Rajesh Kumar Tyagi vs State Of U.P. Through The … on 11 August, 2010

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                                                                            Court No.22
                           Writ Petition No.5632 (SS) of 2010
Rajesh Kumar Tyagi                                                        ... Petitioner
                                         Versus
State of U.P. and others                                                  ... Opp. Parties
                                      ---------------
Hon'ble S.S. Chauhan, J.

The present petition has been filed challenging the order dated 31.5..2010.
Submission of learned counsel for the petitioner is that the disciplinary
authority while disagreeing with the finding recorded by the enquiry officer in
which the petitioner was exonerated proceeded to issue a show cause notice and in
the said show cause notice a positive finding has been recorded in regard to the guilt
of the petitioner and no opportunity was given to the petitioner in regard to specific
points of disagreement and proceeded to pass an order awarding special adverse
entry to the petitioner along with withholding of arrears of salary during the
suspension period. It is further submitted that identical order was subject matter of
consideration before this Court in Writ Petition No.2113 (SS) of 2010 and the said
writ petition was allowed with the direction to the competent authority to re-initiate
the proceedings from the stage of disagreement with the findings of the enquiry
officer and take final decision afresh after affording due opportunity.

Learned Standing Counsel, on the other hand, has submitted that the
petitioner was given opportunity by issuing a show cause notice to reply to the
opinion formed by the disciplinary authority to which petitioner has replied and,
therefore, no illegality has been committed by the disciplinary authority in passing
the impugned order. It is also submitted that the minor punishment has been
awarded to the petitioner, therefore, no point of disagreement was required to be
communicated to the petitioner.

I have heard learned counsel for the parties and perused the record.
This Court While dealing with the similar question in Writ Petition No.2113
(SS) of 2010 recorded a finding to the following effect:

” In sum and substance, it can be easily said that a
delinquent employee has a right of hearing not only during the
enquiry proceedings conducted by the Enquiry Officer into the
charges levelled against him but also at the stage at which the said
findings are considered by the Disciplinary Authority and latter, the
Disciplinary Authority forms a tentative opinion that he does not
agree with the findings recorded by the Enquiry Officer and it is
necessary for the Disciplinary Authority to give an opportunity of
hearing to the delinquent employee before reversing the findings in
favour of him. The formation of opinion should be tentative and not
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final. Accordingly, the questions raised in the present petition are
answered.

In the present case, the show cause notice dated 05.03.2010
reveals that the Disciplinary Authority instead of coming to the
tentative conclusion recording the proving of charges against the
petitioner, came to the final conclusion that the charges against the
petitioner have been proved and issued show cause notice on the
proposed punishment. In other wards, the findings of the
Disciplinary Authority were final and the proposal to inflict upon the
petitioner the punishment was tentative. Therefore, it is admitted
case of final decision without giving an opportunity of hearing to the
petitioner at the stage at which the Disciplinary Authority proposes
to differ from findings of the Enquiry Officer.”

Considering the finding recorded in the aforesaid writ petition, this Court
does not think proper to take a different view as the judicial discipline requires that
where there is a final judgment to the same effect it should be honoured unless there
is compelling reason or a judgment of a Larger Bench to the contrary to the
proposition laid down by the coordinate Bench is shown. Since no such material has
been brought before this Court, therefore, the punishment awarded to the petitioner
by the impugned order cannot be sustained and is liable to be quashed.

The writ petition is accordingly allowed and a writ in the nature of certiorari
is issued quashing the order dated 31.5.2010. However, it will be open for the
competent authority to re-initiate the proceedings from the stage of disagreement
with the findings of the enquiry officer and take final decision afresh after affording
due opportunity. The said exercise shall be completed within a period of two
months.

There shall be no order as to costs.

11.8.2010
Rao/-