CWPOA/11982/2008 on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP (T) No. 11982/2008 Decided on:29.12.2010 _____________________________________________ H.R. Dhingra.

…Petitioner.

Versus State of H.P and others.

…Respondents.

________________________________________________________

Coram:

Hon’ble Mr. Justice Rajiv Sharma, Judge.

Whether approved for reporting?1 Yes.

For the petitioner : Mr. Bimal Gupta, Advocate.

For the Respondents: Mr. Vinod Thakur, Dy. A.G. with Mr. R.P. Singh, Asstt. A.G.

_____________________________________________________

Rajiv Sharma, Judge (oral).

Proceedings were initiated against the petitioner under sub-clause (i) of clause (b) of sub-rule (2) of Rule 9 of the Central Civil Services (Pension) Rules, 1972 vide office order dated 21.9.2001. Sh. J.C. Chauhan was appointed as Inquiry Officer. He submitted report to the Commissioner- Cum-Secretary (PW) on 23.12.2002. It is evident from the inquiry report that the petitioner has been exonerated/absolved by the Inquiry Officer. However, the disciplinary Authority had disagreed with the findings of the Inquiry Officer and the petitioner was issued a show cause 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

notice on 6.1.2004 why the penalty of withdrawal/reduction of 10% of the basic pension for a period of three years be not imposed upon him. Petitioner was granted 15 days time to file the reply. He submitted the report to the Principal Secretary (PW) vide Annexure A-4. The Disciplinary Authority imposed the proposed penalty upon the petitioner on 9.5.2005.

2. Mr. Bimal Gupta has strenuously argued that the Disciplinary Authority before disagreeing with the findings of the Inquiry Officer was required to record tentative reasons and thereafter the same were required to be supplied to the petitioner to enable him to make a representation against the same. Thereafter the Disciplinary Authority after taking into consideration the representation made by the petitioner to the tentative reasons, was to take a final decision.

3. Mr. Vinod Thakur, learned Deputy Advocate General has supported the office order dated 9.5.2005.

4. I have heard the learned counsel for the parties and have gone through the pleadings carefully.

5. It is not in dispute that the petitioner has been exonerated/absolved by the Inquiry Officer, as is evident from Annexure A-2. The Disciplinary Authority has disagreed with the inquiry report. However, he has neither recorded any separate tentative reasons nor the same have been supplied to the petitioner. It is settled law by now that the Disciplinary Authority while disagreeing with the findings of the Inquiry Officer has to record the tentative reasons and thereafter the same are required to be supplied to the delinquent to enable him to make a representation and only thereafter on the receipt of the representation and considering the same, the Disciplinary Authority has to take the final decision.

6. Their Lordships of the Hon’ble Supreme Court in Punjab National Bank and others versus Kunj Behari Misra, (1998) 7 SCC 84 have held that the Disciplinary Authority must record its tentative reasons for disagreement with the inquiry report and thereafter the reasons are required to be supplied to the delinquent officer to represent against the same and only after receipt of the representation, the findings are to be recorded. Their Lordships have held as under: “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 inquiry 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 inquiry 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 inquiry 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 representation before the disciplinary authority records its findings on the charges framed against the officer.”

7. In the instant case, the Disciplinary Authority has disagreed with the inquiry report without recording tentative reasons. The well settled procedure has not been followed by the Disciplinary Authority. There is violation of principles of natural justice. In this case, the penalty has been imposed without following the procedure, as discussed hereinabove.

8. Accordingly, in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court and the observations and discussions made hereinabove, the petition is allowed. In normal circumstances, respondent- State ought to have been permitted to proceed with the matter in accordance with law, however, since the petitioner has already retired from service on 30.4.2004, the proceedings are closed. Annexure A-3 dated 9.5.2005 is quashed and set aside. No costs.

(Rajiv Sharma),

Judge 27.12.2010

*awasthi*