BISHWANATH SINGH Vs. BIHAR STATE ELECTRICITY BOARD

JUDGEMENT

(1.) The petitioner was an employee of the Bihar State Electricity Board. At the relevant time he was posted as Assistant Electrical Engineer. He retired from service on 30.9.1997. A proceeding was initiated and charge sheet dated 26.2.1997 was served on him. He filed written statement in defence and also participated in the proceeding. The Enquiry Officer submitted his report, Annexure-2. He did not find the petitioner guilty of any charge. The disciplinary authority on receipt of the enquiry report, differed from the enquiry report and recorded a finding that charge No. 4 is proved and also recorded the proposed punishment, Annexure-3. A second show cause notice was issued to the petitioner. The petitioner, filed his second show cause, Annexure-4. The disciplinary authority after filing of the second show cause passed order of punishment which was communicated to the petitioner vide letter dated 3.3.1999, Annexure-5. Two punishments were awarded, one was deduction of 10% from the pension and gratuity of the petitioner and the other was that during the period of suspension he will only get subsistence allowance. The petitioner filed an appeal against the order of punishment. The said appeal has been rejected vide order Annexure-7. The petitioner has challenged the said orders, Annexure-5 and 7 in this writ petition.

(2.) The contention of the learned counsel for the petitioner is that the Enquiry Officer submitted report holding that the petitioner is not guilty of any charge. The disciplinary authority, no doubt has right to differ from the enquiry report but without any notice to the petitioner recorded a finding that the petitioner is guilty of the charge No. 4 and also recorded the proposed punishment and only then second show cause notice was issued. Such action of the disciplinary authority is against the provision of law. His further contention is that the punishment that the petitioner will not get anything during the period of suspension except subsistence allowance is also against the established rule of law as the petitioner at the time of passing the order of punishment was not in service rather retired. Counsel for the respondent-Electricity Board however, contested the case and supported the orders, Annexures 5 and 7.

(3.) On consideration of the submissions made by the counsel for the parties and the materials available on the record this much is obvious that a proceeding was initiated against the petitioner before he retired on 30.9.1997. The enquiry was held and the Enquiry Officer submitted report stating that no charge against the petitioner was established. In such a situation, no doubt, the disciplinary authority has right to differ from the enquiry report but he has to observe the necessary formalities i.e. to record reason of difference and issue notice to the delinquent allowing him an opportunity of hearing but in the instant case no such thing has been done rather the disciplinary authority himself without any intimation of reason/allowing opportunity to the petitioner recorded a finding that the petitioner is guilty of charge No. 4 and also recorded the proposed punishment and only then issued second show cause notice. The law with respect to the formalities to be observed has been considered by the Supreme Court in the case of Punjab National Bank v. Kunj Behari Mishra, AIR 1998 SC 2713, wherein the Apex Court has held that in case of difference from the enquiry report the disciplinary authority is required to record reason and intimate the same allowing an opportunity to the delinquent so that he may place card of defence before the authority concerned. The said ratio has again been reiterated in the case of Joginath D. Bagde v. State of Maharastra, (1999) 7 SCC 739. Therefore, it is evident that the procedure adopted by the disciplinary authority while differing from the enquiry report in the case in hand is unknown to the well established law by the Court.