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Jagdish Kumar v/s National Building Construction Corporation & Another

    LPA No.1764 of 2006

    Decided On, 07 September 2007

    At, High Court of Delhi

    By, THE HONOURABLE CHIEF JUSTICE DR. MUKUNDAKAM SHARMA & THE HONOURABLE MR. JUSTICE SANJIV KHANNA

    For the Appellant: Suhail Dutt, Advocate. For the Respondents: V.K.Rao, Saket Sikri, Advocate.



Judgment Text

Dr. Mukundakam Sharma, C.J.


1. Order dated 15th October, 1993, passed by the respondent proposing to hold a fresh departmental inquiry against the appellant under the Discipline and Appeal Rules of the respondent, was challenged in the writ petition filed by the appellant. The learned Single Judge disposed of the said writ petition by order dated 24th March, 2006, relevant portion of which is extracted herein below:-


?In view of the above submission, I am of the opinion that the respondents shall not to proceed with the impugned order. They are accordingly enjoined from proceeding further on the basis of the impugned notice. Respondents are, however, granted liberty to pass an appropriate order on the inquiry report submitted in the departmental proceedings initiated against the petitioner, which would include the course of issuing a disagreement note and outlining clearly the points of difference, and the tentative conclusions that it chooses to arrive at on the basis of such materials. If such an eventuality is ultimately adopted, the respondents shall ensure that the petitioner is given a fair opportunity to deal with the tentative conclusions and give him such hearing as is necessary in accordance with law.?


2. The appellant joined the services of the respondent as Store keeper in the year 1979. While the appellant was working as such, steel bars were found missing from the store of the respondent. Consequently a First Information Report was lodged by the respondent on 23rd June, 1987 reporting loss of steel bars. The respondent also initiated a departmental inquiry against the appellant on 16th September, 1987 alleging lapses and irregularities. A charge sheet was issued and the appellant was placed under suspension. Reply to the memorandum of charges filed by the appellant was found to be unsatisfactory and by order passed on 11th January, 1989, the Resident Engineer was appointed as the Inquiry Officer to conduct the departmental inquiry. Suspension order was revoked however on 20th September, 1991. On conclusion of the inquiry, the Inquiry Officer submitted his report.


3. However, the respondent passed an order directing for institution of a fresh inquiry against the appellant under Rule-9. The said order, initiating de novo departmental inquiry, was challenged in the writ petition.


4. The contention that was raised before the learned Single Judge was that once an inquiry stands initiated and concluded and report of the inquiry is submitted, there can be no order for initiating a de novo departmental inquiry in respect of the same charges. In support of the aforesaid contention, counsel for the appellant relied upon the decision of the Supreme Court in the case of K.R. Deb v. Collector of Central Excise, Shillong reported in 1971 (1) SLR 29. The respondent however refuted the aforesaid contention contending inter alia that the Inquiry Officer had failed to apply his mind while making the inquiry report and arriving at the conclusions. It was contended that the findings of the Inquiry Officer are not what should have been arrived at on the basis of the existing materials. It was also contended that the Inquiry Officer exceeded his jurisdiction while stating that no penalty should be imposed on the appellant.


5. It appears from the tenor of the impugned judgment that during the course of arguments it was observed by the learned Single Judge that it was still open for the Disciplinary Authority to issue a separate disagreement note if the said Authority was in any manner not in agreement with the findings of the Inquiry Officer. It appears that the learned counsel appearing for the respondent agreed with the aforesaid proposition of the learned Single Judge. Consequently, the learned Single Judge passed the order dated 24th March, 2006 as afore-extracted. Aggrieved by the said order, the appellant filed by the present appeal on which we have heard the counsel appearing for the parties.


6. The appellant has challenged the legality of the aforesaid order mainly on the ground that the learned Single Judge was not justified in giving an opportunity to the respondent to revive the earlier inquiry proceeding which was impliedly superseded by issuance of a fresh charge sheet. We have perused records and considered the contentions raised by the learned counsel for the parties. The Inquiry Officer appointed by the Disciplinary Authority submitted his report. It is apparent that the Disciplinary Authority had reservations with regard to the facts recorded by the Inquiry Officer. A number of grounds and reasons were given by the Disciplinary Authority, why he felt that the Inquiry Officer had misdirected himself. In these circumstances, the Disciplinary Authority directed de novo departmental inquiry. The second inquiry which was initiated has been quashed by the learned Single Judge and we are not required to analyse the legality of initiation of the second inquiry as the respondent has accepted the said decision. Learned counsel for the respondent states that the respondent would rather continue with the earlier departmental proceedings by withdrawing the order initiating de novo inquiry. Learned Single Judge allowed the respondent to proceed with the earlier notice initiating departmental inquiry and gave the respondent an opportunity to pass an appropriate order on the inquiry report submitted in the departmental proceedings initiated against the appellant. Learned Single Judge has allowed the Disciplinary Authority to proceed further in the matter in accordance with law.


7. Once inquiry report is made available to the Disciplinary Authority, the said authority alone decides whether or not to impose any penalty. The Inquiry Officer conducts inquiry on behalf of the Disciplinary Authority. The inquiry report does not end the disciplinary proceedings as the inquiry report is a step in the proceeding. The disciplinary proceeding ends with the Disciplinary Authority terminating the proceeding either by exonerating the delinquent officer or by imposing punishment.


8. The inquiry report given by the Inquiry Officer need not be accepted by the Disciplinary Authority. Even when the Inquiry Officer gives a clean chit to the delinquent officer, the Disciplinary Authority can disagree and differ with the view of the Inquiry Officer. In cases of this nature, the Disciplinary Authority is required to record its prima facie findings and give reasons for such disagreement. Thereafter, the delinquent officer should be given an opportunity to report and submit his views on the disagreement shown. After considering the reply of the delinquent officer, the Disciplinary Authority is competent to pass a final order imposing punishment or dropping the proceeding against the delinquent officer. (See: Lav Nigam v. Charman and MD, ITI Limited: (2006) 9 SCC 440, Punjab National Bank v. Kunj Behari Misra: (1998) 7 SCC 84).


9. K.R. Deb's case (supra) was examined by the Supreme Court in Union of India v. P. Thyagarajan, reported in (1999) 1 SCC 733. Reference was made to para 12 of the judgment in K.R. Deb (supra) which reads as under:


12. It seems to us that Rule 15, on the face of it, really provides for one enquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined for some other reason, the disciplinary authority may ask the enquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous enquiries on the ground that the report of the enquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. (emphasis supplied)?


10. Analysing the said paragraph and the ratio of the judgment in K.R. Deb (supra) the Supreme Court in P.Thyagarajan (supra) observed as under:


?8. A careful reading of this passage will make it clear that this Court notices that if in a particular case where there has been no proper enquiry because of some serious defect having crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined, the disciplinary authority may ask the enquiry officer to record further evidence but that provision would not enable the disciplinary authority to set aside the previous enquiries on the ground that the report of the enquiry officer does not appeal to the disciplinary authority. In the present case, the basis upon which the disciplinary authority set aside the enquiry is that the procedure adopted by the enquiry officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the Department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand, result in a miscarriage thereof.


Therefore, we are of the view that Rule 27(c) enables the disciplinary authority to record his findings on the report and to pass an appropriate order including ordering a de novo inquiry in a case of the present nature.?


11. Reading of the above paragraphs shows that where no proper inquiry has been held or where serious defects have crept in the inquiry or importan

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t witness has not been examined, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. The Disciplinary Authority has the power and jurisdiction to disagree with the findings of the Inquiry Officer by issuing a disagreement note and issuing a notice to the delinquent officer as required. Care, however, has to be taken that the order of the Disciplinary Authority should not result in second or de novo inquiry otherwise inquiries can go on perpetually until the view of the Disciplinary Authority is accepted and this would be abuse of the process of law. There is no such direction in this case as per the order passed by the learned Single Judge. 12. In view of the above findings, we do not find any reason to interfere with the order passed by the learned Single Judge in the open Court and in the presence of the learned counsel for the parties and upon recording approval of the counsel. The Disciplinary Authority shall proceed in accordance with law. We, therefore, find no merit in the present appeal and the same is dismissed.
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