JUDGMENT
Chandramauli, Kr. Prasad, J.
1. This application has been filed for issuance of a writ in the nature of certiorari for quashing the order dated 17-1-2001 (Annexure-7), and the consequential order dated 7-2-2001 (Annexure-8) whereby the petitioner has been visited with the penalty of withholding of two annual increments with cumulative effect and it has been further decided that the petitioner shall not be entitled for any other amount other than the subsistence allowance.
2. Short facts giving rise to the present application are that at the relevant time, the petitioner was working as Accountant in Saharsa Depot of the respondent Bihar State Road Transport Corporation, hereinafter referred to as ‘the Corporation’. While he was working as such, by order dated 29th of April, 1999, (Annexure-1), he was put under suspension in contemplation of a departmental inquiry. Lateron, the departmental inquiry was initiated against him and he was served with a memo of charge dated 30th of July, 1999 (Annexure-2). According to the charge, when the police force came to the depot for removing the encroachments, petitioner misled them and the police force returned without removing the encroachments. Another misconduct alleged against the petitioner was that he has constructed a house in the depot premises unauthorisedly. The Inquiry Officer conducted the inquiry and submitted its report exonerating the petitioner from both the charges. The disciplinary authority without giving any opportunity to the petitioner, by the impugned order, imposed the punishment disagreeing with the finding of the Inquiry Officer. However, while doing so, the disciplinary authority had assigned reasons for disagreement.
3. Mr. Manoj Priyadarshi, appearing on behalf of the petitioner submits that the Inquiry Officer had exonerated the petitioner from both the charges but the disciplinary authority, without giving opportunity to the petitioner to satisfy that the finding recorded by the Inquiry Officer is just and proper, had passed the impugned order and this itself vitiates the order of the disciplinary authority. In support of his submission, learned Counsel placed reliance on a decision of the Supreme Court in the case of Punjab National Bank and Ors. v. Kunj Behari Mishra and Ors., reported in 1998 (7) SCC 84 and my attention has been drawn to para 19 of the judgment which reads as follows :
“19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charges, it must record its tentative reasons for such disagreement and given to the delinquent officer an opportunity to represent before it records its finding. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charge framed against the officer.”
4. Further, reliance has been placed on a Division Bench Judgment of this Court passed in LPA No. 792 of 1999 (Jai Kumar Singh v. The State Bank of India and Ors.) disposed of on 1-2-2000. My attention has been drawn to the following passage from the said judgment.
“xxx He thereafter gave an opportunity of hearing regarding nature of proposed punishment and called upon the appellant to show-cause why the proposed punishment should not be inflicted upon him.
xxx There was, therefore, no scope for the appellant to represent that the finding of the enquiry officer was justified in the facts and circumstances of the case and that the reasons for disagreement as recorded in the order were not adequate to disturb the finding recorded by the enquiry officer. All that the notice provided was that the appellant should represent against the proposed punishment.”
5. Mr. P.K. Verma, appearing on behalf of the respondents submits that the disciplinary authority has assigned the reasons while passing the order of punishment, same satisfies the requirement of principle of natural justice and the order impugned cannot be held to be illegal only on the ground that before passing the impugned order, the disciplinary authority did not give any opportunity to the petitioner. In support of his submission, learned Counsel has placed reliance on a judgment of the Supreme Court in the case of State of Rajasthan v. M.C. Saxena reported in AIR 1998 SC 1150. My attention has been drawn to the following passage from the said judgment.
“xxx It is well settled that the disciplinary authority can disagree with the findings arrived at by the enquiring officer and Act upon his own conclusion, but the only requirement is that the said disciplinary authority must record reasons for his disagreement with the findings of the enquiry officer. If the disciplinary authority gives reasons for disagreeing with the findings of enquiring officer then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said finding. In this view of the matter, the disciplinary authority was well within his powers to award punishment on the findings arrived at by him. We do not find any force in the submission of the learned Counsel appearing for the delinquent Government servant that before the disciplinary authority proceeds to award punishment, delinquent Government servant should the have been afforded a further opportunity of hearing, xxx”
6. Having appreciated the rival submission, I find substance in the submission of Mr. Priyadarshi Undisputedly, the Inquiry Officer had exonerated the petitioner from both the charges and the disciplinary authority had imposed the punishment without giving any opportunity to the petitioner. It is well-settled that the disciplinary authority is not bound by the finding of the Inquiry Officer and in a given case, he can disagree with the findings of the Inquiry Officer and impose punishment, but before doing so, he has to indicate tentative reasons of his disagreement and make available the same to the delinquent employee so that he can satisfy the disciplinary authority that the finding recorded by the Inquiry Officer, is just and proper. No such opportunity was given to the petitioner. This, in my opinion, itself vitiates the impugned order. The view which I have taken finds support from the judgments of the Supreme Court in the case of Kunj Bihari Misra (supra) and that of a Division Bench of this Court in the case of Jai Kumar Singh (supra).
7. Reverting to the authority of the Supreme Court in the case of M.C. Saxena (supra), relied on by Shri Verma, I am of the opinion that same is clearly distinguishable. In the said case, the question was as to whether disciplinary authority can disagree with the conclusion of the Inquiry Officer and while holding that it can, the Supreme Court held that in such circumstances the disciplinary authority had to assign reason. In any view of the matter, in view of long line of decisions of the Supreme Court and this Court, I have no hesitation in holding that the disciplinary authority was required to furnish to the petitioner the tentative reasons for disagreement and only thereafter, could have proceeded in the matter, Admittedly, he has not done so, this renders his order illegal and the same is fit to be set aside on this ground alone.
8. In the result, the application is allowed. The order dated 17th of January, 2001 (Annexure-7) and the consequential order dated 7-2-2001 (Annexure-8) are quashed. However, this will not preclude the discilinary authority from proceeding against the petitioner from the stage subsequent to the filing of the inquiry report.