WPSS/799/2009 of SATYA VEER SINGH Vs STATE OF UTTARAKHAND and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 799 (S/S) of 2009

Constable no.55397 Satya Veer Singh

..…Petitioner

State of Uttarakhand & others

……Respondents

Mr. Amar Shukla, Advocate holding brief of Mrs. Neetu Singh, Advocate for the petitioner. Mr. P.S. Bisht, Standing Counsel for the State/respondents.

Hon’ble Sharad Kumar Sharma, J.

The petitioner is Constable in Provincial

Armed Constabulary bearing Constable No.55397, posted at H. Company, Rudrapur, District Udham Singh Nagar. In the writ petition, he has challenged the orders of dismissal dated 23.08.2007 passed by respondent no.4, as well as, the revisional order dated 15.07.2008 passed by Respondent No.3 and the order dated 21.04.2007, by virtue of which the inquiry report was submitted by Respondent No.3 against the petitioner.

2. Briefly put facts leading to filing of the writ petition is that the petitioner’s case is that he was appointed as Constable in 1986, with Commandant 46th Battalion of Provincial Armed Constabulary, Rudrapur, District Udham Singh Nagar. Learned counsel for the petitioner submits that on account of illness due to fever he could not appear before the

authority to attend his duties for the period from 07.10.2005 to 16.01.2006, i.e. in total for 102 days. preliminary inquiry was conducted and report to that effect was submitted on 05.04.2006 and 09.05.2006. In the report, it was observed that after remaining absent for 102 days without information, the petitioner reported back for his duties only on 16.01.2006.

3. Respondents based on the preliminary enquiry reports dated 05.4.2006 and 09.5.2006, charge-sheet was framed being charge-sheet No. PF-5/06 dated 26.6.2006, it is the case of the respondent that charge-sheet dated 26.6.2006 was served on the delinquent petitioner along with Memo of Evidence and of the the copy preliminary enquiry reports, endorsement of receipt of charge-sheet and preliminary enquiry reports finds place on record. During the course of enquiry, what has come on record is that the petitioner was called upon to record his statement and produce his evidence/defence by 07.7.2006, he was also warned that failing which it would be deemed that he has nothing to say in the matter and further steps would be taken in proceeding the matter. Learned Standing Counsel submitted that it was also informed to the petitioner that in case he desires personal hearing or wants to cross-examine any witness he should provide the name and address

of such witness, so that they can be summoned to participate in the proceedings.

4. On the date fixed for his defense i.e. on 07.7.2006 petitioner voluntarily remained absent, did not appear, nor any written reply was filed by the petitioner.

5. Respondent’s case is and also revealed that, from pleadings he was searched by the officer concerned so as to ensure his participation in the enquiry proceedings, but he was not available, in order to give him another opportunity, the enquiry officer had fixed 27.07.2006 to enquire in the charges dated 26.6.2006, the information of the date fixed was given by the Commandant to the petitioner. On the date fixed i.e. 27.07.2006, petitioner appeared before Enquiry Officer, and admitted the charges levelled against him in the charge-sheet and expressed that he is not willing to contest the departmental proceedings, and prayed for forgiveness with an assurance of not committing such mistake in future, he prayed that minor punishment may be imposed on him, in case if at all authorities come to conclusion that charges against him stand established.

6. In the oral statement recorded by the petitioner on 27.7.2006, he had made an endorsement as regards the admission of guilt, and statement given

for not participating in the disciplinary proceedings, which would be deemed that has been consciously given by him.

7. On the question being posed by the Enquiry Officer as to why he remained unauthorizedly absent, he submitted that he had requested the superior officer for the Earn Leave for period of 15 days which was denied to him for that reason, he left the services and went to his home. Ultimately, the Enquiry Officer, on culmination of the Preliminary Inquiry Proceeding had submitted its report dated 09.05.2006.

8. On culmination of the preliminary inquiry, on filing of the report dated 09.05.2006, the proceeding under Rule 14(1) of the Rules called as the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter to be called as the “Rules”) was drawn against the petitioner.

9. As per the findings recorded in the report dated 21.04.2007, in relation to the charge of absence, the petitioner was served with the charge-sheet dated 26.06.2006 along with the copy of the preliminary inquiry report and memo of evidence relied upon was also supplied and he was called upon to submit his reply to the preliminary inquiry report dated 05.04.2006 and 09.05.2006 by 07.07.2006. It was further directed that in case, if he desires to cross-examine any

witness, he should request for the same and further to give the list of witnesses for examination in support, so as to establish his innocence to the charges levelled against him. finding has been recorded by the Enquiry Officer in the report dated 21.04.2007 that on the date fixed, neither the petitioner appeared before the Enquiry Officer nor any written reply was submitted by him. Later on, the Enquiry Officer has given another opportunity to the petitioner to enable him to participate in the disciplinary proceedings on 27.07.2006, and also to enable him to file reply. In the proceedings of 27.07.2006, it has been recorded that the petitioner had appeared and submitted his written reply and in which he has rather admitted the charge which was levelled against him for his absence of 102 days.

10. finding has also been recorded by the Enquiry Officer in his report dated 21.04.2007 that the petitioner had made categorical statement before him that he does not want to contest the inquiry proceeding, hence lenient view was desired by the petitioner to be taken against him. The Enquiry Officer has recorded the findings considering the written reply given by the petitioner that there was no need to conduct the full-fledged disciplinary proceedings against him. The Enquiry Officer held that it would be fruitless exercise because once the allegation has already been admitted by the petitioner and once he

himself has submitted that he does not want to contest the disciplinary proceeding, no inquiry was required to be conducted further, as it would serve no purpose.

11. Accordingly, based on the statement recorded by the officers of the department who appeared in the witness box in support of charge against the petitioner, the Enquiry Officer submitted his report on 21.04.2007, whereby, the proceedings under the Rule of 1991, concluded and the Enquiry Officer on considering the charge-sheet and the stand of petitioner and his past conduct recommended for dismissal from the services. This report was placed before disciplinary authority who by his endorsement dated 04.05.2007, while agreeing with the findings directed to issue show cause notice as per the Rules.

12. On conclusion of enquiry by the report dated 21.4.2007, show cause notice dated 04.5.2007 was directed to be issued, the respondent no. 4 passed the impugned order of dismissal on 23.8.2007. What is reflected from the order dated 23.8.2007 is that after the petitioner admitted his guilt and declined to participate in the disciplinary proceedings, the statement of prosecution witness was recorded in his presence on 01.9.2006, who deposed against the petitioner in relation to charges against him, and the petitioner was given opportunity to cross-examine the prosecution witness but the petitioner did not avail the

opportunity, despite the fact that thereafter as many as five dates were fixed for the said purpose i.e. on 02.10.2006, 16.10.2006, 10.11.2006, 26.12.2006 and 19.01.2007 but the petitioner did not participate nor appear before the authorities. Ultimately the petitioner is said to have written letter on 09.4.2007, submitting that he does not want to say anything in the matter.

13. At this stage, it would be necessary to point out that being aggrieved against the order dated 21.04.2007 i.e. submission of report and 23.08.2007 the order of dismissal from service, the petitioner has preferred Writ Petition, being Writ Petition No.113 of 2008, Satya Veer Singh vs. State & others, which was ultimately dismissed as withdrawn by the petitioner vide this Court’s judgment dated 21.02.2008, giving liberty to the petitioner to seek an appropriate statutory remedy available to him under the Rules of 1991. Thereafter, the petitioner has filed Revision before Respondent No.3.

14. The precise submission of the learned counsel for the petitioner-Mr. Amar Shukla, Advocate holding brief of Mrs. Neetu Singh, Advocate, while challenging the impugned orders is to the effect that the impugned orders cannot be sustained for the following reasons:-

(i) That no notice along with the inquiry report was served upon him which happens to be in derrogation to

the provision contained under Article 311(3) of the Constitution of India.

(ii) Petitioner’s counsel submits that the Enquiry Officer, while submitting the report on 21.04.2007, ought not to have recommended for imposition of major penalty of dismissal as being contrary to the Rules.

(iii) He submits that in view of the apparent procedural lacuna is the proceeding the entire action which has been taken against him in violation of principle of natural justice.

(iv) Lastly, the learned counsel for the petitioner submits that the endorsement made by the Appointing Authority at the bottom of the preliminary inquiry report dated 21.04.2007, wherein, he agrees with the recommendation made in the inquiry report is rather reflects predetermined bent of mind for taking an action against the petitioner of dismissal from his services.

15. Learned counsel for the petitioner would submit that under the service Rules as applicable to the petitioner or Rules which have been framed under Section 46 Sub Section (2) and (3) read with Section 2 and 7 of the Police Act, 1861, which has been made applicable to the Sub Ordinate Police Officers of the Provincial Armed Constabulary. The Commandant of

46[th] Battalion, District Udham Singh Nagar, would be the appointing authority. The Provincial Armed Constabulary has been constituted by U.P. Pradeshik Armed Constabulary Act, 1948. He submits that one of the orders under challenge i.e. 21.04.2007 has been passed by Assistant Commandant, hence it would be an order without competence, as Assistant Commandant would not be the authority competent under the law thus action lacks jurisdiction. It is not in controversy that the definition of the Commandant as given under Section 2 of the Act of 1948, includes within its ambit the Commandant and “the Assistant Commandant”, or person as may be appointed by the State Government to be officers of the Provincial Armed Constabulary, as per the meaning thereby the “Commandant” and the “Assistant Commandant” exercise the same administrative power as conferred to them under the Act of 1948, and they form to be from same cadre.

16. Learned counsel for petitioner submits that it is the case of the petitioner, that as the Appointing Authority of the petitioner being Commandant and the inquiry having been conducted by the Assistant Commandant. According to him, he being an Enquiry Officer other than the Disciplinary Authority who is the Commandant in the instant case he could not have

recommended for imposition of punishment in the inquiry report as submitted by him.

17. This contention of the learned counsel for the petitioner is not acceptable by this Court for the reason that in view of the fact that the definition of “Commandant” and “Assistant Commandant”, as given under the Act of 1948, includes within its ambit both the officers, hence any inquiry which has been conducted by the Assistant Commandant, would be deemed to have been conducted by the Appointing Authority of the petitioner as the law has not carved out any distinction in the power which they can exercise and hence, the analogy that the Enquiry Officer could not have recommended for imposition of punishment would not be attracted for the reason that the said proposition with reply only in the circumstances where the inquiry proceeding has been conducted by the officers other than the Disciplinary Authority.

18. The preposition, purpose and intention of law that enquiry officer conducting the enquiry could not have recommended the punishment in the enquiry report is from the view point that when an enquiry officer who is not disciplinary authority and is vested only with an authority to conduct enquiry, cannot apply into judicious mind to the quantum of punishment to be imposed on the delinquent employee as it is an exclusive prerogative of the appointing authority who is

competent to impose punishment under law. It is also because if any such recommendation regards quantum of punishment is made it would influence the decision making process of the disciplinary authority who may be swayed by the recommendation, but in the instant case being on altogether distinct footing since authority conducting the enquiry and that imposing punishment both fall within the definition of disciplinary authority, falling under the purview of common definition clause, it will not defeat the intention of law, thus this argument of the learned counsel for the petitioner is not acceptable.

19. The second limb of argument of learned counsel for the petitioner is that in view of endorsement made by the Disciplinary Authority on 04.05.2007, agreeing withthe conclusion drawn in the enquiry, when he records that he agrees with the enquiry reportdated 21.04.2007 and issued direction to show cause, on 04.05.2007, it would amount that the Commandant agrees with the quantum of punishment as directed to be imposed against the petitioner as well as the finding. This argument of learned counsel for the petitioner will also not have any affect over the entire controversy on merits of the matter for the reason already given above and in the light of definition of Commandant and also that categorical finding has been recorded by the Enquiry Officer, that the

petitioner in his reply has rather admitted the guilt and has submitted that he does not want to contest the enquiry proceeding and has rather prayed for only that the punishment which may be imposed upon him may not be major punishment. Hence as matter of fact arguments about the competence of authority and the recommendations made thereof, could have had an effect had the petitioner had denied the allegations and participated in the enquiry.

20. In such circumstances, where the delinquent employee admits the guilt and proposes not to contest the proceeding, in that eventuality, recommendations of Inquiry Officer and acceptance of the recommendation made by the Enquiry Officer who is other than the Appointing Authority would be of no bearing on the controversy for the reason that it is exclusively the prerogative of the Appointing Authority, and in particular, the Appointing Authority belonging to Discipline Armed Forces as to take decision and consequential action looking to the circumstances and to the charges levelled on delinquent employee and upon its establishment against an employee what would be the appropriate quantum of punishment would be imposed against the delinquent employee more particularly when in the present case the petitioner had already been punished on number of

occasions, for various misconduct which as per his service records are as under:-

1-o"kZ 1995 esa iksLV [kSjlky esa fM;wVh ds nkSjku turk ds O;fDr ds lkFk ekjihV djus ds laca/k esa ,d ifjfuUnk ys[kA o"kZ 1995 esa iksLV [kSjlky esa fM;wVh ds nkSjku turk ds O;fDr ds lkFk ekjihV djus ds laca/k esa ,d ifjfuUnk ys[kA

2-o"kZ 1995 esa gh okfguh eq[;ky; ls jkf=x.kuk ls 50 fnol vukf/kd`r :i ls vuqifLFkr jgus ij foHkkxh; dk;Zokgh izLrj 14 (1) ds varxZr U;wure osru ij 1 o"kZ ds fy;s vourA o"kZ 1995 esa gh okfguh eq[;ky; ls jkf=x.kuk ls 50 fnol vukf/kd`r :i ls vuqifLFkr jgus ij foHkkxh; dk;Zokgh izLrj 14 (1) ds varxZr U;wure osru ij 1 o"kZ ds fy;s vourA

3-o"kZ 2000 esa yk0 uk;d eqLrkd vyh ds lkFk xkyh&xykSp djus ij foHkkxh; dk;Zokgh ds vUrxZr 3 osruo`f} 3 o"kZ ds fy, jksdh x;hA o"kZ 2000 esa yk0 uk;d eqLrkd vyh ds lkFk xkyh&xykSp djus ij foHkkxh; dk;Zokgh ds vUrxZr 3 osruo`f} 3 o"kZ ds fy, jksdh x;hA

4-o"kZ 2002 esa 153 fnol vukf/kd`r :i ls vuqifLFkr jgus ij foHkkxh; dk;Zokgh ds varxZr 3 o"kZ ds fy, U;wure osrueku voxrA o"kZ 2002 esa 153 fnol vukf/kd`r :i ls vuqifLFkr jgus ij foHkkxh; dk;Zokgh ds varxZr 3 o"kZ ds fy, U;wure osrueku voxrA

5-o"kZ 2003 esa 47 fnol vukf/kd`r :i ls vuqifLFkr jgus ij 1 ekg ds osru ds cjkcj dh /kujkf’k ds vFkZn.M ls nf.MrA o"kZ 2003 esa 47 fnol vukf/kd`r :i ls vuqifLFkr jgus ij 1 ekg ds osru ds cjkcj dh /kujkf’k ds vFkZn.M ls nf.MrA

6-o"kZ 2004 esa 70 fnol vukf/kd`r :i ls vuqifLFkr jgus ij 15 fnu ds osru ds cjkcj dh /kujkf’k ds vFkZn.M ls nf.MrA o"kZ 2004 esa 70 fnol vukf/kd`r :i ls vuqifLFkr jgus ij 15 fnu ds osru ds cjkcj dh /kujkf’k ds vFkZn.M ls nf.MrA

7-o"kZ 2004 esa gh fnukad 19-04-04 ls 14-5-04 rd vukf/kd`r :i ls vuqifLFkr jgus ij 15 fnu ds osru ds cjkcj dh /kujkf’k ds vFkZn.M ls nf.MrA o"kZ 2004 esa gh fnukad 19-04-04 ls 14-5-04 rd vukf/kd`r :i ls vuqifLFkr jgus ij 15 fnu ds osru ds cjkcj dh /kujkf’k ds vFkZn.M ls nf.MrA

8-o"kZ 2005 esa fnukad 11-10-2004 ls 15-10-2004 rd ,oa 24-11-04 ls 17-01-05 rd vukf/kd`r :i ls vuqifLFkr jgus ij 15 fnu ds osru ds cjkcj dh /kujkf’k ds vFkZn.M ls nf.MrA 17-01-05 rd vukf/kd`r :i ls vuqifLFkr jgus ij 15 fnu ds osru ds cjkcj dh /kujkf’k ds vFkZn.M ls nf.MrA

9-o"kZ 2006 esa fnukad 6-7-2006 ls ekuuh; eq[;ea=h vkokl fM;wVh ls fcuk fdlh vodk’k ,oa vuqefr ds 36 fnol vukf/kd`r :i ls vuqifLFkr jgus ij foHkkxh; dk;Zokgh ds varxZr 3 o"kZ ds fy, U;wure osru ij vourA o"kZ 2006 esa fnukad 6-7-2006 ls ekuuh; eq[;ea=h vkokl fM;wVh ls fcuk fdlh vodk’k ,oa vuqefr ds 36 fnol vukf/kd`r :i ls vuqifLFkr jgus ij foHkkxh; dk;Zokgh ds varxZr 3 o"kZ ds fy, U;wure osru ij vourA

10-o"kZ 2006 esa gh 65 fnol vukf/kd`r :i ls drZO; ls vuqifLFkr jgus ij ,d ifjfuUnk ys[kA o"kZ 2006 esa gh 65 fnol vukf/kd`r :i ls drZO; ls vuqifLFkr jgus ij ,d ifjfuUnk ys[kA

11- ofHkUu ekeyksa esa vkns’k d{k esa nks"kh ik;s tkus ij 12 ckj ih Mh n.M ls nf.MrA” n.M ls nf.MrA”

21. All the circumstances referred alone rather shows that he is in the habit, which has been inculcated by the petitioner and has derelicted from discharging his duties of the disciplined armed forces on number of occasions, hence no latitude can be shown to such an erring official who admits his guilt and denies to defend from the charges in the disciplinary proceedings.

22. The learned counsel for the petitioner submits that though the endorsement made on 04.05.2007 by the Disciplinary Authority, when he records agreeing with the conclusion of the preliminary inquiry, that in itself may not amount to that the Disciplinary Authority has applied its mind and accepted the recommendations for the reason, that the analogy of the argument as extended by the learned counsel for the petitioner could only be derived on the scrutiny of reply to the show cause notice as issued by the Disciplinary Authority to the petitioner prior to the imposition of the punishment by the impugned order dated 23.08.2007. Hence, this Court is not in agreement with this argument as extended by the learned counsel for the petitioner with regards to the effect of acceptance of recommendations by endorsement dated 04.05.2007.

23. The proposition on which the petitioner places reliance in the light of the aforesaid judgment, it

only lays right of an employee to prove his innocence. The said judgment only enables an employee to establish innocence against charge levelled against him. But when the employee who is charged for misconduct does not plead innocence or participate or admits the guilt as in the instant case, in the proceeding to establish his innocence. The said ratio would not be applicable. The proposition, pertaining to the second opportunity as propounded by the aforesaid judgment with regards to either ‘no penalty’ or ‘lesser penalty’ on establishment of the guilt. This right of second opportunity has been taken away by the Forty-second amendment under Article 311 of the Constitution of India. The ratio as contemplated there for giving reasonable opportunity has to be visualized from slight distinct view under Article 311 (2) of the Constitution of India, which contemplates reasonable opportunity of being heard in respect to charge would be when the charge itself is denied and not otherwise.

24. There is another aspect of the matter that the necessity of issuance of second show cause notice as contemplated by the judgment of the Hon’ble Apex Court in the case of Managing Director, ECIL Hyderabad and others vs. B. Karunakar and othersreported in 1993 SCC (L & S) 1184, wherein, paras 25 to 29 of the judgment, the Hon’ble Apex Court hasmade an observation that issuance of second show cause notice is essential before imposition of penalty

on delinquent employee and the same are quoted as under:-

25. “While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.

26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justicerequire that the employee should have fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and denial of fair opportunity to the employee to consider the findings recorded by third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusion, the delinquent employee should have an opportunity to reply to the enquiry officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.

27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusion on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.

28. The position in law can also be looked at from slightly different angle. Article 311(2) says that the employee shall be given "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputation. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinaryauthority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the Inquiry Officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer’s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilty or innocence of the charges.

29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has right to receive copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is part of the employee's right to defend himself against the

charges levelled against him. denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is denial of reasonable opportunity to the employee to prove his innocence and is breach of the principles of natural justice.”

25. This Court is of considered view that such type of contingency it is required to be intrinsic and essential, where the Enquiry Officer happens to be other than the Disciplinary Authority. And secondly, the issue which falls to be considered is that when authorities falling under same definition under the rules within the ambit of power exercising the same nature of power under the Act of 1948. The proposition as quoted in relation to the instant case of the Provincial Armed Constabulary, as directed to be other than appointing authority it would not be applicable in the present circumstances of the case. Since both the Assistant Commandant and Commandant exercise the same statutory powers under the Act, and are not administratively different.

26. There is another aspect of the matter that when during the course of preliminary inquiry, as well as, the main inquiry, the petitioner himself had admitted the guilt that he remained absent for the period of 102 days without giving any information and as matter of fact unrebutted, no scrutiny about the factual aspect after reference to the show cause notice which was given to the petitioner was required. Hence, also

despite the fact that the second show cause notice was given to the petitioner by the Disciplinary Authority prior to imposition the order of punishment, there is no anomaly in passing the impugned order. When guilt is admitted and there is voluntarily non-participation by petitioner is the disciplinary proceedings.

27. The learned counsel for the petitioner in support of his contention has placed reliance on judgment as reported in(2006) 3 SCC 690,Maharastra State Seeds Corporation Ltd. vs. Hari Prasad Drupad Rao Jadhao and Another. In this Judgment, the learned counsel for the petitioner places reliance on para 21 of the judgment which is quoted hereunder:-

“21. As the enquiry officer had no jurisdiction to recommend any punishment to be imposed on the respondent by the disciplinary authority, he although acted thereupon at the first instance, could have corrected his mistake as the same was apparent on the face of the record. He, therefore, did not commit any illegality in issuing the second show-cause notice as the enquiry officer had no jurisdiction in that behalf. Mistake furthermore, may either be of law or fact. By reason of mistake on the part of the enquiry officer, the respondent could not have been inflicted with minor penalty although he deserved major penalty. If in law the quantum of punishment to be imposed upon delinquent officer is within the exclusive domain of the disciplinary authority, unless otherwise delegated to any other authority, he alone could exercise the said jurisdiction and determine the

same having regard to the nature and guilty (sicculpability) of the misconduct on the part of thedelinquent officer as the enquiry officer or any other authority had no jurisdiction in relation thereto. The matter might have been different if prior to the imposition of penalty of dismissal from service against the first respondent, no opportunity of hearing had been given to him. Admittedly, the second show-cause notice was issued to him and he showed cause. It is also not contended that the order passed by the disciplinary authority suffers from the vice of non-application of mind. The principles of natural justice admittedly have been complied with.”

28. In the said judgment, it has been observed by the Hon’ble Apex Court that the Enquiry Officer has no jurisdiction to recommend any punishment to be imposed upon the respondents by the Disciplinary Authority.In the said case, the appointing authority who although had acted thereupon at the first instance, had there been no recommendation, he could have corrected the mistake in the enquiry and finding if any with an independent mind as given by the Enquiry Officer. The circumstances under which the said case has proceeded is factually and legally on an entirely different footing then the one at hand, more particularly when finding of enquiry report becomes irrelevant when guilt is admitted and further more when authority conducting enquiry and authority passing order fall under the same definition.

29. In the said case as relied by the petitioner’s counsel, the enquiry proceeding which was being conducted against the Delinquent Employee he was charged for guilt of avoiding compliance of the instructions of the superior and misappropriating of the funds of the Corporation. In those proceedings, the additional charge was that he also remains absent without prior approval. It is the case where the Enquiry Officer based on findings of contested enquiry proceedings, where there was denial of charge has recommended the imposition of punishment but the fact also remains that in the said case admittedly the Enquiry Officer who conducted the inquiry in the said case was an officer other than the Disciplinary Authority, this case was dealing with different situation based on the said premise, the High Court has interfered in the punishment as imposed by the Disciplinary Authority, but the Hon’ble Apex Court overturned the judgment because of the fact that there was question involved as to whether the Enquiry Officer can recommend the imposition of punishment based on the finding of enquiry report, the Hon’ble Apex Court has turned down the judgment of the High Court and modified the same whereby the quantum of punishment was modified and has set aside the judgment of the High Court and allowed the appeal.

30. In another judgment on which the learned counsel for the petitioner has placed reliance as reported in (2012) 3 SCC 178, Krushnakant B. Parmar vs. Union of India and Another. In this judgment, the learned counsel for the petitioner has placed reliance on para 17 of the judgment which is quoted hereunder:

“17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from without or duty any application prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of government servant.”

31. In the said case, the punishment imposed was under the “compelling circumstances”, as narrated in the said case. The “compelling circumstances”, which was dealt with by the Court was that the petitioner to the said writ petition was not permitted to sign the attendance register and to attend the office. This is not the case at hand, there it was not voluntary act of an employee to refrain from his duties but rather it was an Act of the employer himself that he was not permitted to perform his duties and restrained

him to work, so it was not compelling circumstances as prevailed in the said case by virtue of which the petitioner was refrained from discharging his official duties.

32. Furthermore that was case where the Delinquent Employee against whom charges of offence/misconduct were levelled has defended himself from the charges and has denied the same, whereas in the instant case, the petitioner himself had rather admitted the fact that he voluntarily absented from his official duties and is guilty for absence of 102 days and that too on the ground that he was suffering from fever and under normal circumstance it cannot be presumed that an employee who has suffered from fever his ailment prolonged for the period of 102 days and he remained indisposed even to an extent to inform about his ailment. Hence, also the said judgment, would not apply. This judgment has also to be looked into from another aspect that the case of the petitioner admittedly pertains to Discipline Armed Forces which altogether has to be dealt with different yardstick, wherein, services of an employee is supposed to be regulated by self imposed discipline on himself in manner to ensure the wider interest of the public at large. In the case, on which, the petitioner has placed reliance is the case of security officer who was departmentally proceeded with, which is not an

identical case as the one hand. Hence, this judgment too will not be applicable in the case of the petitioner.

33. Learned counsel for the petitioner has placed reliance on the judgment as reported in Managing Director, ECIL Hyderabad and others vs. B. Karunakar and others (supra). This Court is in absolute agreement with the ratio propounded by his Lordships in the said judgment, but there is distinction which has to be drawn when it comes to its applicability of the said ratio in the present case, where the guilt is admitted, the delinquent employee deceives to defend himself by withdrawing from departmental proceedings.

34. In the instant case, it has to be borne in mind that admittedly according to the petitioner it is disciplinary proceeding which is governed by the Rule of 1991, it relates to the Delinquent Employee who was member of the Provincial Armed Constabulary. In the case, which was dealt with by Hon’ble Apex Court, was emanating from the interpretation and with regards to the applicability of the Civil ServicesRules as applicable to the inquiry proceeding which was held by the Enquiry Officer other than the Appointing Authority. The issue was regards to the applicability of Civil Services Regulations, as applicable to the said enquiry proceeding which was held by an officer other than the Appointing Authority. The reason assigned by the

Hon’ble Apex Court was to scrutinize the veracity of the

inquiry report and its sanctity before an action is to be taken against the delinquent employee, concluding directions as contained in para 25 and thereafter, its only in an eventuality, where the inquiry is conducted by the officer other than the disciplinary authority which is not the case at hand.

35. In the instant case admittedly in accordance to para 2 of the impugned order before passing the same, show cause notice was issued to the petitioner and petitioner submitted his reply and thereafter the impugned order of dismissal was passed. Hence also this judgment does not help the petitioner in any manner whatsoever.

36. Accordingly, this Court finds no anomaly in the impugned orders, the writ petition is hereby dismissed.

37. No order as to costs.

Ravi

(Sharad Kumar Sharma, J.)

02.04.2018