Hima Kohli, J.@mdashThe present petition is directed against order dated 29.9.2005 passed by the District and Sessions Judge Tis Hazari Courts, the Disciplinary Authority in the enquiry proceedings and the respondent herein, whereunder the petitioner has been awarded punishment under Rule 14 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the Rules) thereby withholding his future increment for a period of two years without cumulative effect.
2. Brief facts which are necessary for disposal of this appeal are that the petitioner was appointed as a Staff Car Driver with the respondent. In the month of June 2003, the log book pertaining to Car No. DL 1C F3261 got lost. As a result, respondent issued a Memorandum dated 18.5.2004 to the petitioner informing him that the respondent proposed to hold an enquiry against him under Rule 14 of the Rules on the allegations of misconduct. The Charge framed against the petitioner was to the effect that the petitioner while working as a Driver during the period June 2003 lost the Log Book of Pool Car No. DL 1C F-3261 and that being a Driver, it was his primary duty to maintain the Log Book properly and to keep it safe and sound, which the petitioner failed to do, thereby committing an act of gross negligence, carelessness and lack of devotion to duty within the meaning of Rule 3 of the CCS (Conduct) Rules, 1964, and thus he was liable for disciplinary action.
3. As against the aforesaid Memorandum, the petitioner filed a reply dated 24.05.2004 and pleaded that the charges framed against him were false and that the loss of the Log Book was not intentional. Vide its order dated 18.06.2004, the respondent appointed the Additional District and Sessions Judge, Delhi, as the Enquiry officer to inquire into the charges framed against the petitioner. During the course of the said enquiry, two witnesses were examined on behalf of the department, namely Shri. Madan Lal, the driver of the Car No. DL 1C F 3261 and Shri. Gurdeep Singh, LDC, Pool Car Section. On completion of the said proceedings, the Enquiry officer vide his report dated 26.06.2005, held that the department had failed to prove the charges against the petitioner and that the petitioner was duly exonerated of the charges leveled against him. Pursuant thereto, the respondent issued another Memorandum dated 20.07.2005 to the petitioner thereby directing him to submit his representation against the Inquiry Report. Accordingly, the petitioner submitted his representation dated 3.8.2005 stating inter alias that as the Enquiry Officer had exonerated him of the charges framed against him, he may be discharged. Thereafter, the respondent issued the impugned order dated 29.09.2005, wherein, while disagreeing with the findings of the enquiry officer, he held the petitioner liable for disciplinary punishment under Rule 14 of the Rules and imposed upon him a punishment of withholding of his future increment for a period of two years, without cumulative effect. Aggrieved by the aforesaid order of the respondent the petitioner has approached this Court.
4. Learned Counsel for the petitioner contended that the impugned order is illegal, unjustified and void as it has been passed without complying with the principles of natural justice and is Therefore vocative of Article 14 of the Constitution of India, being arbitrary and perverse. It was contended that the Memorandum dated 20.7.2005 issued by the respondent to the petitioner, nowhere mentioned that the respondent proposed to disagree with the said Inquiry Report. It was submitted that though the respondent had asked for a representation from the petitioner as against the Inquiry Report, the petitioner duly replied to the same by letter dated 3.08.2005 and stated therein that since the Enquiry officer had exonerated him of all the charges, Therefore no action under Rule 15(2) of the Rules be taken against him. Learned Counsel for the petitioner argued that if at all the respondent was in disagreement with the report of the Enquiry Officer, the same ought to have been communicated to the petitioner, and he should have been afforded an opportunity of hearing before the impugned order order was passed, by which the findings of the Enquiry officer were overturned and the aforestated punishment was imposed on the petitioner.
5. Learned Counsel for the respondent on the other hand submitted that the respondent was well within its right to either agree or disagree with the findings of the Enquiry Officer. It was further averred that the impugned order did not suffer from any infirmity or illegality and was not passed in violation of the principles of natural justice, as alleged by the petitioner as the Memorandum dated 20.07.2005 issued by the respondent to the petitioner was quite in the nature of a show cause notice and in response thereto, the petitioner even filed a reply which was duly considered while passing the impugned order.
6. I have heard the counsels for both the parties and have perused the material placed on record including the impugned order. The whole petition hinges on the issue that when the Enquiry Officer, after conducting the enquiry gives a finding that the charges alleging misconduct against the delinquent employee are not established, whether in such circumstances, the disciplinary authority can differ from the said report and give a contrary finding without affording any opportunity of hearing to the delinquent employee. In the facts of the present case, the question that arises for consideration is that can the Memorandum dated 20.07.2005 issued by the respondent to the petitioner be said to be in the nature of a show cause notice and can the petitioner be said to have been afforded a reasonable opportunity of hearing by issuance of the said Memorandum to him.
7. So far as the first issue is concerned, there is no quarrel with the proposition that the disciplinary authority can disagree, if not satisfied otherwise, with the findings of the Enquiry Officer. However, law is now well settled that if the disciplinary authority disagrees with the report of the Enquiry Officer, then a copy of the disagreement note is to be given to the employee concerned so as to afford him an opportunity of being heard before imposing a penalty on him. This issue as considered by a Full Bench of the Supreme Court at great length in case of
Para 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 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 favorable 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.
8. The aforesaid judgment in Kunj Behari Mishra (supra) was approved by the Supreme Court in the case of
9. In this context, reliance can also be placed on a recent judgment of the Supreme court in the case of
10. In view of the settled position of law, as discussed above, it can be safely deduced that in the present case also, it was imperative for the respondent to give a note of disagreement to the petitioner along with the Memorandum dated 20.07.2005, if it prima facie disagreed with the findings arrived at by the enquiry officer, so as to afford an opportunity to the petitioner to present his case and defend himself.
11. The contention of the respondent that the Memorandum dated 20.07.2005 issued in favor of the petitioner, was itself in the nature of a show-cause notice, and it was then for the petitioner to have filed a satisfactory reply/representation against the same, is noted only to be rejected. The Memorandum dated 20.07.2005 is reproduced hereinbelow for ready reference:
MEMORANDUM
As required by the provisions of the Rule 15(2) of CCS(CCA) Rules, 1965, a copy of the Inquiry Report dated 24.06.2005 submitted by Sh. Pradeep Chaddah, Addl. District and Sessions Judge/Inquiry Officer, Delhi into the charged framed against Sh. Dinesh Kumar, Driver is sent herewith to the said delinquent official.
He is required to submit, if he wishes, any representation or submission within 15 days from the date of this memorandum against the Inquiry Report. However, the same should be entirely on the basis of evidence adduced during the Inquiry.
The disciplinary authority, after considering the inquiry report and the representation or submissions, if any, on behalf of the official, will take suitable decision in the matter.
The receipt of this memorandum be acknowledged.
Sd/-
DISTRICT and SESSIONS JUDGE
DELHI
12. The aforesaid Memorandum was issued in terms of the statutory requirement of Rule 15(2) the Rules. However, the said Rule as reproduced hereunder makes it manifest that the disciplinary authority is not only required to supply the government servant with a copy of the Inquiry Report, but is also required to inform him about the tentative reasons of disagreement, if any, with the report of the Inquiring Authority on any article of charge:
15. Action on the inquiry report
(1) x x x
(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favorable or not to the Government servant.
13. A bare perusal of the said Memorandum reveals that the same did not contain any note of disagreement or any tentative reasons for disagreement with the Inquiry Report by the respondent and Therefore it is not in conformity with the mandate of Rule 15(2) of the Rules. All that was conveyed to the petitioner was that he should submit a representation against the Inquiry Report, within fifteen days of the issue of the said Memorandum. However, the Inquiry Report being in favor of the petitioner, and there being no indication in the Memorandum that the respondent was in disagreement with the Inquiry Report, there was no reason whatsoever for the petitioner to have submitted a detailed reply. Unless and until a disagreement note was appended with the said Memorandum, the petitioner could not be expected to defend himself, more so when he had no inkling about either the prima facie disagreement or the material on the basis of which the respondent proposed to disagree with the Inquiry Report.
14. In the facts and circumstances of the present case, the inevitable conclusion is that the impugned order dated 29.09.2005 passed by the respondent herein is vocative of the principles of natural justice in so far as no opportunity of hearing was afforded by the respondent to the petitioner before overturning the findings arrived at in the Inquiry Report in favor of the petitioner and imposing a penalty of withholding his future increment for a period of two years without cumulative effect. The moment respondent proposed to disagree with the findings of the Enquiry Officer, it was incumbent upon him to have recorded the reasons for its tentative disagreement, which would have in turn formed the basis of issuance of a show-cause notice to the petitioner. The respondent could not have dispensed with the provision of putting the petitioner to notice and affording him an opportunity of hearing.
15. In view of the aforesaid position, the impugned order dated 29.09.2005 is quashed and the respondent is directed to consider the matter afresh in the light of the aforementioned discussion and proceed with the matter from the date of receipt of the enquiry report. The writ petition is allowed. No order as to costs.
