ARUN KUMAR SINGH Vs. DIRECTOR GENL

JUDGEMENT

(1.) : (Oral)

(2.) THIS writ petition is directed against the order dated 18.1.1985 passed by the respondents removing the petitioner from service pursuant to a departmental proceeding initiated against him. In the writ petition the orders dated 30.4.1985 and 14.11.1986 are also under challenge which are orders passed by the appellate authority and revisional authority respectively. A departmental inquiry was conducted against the petitioner on the alleged ground that he removed an electric motor worth Rs.6000/- from Delhi Food B.R. Shop on 19.2.1984 with the intention to sell the same in conspiracy with Shambhu and Kankala and in so doing he has removed government property unlawfully and unauthorisedly thereby committing misconduct and indiscipline. The petitioner was served with a memorandum of charge, which is dated 10.6.1984 as against which the petitioner submitted his reply. Upon going through the aforesaid reply of the petitioner, the respondents found the same to be unsatisfactory and accordingly appointed an inquiry officer to inquire into the charges. After completion of the inquiry, the inquiry officer submitted his report holding the petitioner not guilty of the charges. The records of the inquiry proceeding were placed before the disciplinary authority, who upon going through the report of the inquiry officer and the records, was of the opinion that the petitioner is guilty of the charges levelled against him and, therefore, he disagreed with the findings of the inquiry officer. After disagreeing with the report and the observations of the inquiry officer, the disciplinary authority passed an order removing the petitioner from service. It was also held that his suspension period would be deemed to be in operation during the period commencing from 1.6.1984 and he would be entitled to the subsistence allowance only for the aforesaid period. A copy of the inquiry report was also sent along with the aforesaid order which was passed and communicated on 18.1.1985. Being aggrieved by the aforesaid order, an appeal was filed before the appellate authority by the petitioner. THIS appeal was considered and was disposed of by the appellate authority by order dated 30.4.1985. Being aggrieved by the aforesaid order, a revision petition was filed by the petitioner which was considered and disposed of by the revisional authority by an order dated 9.4.1986. It also transpires from the records that the petitioner at one stage approached the Central Administrative Tribunal. By an order dated 14.11.1986, the Tribunal held that the Tribunal had no jurisdiction in the matter and accordingly the petition was not admitted and was filed. Thereafter the present petition was filed in this Court challenging the legality and validity of the aforesaid orders praying for setting aside the said orders. The impugned order of removal passed against the petitioner is challenged on various grounds. One of the grounds advanced in the present case is that the inquiry officer gave his findings absolving the petitioner of the charges but the disciplinary authority did not comply with the required procedure while disagreeing with the findings recorded by the inquiry officer. It is submitted that in case the disciplinary authority disagrees with the findings of the inquiry officer, it is incumbent upon him to record the tentative reasons for the disagreement and to communicate the same to the petitioner so as to enable him to show cause as against the said tentative reasons to establish that there can be no disagreement to the findings of the inquiry officer. It is the contention of the petitioner that since in the present case the same has not been done, therefore, the impugned order is required to be set aside on the said ground alone. In support of his submissions, the counsel relies upon the ratio of the decision of the Supreme Court in Punjab National Bank and others v. Kunj Behari Mishra AND Chief Personnel (Disciplinary Authority), Punjab National Bank and others v. Shanti Prasad Goel reported in AIR 1998 SC 2713. In this judgment the Supreme Court has held that 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 counsel for the petitioner has also relied upon the judgments in Union of India v. Mohd. Ramzan Khan reported in AIR 1991 SC 471 and S.P. Saxena v. Union of India reported in 87 (2000) DLT 282 (DB). Counsel appearing for the respondents, however, has submitted that the aforesaid requirement of supplying the tentative reasons for disagreement and consequence of failure to supply such reasons would vary on the basis of facts of each case. In support of his contention, learned counsel has relied upon the decision of the Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar reported in (1993) 4 SCC 727. We have considered the aforesaid submissions of the counsel for the parties. In our considered opinion the ratio of the decision of the Supreme Court in E. Karunakar's case cannot be said to be directly applicable as that decision relates to the first stage of the inquiry whereas we are concerned in the present case with the second stage of the inquiry i.e. with regard to the disagreement of the disciplinary authority with the findings of the inquiry officer. The ratio of the decision in Kunj Behari's case is squarely and fully applicable to the facts and circumstances of the present case inasmuch as in the present case also the inquiry officer has recorded his findings in the inquiry report in favour of the petitioner holding the petitioner to be not guilty of the charges levelled against him. The disciplinary authority, however, seeks to disagree with the aforesaid findings recorded by the inquiry officer and has held that the petitioner is guilty of the charges. Therefore, before recording his findings and reasons, it was incumbent upon the disciplinary authority to record the tentative reasons for disagreement with the findings of the inquiry officer. The same were also required to be communicated to the delinquent officer, namely, to the petitioner, in order to give opportunity to him to support the inquiry report and only thereafter to proceed in the matter in accordance with law after reply is received from the petitioner. In the present case the disciplinary authority has failed to comply with the aforesaid procedure, which is mandatory as laid down in the decision of Kunj Behari's case and, therefore, the impugned order, which is passed by the disciplinary authority in violation of the settled law, is required to be set aside, which we hereby do. The disciplinary authority shall, however, be free to proceed in the matter in accordance with law and according to the procedure laid down in Kunj Behari's case. It shall also be open to the disciplinary authority to pass such further or other orders in the departmental proceedings as it deems fit and proper, which shall be passed following the ratio of the decision of Kunj Behari's case. Accordingly, the orders passed by the disciplinary authority, appellate authority as also by the revisional authority are set aside giving liberty to the respondent to proceed in the matter in accordance with law. It shall be open to the disciplinary authority to continue with the inquiry proceeding in accordance with law. If it decides to proceed in the matter, then the same shall be proceeded with only after complying with the requirements as laid down in the decision in Kunj Behari (supra). In view of the above, the petitioner shall have to be reinstated in service. Since at the time when the aforesaid order dated 18.1.1985 was passed by the disciplinary authority, the petitioner continued to be under suspension, therefore, the petitioner shall continue to be under suspension till a final order is passed by the disciplinary authority. Therefore, it shall be deemed that the petitioner continues to be under suspension from the date the impugned order of suspension was passed on 18.1.1985. So far as payment of subsistence allowance is concerned, appropriate orders shall be passed and orders with regard to the payment due and payable to the petitioner in terms of this order shall be passed by the respondents as expeditiously as possible. So far payment of back wages to the petitioner are concerned, the same shall be governed by the final orders to be passed in the proceeding. The petition stands disposed of in terms of the aforesaid order. There will be no order as to costs.