DINESH KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner was holding the post of Executive Engineer in the Irrigation Department. During the period between January 1963 to April, 1965 he was posted in the Camp Management Division, Ramganga Project, Kalagarh, district Bijnor. On 24th October, 1969 a charge sheet was served on the petitioner in respect of certain omissions and commissions made by him while discharging his duty as Executive Engineer in the Kalagarh Project. Proceedings took place before the Administrative Tribunal, constituted under the Disciplinary Proceedings no (Administrative Tribunal) Rule, 1947. An explanation to the charges were sent by the petitioner on 18th December, 1975. On 27th April, 1971 a show cause notice was sent to the petitioner under Rule 10 (1) of the rules calling upon the petitioner to show cause as to why he should not be dismissed from service. Subsequently by an order dated 6th January, 1973 the Governor dismissed the petitioner from service. Counsel for the petitioner urged that the findings given by the Tribunal regarding the guilt of the petitioner are based on no material. It has also been urged that inasmuch as a copy of the recommendation of the Tribunal regarding punishment proposed to be inflicted upon the petitioner was not given to the petitioner, along with the findings of the Tribunal, the subsequent proceedings taken for dismissal of the petitioner are invalid. A third contention has also been raised, which is to the effect that the entire findings of the Administrative Tribunal are vitiated on account of the fact that the two members of the Tribunal sent their findings to the Governor without waiting for the assessor's opinion we are of the view that as the last two contentions raised on behalf of the petitioner are well founded, we think it unnecessary to consider the first contention. In order to appreciate these two contentions we may extract Rule 9 and relevant part of Rule 10 of the Rules. 9 (1) After completing its proceedings the Tribunal shall make a record of the case in which it shall state the charges, the explanation, its own findings and the views of the assessor. It shall, where satisfied that punishment be imposed, also formulate its recommendations about punishment (2) In addition or as alternative to the punishments defined in the Civil Services (Classification, Control and Appeal) Rules, the Tribunal, may also recommend the compulsory, retirement with or without full or proportionate pension, or with or without gratuity or compassionate allowance, as it may deem suitable. 10. (1) Notwithstanding anything in Regulation 6 of Public Service Commission Limitation of (Functions) Regulations or in any other Rules, the Governor shall not be bound to consult the Public Service Commission on the Tribunal recommendations and shall pass an order of punishment, in the terras recommended by the Tribunal: Provided that the Governor may for sufficient reason award lesser punishment. (1) THE Governor may, before passing final orders, consult the Tribunal, if necessary, in such manner as may be deemed fit. (2) No appeal shall lie against the order so passed by the Governor." It will be seen that after the Tribunal completes the proceedings, it has to state the charges, the explanation of the officer concerned record its findings and the views of the assessor. In case it is satisfied that the punishment be imposed on the officer concerned, it has to formulate its recommendation about the punishment. After these recommendations are received, the Governor has to give an opportunity to the charged officer for showing cause against the proposed punishment, so as to comply with Article 311 of the Constitution. It hardly admits of doubt that the charged officer cannot effectively show cause against the proposed order of dismissal or removal etc. unless complete findings of the Tribunal are made available to him before he submits his explanation. In the case of State of Gujrat v. R. C. Teredesai and another A. I. R. 1969 S.O. 1294, their Lordships of the Supreme Court held that "Where recommendation of the Enquiry Officer regarding punishment is not communicated to the delinquent " officer, requirement of reasonable opportunity would not be satisfied till such time that the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the officer concerned. This decision has been followed in Special Appeal No. 1021 of 1967 decided on 14th October, 1971 in a case arising under these very rules. In the present case, we gave time to the Standing Counsel to ascertain as to whether the recommendation regarding the penalty recommended by the Tribunal, was communicated to the petitioner. A statement has been made by the Standing Counsel that the recommendation of the Tribunal regarding the penalty was not communicated to the petitioner. This introduces a serious infirmity in the enquiry proceedings and vitiate the subsequent proceedings culminating in the order of dismissal of the petitioner. THE petitioner has thus been denied a reasonable opportunity to show cause against the proposed order or dismissal. THEre is yet another infirmity in the proceedings of the Tribunal. Rule 3 deals with the constitution of the Tribunal. Rule 3 (1) lays down that the Tribunal would consist of two members. Rule 3 (4) lays down that the Tribunal would be assisted by an assessor in the proceedings to be chosen after taking into account the rank of the charged Government servant, and should be an Officer drawing pay in a scale higher than that of the charged Government servant. In the present case, apart from the two members constituting the Tribunal there was an assessor also. THE scheme of the rules indicates that the assessor is to assist the members of the Tribunal, and even though his opinion is not binding on the members, it has to be taken into account by the members before reaching a final decision in the matter. Rule 9 (1) lays down that the findings and recommendation of the Tribunal should be sent after the proceedings are complete. Proceedings before the Tribunal come to a close only after all the constituents i.e., the two members and the assessor have exchanged their views and given their findings and recommendations. Recommendations under Rule 9 (1) cannot be sent to the Governor before this is done. THE Tribunal has, as such, not only to send its own findings but also the view of the assessor in the matter. In the present case two members of the Tribunal sent their findings to the State Government on 3rd December 1970 without waiting for the views of the assessor. THE assessor disagreed with the findings of the members of the Tribunal and gave his views on 11th January 1971 which was then communicated to the Governor Proceedings before the Tribunal cannot be complete till such time the assessor has given his views and the members of the Tribunal have considered h views. In case the members of the Tribunal give-their findings without waiting for the views of the assessors, the purpose of an assessor being appointed to assist the Tribunal in the enquiry would be an empty formality. THE Rues contemplate consultation between the members of the Tribunal and the assessor before the members of the Tribunal record final findings in the matter and send their recommendation regarding the imposition of the penalty. THE mere fact that it is open to the member of the Tribunal not to agree with the views of the assess does not lead to the result that the members of the Tribunal can send their findings and recommendations without ascertaining the views of the assessor THE result is that the recommendation sent by the Tribunal and the findings recorded, are invalid and honest. We are fortified in the view that we take from a decision of the Supreme Court in the case of Magna and another v. State of Rajasthan A.I.R. 1953 Supreme Court 174 where while dealing with the provision of Section 3 (9) of Criminal Procedure Code, it was held that even though the opinion of the assessors was not binding on the Sessions Judge he was not entitled to ignore their very existence. In the present case inasmuch as the members of the Tribunal sent their findings and recommendations without waiting for the views of the assessor, the matter fails directly within the mischief of the principles laid down by the Supreme Court. THE result is that the petition is allowed. THE impugned order of dismissal is quashed. THEre shall be no order as to costs.