STATE OF J&K Vs. MOHD AMIN MAKHDOOMI

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent from the judgment dated August 6, 1975, of a learned Single Judge of this court allowing a writ petition. The claim in the petition was that order No. 63/HD/Estt/50 -51 dated 7 -10 -1972 passed by the Director Handicrafts, Srinagar, was void, illegal, and without jurisdiction, The impugned order reads thus: -

(2.) THE argument of the learned counsel for the appellant is that the view expressed by the learned Single judge is erroneous. He submitted that there is nothing in Rule 35 to show that the delinquent officer should be informed of the punishment sought to be imposed on him either at the time of serving him with the charge sheet or at any later stage, no matter, whether a formal enquiry into the charges has or has not been ordered. All that Rule requires is that he should be apprised of the allegations on which charges are based and that he should be given an opportunity to make representations with regard to them. For this, he relied upon a decision of the Supreme Court in Shadi Lal Gupta Vs. State of Punjab, A. T. R. 1973 S. C. 1124). In that case Rule 8 of the Punjab Civil Services (Punishment and appeal) Rules 1952 fell for consideration by the Supreme Court. Rule 8 reads thus ;

(3.) THE controversy, does not, however, end here. The real question to be considered is where a charge sheet has been served on a delinquent officer and he has made his representation but the disciplinary authority does not think it fit to act on such representation and orders an enquiry into the charges, then, whether, the enquiry report should be made known to such officer and he should be granted an opportunity to make representation against it. Rule 35 does not provide for an enquiry into the charges. But there is nothing to prevent the disciplinary authority from ordering such an enquiry in appropriate cases. Where such un enquiry is ordered and the disciplinary authority decides to act on the enquiry report, the requirement of the rule is that the delinquent officer should be served with a copy of the report and given an opportunity to make his representation against it. For, the enquiry report shall be the only material on which the disciplinary authority would base its judgment for imposing a penalty on the delinquent officer and when the rule provides for a representation, such a representation should necessarily be directed against the enquiry report. The requirements of the rule would not be satisfied merely because the delinquent officer had been given an opportunity to make his representation against the charge sheet. Such a representation loses its meaning and utility after the enquiry has been ordered into the charges. The only effective representation that the delinquent officer can make would be that against the enquiry report. In the present case, the charge sheet was served on the respondent. He submitted his representation and the disciplinary authority did not decide to act on the representation and instead ordered a formal enquiry. The Enquiry Officer submitted his report but the enquiry report was not made known to the respondent and he was not given any opportunity to make any representation against it, before the impugned order imposing the punishment on him was passed. On the principle stated above, the impugned order is bad in law inasmuch at no opportunity was given to the respondent to make his representation against the enquiry report. In the case of Shadi Lal Gupta (Supra) no formal enquiry was ordered into the charges and as such that case is distinguishable from the present case. In this view, we are inclined to up -hold the order of the learned Single Judge though only for different reasons.