R-6 and 7 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 2676/1998 & W.P.(C) 3069/1999 % 12.08.2013 W.P.(C) 2676/1998 D.P.SHARMA ..... Petitioner Through: Mr. Ashok Agarwal, Advocate versus DELHI VIDYUT BOARD ..... Respondent
Through: Mr. Nikhil Singla, Advocate. W.P.(C) 3069/1999 D.P.SHARMA ..... Petitioner Through: Mr. Ashok Agarwal, Advocate versus DELHI VIDYUT BOARD ..... Respondent Through: Mr. Nikhil Singla, Advocate. CORAM: HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL) W.P.(C) 2676/1998
1. A limited issue is urged on behalf of the petitioner. Petitioner by this W.P.(C) 2676/1998 & W.P.(C) 3069/1999 Page 1 writ petition impugns the order which has been passed by the Departmental Authorities. Disciplinary Authority imposed the penalty of reduction of pay by five stages in the same time scale for a period of five years with further stipulation that petitioner will not earn any increment of pay during the period of reduction and which will have the effect of postponing of future increments of pay. The Appellate Authority upheld the order passed by the Disciplinary Authority. What the counsel for the petitioner argues is that Disciplinary Authority in the present case while disagreeing with the findings of the Enquiry Officer arrived at a conclusion of guilt and then issued a show-cause notice only with respect to the penalty, and which is therefore illegal. It is argued that when the Disciplinary Authority disagrees with the findings of the Enquiry Officer, the Disciplinary Authority can only make a tentative finding and not a conclusive one, and the show cause notice which has to be issued cannot be for the penalty to be proposed, but has to be as to whether or not the findings of the Enquiry Officer should be set aside. The show cause notice issued by the Disciplinary Authority in the present case is, therefore, argued as being illegal.
2. Learned counsel for the petitioner has placed reliance upon a Division Bench judgment of this Court in Union of India vs. Baljit Singh Sondhi, W.P.(C) 2676/1998 & W.P.(C) 3069/1999 Page 2 173 (2010) DLT 346 (DB) wherein the Division Bench of this Court relied upon the judgment of the Supreme Court in the case of Yoginath D. Badge vs. State of Maharashtra & Anr., (1999) 7 SCC 739 to hold that the Disciplinary Authority can only have a tentative view but it cannot give a final finding of guilt without hearing the charged official, and thereafter simply issue a show cause notice for a particular penalty. Paras 9 to 14 of the judgment in Union of India vs. Baljit Singh Sondhi (supra) read as under:
9. Same thing happened earlier on and was commented upon in the decision reported as X(199) SLT 276 (SC) = (1999) 7 SCC 739 Yoginath D. Badge v. State of Maharashtra and Anr. There also the Disciplinary Authority returned findings of a positive nature disagreeing with the Inquiry Report and then called upon the charged officer to respond.
10. It was urged before the Supreme Court that the Disciplinary Authority could be called upon to re-decide the matter. The contention urged was noted in para 36 of the decision which reads as under:
36. Mr. Harish N. Salve, learned Senior Counsel appearing on behalf of the respondent, has contended that the disciplinary proceedings come to an end either when the delinquent is exonerated of the charges or when punishment is inflicted upon him on charges being proved. Since in the instant case, the Disciplinary Committee had given an opportunity of hearing to the appellant before finally recommending to the State Government to dismiss him from service, the principles of natural justice were fully complied with and that too at a stage earlier than the stage when the curtain was finally brought down on the proceedings. He contended that not only the findings recorded by the Enquiry Officer but the reasons for which the Disciplinary Committee had not agreed with those findings, were W.P.(C) 2676/1998 & W.P.(C) 3069/1999 Page 3 communicated to the appellant to whom a notice was also issued to show-cause why he be not dismissed from service. He further contended that the appellant submitted a reply in which he attacked the reasons for which the Disciplinary Committee had decided to disagree with the findings of the Enquiry Officer and, therefore, in the given circumstances of this case, it cannot be said that there was failure or denial of opportunity at any stage."
11. The contention has been repelled in para 37 of the said decision where it has been held as under:
"37. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by the learned Counsel is that a final decision with regard to the charges leveled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show-cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank (supra) in which it had been categorically provided, following earlier decisions, that if the Disciplinary Authority does not agree with the findings of the Enquiry Officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the Disciplinary Authority that the findings already recorded by the Enquiry Officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case."
12. With the decision of the Supreme Court reported as VII (1998) SLT 16 = (1998) 7 SCC 84, PNB v. Kunj Behari Misra, law got settled that if the Disciplinary Authority does not agree with the findings of the Inquiry Officer, a tentative opinion has to be formed by W.P.(C) 2676/1998 & W.P.(C) 3069/1999 Page 4 the Disciplinary Authority and has to be supplied to the charged officer for his response.
13. In Yoginath D. Bagde's case (supra) it was held that where the Disciplinary Authority does not form a tentative opinion but records a conclusive finding that the report of the Inquiry Officer is wrong, it would be a formality to thereafter issue a notice to the charged employee requiring him to respond to the notice concerned.
14. In Yoginath D. Bagde's case (supra), noting the aforesaid taint the order of the Disciplinary Authority was quashed without the matter being remanded."
3. In the present case, the show cause notice dated 23.7.1997 which was issued by the Disciplinary Authority reads as under:
" Dated 23rd July, 1997 MEMORANDUM
WHEREAS disciplinary proceeding for major penalty under Regulation-7 of the Delhi Electric Supply Undertaking (DMC) Service (C&A) Regulations, 1976 was initiated against Sh. D.P. Sharma, Meter Reader, E.No. 1706 vide Memo No. VC-103/96/Vig./HRK/188 dated 12.06.1996 on the following charge:
"Shri D.P. Sharma while functioning as Meter Reader in District Shakti Nagar during 1993-94, failed to cischarge his duties sincerely as he had recorded fictitious remarks of "PL" in the Meter Book which resulted in financial loss to the undertaking. Thus, Shri D.P. Sharma exhibited lack of integrity and devotion to duty thereby, violating Rule 3(1) of the CCS(Conduct) Rules, 1964 as applicable to the employee of Delhi Vidyut Board."
AND WHEREAS Sh. D.P. Sharma submitted his written statement of defence dated 9.7.1996. The Disciplinary Authority after considering the same instituted a regular enquiry to enquire into the charge framed against him.
W.P.(C) 2676/1998 & W.P.(C) 3069/1999 Page 5 AND WHEREAS during the court of preliminary hearing before the Inquiry Officer, Sh. D.P. Sharma had pleaded guilty of the charge and his plea was duly recorded with the signature of charged official thereon.
AND WHEREAS the Inquiry Officer has held the charge to the extent that Sh. D.P. Sharma has failed to discharge his duties sincerely as he had recorded fictitious remarks of "PL" in the Meter Book, as proved on the basis of admission by the charged official but the act that the same has resulted in any financial loss to the Undertaking, is not proved.
AND WHEREAS the undersigned, after carefully considering the Inquiry Report and the relevant records, disagrees with the findings of the I.O. who has failed to appreciate the implication when the charge is admitted by the charged official without any conditionality. The Inquiring Authority has to return the findings in respect of those articles of charge which the employee pleads guilty. I, therefore, find that the charge against Sh. D.P. Sharma stands fully proved on the basis of evidence on record. However, since the charged official has admitted the charge, there are reasons to believe that there is a sense of repentance of his part warranting a lenient view though the charge has been quite grave.
NOW, THEREFORE, the undersigned hereby proposes to impose a penalty of reduction of his pay by five stages in the same time scale for a period of five years with further stipulation that he will not earn increment of pay during the period of reduction and that on the expiry of this period, the reduction will have to effect of postponing his future increments of pay. Sh. D.P. Sharma is accordingly called upon the show cause as to why the aforesaid penalty should not be imposed upon him. His reply, if any, in writing should reach the undersigned within 15 days of the receipt of this Memo failing which it will be presumed that he has nothing to say in his defence and further action will be taken accordingly.
W.P.(C) 2676/1998 & W.P.(C) 3069/1999 Page 6 A copy of the Inquiry Report is enclosed.
Encl : As above sd/- ( CHAMAN LAL ) ADDL.GENERAL MANAGER(ADMN.)/ Disciplinary Authority. Shri D.P. Sharma Meter Reader E.No. 17068 Distt. Nizamuddin. Sd/- Through : AFO (D) NZD."
4. A reading of the second last para of the show cause notice shows that Disciplinary Authority has arrived at a finding that the charge against the petitioner stands fully proved. The last para of the show cause notice shows that the same has been issued only for imposing a particular penalty. Therefore, the ratio of the judgment of Supreme Court in the case of Yoginath D. Badge vs. State of Maharashtra & Anr. (supra) applies and the show-cause notice is clearly illegal.
5. In view of the above, the writ petition is allowed by directing the Disciplinary Authority to now give a show cause notice only mentioning a tentative finding of guilt which according to the Disciplinary Authority is sufficient for issue of a show cause notice to set aside the findings of the Enquiry Officer. The petitioner will be issued a show cause notice as to why W.P.(C) 2676/1998 & W.P.(C) 3069/1999 Page 7 the Enquiry Officer's report should not be set aside for the reasons as would be given in the show cause notice. Petitioner will have entitlement to respond to the show cause notice. Petitioner will thereafter be heard by the Disciplinary Authority which will pass a speaking order and the same be communicated to the petitioner. The necessary proceedings of the Departmental Authority, considering the facts of the present case which show that it is a very old case, be completed within a period of three months from today.
6. The writ petition is allowed and disposed of with the aforesaid observations. Parties are left to bear their own costs. W.P.(C) 3069/1999
7. Learned counsel for the parties state that except that difference of facts and dates, issue in the present case is the same as is decided in W.P.(C) 2676/1998. Accordingly, adopting the ratio in the case of W.P.(C) 2676/1998 this writ petition is also allowed in terms of directions as given aforesaid and disposed of accordingly. Parties are left to bear their own costs.
VALMIKI J. MEHTA, J AUGUST 12, 2013 godara W.P.(C) 2676/1998 & W.P.(C) 3069/1999 Page 8