ASHA RANI Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The disciplinary proceedings were initiated against the husband of Petitioner No. 1 (hereinafter referred to as the "original Petitioner"). The inquiry was entrusted to the Director, Departmental Inquiries, Himachal Pradesh. The Director, Departmental Inquiries, Himachal Pradesh was supposed to furnish the inquiry report to the disciplinary authority. However, it is evident from the contents of Annexure P-16, dated 14th May, 1996 that the Director, Departmental Inquiries, Himachal Pradesh has sent the inquiry report to the Director of Vigilance, Himachal Pradesh on 6th April, 1996. The procedure adopted by the Inquiry Officer/disciplinary authority of furnishing the inquiry report to the Director of Vigilance was uncalled for. The disciplinary authority has to apply his independent mind on the report furnished by the Director, Departmental inquiries instead of forwarding the matter for consideration by the Director of Vigilance. The Director of Vigilance sent the communication to the Administrator, Municipal Council, Dalhousie on 14th May, 1996. The Director of Vigilance came to the conclusion that charges No. 1, 4, 6, 7 and 8 were also proved against the original Petitioner. It is in these circumstances that memorandum dated 27th July, 1996 was issued. The disciplinary authority, i. e. the President, Municipal Council, Dalhousie had agreed with the findings of the Inquiry Officer on charges No. 2, 3 and 5 and disagreed with respect of charges No. 1, 4, 6, 7 and 8 while endorsing the reasoned observations given by the Director of Vigilance that charges No. 1 to 8 were duly proved against the original Petitioner. The copy of the inquiry report was not supplied to him before forming an opinion. It was supplied to him only on 27th July, 1996 with the memorandum. There is gross violation of the principles of natural justice by the disciplinary authority. The copy of the inquiry report ought to have been supplied to the original Petitioner before the disciplinary authority came to the conclusion that he was not a fit person to be retained in service and he was granted the opportunity to make a representation within a period of 15 days. The purpose of supplying the copy of inquiry report as per law laid down by their Lordships of Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors., 1993 4 SCC 727, is to enable an individual to represent against the shortcomings, deficiencies and violation of mandatory provisions during the course of departmental inquiry under which the inquiry was initiated. Their Lordships of Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors., 1993 4 SCC 727, have held as under:

(2.) The disciplinary authority has committed a grave illegality while forming the opinion on the basis of observations made by the Director of Vigilance. The original Petitioner has not been issued any notice before and after the opinion of the Director, Vigilance was sought as per letter dated 6th April, 1996. However, the fact of the matter is that it was not proper for the disciplinary authority to seek advice of the Director of Vigilance, Himachal Pradesh. The original Petitioner also made a representation to memorandum dated 27th July, 1996 and without taking into consideration the averments contained in the representation, the penalty of dismissal has been imposed upon him. The disciplinary authority should have applied his independent mind. Since the disciplinary authority has not applied its independent mind, the decision arrived at by it is arbitrary. Their Lordships of Hon'ble Supreme Court in East Coast Railway and Anr. v. Mahadev Appa Rao and Ors., 2010 7 SCC 678, have explained what is arbitrariness, as under (para 20):

(3.) Their Lordships of Hon'ble Supreme Court in Punjab National Bank and Ors. v. Kunj Behari Misra, 1998 7 SCC 84, have held that before the disciplinary authority disagrees with the report of the Inquiry Officer, he has to record tentative reasons and the copy of the reasons is required to be supplied to the delinquent to enable him to make representation. It is only thereafter the final decision is to be taken by the disciplinary authority after considering the representation made by an employee against the tentative reasons, supplied to him. However, in this matter, the disciplinary authority has disagreed with the report of Inquiry Officer so far as charges No. 1, 4, 6, 7 and 8 are concerned.