BABY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner has approached this Court challenging exts. P7, P12, P14 and P16. Based on a preliminary enquiry report forwarded by the Government, disciplinary action was initiated against the petitioner. An enquiry Officer was appointed. His findings were that the petitioner was not guilty of the charges. That was submitted to the disciplinary authority and the disciplinary authority in Ext. P7, after noting that the Enquiry Officer has found the charges not proved, directed "de novo oral enquiry" against the petitioner, as according to him, several of the pieces of evidence against the petitioner had not been taken note of. Ext. P7 is the order, thus ordering a de novo enquiry. THEreafter a de novo enquiry was conducted. THE finding was that the petitioner was not guilty of the charges. THE disciplinary authority examined the report. Ext. P10 (a) is the report. That was communicated by the disciplinary authority with Ext. P10 show cause notice as to why postponement of increment for a period of one year with cumulative effect shall not be awarded as a punishment on the petitioner. To propose such an award, the disciplinary authority disagreed with the findings of the enquiry officer on the ground that the enquiry officer has failed to appreciate the evidence adduced in the enquiry'. No other reasons were stated for disagreement. Which was the findings disagreed to by the disciplinary authority was also not stated. Ext. P10 was replied to by the petitioner. Considering the reply, Ext. PI2 order was passed by the disciplinary authority confirming the decision contained in Ext. P10. THE petitioner filed an appeal, Ext. P13. THE Government considered that statutory appeal as a review petition in Ext. P14 and confirmed the penalty imposed as per Ext. P12, as the Government did not find any merit to alter the decision of the disciplinary authority, the Director General of police. THE petitioner sought for review of the order. That was also dismissed as per Ext. PI6, as according to the Government, "no fresh ground to reconsider the earlier decision of Government' was urged. It is in the above circumstances, the petitioner has approached this Court challenging Ext. P7 order directing de novo enquiry, Ext. P12 final order passed in the disciplinary action, Ext. P14 order on the appeal filed by the petitioner and ext. P16 order in review by the Government.

(2.) ASSAILING Ext. P7, the petitioner submits that even if the disciplinary authority is of the view that all the evidences had not been taken note of by the enquiry officer in finding the delinquent not guilty of the charges, the option available for the disciplinary authority is not to direct a de novo enquiry but to disagree with the findings of the enquiry officer on the basis of the material available on record and continue the action. When an enquiry officer had been fully constituted and when that enquiry officer had submitted his report, it cannot be wiped out and 'de novo enquiry' cannot be ordered'.

(3.) THE petitioner contends that the disciplinary authority can very well disagree with the findings of the enquiry officer and come to a different finding on the charges. Even if the disciplinary authority disagrees with the findings, the delinquent shall have an opportunity, while showing cause against the proposed penalty, to contend before the disciplinary authority that such disagreement is not based on evidence available on record and that based on the evidence available on record, no guilt can be established. In this regard, the petitioner tries to fortify his contention citing the decision reported in Punjab National Bank v. S. P. Gael (1998 (2) KLT sn 47) that "the principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard, for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority. Principles of natural justice have to be read into regulation 7 (2 ). 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. "