Judgment · High Court · 2012

er as well as Ms. B. Dutta, learned counsel appearing for the respondents. 2. This writ petition has been filed for setting aside and quashing the final order dated 16.9.2009 passed by the Disciplinary Authority, imposing the penalty of (cid:28)censure (cid:29) against the petitioner and also the order dated 25th Ma y 2010 passed by the Appellant Authority rejecting the appeal preferred by the p etitioner against the order of censure passed by the Disciplinary Authority. 3. ion of the issues raised in the writ petition may be stated herein below. 4. According to the petitioner, she was initially appointed as a De puty Superintendent Police (Dy. SP) in the Junior Cadre as a direct recruit in t he year 1992, on the recommendation of the Assam Public Service Commission. Ther eafter, she had served in various places in various capacities in the State incl uding as Superintendent of Police, Morigaon District. The petitioner served as a The brief facts as may be relevant for the purpose of considerat Superintendent of Police, Morigaon during the period of 2003-04.

#5. While the petitioner was serving as SP, Goalpara District, the p etitioner was served with a charge sheet in the form of show cause notice dated 04.06.2005 issued by the Respondent No. 1 requiring the petitioner to submit her reply in respect of two allegations mentioned in the memorandum. The two allega tions are reproduced herein below for better appreciation of the case. (cid:28) (cid:29)1. While you were serving as Superintendent of Police, Morigaon, Assam with effect from 06.01.2003 to 24.02.2004 a most wanted accused Sri Sunil Jaisw al had appeared at about 12:35 PM at Dharamtul Police station on 1.8.2003 who wa s involved in Dharamtul PS case No. 13/02 U/s 379/427 IPC. R/W Sec. 3(2)(6) of p revention of Damages to Publice Property Act and R/W Sec. 7 of E.C. Act and arre sted as per your direction. Accordingly, the accused was interrogated by o/c, Dh aramtul PS and Addl. C.I./Jagiroad. But on the next day, you again directed the I/O to release the accused Shri Sunil Jaiswal on P.R. bond and to drop him at th is residence in Guwahati with Police escort. In this regard, when you were asked by CID, you admitted that you had instructed the I/O to release the accused as per direction of Deputy Commissioner, Morigaon. But again you flatly denied this statement when you were asked by CID, you admitted that you had instructed the I/O to release the accused as per direction of Deputy Commissioner, Morigaon. Bu t again you flatly denied this statement when you were asked by CID after 3 or 4 days. You had also torn off the C.D. No. 29 and 30 from the original CD before transferring the case to CID as intimated by Addl. C.I. Jagiroad.

#2. You are, therefore, charged with gross misconduct, negligence of duty. Again during your incumbency as Superintendent of Police, Morig aon, on receipt of information that some money were misappropriated in your offi ce, an internal audit was ordered and conducted and as per Audit report dated 23 .6.2004 it has been found that two Lower Division Assistants had misappropriated a total sum of Rs. 93,581.00 from the office of the Superintendent of Police, M origaon. Departmental action has been taken against both the LD Asstt. to effect recovery of the amount. As Superintendent of Police, Morigaon during this perio d, you are responsible for lack of supervision due to which such misappropriatio n could occur. Your are therefore charged with gross misconduct and remissness of duty. (cid:29)

#6. The petitioner submitted her reply denying the allegations made therein to the respondent No. 1 on 21.03.2007. However, not being satisfied with the aforesaid reply submitted 7. by the petitioner, the Disciplinary Authority decided to proceed with the enquir y against the petitioner.

#8. Accordingly Sri Pradip Kumar. IPS, IGP (BIEO), Assam was appoint ed as the Inquiry Officer under Rule 9(4) of the Assam Services (Disciplinary an d Appeal) Rules, 1964 for holding the enquiry in respect of the two charges agai nst the petitioner as stated above. 9. The aforesaid enquiry was duly concluded and the Inquiry Officer submitted his report to the Disciplinary Authority. The Inquiry Officer, after discussing and analyzing the evidence and material on records produced in course of the enquiry, gave the finding that the charges in respect of both the charge s could not be proved beyond doubt. 10. After considering the enquiry report, the Disciplinary Authority issued the order dated 16.09.2009 imposing the penalty of (cid:28)censure (cid:29) which has b een challenged in the present writ petition. Since, the finding of the Inquiry Officer was not against the pe titioner, copy of the said was not furnish to the petitioner but was subsequentl y furnished to her along with the impugned order dated. 16.09.2009. 11. In the aforesaid impugned order dated 16.09.2009, the Disciplina ry Authority, inter alia, stated that the Inquiry Officer after causing the enqu iry into the charges submitted his report to the Disciplinary Authority vide le tter No.SB.XI/IP/Pt-5/2008/85 dated 2.06.2009 wherein the Inquiry Officer could not substantiate both the charges framed against the petitioner, beyond doubt b ut has made observations indicating lapses on her part including missing of reco rds etc. It was also stated that the Disciplinary Authority after careful examin ation of the report of the Inquiry Officer and the materials on record, and on c onsideration of the facts and circumstance of the case and lapses committed by t he petitioner, decided to inflict the minor penalty of (cid:28)censure (cid:29) which would mee t the ends of justice. 12. The main contention of the petitioner is that the Disciplinary A uthority could not have issued the aforesaid order imposing the penalty of (cid:28)cens ure (cid:29) without giving an opportunity of being heard to the petitioner about the de cision of Disciplinary Authority that the inquiry report indicated lapses on the part of the petitioner as mentioned in the impugned order.

#13. According to the petitioner, once Inquiry Officer had given the finding that the charges had not been proved, in other words, once the petitione r had been found innocent of the charges by the Inquiry Officer, the petitioner could not have been visited with any penal action without affording the petition er an opportunity to explain herself as regards the contrary conclusion arrived at by the Disciplinary Authority. In the present case, the Inquiry Officer had g iven the finding that the charges against the petitioner had not been proved and therefore if the Disciplinary Authority had decided not to agree with the afore said finding of the Inquiry Officer, principle of nature justice would require t hat the petitioner be afforded opportunity of having a say regarding the said di sagreement before that the Disciplinary Authority takes a view which is not in c onformity with the finding given by the Inquiry Officer. 14. The respondents have filed the affidavit in opposition. In the a foresaid affidavit in opposition, plea has been taken by the authority that the Disciplinary Authority is not bound by the finding given by the Inquiry Officer and the Disciplinary Authority is free to disagree wholly or partly with the fin ding of the Inquiry Officer and free to draw its own conclusion on the basis of the material available. The respondents have also taken the plea that the standa rd of proof in the domestic enquiry is that of preponderance of probability and accordingly, the Disciplinary Authority on the basis of the material on record a vailable, was entitled to come to a finding different from the finding recorded by the Inquiry Officer and impose such penalty as the Disciplinary Authority ma y deem fit and proper in the facts of the case. There can be no dispute about th e aforesaid legal proposition. However, what is in issue is, as regards the proc edure to be adopted by the Disciplinary Authority to proceed ahead after it disa grees wholly or partly with the finding of the Inquiry Officer. In the course of hearing it has been enquired from the learned c 15. ounsel appearing for the respondents as to whether any notice had been given to the petitioner by the Disciplinary Authority before issuing the impugned order r egarding the disagreement with the findings of the Inquiry Officer by the Discip linary Authority and also as regards the conclusion of the Disciplinary Authorit y about the alleged lapses on the part of the petitioner as mentioned in the imp ugned order and reasons thereof. The learned Counsel has specifically submitted before this Court that no such notice was given to the petitioner regarding the different conclusion reached by the Disciplinary Authority against the petitione r and the reasons thereof, contrary to the finding recorded by the Inquiry Offic er, before the impugned order was issued. 16. As regards the procedure to be adopted by the Disciplinary Autho rity before imposing penalty, the same has been already laid down in the relevan t rules, in this case, the Assam Services (Disciplinary and Appeal) Rules 1964. Even though in the aforesaid rules there is no provision requiring to give any p rior notice to any delinquent officer before the Disciplinary Authority imposes any penalty, after disagreeing with the finding recorded by the Inquiry Officer, it is now well settled by a catena of decisions of the Supreme Court that such a requirement of giving prior notice, even if not provided under the relevant ru les, has to be read into it. In this regard, one may refer to the decision rende red by the Supreme Court in Punjab National Bank & others -Vs- Kunj Behari Misra reported in (1998) 7 SCC 84.

#17. In the aforesaid case of Punjab National Bank & ors. (supra) a s imilar question arose as to the steps to be taken by the Disciplinary Authority when the Disciplinary Authority disagrees wholly or partly with the finding of the Inquiry Officer. It has been held by the Supreme Court that in such an event where the Disciplinary Authority disagrees wholly or partly with the finding of the Inquiry Officer, the Disciplinary Authority has to record its tentative rea sons for such disagreement and give to the delinquent officer an opportunity to submit his opinion as regards the disagreement before it records it findings. Th e report of the Inquiry Officer has to be furnished to the delinquent officer wh o will have an opportunity to persuade the Disciplinary Authority to accept the favourable report submitted by the Inquiry Officer against the tentative reasons given by the Disciplinary Authority. The Supreme Court further has held that the principle of natural justice requires that the Disciplinary Authority which is to take the final dec ision and impose the penalty has to give an opportunity to the officer concerned to file representation before the Disciplinary Authority regarding the charges framed against the officer. 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.

#18. In the present case, what we have seen is that the Enquiry Offic er had given a finding that the charges against the petitioner have not been pro ved beyond doubt. If the finding of the Inquiry Officer is accepted, obviously n o penalty could have been imposed on the petitioner. 19. The Disciplinary Authority could take action against the petitio ner, only if there were any finding against the petitioner. In the present case, even though the Inquiry Officer had held that charges against the petitioner no t proved, Disciplinary Authority has come to a finding that there were lapses on the part of the petitioner. In other words, there is an adverse finding against the petitioner by the Disciplinary Authority. This finding is obviously differe nt from the finding of the Inquiry Officer. However, no notice or opportunity wa s given to the petitioner to enable her to make her representation against such a different conclusion or finding by the Disciplinary Authority, and also in sup port of the finding given by the Inquiry Officer, which ought to have been done in the light of the decision of the Supreme Court as discussed above. Therefore, this Court is the opinion that the Disciplinary Authority having failed to give any notice or opportunity to the petitioner to submit representation in support of the finding given by the Inquiry Officer that the charges against the petiti oner have not been proved, and also against the conclusion of the Disciplinary A uthority that there were lapses on the part of the petitioner, the impugned orde r can not be sustained. Accordingly, the aforesaid impugned order 16.09.2009 is liable to set aside, being violative of the principle of natural justice. In view of the above, the order passed by the respondent No. 1 u 20. nder order No. HMA(APS) 581/564, dated 16.09.2009 is set aside and consequently, the order No. HMA(APS) 581/672 dated 25.05.2010 issued by the appellant authori ty which upheld the dated 16.09.2009 is also set aside. The writ petition stands allowed. No order as to costs.