. It was supplied to him only on 27th July, 1996 with the memorandum. There is gross violation of the principles of natural justice by the disciplinary authority. The copy of the inquiry report ought to have been supplied to the original petitioner before the disciplinary authority came to the conclusion that he was not a fit person to be retained in service and he was granted the opportunity to make a representation within a period of 15 days. The purpose of supplying the copy of inquiry report as per law laid down by their Lordships of Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others, (1993) 4 SCC 727 is to enable an individual to represent against the short-comings, deficiencies and violation of mandatory provisions during the course of departmental - 3 - inquiry under which the inquiry was initiated. Their Lordships of Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others, (1993) 4 SCC 727 have held as under: “The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it 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 - 4 - before the disciplinary authority of which the 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.” 2. The disciplinary authority has committed a grave illegality while forming the opinion on the basis of observations made by the Director of Vigilance. The original petitioner has not been issued any notice before and after the opinion of the Director, Vigilance was sought as per letter dated 6th April, 1996. However, the fact of the matter is that it was not proper for the disciplinary authority to seek advice of the Director of Vigilance, Himachal Pradesh. The original petitioner also made a representation to memorandum dated 27th July, 1996 and without taking into consideration the averments contained in the representation, the penalty of dismissal has been imposed upon him. The disciplinary authority should have applied his independent mind. Since the disciplinary authority has not applied its independent mind, the decision arrived at by it is arbitrary. Their Lordships of Hon’ble Supreme Court in East Coast Railway and another versus Mahadev Appa Rao - 5 - and others, (2010) 7 SCC 678 have explained what is arbitrariness, as under (para 20): “Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non- application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 3. Their Lordships of Hon’ble Supreme Court in Punjab National Bank and others versus Kunj Behari Misra (1998) 7 SCC 84 have held that before the disciplinary authority disagrees with the report of the Inquiry Officer, he has to record tentative reasons and the copy of the reasons is required to be supplied to the delinquent to enable him to make representation. It is only thereafter the final decision is to be taken by the disciplinary authority after considering the representation made by an employee against the tentative reasons, supplied to him. However, in this matter, the disciplinary authority has disagreed with the report of Inquiry Officer so far as charges No.1, 4, 6, 7 and 8 are concerned. 4. No other point was urged. 5. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure P-17, dated 27th July, 1996 is quashed and set aside. In normal circumstances, liberty ought to have been reserved to the respondents to proceed with the matter after supplying the - 6 - copy of the report to the original petitioner. However, the fact of the matter is that the original petitioner has died during the pendency of this petition. Consequently, in the interest of equity, justice and fair play, the disciplinary proceedings initiated against the original petitioner are closed. Consequences shall ensue. There will be no order as to costs. (Rajiv Sharma), Judge. September 22, 2010. (sck).