High Court · 2012

By this writ petition, the petitioner has challenged the two sep (2) arate orders by which certain penalties were imposed upon him by the respondent No.1 vide Order No. TWT.80/2002/Pt.I/27 dated 06.01.2011 and Order No.TWT.80/200 2/Pt-I/28 dated 06.01.2011 at Anneure-10 and Annexure-11 respectively to the pre sent writ petition, on the ground that the said orders were issued without being given any copy of the inquiry report in respect of departmental proceedings whi ch was initiated against him. (3) it petition may be stated as follows: The facts in brief for the purpose for consideration of this wr (4) While the petitioner was serving as Dy. Director (Commercial), I WT, Government of Assam, the petitioner was served with a show cause notice unde r Order No. TWT-80/2002/103 dated 10.04.2003 whereby he was charged with gross m isconduct and misappropriation of Govt. money amounting to Rs. 8,88,396/- violat ing all financial Rules & Procedures resulting in a loss of the Government prope rty. (5) The petitioner submitted his reply to the aforesaid show cause n otice on 29.10.2003. However, there seemed to be no progress in the aforesaid en quiry. Accordingly the petitioner approached this Court by filing a writ petitio n, W.P (C) No.8168/2004 for setting aside the aforesaid disciplinary proceeding primarily on the ground of undue delay. This Court by an order dated 22.12.2004 disposed of the said writ petition with a direction to the concerned respondent to complete the disciplinary proceeding within a period of 4(four) months, faili ng which it was directed that the petitioner would be re-instated in service. (6) Since the aforesaid disciplinary proceeding could not be complet ed within the stipulated period of four months as directed by this Court, the pe titioner was re-instated in service. After re-instatement of the petitioner in s ervice an additional charge was framed against the petitioner and he was served with another show cause notice in respect of the additional charge vide order No . TWT-80/2002/196 dated 26.07.2005 whereby it was charged that on reconstruction of the cash book, it was found that the mis-appropriated amount was found to be to the extent of Rs. 27,03,275.90/-. Accordingly, the petitioner was charged wi th gross misconduct and mis-appropriation of Govt. money amounting to Rs. 27,03, 275.90/-. The petitioner denied the aforesaid charge and submitted his reply on 06.09.2005. Even though the departmental enquiry against the petitioner was ulti mately completed, he was never informed of the conclusion of the Departmental En quiry against him. While the situation remained as such, without furnishing a co py of the enquiry report, the petitioner was served with the two impugned orders imposing punishment as stated above. (7) In the first order of penalty issued against the petitioner unde r No.TWT.80/2002/Pt.I/27, dated 06.01.2011 It has been stated that the Enquiry O fficer had submitted his enquiry report and on perusal of the enquiry report of the enquiry officer and approval of Assam Public Service Commission the charges and allegations against the petitioner had been found to be established and prov ed and accordingly the Governor of Assam was pleased to inflict the penalty upon the petitioner of reduction to a lower rank, i.e. the rank of Commercial Offic er under IWT, Assam at Dibugarh. (8) In the second order of imposing of penalty under order No. TWT/8 0/2002/Pt-I/28 dated 06.01.2011 it has been stated that the Governor of Assam w as satisfied that there were sufficient materials on record to draw disciplinary proceeding against the petitioner and on perusal of the enquiry report, charg es leveled against the petitioner had been found to be established and proved an d accordingly, the disciplinary authority on being satisfied and accepting the finding of enquiry reports, imposed the penalty against the petitioner under Ru le 7 (III) of the Assam Services (Discipline & Appeal) Rules, 1964 for realizati on of misappropriated amount of Rs. 1,74,602/- only to be realized from the p etitioner, namely, Sri Ajit Kr. Bora, Deputy Director (Commercial) IWT, Assam w ith immediate effect under order dated 01.06.2011. The petitioner states that he was never informed of the conclusi (9) on of the aforesaid disciplinary enquiry and he was never afforded a copy of the enquiry report so as to enable him to make representation against the findings of the enquiry report. Learned counsel appearing for the petitioner contends tha t failure on the part of the disciplinary authority to furnish a copy of the enq uiry report vitiates the disciplinary proceedings and consequently, the orders i mposing penalty upon him are liable to be quashed. He contends that it is the du ty of the authority under law to furnish a copy of the enquiry report to the pet itioner. In this regard, the learned counsel for the petitioner has relied Judgm ent of the Supreme Court rendered in Managing Director, ECIL, Hyderabad & Ors. - vs- B.Karunakar & Ors. reported in (1993) 4 SCC 727. The relevant portions of th e aforesaid Judgment are produced as follows: (cid:28) 25. While the right to represent against the findings in the r eport is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed be longs to the second stage when the disciplinary authority has considered the gui lt of the employee and proposes to award penalty on the basis of its conclusions . The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendments.

26. The reasons why the right to receive the report of the enquiry officer i s considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enq uiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclus ions. It is difficult to say in advance, to what extent the said findings includ ing the punishment, if any, recommended in the report would influence the discip linary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by miscon struing 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 justi ce require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice a nd a denial of fair opportunity to the employee to consider the findings recorde d by a third party like the enquiry officer without giving the employee an oppor tunity to reply to it. Although it is true that the disciplinary authority is s upposed to arrive at its own findings on the basis of the evidence recorded in t he inquiry, it is also equally true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inqu iry, it is also equally true that the disciplinary authority takes into consider ation the findings recorded by the enquiry officer along with the evidence on r ecord. In the circumstance, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influen ce its conclusion. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any a dditional material before the disciplinary authority of which the delinquent emp loyee has no knowledge. However, when the enquiry officer goes further and rec ords his findings, as stated above, which may or may not be based on the evide nce 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 considerat ion by the disciplinary authority while arriving at its conclusions. Both dictat es of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own concl usions, the delinquent employee should have an opportunity to reply to the enqui ry officer’s findings. The disciplinary authority is then required to consider t he evidence, the report of the enquiry officer and the representation of the emp loyee against it. 27. It will thus be seen that where the enquiry officer is other than the di sciplinary authority, the disciplinary proceedings break into two stages. The fi rst stage ends when the disciplinary authority arrives at its conclusions on the basis of the 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. If the disciplinary authority d ecides to drop the disciplinary proceedings, the second stage is not even reache d. The employee’s right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this righ t is denied to him, he is in effect denied the right to defend himself and to pr ove his innocence in the disciplinary proceedings. (cid:29) Accordingly, the petitioner has submitted that failure on the pa rt of the disciplinary authority to furnish a copy of the enquiry report has ren dered the aforesaid impugned orders are illegal, in view of the decision of the Supreme Court as stated above. Learned counsel for the petitioner has drawn the attention of th (10) is Court to para no. 16 of the affidavit-in-opposition filed by the respondent N o.2 in the present case, wherein it has been stated that the enquiry report has not been furnished to the petitioner. Accordingly, the learned counsel for the p etitioner submits that in view of the above admitted position that no enquiry re port had been furnished to the petitioner and in view of the requirement of law to furnish a copy of the enquiry report as laid down by the Supreme Court in the case if ECIL (supra), the present impugned orders are illegal and liable to be set aside. (11) Mr. AK Bhuya, learned counsel for the respondent No.2 submits t hat in absence of the records it cannot be ascertained as to whether the enquiry report had been sought for by the petitioner or not. Further, the petitioner ha d ample opportunity to defend himself and as much non-furnishing with a copy of enquiry report would not cause any prejudice to the petitioner in any manner. Ho wever, the aforesaid contention cannot be accepted in the view of the law that a charged official is entitled to a copy of enquiry report of the enquiry officer before the disciplinary authority takes a decision whether the delinquent offic er asks for the same or not. It is the legal obligation on the part of the disci plinary authority to furnish a copy of the enquiry report to the charged officer , if any adverse action is contemplated against the officer. In the case at hand , the respondent No 2 has admitted that the enquiry report had not been furnishe d to the petitioner before the said penalties were imposed. (12) Now it is well established that whether a charged official asked for or not or whether the rules provide or not, the disciplinary authority is b ound to give a copy of the enquiry report so as to enable the charged official t o make his representation against the findings recorded in the enquiry report, i f the authorities decide to take action against the official. Since, in the pres ent case, a copy of the enquiry report had not been furnished to the petitioner, before the penalties were imposed on him, the said action is unsustainable in l aw. (13) Accordingly, the present writ petition is allowed and the afores aid two impugned orders dated 06.01.2011 imposing penalties upon the petitioner are set aside. However, the disciplinary proceedings will be reverted back to th e stage of non furnishing of the enquiry report and the authorities are at liber ty to proceed with the disciplinary proceedings against the petitioner in acco rdance with law. (14) Since the two orders dated 06.01.2011 imposing penalty against t he petitioner have been set aside, as a corollary, the impugned transfer order d ated 6th January, 2011 issued by the Principal Secretary to the Govt. of Assam, Transport, Department, Dispur, Guwahati issued consequent upon the penalty, is a lso set aside. Consequently, the rank and status of the petitioner will be resto red to that of the Deputy Director (Commercial), IWT until the disciplinary auth ority takes a decision and pass appropriate order on conclusion of the disciplin ary proceedings against the petitioner in accordance with law. (15) In terms of the above directions, this writ petition is allowed.