IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2247/2008 Decided on:9.4.2009 Balbir Sehgal. …Petitioner. Versus Himachal Pradesh Board of School Education. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes For the petitioner : Mr.H.K. Paul, Advocate. For the Respondents : Mr. K.B. Khajuria, Advocate. Rajiv Sharma, J. The disciplinary proceedings were initiated against the petitioner vide memorandum dated 29.11.1991. He filed reply to the same. The Inquiry Officer was appointed. He furnished the report to the Disciplinary Authority dated 15.9.1993. The Disciplinary Authority disagreed with the conclusions drawn by the Inquiry Officer. The Disciplinary Authority came to a conclusion that as far as first charge was concerned with regard to the shortage of stock of books to the tune of Rs.27,726.80 paisa, it was due to negligent conduct of the petitioner and it stood proved. As far as the second charge was concerned, he dropped the same with an observation 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 that it will be without prejudice to serving of fresh charge sheet upon the delinquent. Consequently, the Disciplinary Authority vide order dated 15.9.1993 ordered the recovery from the salary of the petitioner at the rate of 1/3 of his basic pay per month. One increment was also stopped with cumulative effect. The respondent-Board served upon the petitioner fresh memorandum on 8.3.1994 on the basis of observations made by the Disciplinary Authority in his order dated 15.9.1993. He filed reply to the same on 17.3.1994. It appears from the record that recovery of Rs. 500/- per month was started from his salary with effect from August, 1998 on the basis of office order dated 22.8.1998. The text of office order dated 22.8.1998 reads thus: “In the charge-sheet issued on 8.3.1994, a loss of Rs. 49,580.70 paisa has been shown against Shri Balbir Sehgal, Senior Assistant Accounts Branch-4 in the Books of sale Depot, Dharamshala. To recover this amount as confessed by the above official orally before the Secretary, Board of School Education, a recovery of Rs. 500/- per month be started from the salary commencing from the month of August, 1998.” He made representation against this recovery. He was informed by the Assistant Secretary (Administration) of the respondent-Board that the recovery was being effected since he has agreed orally before the Secretary Board to pay an amount of Rs. 49,580/-. Mr. H.K. Paul, Advocate has strenuously argued that the Disciplinary Authority has not acted in accordance with law while disagreeing with the observations/findings made by the Inquiry Officer. His precise submission is that the Disciplinary Authority while disagreeing with the report of the Inquiry Officer was required to record his tentative reasons and thereafter the delinquent was to be served with a notice. He 3 also contended that once the inquiry had been initiated and it has gone in his favour, the Disciplinary Authority could not issue fresh memorandum on 8.3.1994 on the basis of the observations made in order dated 15.9.1993. He lastly contended that his client had never admitted his guilt before the Disciplinary Authority. Mr. K.B. Khajuria, Advocate has supported the imposition of penalty upon the petitioner on 15.9.1993 as well as the action of the respondent-Board to recover a sum of Rs. 500/- per month from his salary as per order dated 22.8.1998. I have heard the learned counsel for the parties and perused the record carefully. The disciplinary proceedings were initiated against the petitioner. He had filed reply to the memorandum on 4.12.1991. The Inquiry Officer has absolved/exonerated the petitioner. The Disciplinary Authority without recording his tentative reasons for disagreeing with the report of the Inquiry Officer came to conclusion that charge No.1 stood established against the petitioner. The Disciplinary Authority after coming to a conclusion that charge No.1 stood proved against the petitioner has ordered the recovery from the salary of the petitioner at the rate of 1/3 of his basic pay per month. One increment was also stopped with cumulative effect. This course could not be adopted by the Disciplinary Authority. Their Lordships of the Hon’ble Supreme Court in Punjab National Bank and others versus Kunj Behari Misra, (1998) 7 SCC 84 have held that when the Disciplinary Authority differs from 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. Their Lordships have further held that the charged officer must have an 4 opportunity to represent to the disciplinary authority before final findings on the charges are recorded and punishment imposed. Their Lordships have held as under: “18. Under Regulation 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not to be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before 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 inquiry as explained in Karunakar's case (1994 AIR SCW 1050) (supra). 19. 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 inquiry authority on any article of charge then before it records its own findings on such charge, it must record its 5 tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry 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 inquiry 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 representation before the disciplinary authority records its findings on the charges framed against the officer.” In the present case the Disciplinary Authority was required to record his separate tentative reasons. The petitioner was required to be served with a show cause notice. It was necessary for the disciplinary authority while issuing show cause notice to mention the reasons for disagreement from the view of the Inquiry Officer. Thus it is held that the imposition of penalty upon the petitioner by the disciplinary authority without serving him show cause notice at the stage of disagreement with the point of view of the Inquiry Officer is bad in law. The disciplinary authority had also recorded that though charge No.2 was not proved and the same was dropped, however, it was without prejudice to serving a fresh charge sheet upon the petitioner. Consequently, a charge-sheet was served upon the petitioner on 8.3.1994. He filed reply on 17.3.1994. Vide order dated 22.8.1998, a decision was taken to recover an amount of Rs. 49,580.70 paisa from the salary of the petitioner. He made a representation against the order dated 22.8.1998. He was informed that the recovery was being effected from his salary @ Rs. 500/- per month on the basis of his oral admission before the Secretary. The charge-sheet was issued under rule 14 of the Central Civil Services (Classification, 6 Control and Appeal) Rules, 1965. There is a detailed procedure the manner in which the inquiry has to be conducted under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. It is difficult to believe that a delinquent would agree to pay hefty amount of Rs. 49,580.70 paisa orally before the Secretary of the Himachal Pradesh Board of School Education. Assuming hypothetically that he has admitted his guilt, that too orally, the same was required to be recorded during the course of the disciplinary proceedings as stipulated under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Mr. H.K. Paul has strenuously argued that his client had never agreed to pay a sum of Rs. 49,580.70 by way of installments. According to him, he had been highlighting before the authorities that the recoveries cannot be effected since the Tribunal was seized of the matter. Accordingly, the Court is of the firm opinion that a sum of Rs. 49,580.70 could not be recovered on the basis of office order dated 22.8.1998. The procedure adopted by the Board is contrary to law. The matter can be viewed from another angle. The disciplinary proceedings were initiated against the petitioner on 29.11.1991. He has been absolved of charge No.2 by the Inquiry Officer. The disciplinary authority has also decided to drop charge No.2 vide order dated 15.9.1993. Despite that a fresh charge-sheet was issued to the petitioner on 8.3.1994 on the same and similar charges, which were levelled against him vide memorandum dated 29.11.1991. It clearly amounts to double jeopardy. Rather the issuance of second charge-sheet on same and similar charges of which the petitioner was absolved/exonerated by the Inquiry Officer was misconceived. He has been vexed twice for the same charges. 7 Consequently, the petition is allowed. Annexure DE dated 15.9.1993 and Annexure PH office dated 22.8.1998 are quashed and set aside. In case the recoveries had been effected from the petitioner on the basis of Annexure PH dated 22.8.1998, the amount shall be refunded to the petitioner within a period of eight weeks from today. There will, however, be no order as to costs. 9.4.2009 (Rajiv Sharma ), J. *awasthi*