IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 14111 of 2008 Date of Decision : December 20, 2011 Ravinder Kumar (Const. No. 180), s/o Sh. Chain Lal, aged 38 years, presently working in Police Post Surgani, Distt. Chamba, H.P. r/o Vill. Dharuin, P.O. Pokhri, Tehsil & Distt. Chamba (HP). Petitioner Versus 1. State of H.P. through Secretary (Home) to the Govt. of H.P., Shimla (HP). 2. Director General of Police, HP, Shimla (HP) 3. Dy. Inspector General of Police, Northern Range, Dharamshala, Distt. Kangra (HP). 4. Superintendent of Police, Chamba, Distt. Chamba, (HP). Respondents OA Under Section 19 of the Administrative Tribunals Act, 1985. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. P. P. Chauhan, Advocate, with Ms. Priyanka Chauhan, Advocate. For the respondents : Mr. Vinod Thakur, Dy. Advocate General. Justice Sanjay Karol, J. (Oral) Petitioner has prayed for the following reliefs: Whether reports of Local Papers may be allowed to see the judgment? 2 “(a) Quash the impugned order contained in A-1, A-3 and A-6 being arbitrary, malafide and illegal; (b) Direct the respondents to grant all the consequential benefits as a result of quashing of impugned orders with arrears and interest thereon @ 18% pa; (c) Allow the cost of this OA; (d) Pass such other order or directions as deemed fit and proper in favour of the applicant.” 2. Facts are not much in dispute. Petitioner while working as a Constable proceeded on two days casual leave on 17.1.2004. He did not return for duty within time and over stayed his leave. He joined duty only on 25.3.2004. He sought extension of leave on the ground that his wife was suffering ailment and required urgent personal attention. However his superior officer directed him to first join duty and thereafter his case for extension of leave would be considered. Allegedly these orders were not complied with by the petitioner, consequently disciplinary proceedings were initiated against him. 3. It is not in dispute that three charges were framed against the petitioner. The first being that he did not adhere to the orders of his superior officer and join duty on 19.1.2004 after expiry of his leave, the second being that he willfully absented without leave for a period of 65 days and the third being that he did not join duty on 9.3.2004 at the place of his posting during the Lok Sabha elections. 4. Record perused and returned. From the report of the inquiry officer it is quite apparent that only first charge stood proved against 3 the petitioner. Quite apparently he did not adhere to the orders of his superior officer and join duty on 19.1.2004. 5. It appears that after submission of the inquiry report, various show cause notices were issued to the petitioner. The first being dated 26.5.2004 and the second being dated 20.8.2004. Significantly in none of these show cause notices respondents assigned/enclosed reasons for disagreeing with the findings returned by the inquiry officer or enclosing the inquiry report, even though show cause notices pertained to charges in relation to which petitioner stood absolved. Vide impugned order dated 1.11.2004 (Annexure A-1) respondents have imposed penalty of stoppage of one increment for one year temporarily and also his absence for a period of 65 days w.e.f. 20.1.2004 to 24.3.2004 has been ordered to be treated as dies non, with half pay, and not to be counted for the purposes of pension, increments and leave etc. Petitioner preferred appeals before the appropriate authorities which also stood dismissed vide orders dated 2.4.2005 (Annexure A-3) and 27.7.2006 (Annexure A-6). 6. Normally it is not for this Court to interfere with the action of the Disciplinary Authority. The Court is to only scrutinize the decision making process. However in the instant facts need for interference is warranted. Procedure adopted by the Disciplinary Authority, while imposing major penalty in terms of order dated 1.11.2004 (Annexure A-1) is dehors the law. 4 7. Mr. P. P. Chauhan, learned counsel for the petitioner ably assisted by Ms. Priyanka Chauhan, Advocate, has invited my attention to the judgment rendered by the Apex Court in Punjab National Bank and others versus Kunj Behari Misra, (1998) 7 SCC 84 wherein it has been held as under:- “According to the Constitution Bench decision in Karunakar case [Managing Director, ECIL v. B. Karunakar (1993) 4 SCC 727], a delinquent officer is entitled to represent to the disciplinary authority where the findings in the enquiry report are against him. It will not therefore stand to reason that when the findings are in favour of the delinquent officer but they are proposed to be overturned by the disciplinary authority then no opportunity should be granted. According to Karunakar case, disciplinary enquiry is divided into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of evidence, enquiry officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer 5 but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard, for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority.” “In the present case, it was open under Regulation 6 to the disciplinary authority either to appoint an inquiry officer for conducting enquiry or to itself conduct enquiry. When the enquiry is conducted by the enquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by it. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why any opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officer succeed before the enquiry officer, he is deprived of representing to the disciplinary authority before that authority differs with the enquiry officer’s report and, while recording a finding of guilt, imposes punishment on the officer. In any such situation, the charged officer must have an opportunity to represent to the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case.” 6 “Principles of natural justice will have therefore to be read into Regulation 7(2). Whenever the disciplinary authority disagrees with the enquiring authority on any article or charge then before it records its 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 conclusion of the enquiry officer. The principles of natural justice 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.” [Emphasis supplied] 8. In the instant case inquiry officer had absolved the petitioner of the last two charges, yet without assigning any reasons or issuing show cause notice suggesting disagreement with the findings of the inquiry officer, enclosing the inquiry report, the disciplinary authority ventured to impose penalty with regard to the very same charges. Consequently the impugned orders dated 1.11.2004 (Annexure A-1) imposing penalty and orders dated 2.4.2005 (Annexure A-3) and 27.7.2006 (Annexure A-6) passed by the appellate authority are quashed. 9. It appears that the petitioner could not join duty as his wife had to undergo medical treatment and hospitalization on urgent 7 basis. She required some family support and an attendant. It appears that other than the petitioner there was none in the family to look after her. Perhaps it was under these peculiar circumstances that petitioner remained absent. It appears that his absence was also condoned and his period of absence was directed to be converted into leave of kind due. Perhaps it was in this background that the inquiry officer did not hold the petitioner guilty of the other two charges. Yet the disciplinary authority proceeded to conclude the disciplinary proceedings to the detriment of the petitioner by imposing a major penalty. Notwithstanding such circumstances and background, if the authorities otherwise find it desirable and appropriate, at this belated stage, to continue with the disciplinary proceedings it shall be open for them to do so, in accordance with law, but an endeavour shall be made to conclude the same expeditiously. With the aforesaid observations, present petition stands disposed of, so also the pending application(s), if any. (Justice Sanjay Karol), Judge. December 20 , 2011 (PK)