POWNRAJ Vs. THE PRINCIPAL, CENTRAL POLYTECHNIC

JUDGEMENT

(1.) THE appellant is the petitioner in W.P.No.13210 of 1985. The respondent is the respondent in the writ petition. The parties shall be referred to in this judgment of ours by their nomenclature in the writ petition. The petitioner, who was functioning as a Garden Supervisor at the relevant point of time, has been sent out of service in disciplinary action. The petitioner was having the status of a Government servant The petitioner straightway came to this Court by way of the above writ petition, impugning the disciplinary action and the penalty imposed on him. Three points were urged before the learned single Judge, who heard the writ petition, as follows: (1) The finding of the - disciplinary authority is based on no evidence; (2) A copy of the report of the enquiry authority, which has exonerated the petitioner, was not furnished to the petitioner, before the disciplinary authority, differing from the enquiry authority, imposed the penalty. It must be noted here that a copy of the report of the enquiry authority was forwarded along with the impugned order; and (3) The petitioner ought to have been given a second show cause with reference to the proposed punishment All the above points were repelled by the learned single Judge and as a result the writ petition was dismissed. This writ appeal is directed against the order of the learned single Judge.

(2.) MR . N. Kannadhasan, learned Counsel for the petitioner, would first submit that here is a case where the disciplinary authority chose to differ from the findings of the enquiry authority, which findings have gone in favour of the petitioner and the petitioner ought to have been furnished with the copy of the report of the enquiry authority and the petitioner ought to have been afforded an opportunity to make his say with regard to the disciplinary authority differing from the findings of the enquiry authority and imposing the penalty. Learned Counsel for the petitioner would express a grievance that this has violated the principles of natural justice.

(3.) ONCE it is accepted that the decision making authority on the question of guilt and punishment is the disciplinary authority and the findings of the enquiry authority are not at all binding on the disciplinary authority and the disciplinary authority can ignore them and he is free to render findings of his own based on the evidence adduced during the enquiry, it is not possible to hear and accept a proposition that after the enquiry and before the disciplinary authority acts, decides about the guilt and imposes the penalty, the servant must be afforded an opportunity to make his say over the same, after he has been furnished with a copy of the report of the enquiry authority because it is in his favour. It is for the disciplinary authority to accept or reject or differ from the findings of the enquiry authority. Merely on the ground that the disciplinary authority has differed from the enquiry authority, there is no warrant to ask for a second opportunity. After the enquiry has been held, affording a reasonable opportunity of being heard to the servant, there is no scope for a second opportunity to the servant before the disciplinary authority decides on the guilt and the punishment. To say otherwise on the mere ground of the disciplinary authority differing from the findings of the enquiry authority, would be introducing by a side -door the theme of second opportunity, after it has been deleted by the Constitutional Amendment. That will be resurrecting a provision and a position which has got to be forgotten in view of the Forty Second Amendment to Article 311(2) of the Constitution. That should not be allowed to be achieved.