BIHAR STATE ELECT.BOARD Vs. CHANDRAMA TIWARY

JUDGEMENT

(1.) TWO charges were framed against the writ petitioner -respondent in a disciplinary proceeding initiated against him.

(2.) The first charge was permitting one Narendra Verma to join under the petitioner -respondent as a lineman on transfer without verification from the transferring authority as to the genuineness of the transfer order on the strength of which Sri Narendra Verma was permitted to join. In relation to the said charge, it was mentioned that the appellant by various orders and circulars directed all its officers to obtain such verification. The second charge was that the writ petitioner -respondent transferred one Sri Mahendra Chaudhary, upon accepting his joining under him on being transferred, without verifying from the transferring authority the genuinenss of the transfer of Sri Mahendra Chaudhary. The charges contained in the charge sheet having been replied by the writ petitioner -respondent, the truth and substance of the charges had been enquired into. In course of enquiry it transpired that no effort was made by the writ petitioner - respondent to verify the transfer order of Sri Narendra Verma and a letter written by the writ petitioner -respondent on 11th September, 1997 asking for dispatch of LPC and service record of Narendra Verma did not reach its destinations. In so far as Mahendra Chaudhary is concerned, it was found that he was permitted to join on 29th May, 1998. On 6th June, 1998 a letter was sent by the registered post to obtain confirmation about the genuinenss of the transfer order. On 16th June, 1998 it was reported on phone by the alleged transferring authority that no such transfer was effected and as such Mahendra Chaudhary was not permitted to function thereafter and he was also not paid his remuneration. The Enquiry Officer did not go into the question whether the writ petitioner -respondent had made any endorsement on the transfer order of Mahendra Chaudhary to the effect "order may be issued" and transferred him before obtaining confirmation of the original transfer. The Enquiry Officer held that charge no. 1 stands proved, but charge no. 2 does not stand proved, inasmuch as Mahendra Chaudhary was not paid any sum of money. When the enquiry report was. considered by the Disciplinary Authority, it felt that charge no. 2 also stands proved and accordingly by a letter communicated the reasons why it felt that the second charge also stands proved and thereby called upon the petitioner -respondent to show cause why punishment of compulsory retirement should not be imposed upon him. The petitioner -respondent gave reply to the said letter/second show cause notice and whereupon by the order impugned in the writ petition, the petitioner -respondent was compulsorily retired from service. The order of compulsory retirement was assailed in a writ petition. It was contended that before the punishment was meted out, no personal hearing was given to the writ petitioner. In this connection reliance was placed upon a judgment of the Hon ble Supreme Court rendered in the case of Yoginath D. Bagde V/s. State of Maharashtra and Another reported in 1999(7) SCC 739. In that case the Enquiry Officer exonerated the delinquent, but the Disciplinary Authority differed from the opinion expressed by the Enquiry Officer and thereupon after giving a second show cause passed the final order in a disciplinary proceeding. The Hon ble Supreme Court in paragraph 28 of the judgment has held that difficulties arise when the enquiry authority has exonerated the delinquent, but the Disciplinary Authority has disagreed with those findings and recorded its own findings and thereby held out that the charges stand established, and such difficulties can be resolved by giving an opportunity of hearing to the delinquent at that stage by making Rule under Article 309 of the Constitution or Disciplinary Authority may, of its own, provide such an opportunity, but where the rules in this regard are silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent and records findings different from those of the enquiring authority that the charges are established, an opportunity of hearing may have to be read into the Rule by which the procedure for dealing with enquiring authority 'sreport is provided, principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be not guilty by the enquiring authority, is found guilty without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded. On the principle so enunciated by the Hon ble Supreme Court in the said judgment, a learned Single Judge dealing with the writ petition allowed the same since admittedly no opportunity of hearing was given before or after the disciplinary authority expressed contrary view than that of the Enquiry Officer.

(3.) IN the case dealt by the Hon ble Supreme Court, the delinquent also faced two charges and in both the charges he had been exonerated by the Enquiry Officer. In the instant case, out of two charges, the delinquent had been found guilty in respect of one charge. Under the circumstance, without taking note of the fact that one of the charges stands proved, we do not think that the judgment rendered by the Hon ble Supreme Court in the above case could be applied.