ORDER
D.V. Shylendra Kumar, J.
Page 1667
1. Writ petition by an employee of the respondent-Chamundeswhari Electricity Supply Company, who is aggrieved by not only the adverse punishment order suffered at the hands of the disciplinary authority in a domestic enquiry conducted against the petitioner by the employer but also the order passed by the first respondent-appellate authority enhancing the punishment, passed in an appeal filed by the petitioner against the order of the disciplinary authority.
2. While the disciplinary authority had inflicted the punishment of stoppage of four increments with cumulative effect on the petitioner, in view of the charges levelled against him having been found proved in a domestic enquiry Page 1668 and on the basis of the report with which the disciplinary authority concurred, the appellate authority in an appeal preferred by the petitioner against the order passed by the disciplinary authority not merely has declined to interfere with, but thought it fit to enhance the punishment to one of demotion to the lower rank. The petitioner, who was working as overseer was demoted to the post of mechanic grade-II. It is aggrieved by such orders, the present writ petition.
3. Respondents had been put on notice after preliminary hearing of the writ petition. The respondents have entered appearance through counsel Sri Aravind Kumar.
4. The matter was heard further with regard to the grant of interim prayer on 26-7-2007 and on noticing prima facie case, rule was issued and the respondents were directed to produce the relevant records and the matter was directed to be listed for consideration of interim prayer today.
5. With the consent of the learned Counsel for the parties, the matter is instead taken up for disposal than to pass an order on the interim prayer.
6. It is not necessary to discuss either the facts or the circumstance in detail, having regard to the nature of the order that is required to be passed in this writ petition. One of the grounds urged in the appeal by the petitioner as against the order passed by the disciplinary authority inflicting punishment of stoppage of four increments with cumulative effect was that the petitioner had not even been furnished with a copy of the enquiry report; that he had been handicapped for want of a copy of the report to defend himself or to present his case before the disciplinary authority; that non-furnishing of the report of the inquiring officer had vitiated the order of the disciplinary authority.
7. While the appellate authority was of the view that nothing much can be made out on this ground; that if such was the situation, it was the making of the petitioner himself, as he did not even applied for a certified copy of the enquiry report, but on the other hand found it a proper case to enhance the punishment having regard to the conduct of the petitioner in the appeal before the appellate authority. In the opinion of the appellate authority, such adamant, stubborn, unjustifiable conduct on the part of the petitioner justified enhancement of punishment in the background of the gravity of charges found proved as against the petitioner.
8. The appellate order is attacked principally on the ground that before enhancing any punishment, under the relevant provisions governing the service conditions of the petitioner viz., Karnataka Electricity Board Employees’ Classification, Disciplinary, Control and Appeal Regulations, 1987 [for short, the Regulations], the appellate authority is bound to provide opportunity of hearing after issue of a show cause notice proposing enhancement of punishment. Regulation 25 of the Regulations undoubtedly has empowered the appellate authority to enhance the punishment imposed by the disciplinary authority in terms of Regulations 25(2)(c)(i) of the Regulations. Proviso to Regulation 25 of the Regulations mandates that the Page 1669 punishment cannot be enhanced unless the appellant is given an opportunity making any representation which he may wish to make against such enhanced penalty. Regulation 25, which reads as under:
25. CONSIDERATION OF APPEALS:
1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Regulation 8 and having regard to the circumstances of the case the order of suspension is justified or not and confirm or revoke the order accordingly.
2) In the case of an appeal against an order imposing any of the penalties specified in Regulation 9, the appellate authority shall consider –
a) whether the procedure prescribed in these Regulations has been complied with, and, if not whether such non-compliance has resulted in violation of any provisions of the constitution or in failure of justice;
b) whether the findings are justified; and
c) whether the penalty imposed is excessive, adequate or inadequate, and after consultation with the Board, if such consultation is necessary in the case, pass orders –
i) setting aside, reducing, confirming or enhancing the penalty; or
ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the cases;
Provided that –
i) the appellate authority shall not impose any enhanced penalty unless such authority or the authority which made the order appealed against is competent to impose such penalty;
ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and
iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clauses (v) to (viii) of Regulation 9 and an inquiry under Regulation 11 has not already been held in the case, the appellate authority shall, subject to the provisions of Regulation 14 itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry pass such orders as it may deem fit.
3) In the case of an appeal against the order specified in Clauses (b) and (c) of Regulation 18 or Regulation 19, the appellate authority shall consider all the circumstances of the case and pass such orders as it deems just and equitable.
Page 1670
This clearly stipulates that the appellate authority should put the appellant on notice proposing to enhancement of punishment that it proposed to inflict on the appellant and according an opportunity of hearing to the appellant before the proceedings to pass an order and of course after taking into consideration the cause shown by the appellant.
9. Sri P.H. Virupashaiah, learned Counsel for the petitioner, and Ms Shubha, learned Counsel for the respondents, have been heard in the matter at some length.
10. The respondents had been directed to produce the records and accordingly records relating to the disciplinary authority and the appellate proceedings are also placed before the court. Learned Counsel for the petitioner and the respondents have also perused the records. It is submitted on perusal of the records that the records do not indicate that the petitioner had been furnished with a copy of the enquiry report. It also does not indicate that the petitioner had been given an opportunity by the appellate authority before inflicting the enhanced punishment nor was it ever put to the petitioner about such possibility.
11. While the appellate authority’s order in so far as it relates to the enhancement of punishment cannot be sustained for the clear violation of the proviso to Regulation 25, I find it difficult to sustain even the order passed by the disciplinary authority, only for the reason that the petitioner had never been furnished a copy of the enquiry report, which position remains the same even as of now.
12. While it may be a possibility that the petitioner either was privy to the enquiry report or had access to it and could have developed his case based on such knowledge, it is a mandatory requirement that a copy of the enquiry report should be furnished to the delinquent employee and the delinquent employee should be heard in the matter by the disciplinary authority before proceedings to pass any orders on the merits of the case. Unfortunately, this had not been done in the present case.
13. Though Ms Shubha, learned Counsel for the respondents would vehemently submit that there is requirement under the Regulations to provide a copy of the enquiry report to the delinquent employee, before the disciplinary authority passes an order inflicting a minor penalty like stoppage of four increments with or without cumulative effect, it is countered by Sri Virupakshaiah, learned Counsel for the petitioner, by pointing out the provisions of Regulation 12(A), which is the procedure contemplated to be followed before imposing any minor penalty, submits that there is violation of the procedure and therefore the order of the disciplinary authority is also bad. Regulation 12(A) reads as under:
12(A) COMMUNICATION OF ORDERS:
Orders made by the disciplinary authority shall be communicated to the Board employees who shall also be supplied with a copy of the report of the inquiry, if any, held by the disciplinary authority and a copy of its findings on each article of charge or, where the Page 1671 disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority and the statement of the finding of the disciplinary authority together with brief reasons for its disagreement, if any, with the findings of the inquiring authority [unless they have already been supplied to him] and where the inquiry is held by the Vigilance Commission/Lok Ayukta under Regulation 14(A), a copy of the findings of the inquiring officer with the recommendations of the Vigilance Commissioner/Lok Ayukta and also a copy of the advice, if any, given by Vigilance Commission/Lok Ayukta and, where the disciplinary authority has not accepted the advice of the commission, a brief statement of the reasons for such non non-acceptance.
Provided that it shall not be necessary to supply copies of the said documents where the disciplinary authority exonerates the board employee or where such documents have already been supplied to the board employees.
14. Subject to the provisions of Sub-regulation (3) of Regulation 11(A), it is mandatory that the Board employee should be informed of the action proposed against him, the misconduct or misbehaviour on which the proposed action is based and giving him a reasonable opportunity to make a representation, if he so wishes, against such proposal.
15. Though in terms of Sub-regulation (3) of Regulation 11(A), which reads as under:
11(A) ACTION ON THE INQUIRY REPORT:
XXX
3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that one or more of the penalties specified in Regulation 9 should be imposed on the board employees, it shall, notwithstanding anything contained in Regulation 12, make an order imposing such penalty.
it was open to the disciplinary authority to proceed to impose one or more penalties specified in Regulation 9 straightaway, the record discloses that in the instant case, the petitioner had been issued with a show cause notice proposing imposition of penalty.
16. The question is, in the light of such provisions, whether non-furnishing of a copy of the enquiry report can have any bearing on the order passed by the disciplinary authority ultimately inflicting the punishment of stoppage of four increments with cumulative effect?
17. The information to be furnished to the board employee is about the basis of the action proposed against him for the misconduct or misbehaviour, if it is proved in the enquiry, and to provide an opportunity to the employee to respond to the same. If at all the misconduct is held proved in a situation where the disciplinary authority has not disagreed with the report of the Page 1672 inquiring authority, or has not further held any enquiry on its own, the entire proposition is based solely on the report of the inquiring officer. That means, the report of the inquiring officer constitutes the basis for the proposed action. If the report constitutes the basis, it is but inevitable to infer that a copy of the report of the inquiring officer should also be furnished to the board employee along with the imputation of misconduct or misbehaviour and the proposed action.
18. Therefore, even though it is not expressly mentioned in the Regulations that a copy of the report of the inquiring officer should be furnished to the board employee, in a situation as discussed above, it is inevitable that a copy of the report should have been furnished. In the present case, what is admittedly furnished to the petitioner was only a show cause notice and on consideration of which and the enquiry report, the disciplinary authority has passed the impugned order inflicting the punishment. The petitioner quite naturally would have been handicapped for want of knowledge of the contents of the report submitted by the inquiring officer to effectively defend himself or put forth his version or even to point out the anomalies or any deficiencies in the report of the inquiring officer. Non-furnishing of the copy of the report of the inquiring officer inevitably vitiates the order passed by the disciplinary authority.
19. In the result, this writ petition is allowed and the order passed not only by the appellate authority but also by the disciplinary authority imposing the punishment after the stage of issue of show cause notice is quashed by issuing a writ of certiorari. The matter is remitted to the disciplinary authority to accord an effective opportunity to the petitioner to show cause to the proposition in terms of the provisions of Regulation 12(1)(a) and Regulation 12(A) of the Regulations. A copy of the enquiry report should be furnished forthwith or along with the copy of the fresh show cause notice now to be issued to the petitioner. It is open to the disciplinary authority to pass appropriate orders in accordance with the Regulations after taking into consideration the circumstances and the explanation if any to be offered by the petitioner.
20. It is submitted by Sri Virupakshaiah, learned Counsel for the petitioner that the petitioner had been working in the respondent-company till the month of December 2006 and thereafter he had been virtually prevented from working and has not only demoted to the lower cadre but also transferred to some other place and therefore the petitioner should be given full salary for this period.
21. Ms Shubha, learned Counsel for the respondents submits that the petitioner though had received the order of the disciplinary authority inflicting the enhanced punishment and the transfer order, he has not reported for duty on and after 27-12-2006 and therefore cannot be paid any salary thereafter.
22. It is submitted by the learned Counsel for the petitioner that the petitioner was kept under suspension ever since 21-6-2003 and the petitioner had not been paid salary for the suspended period, though he has been reinstated.
23. The disciplinary authority is therefore directed to pass an order in accordance with the Regulations for payment of salary not only for the period Page 1673 during which the petitioner was kept under suspension before passing the impugned order but also for the period on and after 27-12-2006 during which period it is the common ground that the petitioner in fact not worked, treating this period also as a period of suspension during which period petitioner was absent from the work place without permission.
24. Writ petition is allowed accordingly. Rule made absolute. The respondents shall treat the entire period in question as on suspension but not to disturb the period during which the petitioner had worked and had received full salary.
