Mahesh Kumar Singh v. The State of Jharkhand

HON'BLE MR. JUSTICE ANANDA SEN. ------ For the petitioner(s): For the respondent(s): AC to G.P.-I. M/s R. Krishna and Jay Shahnkar Tiwary, Advocates ------ 09/19.09.2022: This writ petition can be disposed of on very small question of law. The ground taken by the petitioner is that in the departmental proceeding, the Enquiry Officer submitted a report. The report of the Enquiry Officer clearly suggests that the charges are not proved, inspite of that the Disciplinary Authority differed with the findings of the Enquiry Officer and issued the second show cause notice without giving reasons.

Counsel for the petitioner submits that there is no illegality in issuing a notice if the findings of the Enquiry Officer is differed with, but the reasons for differing must be mentioned in the notice itself so that proper reply can be given by the petitioner. By not assigning any reason as to why the Disciplinary Authority is differing with the enquiry report, valuable right of the petitioner has been taken away, thus he could not give proper reply to the notice, which has been served upon him.

The counsel for the State submits that the Disciplinary Authority, finding discrepancy and lacuna in the enquiry report, has issued a notice to the petitioner as the Disciplinary Authority differed with the findings of the Enquiry Officer.

There is no element of doubt that the Disciplinary Authority can differ with the findings arrived at by the Enquiry Officer in the departmental proceeding. If the Disciplinary Authority differs with the findings of the Enquiry Officer, he has to issue notice to the petitioner assigning the reason to why he is differing. The reasons should be specifically assigned in the notice itself. If the reasons are not mentioned in the notice, the petitioner cannot give proper reply to the same. The principles of natural justice thus is violated.

In this case, admittedly, the notice was issued to the petitioner as the Disciplinary Authority differed with the findings arrived at by the Enquiry Officer. The said notice dated 15.4.2015 is at Annexure-5 to the writ petition. The notice only mentions that the Disciplinary Authority is not agreeing with the findings of the Enquiry Officer and the findings arrived at by the Enquiry Officer is not accepted. What are the reasons for not accepting the findings and what are the laches committed by the Enquiry Officer and the reasons for differing has not been mentioned. The Hon'ble Supreme Court in the case of Punjab National Bank Vs. Kunj Bihari Mishra reported in (1998) 7 SCC 84 in para 19 has held as follows:-

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 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 charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

From the aforesaid judgment, it is clear that the reasons must be recorded for disagreeing with the Enquiry Officer's report. Since the reasons have not been assigned in the show cause notice, the impugned notice dated 15.4.2015 (Annexure-5 to the writ petition) is set aside. All consequential orders are also set aside.

I direct the Disciplinary Authority to issue fresh notice to the petitioner giving appropriate reasons, if the Disciplinary Authority differs with the findings of the Enquiry Officer and thereafter, continue with the proceeding. The petitioner is at liberty to bring to the notice of the Disciplinary Authority about this Order. The Disciplinary Authority will take a decision within a period of six weeks from the date of receipt of copy of this order. Anu/-CP2.

(ANANDA SEN, J.)