High Court · 2012

The aforesaid order 02.09.2004 which is challenged herein stated that a major penalty charge sheet was initiated against the petitioner on 25.11.2002, a nd, the then Divisional Security Commissioner (Disciplinary Authority) finalized the case by exonerating the petitioner from the charges. However, the Chief Sec urity Commissioner/MLG ordered for re-enquiry, as he was not satisfied the findi ng of the Inquiry Officer and accordingly, directed that the fresh enquiry be co nducted against the petitioner. 7. The contention by the petitioner is that the Disciplinary Authority had already accepted the finding of the Inquiry Officer and exonerated the petitione r. The petitioner contends that if any superior authority to the Disciplinary A uthority, decides to take any action contrary to the finding of the Inquiry Offi cer as well as the decision of the Disciplinary Authority exonerating the charge d officer, such action could not be taken without giving any opportunity being h eard to the charge officer. In the present case what has happened is that the di sciplinary proceeding against the petitioner was concluded after the Disciplinar y Authority exonerated the petitioner by accepting the findings of the Inquiry O fficer which gave a finding that the charges against the petitioner were not pro ved. Therefore, having been exonerated the petitioner of any lapses as alleged, no further adverse action or steps could have been taken by the authority agains t the petitioner without giving the petitioner an opportunity of being heard.

8. The Railways authorities have filed an affidavit in opposition. In the a foresaid affidavit it has been stated that the Chief Security Commissioner which is the superior authority to the Disciplinary Authority had decided to order fo r a fresh enquiry as per the relevant provisions of Railway Protection Forces Ru les 1987 as the then Disciplinary Authority had erroneously exonerated the petit ioner. In the present case, the Inquiry Officer had given a finding that the ch 9. arges against the petitioner were not proved. The said finding of the Inquiry Of ficer was accepted by the then Disciplinary Authority and accordingly, exonerate d the petitioner from the charges. After the Disciplinary Authority had exonerated the petitioner, the Supe rior Authority, i.e., the Chief Security Commissioner ordered for re-enquiry on the ground that he is not satisfied with the findings of the Inquiry Officer. No thing is mentioned in the impugned order as to reasons which made the Chief Secu rity Commissioner not satisfied with the findings of the Inquiry Officer, whethe r it was because of procedural lapses or for any other reason. The affidavit-in- opposition filed by the Respondents also do not throw any light on the reason fo r such decision taken by the Chief Security Commissioner except that he was not satisfied and that he had the power to do so. However, having any power to do so is one thing and how it is to be exercised is another. One need not re-emphasis this aspect that when power is exercised it must be done reasonably and without arbitrariness. Reasonableness must permeate every decision made by any authorit y. In the present case, except the mere decision of the Chief Security Commissio ner that he was not satisfied with the findings of the Inquiry Officer, nothing has been placed on record the reasons for not being satisfied, whether it is for reasons germane to the issue or not. It cannot be a mere ipse dixit of the Supe rior Authority. This assumes more importance in this case in view of the fact th at the findings of the Inquiry Officer had been favourable to the petitioner and the Disciplinary Authority had already taken a final decision based on the afor esaid finding of the Inquiry officer by exonerating the petitioner. Thus, the Di sciplinary Authority having taken the final decision by exonerating the petition er, the departmental proceedings had come to an end and certain rights had alrea dy accrued in favour of the petitioner by virtue of the final order passed by th e Disciplinary Authority which could not be upset by the Superior Authority with out valid reasons and without informing the petitioner or giving a prior notice to the petitioner, which had not been done in this case. The Disciplinary Procee ding against the petitioner which had been concluded favourably with the petitio ner could not re-opened without giving a notice to the petitioner. Therefore, if the superior authority does not agree with the finding of the Inquiry Officer or the decision of the Disciplinary Authority, it should ha ve notified the petitioner or given an opportunity of being heard to the petitio ner as to the reasons the Appellate/Superior Authority does not agree with the f indings of the Inquiry Officer or decision of the Disciplinary Authority. In th e present case, nothing has been shown in the affidavit-in-opposition that the R ailways authority had given any such opportunity to the petitioner before the af oresaid impugned order was passed for a fresh enquiry at the behest of the super ior authority. It is now a well settled principle of law that before the Disciplinary A 10. uthority takes any contrary view to the finding of the Inquiry Officer and befor e proceeding to take action against the officer based on their own finding or co nclusion, the delinquent officer must be given an opportunity on being heard so as to enable him to persuade the Disciplinary Authority to accept the finding of the Inquiry Officer.

11. In this regard, one may refer to the decision of the Supreme Court rende red in Punjab National Bank ors. Vs Kunj Behari Mishra (1998) 7 Supreme Court C ases 84. The relevant portions of the judgment are quoted as under : (cid:28)18. Under Regulation 6, the enquiry proceedings can be conducted either by an e nquiry officer or by the disciplinary authority itself. When the enquiry is cond ucted by the enquiry officer, his report is not final or conclusive and the disc iplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinar y 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 him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no rea son as to why an opportunity of hearing should not be granted. It will be most u nfair and iniquitous that where the charged officers succeed before the enquiry officer, they are 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 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 pu nishment imposed. This is required to be done as a part of the first stage of en quiry as explained in Karunakar case4.

19. The result of the aforesaid discussion would be that the principles of natu ral 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 o f 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 en quiry officer containing its findings will have to be conveyed and the delinquen t officer will have an opportunity to persuade the disciplinary authority to acc ept the favourable 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 c harged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. (cid:29) 4: (1993) 4 SCC 727. In the aforesaid judgment it has been very clearly laid down that if the Disciplinary Authority disagrees with the finding of the Inquiry Officer, it mu st record its reasons for doing so and give an opportunity to represent against such a finding arrived at by the Disciplinary Authority which is partly or wholl y contrary to the finding of the Inquiry Officer and also give an opportunity of being heard to submit his representations against such adverse finding. In the opinion of this Court, the same principle would apply with the equal persuasion where the Superior/Appellate Authority seeks to disagree with the finding of the Inquiry officer and the decision of the Disciplinary Authority, more so when th e charged officer had been already exonerated by the Disciplinary Authority. In view of the above, the aforesaid impugned order is not sustainable in law. There is yet another reason which renders the impugned order unsustainab le. The impugned order dated 2.9.2004 does not refer to any decision by the Chie f Security Commissioner to supersede/nullify the final order passed by the Disci plinary Authority on 16.1.2004 exonerating the petitioner. Till the aforesaid or der dated 16.1.2004 is set aside by the Chief Security Commissioner/Superior Aut hority, no directions could be issued for a fresh enquiry merely on the ground t hat the Chief Security Commissioner was not satisfied with the finding of the In quiry Officer.

12. Therefore, in view of the above discussion and finding, the impugned ord er dated 02.09.2004 (Annexure 22), issued by the Divisional Security Commissione r at the instance of the Chief Security Commissioner for directing a fresh enqui ry against the petitioner is not sustainable in law and declared illegal and, ac cordingly, is set aside.

13. The Writ petition is, accordingly, allowed. No order as to cost.