DISAGREEMENT WITH THE INQUIRY REPORT BY DISCIPLINARY AUTHORITY

[Mr. M. GOVINDARAJAN]

Disciplinary authority may be initiated disciplinary proceedings against the erring official by the management under the disciplinary rules framed for this purpose.   Even it is required to appoint an inquiry officer to inquiry into the matter of the official and to give report to the disciplinary authority as to whether the charges frames against the official are proved or not.   On getting the report from the Inquiry Officer the Disciplinary Authority may accept the report of the Inquiry Officer or not.   If he is not accepting the inquiry report he is to follow some procedures before giving punishment.   The procedure that should be followed by the disciplinary authority in such a case is discussed in this article.

In ‘Punjab National Bank and others V. Kunj Behari Misra’ – 1998 (8) TMI 594 - Supreme Court of India the Supreme Court held that the principles of natural justice are required to be complied with by the disciplinary authority in the event he intends to differ with the findings of the Inquiry Officer observing – “The result of the aforesaid discussion would be that of 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 tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it High Court records its findings.   The report of the enquiry officer containing its finding will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusions of the enquiry officer.   The principles of natural justice 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.

In ‘State Bank of India and others V. K.P. Narayanan Kutty’ – 2003 (1) TMI 692 - Supreme Court of India the appellant contended that the High Court has committed an error in setting aside the order of dismissal when it was not shown that any prejudice was caused to the respondent by not giving an opportunity to him by the disciplinary authority.  The Supreme Court did not accept the contents of the appellant.   It held that the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the Inquiry Officer.

In ‘Lav Nigam V. Chairman & Managing Director, ITI Limited and another’ – 2007-I-LLJ-223 the Supreme Court held that the conclusion of the High Court was contrary to the consistent view taken by the Supreme Court that in case the disciplinary authority differs with the view taken by the Inquiry Officer, he is bound to give a notice setting out his tentative conclusions to the appellant.   It is only after hearing the appellant that the disciplinary authority Court would at all arrive at a final finding of guilt.  Therefore the employee would again have to be served a notice relating to the punishment proposed.

In ‘P.D. Agrawal V. State Bank of India and others’ – 2006 (4) TMI 492 - Supreme Court of India the Supreme Court held that non observance of principles of natural justice vitiates the order only when some real prejudice is caused to the complainant by such omission and that even a small violation of the said principles would be fatal.

In ‘S.P. Malhotra V. Punjab National Bank and others’ – 2014 (9) TMI 40 - Supreme Court of India the Supreme Court discussed the development of law right from 1986 and held that the disciplinary authority is bound to record reasons for disagreeing with the findings of the inquiry officer and supply a copy thereof to the delinquent and to serve a show cause notice on him seeking the explanation before making an order of punishment.  In this case such a course had not been resorted to, the punishment order stood vitiated.

In ‘Kashmir Chand V. Himachal Pradesh Road Transport Corporation and others’ – 2014-III-LLJ-463 (HP) the petitioner was appointed as conductor in the Himachal Road Transport Corporation on daily wage basis and later his services were regularized by the management.  On 23.02.1993 the management issued memo for drawing departmental inquiry against the petition in terms of Rule 14 of CCS (CCA) Rules, 1965.  The Inquiry Officer was appointed.  The Inquiry Officer after conducting the inquiry had concluded that the charge No. 2 was established in view of the past record of the petitioner and the charges No. 1, 3 and 4 are not proved.  The disciplinary authority disagreed with the inquiry report and recorded finding to the effect that charges are established and proved.  The disciplinary authority further held that the petitioner deserves imposition of major penalty as envisaged under Rule 11 and issued a show cause notice  to the petitioner directing him to make representation on the penalty.   The petitioner made a representation to the disciplinary authority that rejected the same and imposed the punishment of compulsory retirement.

The petitioner filed an appeal before the appellate authority who also rejected the appeal of the petitioner.   The petitioner filed an appeal before the Tribunal which was transferred to High Court.  The petitioner contended the following before the High Court:

• The order imposed by the disciplinary authority is bad in law;
• While making the impugned order of compulsory retirement, principles of Natural Justice have not been followed by the disciplinary authority;
• The writ court has not appreciated  the issue raised by the petitioner in its right perspective , thus, has committed illegality and the impugned judgment needs to be set aside.

It was held that it is a beaten law of the land that when the competent authority/disciplinary authority records disagreement with the report of the Inquiry Officer, said authority, while recording such findings and reaching to the conclusion which is in variance/contrary to the conclusion arrived at by the Inquiry Officer, has to hear the delinquent official and only thereafter, in case the delinquent official for showing cause in regard to  the punishment fails to carve out a case that the Inquiry Officer has rightly made the report, the competent authority has to record findings and serve another show cause notice to the said proposed to be imposed, which, admittedly, has not been done in the present case.  In the present case the disciplinary authority without hearing the petitioner, recorded the finding, held the petitioner guilty and had asked the petitioner to show cause why major penalty be not imposed upon him.

Having said so, the High Court set aside the impugned order.   However the respondents are at liberty to proceed with the inquiry against the petitioner on the basis of the Inquiry report already submitted by the Inquiry Officer and if they choose so, the period from the date of compulsory retirement till today shall remain subject to the outcome of the inquiry.   It is also made clear that if the respondents choose not to proceed with the inquiry, in that eventuality, the petitioner is not held entitled to back wages from the date of his compulsory retirement till today, but the said period shall be computed only for all other service benefits.