S.Subramani v. The Commandant, 85 Battalion, Central Reserve Police Force

Thus the overwriting and cuttings havebeen done by the delinquent purposely tojustify his overstayal from leave and thecertificate date 3.2.2000 new issued byDr.N.Rajkumar and Produced by thedelinquent in his defence cannot beaccepted as genuine. ii)The delinquent had submitted a cashbill No.2711 dated 28.5.1999 ofM/s.Karlin Medicals, Chetput, Chennai forRs.28.50 on account of medicine purchasedby him. On verification by the EO theabove firm vide letter dated 7.2.2000has confirmed that they had no suchserial of bills. iii)The delinquent was sanctioned 15days CL w.e.f.27.3.99 and he left from Ashmugam, Anantnag(J&K) by 26.3.99 conveyto Jammu. Thus there is no way he canreach Chennai by 28.3.99 after travellingby train from Jammu. Thus the medicalcertificate now produced by him showinghis date of treatment from 28.3.99instead of 27.3.99 also cannot be reliedupon and is fake. Thus the articles of charge-II framedagainst the delinquent also stand proved beyondany doubt.

"5. Therefore, while the enquiry officer held that the firstcharge alone was proved and the second charge was not proved, thefirst respondent held both the charges proved. This point was alsoreferred to in the appellate authority's order in the followinglines: "3. Shri H.B.Gurang, Second CommandantOfficer, 85 Battalion conducted the departmental https://hcservices.ecourts.gov.in/hcservices/ investigation. The investigation officer found theperson as accused in First Complaint according tothe enclosed documents and witnesses affidavit anddeclared the accused as non-accused in the SecondComplaint and presented the report to the Administrative Officer. The Administrative Officernot accepting the report presented by theinvestigation officer on Complaint 2, consideringhim as accused and his continuing in work as notacceptable, through his order No.P8.14/99.85.Sta.2Dt. 19.4.2000 expelled him from work. Distressedby the above said order No.850829186, previous CtS.Subramaniam, appealed against the order of Commandant 85 Battalion, to the appealofficer...."But, he has not given any finding regarding the same.

Difficulties have arisen in all thosecases in which the enquiring authority hasrecorded a positive finding that the charges werenot established and the delinquent officer wasrecommended to be exonerated, but the disciplinaryauthority disagreed with those findings andrecorded its own findings that the charges wereestablished and the delinquent officer was liableto be punished. This difficulty relates to thequestion of giving an opportunity of hearing tothe delinquent officer at that stage. Such anopportunity may either be provided specifically bythe rules made under Article 309 of the Constitution or the disciplinary authority may, ofits own, provide such an opportunity. Where therules are in this regard silent and thedisciplinary authority also does not give anopportunity of hearing to the delinquent officerand records findings different from those of theenquiring authority that the charges wereestablished, “an opportunity of hearing” may haveto be read into the rule by which the procedurefor dealing with the enquiring authority’s reportis provided principally because it would becontrary to the principles of natural justice if adelinquent officer, who has already been held tobe “not guilty” by the enquiring authority, isfound “guilty” without being afforded anopportunity of hearing on the basis of the sameevidence and material on which a finding of “notguilty” has already been recorded.29.

We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal)Rules, 1979 which enables the disciplinaryauthority to disagree with the findings of theenquiring authority on any article of charge. Theonly requirement is that it shall record itsreasoning for such disagreement. The rule does notspecifically provide that before recording its ownfindings, the disciplinary authority will give anopportunity of hearing to a delinquent officer. But the requirement of “hearing” in consonancewith the principles of natural justice even atthat stage has to be read into Rule 9(2) and ithas to be held that before the disciplinaryauthority finally disagrees with the findings ofthe enquiring authority, it would give anopportunity of hearing to the delinquent officerso that he may have the opportunity to indicate https://hcservices.ecourts.gov.in/hcservices/ that the findings recorded by the enquiringauthority do not suffer from any error and thatthere was no occasion to take a different view.

The disciplinary authority, at the same time, hasto communicate to the delinquent officer the“TENTATIVE” reasons for disagreeing with thefindings of the enquiring authority so that thedelinquent officer may further indicate that thereasons on the basis of which the disciplinaryauthority proposes to disagree with the findingsrecorded by the enquiring authority are notgermane and the finding of “not guilty” alreadyrecorded by the enquiring authority was not liableto be interfered with......31. In view of the above, a delinquent employeehas the right of hearing not only during theenquiry proceedings conducted by the enquiryofficer into the charges levelled against him butalso at the stage at which those findings areconsidered by the disciplinary authority and thelatter, namely, the disciplinary authority forms atentative opinion that it does not agree with thefindings recorded by the enquiry officer.

If thefindings recorded by the enquiry officer are infavour of the delinquent and it has been held thatthe charges are not proved, it is all the morenecessary to give an opportunity of hearing to thedelinquent employee before reversing thosefindings. The formation of opinion should betentative and not final. It is at this stage thatthe delinquent employee should be given anopportunity of hearing after he is informed of thereasons on the basis of which the disciplinaryauthority has proposed to disagree with thefindings of the enquiry officer. This is inconsonance with the requirement of Article 311(2)of the Constitution as it provides that a personshall not be dismissed or removed or reduced inrank except after an enquiry in which he has beeninformed of the charges against him and given areasonable opportunity of being heard in respectof those charges. So long as a final decision isnot taken in the matter, the enquiry shall bedeemed to be pending.

Mere submission of findingsto the disciplinary authority does not bring aboutthe closure of the enquiry proceedings. Theenquiry proceedings would come to an end only whenthe findings have been considered by thedisciplinary authority and the charges are eitherheld to be not proved or found to be proved and inthat event punishment is inflicted upon thedelinquent. That being so, the “right to be heard” https://hcservices.ecourts.gov.in/hcservices/ would be available to the delinquent up to thefinal stage. This right being a constitutionalright of the employee cannot be taken away by anylegislative enactment or service rule includingrules made under Article 309 of the Constitution. "