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TMI Blog2016 (2) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of this Court, no fruitful purpose would be served by remanding the case to the Disciplinary Authority to open up another innings. - this Court does not consider it appropriate to remand the matter to the Disciplinary Authority. The impugned order dated 05.11.2001, passed by the Disciplinary Authority, is hereby quashed and set aside. - Decided in favor of petitioner. - SPECIAL CIVIL APPLICATION NO. 2092 of 2002 - - - Dated:- 23-2-2016 - SMT. JUSTICE ABHILASHA KUMARI, J. FOR THE PETITONER : MS VIDHI J BHATT, ADVOCATE FOR THE RESPONDENT : MS VACHA DESAI, ASSISTANT GOVERNMENT PLEADER C.A.V. JUDGMENT 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 05.11.2001, passed by the Disciplinary Authority (respondent No.1), whereby, the penalty of withholding one increment of ₹ 175/in the petitioner s payscale for a period of five years, with future effect, has been imposed upon him. 2. Briefly stated, the factual matrix of the case is as follows: 2.1 The petitioner was initially recruited and appointed as a Junior Clerk, with effect from 12.05.1975. He was, thereafter, transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the inquiry did not proceed further, the petitioner preferred Special Civil Application No.853 of 1998. This Court, by an order dated 30.06.1998, directed the respondents to review the suspension period of the petitioner within a period of six weeks and to complete the Departmental Inquiry by the end of November 1998. Subsequent thereto, the Departmental Inquiry against the petitioner commenced on 17.08.1998. The petitioner appeared before the Inquiry Officer and submitted his defence statement on 01.10.1998. 2.5 On 02.11.1998, the Inquiry Officer levied additional Charge. The petitioner gave a detailed reply to all the Charges on 11.11.1998. 2.6 After taking into consideration the entire material on record, the Inquiry officer, by his Report dated 04.01.1999, concluded that the Charges levelled against the petitioner were not proved. 2.7 On 11.04.2000, the Disciplinary Authority issued a Show Cause Notice to the petitioner, stating that it did not agree with the findings recorded by the Inquiry officer and asking the petitioner to make a final representation. On 08.05.2000, the petitioner replied to the said Show Cause Notice, in detail. The Disciplinary Authority did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greed with the findings of the Inquiry Officer. In the absence of any grounds or reasons in the Show Cause Notice, it would remain an empty formality, causing grave prejudice to the delinquent officer and resulting in injustice to him. 6. It is further contended that in the present case, it seems that the Disciplinary Authority, with a predetermined mind, issued a second Show Cause Notice to the petitioner, who is merely being used as a scapegoat to make him responsible for the alleged bogus billing activities done by M/s. Shrinathji Industries. This is evident from the fact that the Disciplinary Authority, while issuing the second Show Cause Notice, did not give any tentative reasons or record its own findings for disagreeing with the findings of the Inquiry Officer. If the Disciplinary Authority had anything substantial against the petitioner, it would have recorded tentative reasons and findings for disagreeing with the Inquiry Officer s report. The act of issuing the second Show Cause Notice is only a farce to show that the Disciplinary Authority has complied with the principles of natural justice. In fact, the principles of natural justice have been violated in this case be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities and/or the petitioner. The petitioner is a senior citizen now. With age, his memory has faded and he may not be able to represent his case effectively. Moreover, the Disciplinary Authority has filed an affidavit in the present petition on 24.12.2002, thereby delaying the proceedings of the petition. Therefore, it is submitted that in the interest of justice the proceedings may not be remanded back to the Disciplinary Authority to proceed further from the stage of issue of the second showcause notice. 11. Lastly, it is submitted that the petitioner was suspended from duty on 02.02.1996 and the suspension order was revoked on 02.09.1998. The respondent authority, while passing the penalty order has not said anything about the manner in which the suspension period is required to be treated, therefore, the Competent Authority may be directed to pass an order as to how the period of suspension should be treated. 12. In support of the above submissions, reliance is placed on the following decisions: (i) Punjab National Bank And Others v. Kunj Behari Misra ( 1998) 7 SCC 84 (paras 14 and 19) (ii) Yoginath D.Bagde v. State of Maharashtra And Another ( 1997) 7 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment Pleader submitted that the reply of the petitioner to the Show Cause Notice has been considered by the Disciplinary Authority before passing the order of penalty, as stated in the order. It is submitted that, as tentative reasons for disagreement have been given by the Disciplinary Authority, the impugned order ought to be confirmed. Learned Assistant Government Pleader further contents that considering the nature of the charges, the punishment imposed is just and proper and may not be interfered with. 18. Regarding the judgments cited on behalf of the petitioner, it is submitted that they merely lay down propositions of law, which have been duly complied with by the respondents. Even otherwise, the facts of each case have to be seen before applying the ratio of those cases to the facts of the present case. 19. In the background of the above submissions, the main contention raised by Ms.Vidhi J.Bhatt, learned counsel for the petitioner, is that while issuing the reasons for disagreement with the findings of the Inquiry Officer, the Disciplinary Authority has not recorded any tentative reasons for arriving at such disagreement, or even his own findings. In this regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isciplinary authority, at the same time, has to communicate to the delinquent officer the TENTATIVE reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of not guilty already recorded by the Inquiring Authority was not liable to be interfered with. (emphasis supplied) 23. In Punjab National Bank And Others v. Kunj Behari Misra (supra), relied upon on behalf of the petitioner, the same principle of law has been reiterated in the following manner: 14. In Ram Kishan case disciplinary proceedings on two charges were initiated against Ram Kishan. The enquiry officer in his report found the first charge not proved and the second charge was partly proved. The disciplinary authority disagreed with the conclusion reached by the enquiry officer and a show cause was issued as to why both the charges should not be taken to have been proved. While dealing with the contention that the disciplinary authority had not given any reason in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India And Others (supra), the Supreme Court has held as below: 18. Even if the enquiry officer had, in his first report, proceeded on surmises and conjectures as was observed by the High Court, the disciplinary authority could disagree with the said finding but it was, therefor, required to record its reasons. No reason was recorded. SubRules (2) and (3) of Rule 10 aim at achieving the same purpose. If sufficient materials are not available on record, a direction for holding a further enquiry may be issued in terms of subrule (2) of Rule 10 so as to enable the department to lead further evidence before him. For the said purpose also, reasons are required to be recorded by the disciplinary authority. An opportunity of hearing to the delinquent officer is required to be given. However, in the event, the disciplinary authority comes to the conclusion that the conclusion arrived at by the enquiry officer on the basis of materials placed by the parties are incorrect, he may disagree with the said findings but even, therefor, he is required to record reasons in support thereof. The requirement of subrule (2) or subrule (3) having not been complied with, the enquiry offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rest of the paragraph(s) pertaining to the said relevant articles of charge contain the reasons. On the basis of the above argument, the learned Assistant Government Pleader has urged that the mandate of subrule (2) of Rule 10 has been followed. 28. If the grounds for disagreement issued by the Disciplinary Authority along with the second Show Cause Notice dated 11.04.2000 are perused, it is revealed that, the article of charge has merely been reiterated and it has been stated that the petitioner did not take sufficient care while verifying the application made by M/s.Shrinathji Industries for obtaining Registration Certificate, inasmuch as that the petitioner did not bring to the notice of the authorities that the businessman did not have experience, enterprising abilities or skills so as to be eligible for the Registration Certificate. Further, the petitioner did not comply with the departmental instructions in this regard. It is stated that by taking into account one month s production capacity of goods to be manufactured, one month s tax is calculated and accordingly surety amount is determined and in this manner the petitioner indirectly helped the businessman for his bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... linary Authority for fresh hearing from the stage of the issuance of the reasons for disagreement, or not, now remains to be answered. 34. On this aspect of the matter, learned counsel for the petitioner has placed reliance upon a judgment of the Supreme Court in Punjab National Bank And Others v. Kunj Behari Misra (supra), wherein, the Supreme Court has held as below: 21. Both the respondents superannuated on 31st December, 1983. During the pendency of these appeals Misra died on 6th January, 1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings. We, therefore, do not issue any such directions and while dismissing these appeals we affirm the decisions of the High Court which had set aside the orders imposing penalty and had directed the appellants to release the retirement benefits to the respondents. There will, however, be no order as to costs. 35. In the present case, the petitioner retired from service on 13.10.2013, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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