Mahesh Chand Doshi vs The Food Corporation of India and Others

Veerender Singh Siradhana, J.—These two writ applications preferred by the petitioner raise common question of facts and law, and therefore, are being adjudicated upon by this common judgment.

Briefly, the indispensable skeletal material facts necessary for appreciation of the controversy raised herein needs to be first noticed. The petitioner was initially appointed and joined on the post of Typist on 19th May, 1972, in the pay scale of Rs. 120-10-240, with the Food Corporation of India (hereinafter referred to as the ''Corporation'', for short). Promotion was accorded to the petitioner on the post of Assistant Grade-II (Ministerial) on 24th March, 1976. He was posted at N.K. Electricals, his services were utilized in a Godown of a private party, hired by the respondent-Corporation for the purpose of storage of the food grains, and served there with effect from 7th July, 1976 to 29th July, 1976. In view of the formation of a new Cadre as Accounts Cadre in 1977, the petitioner was transferred as Assistant Grade-II (Accounts). On 29th August, 1983, the petitioner was promoted to the post of Assistant Grade-I (Accounts). However, he was not extended with any posting order while according posting orders to others promoted along with the petitioner, vide office order dated 17th September, 1983. On 22nd August, 1984, the petitioner was served with a charge sheet for major penalty. On conclusion of the enquiry proceedings, the Enquiry Officer returned a finding of charge "not proved" on both the charges levelled against the petitioner. The Disciplinary Authority vide order dated 11th September, 1986, though did not disagree with the findings arrived at by the Enquiry Officer, but imposed the penalty of ''censure''. On appeal by the petitioner, the Appellate Authority vide order dated 25/26th June, 1992, confirmed the order maintaining the penalty of ''censure'' and dismissed the appeal.

The petitioner, however, was accorded promotion vide order dated 13th October, 1997, with effect from 1983, while implementing the judgment(s) of the Delhi High Court in a batch of writ applications decided on 14th January, 1992/11th January, 1994; which were unsuccessfully challenged by the Corporation before the Hon''ble Supreme Court. The promotion was withdrawn vide order dated 22nd April, 1999, for pendency of the vigilance case at the relevant time, which ultimately culminated into initiation of the enquiry proceedings and imposition of penalty of ''censure'' on 11th September, 1986, as aforesaid. The petitioner was accorded promotion vide order dated 25th November, 1999, with effect from 1986, which is a subject matter of challenge in S.B. Civil Writ Petition Number 457 of 2000.

The learned counsel for the petitioner reiterating the pleaded facts and grounds of the writ application(s), has assailed the legality and validity of the action of the respondents in not according promotion to the petitioner as a consequence of order dated 29th August, 1983, while according promotion and posting to other six candidates, as would be reflected from office order dated 17th September, 1983. The learned counsel would further submit that the reason for not according promotion to the petitioner as later on surfaced was pendency of a vigilance case. The petitioner was subjected to departmental enquiry and the Enquiry Officer returned a negative finding on both the charges levelled against the petitioner. It is further contended that the Disciplinary Authority vide impugned order dated 11th September, 1986, imposed the penalty of censure contrary to the settled principles of law so much so that the Enquiry Officer on both the charges returned a negative finding (not proved). The observations made by the Disciplinary Authority that the charges against the petitioner were "not fully proved", are absolutely misconceived and cannot be sustained in the face of findings arrived at by the Enquiry Officer.

Moreover, the Disciplinary Authority without issuing any note of disagreement on the findings arrived at by the Enquiry Officer has inflicted the penalty of ''censure'' in flagrant violation of the principles of natural justice as the petitioner was not afforded an opportunity of hearing, which is requirement of the law.

The order passed by the Appellate Authority, while confirming the penalty imposed by the Disciplinary Authority, is assailed for being contrary to the materials available on record and being contradictory as well for the reason that the Appellate Authority has also specifically recorded the fact that the Disciplinary Authority had agreed with the findings arrived at by the Enquiry Officer to the effect that both the charges were "not proved", yet confirmed the penalty, and therefore, the order suffers with the vice of non-application of mind, which is apparent on the face of record. To buttress his submissions, the learned counsel has placed reliance on the opinion of the Hon''ble Supreme Court in the case of Union of India Vs. K.V. Jankiraman, etc. etc., AIR 1991 SC 2010 : (1991) 63 FLR 767 : (1991) 3 JT 527 : (1991) 2 LLJ 570 : (1991) 2 SCALE 423 : (1991) 4 SCC 109 : (1991) 3 SCR 790 ; Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, (1998) 6 AD 220 : AIR 1998 SC 2713 : (1998) 2 CTC 742 : (1998) 5 JT 548 : (1998) LabIC 3012 : (1998) 2 LLJ 809 : (1998) 4 SCALE 608 : (1998) 7 SCC 84 : (1998) SCC(L&S) 1783 : (1998) 1 SCR 22 Supp : (1999) 1 SLJ 271 : (1998) AIRSCW 2762 : (1998) 6 Supreme 486 ; New Bank of India Vs. N.P. Sehgal and Another, (1991) 2 BC 56 : (1991) 62 FLR 977 : (1991) 1 JT 498 : (1991) 1 LLJ 570 : (1991) 1 SCALE 218 : (1991) 2 SCC 220 : (1991) 1 SCR 473 : (1991) 1 UJ 641 ; Union of India and Others Vs. Dr. (Smt) Sudha Salhan, AIR 1998 SC 1094 : (1998) 1 JT 622 : (1998) 1 SCALE 505 : (1998) 3 SCC 394 : (1998) SCC(L&S) 884 : (1998) 1 SCR 28 : (1998) 1 UJ 593 : (1998) AIRSCW 884 : (1998) 1 Supreme 501 ; S.P. Malhotra Vs. Punjab National Bank and Others, (2013) 9 AD 205 : AIR 2013 SC 3739 : (2013) 138 FLR 780 : (2013) 9 JT 309 : (2013) 14 JT 388 : (2013) LabIC 4097 : (2013) LLR 897 : (2013) 9 SCALE 113 : (2013) 7 SCC 251 : (2013) 7 SCC(L&S) 673 : (2013) 4 SCT 135 : (2013) 3 SLJ 115 , and Des Raj versus Food Corporation of India: 1996 (2) SLR 781.

Per contra, Mr. N.S. Yadav, the learned counsel appearing on behalf of the respondent-Corporation, reiterated the stand in the counter affidavit and strenuously argued that the action of the respondent-Corporation cannot be faulted in withholding the promotion for a vigilance case was pending against the petitioner, which consequently resulted into initiation of the departmental proceedings and imposition of penalty of ''censure''.

According to the learned counsel for the respondent-Corporation, Regulation 58, 59 and 60 of the Food Corporation of India (Staff) Regulations, 1971, were complied with its letter and spirit while conducting the departmental proceedings against the petitioner and as a consequence thereof penalty of ''censure'' was imposed.

Referring to sub-regulation 4 of Regulation 59 of the Regulations of 1971, the learned counsel would submit that there is no necessity to give the Corporation employee any opportunity of making a representation on the penalty proposed to be imposed. The petitioner having not challenged the validity of sub-regulation (3) of Regulation 59 of the Regulations of 1971, is not entitled to any kind of relief. In support of his submissions, the learned counsel has placed reliance on the opinion of the Hon''ble Supreme Court in the case of Manoj Kumar Singh versus Coal India Ltd. and Ors.: (2006) 13 SCC 705 , and Sushanta Kumar Das Vs. Food Corporation of India and Others, (2004) 2 CALLT 133 : (2001) 2 CALLT 375 : (2004) 102 FLR 886 : (2004) 1 ILR (Cal) 228 : (2004) 3 LLJ 1025 .

I have heard the learned counsel for the parties, and with their assistance, perused the materials available on record.

Indispensably, the proceedings initiated under Regulation 58 of the Regulation of 1971. The petitioner participated in the enquiry proceedings and the Enquiry Officer returned a negative finding (not proved) on both the charges levelled against the petitioner.

The Disciplinary Authority though agreed with the findings arrived at by the Enquiry Officer, yet imposed the penalty on ''censure'', without recording any note of disagreement and communicating the same to the petitioner calling upon for his explanation/response. It is reflected from the reply as well as the materials available on record that the Disciplinary Authority observed in the impugned order dated 11th September, 1986, that the charges framed against the petitioner "are not fully proved", whereas from a glance of the enquiry report, it is evident that on both the charges, the Enquiry Officer returned a finding of "not proved". This fact is further confirmed from the order passed by the Appellate Authority wherein the Appellate Authority, in no uncertain terms held thus:-"

"It is a fact that Inquiry Officer had held the charge as not proved against the C.O. on the ground that there was no discrepancy in taking over/handing over the charge on peripheral counting and the Disciplinary Authority had agreed with it that te charges were not proved and the C.O. remained in the depot for short time but in spite of this he imposed the penalty due to the reason that detection of vertical bags in the stocks led to believe that the C.O. had handled the receipt operation and imposed a milder penalty."

The petitioner was accorded promotion vide order dated 29th August, 1983, but it is not reflected from the record as to the date, the disciplinary proceedings were contemplated against the petitioner, but for an approval accorded for initiation of disciplinary action on 2nd March, 1983. On being queried by the Court, the learned counsel for the respondent-Corporation could not divulge the exact date, the disciplinary action was contemplated against the petitioner.

Be that as it may, a charge sheet was issued and served upon the petitioner almost after a year i.e. on 22nd August, 1984 (Annexure-11).

At this juncture, it will be relevant to consider the text of Regulation 58, 59 and 60 of the Regulation of 1971, of the respondent-Corporation, which reads thus:--

"58. Procedure for imposing major penalties:

"(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Regulation 54 shall be made except after an inquiry held; as far as may be, in the manner provided in this regulation and Regulation 59, or in the manner provided by the Public Servants (Inquires) Act, 1850 (37 of 1850), where such inquiry is held under that Act.

(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an employee of the Corporation, it may itself inquire into or appoint under this regulation or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.

Explanation: Where the disciplinary authority itself holds the inquiry, any reference in sub-regulation (7) to sub-regulation (20) and in sub-regulation (22) to the inquiry authority shall be construed as a reference to the disciplinary authority.

(3) Where it is proposed to hold an inquiry against an employee of the Corporation under this regulation of Regulation 59, the disciplinary authority shall draw up or cause to be drawn up:

(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;

(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain:

(a) a statement of all relevant facts including any admission of confession made by the employee.

(b) a list of documents by which, aged a list of witnesses by whom the articles of charge are proposed to be sustained.

(4) The disciplinary authority shall deliver or cause to be delivered to the employee a copy of the articles of charge, the statement of the imputation of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the employee to submit, within such time as may be specified, a written statement of his defence and to state whether he desired to be heard in person.

(5) (a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or if it considers it necessary to do so, appoint under Sub-regulation (2), an inquiry authority for the purpose; and where all the articles of charge have been admitted by the employee in his written statement of defence, the disciplinary authority shall record its findings on each charge as it may think fit and shall act in the manner laid down in Regulation 59.

(b) If no written statement of defence is submitted by the employee, the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint under Sub-regulation (2), an inquiry authority for the purpose.

(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, be an order, appoint an employee of the Corporation (or of any State or Central Govt. employee) or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge.

(6) The disciplinary authority shall, where it is not the inquiry authority, forward to the inquiry authority:

(i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour;

(ii) a copy of the written statement of defence, if any, submitted by the employees;

(iii) a copy of the statements of witnesses, if any, referred to in sub-regulation (3);

(iv) evidence proving the delivery of the documents referred to in sub-regulation (3) to the employee; and

(v) a copy of the order appointing the "Presiding Officer".

(7) The employee shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt b him of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiry authority may, be a notice in writing, specify in this behalf, or within such further time, not exceeding ten days, as the inquiry authority may allow.

(8) The employee may take the assistance of any other employee of the Corporation or any State or Central Government employee to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits.

Note (1) The Corporation shall pay travelling allowance only in respect of the employees of the Corporation and not Central/State Government employees.

Note (2) The employee shall not take the assistance of any other employee of the Corporation or any State or Central Govt. employee who has two pending disciplinary cases on hand in which he has to give assistance.

(9) If the employee who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the employee thereon.

(10) The inquiring authority shall return a finding of guilt in respect of these articles of charge to which the employee pleads guilty.

(11) The inquiry authority shall, if the employee fails to appear within the specified time or refuses or omits to plead, require the Presiding Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the employee may, for the purpose of preparing his defence:

(i) inspect and take extract from, if desired, within five days of the order or within such further time not exceeding five days as the inquiry authority may allow, the documents specified in the list referred to in Sub-regulation (3);

(ii) submit a list of witnesses to be examined on his behalf.

Note: If the employee applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to Sub-regulation (3), the inquiry authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.

iii) give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow for the discovery or production of any documents which are in the possession of Corporation but not mentioned in the list referred to in Sub-regulation (3).

Note: The employee shall indicate the relevance of the documents required by him to be discovered or produced by the Corporation.

The inquiring authority shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with the requisition for the production of the document by such date as may be specified in such requisition.

Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.

(13) On receipt of the requisition referred to in Sub-regulation (12), every authority in the Corporation having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority;

*Provided that the authority having the custody or possession of the requisitioned documents may claim privilege if the production of such documents will be against the public interest or the interest of the Corporation. In that event it shall inform the inquiring authority accordingly. The Inquiring Authority shall, on being so informed communicate the information to the employees concerned.

(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved, shall be produced by or on behalf of the discipline authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the employee. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.

(15) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the employee or may itself call for new evidence or recall and re-examine any witness and in such case the employee shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the employee an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the employee to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice.

Note: New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.

(16) When the case for the disciplinary authority is closed, the employee shall be required to state his defence, orally or in writing as he may prefer. If the defence is made orally, it shall be recorded and the employee of the Corporation shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.

(17) The evidence on behalf of the employee shall then be produced. The employee may examine himself on his own behalf, if he so prefers. The witnesses produced by the employee shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.

(18) The inquiring authority may, after the employee closes his case and shall, if the employee has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the employee to explain any circumstances appearing in the evidence against him.

(19) The inquiry authority may after the completion of the production of evidence hear the Presenting Officer, if any appointed, and the employee, or permit them to file written briefs of their respective case, if they so desire.

(20) If the employee to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this regulation, the inquiring authority may hold the inquire ex parte.

(21) (a) Where a disciplinary authority competent to impose any of the penalties specified in clauses (i) to (iv) of Regulation 54 (but not competent to impose any of the penalties specified in clauses (v) to (ix) of Regulation 54) has itself inquired into or caused to be inquired into the articles of any charge and that authority, having regard to its own findings, or having regard to its own findings or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of the opinion that the penalties specified in clauses (v) to (ix) of regulation 54 should be imposed on the employee that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties.

(b) The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses necessary in the interests of justice, recall the witness and examine, cross-examine and re-examine the witness and may impose on the employee such penalty as it may deem fit in accordance with these Regulations.

(22) Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself:

Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, it may recall, examine, cross-examine and re-examine any such witnesses as hereinbefore provided.

(23) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain:

(a) the articles of charge and the statement of the imputations of misconduct or misbehaviour;

(b) the defence of the employee in respect of each article of charge;

(c) an assessment of the evidence in respect of each article of charge;

(d) the findings on each article of charge and the reasons therefor.

Explanation: If in the opinion of the inquiry authority the proceedings of the inquiry establish any article different from the original articles of charge, it may record its findings on such article of charge:

Provided that the findings on such article of charge shall not be recorded unless the employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

(ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include:

(a) the report prepared by it under clause (i);

(b) the written statement of defence, if any, submitted by the employee;

(c) the oral and documentary evidence produced in the course of the inquiry;

(d) written briefs, if any, filed by the Presenting Officer or the employee or both during the course of the inquiry; and

(e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.

Action on the inquiry report:

(1) The disciplinary authority, it is not itself the inquiry authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Regulation 58 as far as may be.

(2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clause (i) to (iv) of Regulation 54 should be imposed on the employee, it shall, notwithstanding anything contained in Regulation 58, make an order imposing such penalty.

(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the penalties specified in clause (v) to (ix) of Regulation 54 should be imposed on the Corporation employee, it shall make an order imposing such penalty and it shall not be necessary to give the Corporation employee any opportunity of making representation on the penalty proposed to be imposed.

Procedure for imposing minor penalties:

(1) Subject to the provisions of sub-regulation (3) of Regulation 59, no order imposing on an employee any of the penalties specified in clauses (i) to (iv) of Regulation 54 shall be made except after:

(a) informing the employee in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;

(b) holding an inquiry in the manner laid down in Sub-regulation (3) to (23) of Regulation 58, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;

(c) taking the representation, if any, submitted by the employee under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;

(d) recording a finding on each imputation of misconduct or misbehaviour.

(2) Notwithstanding anything contained in clause (b) of Sub-regulation (1), if in a case it is proposed, after considering the representation, if any, made by the employee under clause (a) of the sub-regulation, to withhold increment of pay and such withholding of increments is likely to affect adversely the amount of retirement benefits payable to the employee or to withhold increments of a pay for a period exceeding 3 years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in Sub-regulations (3) to (23) of Regulation 58 before making any order imposing on the employee any such penalty.

(3) The record of the proceedings in such cases shall include:

i) a copy of the intimation to the employee of the proposal to take action against him;

ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him;

iii) his representation, if any;

iv) the evidence produced during the inquiry;

v) the findings on each imputation of misconduct or misbehaviour; and

vi) the orders on the case together with the reasons therefor."

In somewhat similar controversy, the matter fell for consideration before the Division Bench of Punjab and Haryana High Court in the case of Des Raj (supra) wherein the promotion to the petitioner therein was not released for the petitioner was stated to be involved in a vigilance case. Relying upon the case of K.V. Jankiraman (supra), the Division Bench observed thus:--

"6. We are not in agreement with the stand taken by the respondents in view of the settled position of law laid down in various authorities and in this regard we would like to refer The State Bank of Patiala and others v. O.P. Latka, 1995 (3) RSJ 148 (DB) - an authority of this Court - in which it was clearly laid down that when disciplinary proceedings had not started against the employee on the dates when the written test and the interview for promotion were carried out and the promotional process was going on, any subsequent charge-sheet does not give any right to the management to put the result regarding the promotion of the employee in the sealed cover. Admittedly, there was no charge-sheet or any penal action as on 30.12.1987, which is the material date for our determination. In these circumstances the respondents were not justified in withholding the promotion of the petitioner, when the promotion order was passed vide Annexure P1. At the most as on 30.12.1987 the Department was contemplating some inquiry. Such contemplation may or may not become effective. The matter was again considered in another authority of the Hon''ble Supreme Court reported as New Bank of India Vs. N.P. Sehgal and Another, (1991) 2 BC 56 : (1991) 62 FLR 977 : (1991) 1 JT 498 : (1991) 1 LLJ 570 : (1991) 1 SCALE 218 : (1991) 2 SCC 220 : (1991) 1 SCR 473 : (1991) 1 UJ 641 , their Lordships of the Apex Court were pleased to hold that when the disciplinary proceedings were contemplated or under consideration against an employee, it does not constitute a good ground for not considering the employee concerned for promotion, if he is in the zone of consideration. The case in hand is on better footing than the one, just relied upon by us. In the present case, the order of promotion of the petitioner, making him Assistant Grade-I (Depot) was passed. This order could not be withheld or withdrawn under the garb of a contemplated inquiry. Such like matters again came into consideration of the Apex Court and our attention has been invited to the case reported as The State of Madhya Pradesh Vs. Bani Singh and another, AIR 1990 SC 1308 : (1990) CriLJ 1315 : (1990) 60 FLR 824 : (1990) 2 JT 54 : (1990) LabIC 1488 : (1990) 2 LLJ 529 : (1991) 2 SCALE 744 : (1990) 1 SCC 738 Supp : (1990) SCC 738 Supp : (1990) 1 UJ 583 , and it was the view of the Hon''ble Supreme Court that a promotion of an employee could not be withheld merely on the ground of pendency of disciplinary proceedings which had not even reached at the stage of framing of charge after prima facie case is established. The ratio of this authority is applicable to the facts of the case in hand. In this context we also rely on Union of India v. K.V. Jankiraman (supra), wherein it was held that sealed cover proceedings can be restored to only after issuance of charge-memo/charge-sheet to an employee. Even the pendency of a preliminary investigation prior to that stage is not sufficient to enable the authorities to adopt this procedure. Shri Hemant Kumar, learned counsel appearing on behalf of the respondents, made an attempt, but in vain, by drawing our attention to the instructions (R3). In our considered view these instructions cannot be supersede the law of the land and any instructions contrary to the established law have to be ignored."

In the case of Kunj Behari Misra (supra), the Hon''ble Supreme Court while dealing with Regulation 7(2) of the Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977, held that when the enquiry is conducted by the Enquiry Officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the Disciplinary Authority. When the Disciplinary Authority differs with the view of the Enquiry Officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. The Hon''ble Supreme Court in no uncertain terms held that it will be most unfair and iniquitous that where the charged officer(s) succeed before the inquiry office they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer''s report and, while recording a finding of guilt, imposes punishment on the officer. The Hon''ble Supreme Court referred to and relied upon the case of Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., AIR 1994 SC 1074 : (1993) 6 JT 1 : (1994) 1 LLJ 162 : (1993) 3 SCALE 952 : (1993) 4 SCC 727 : (1993) 2 SCR 576 Supp : (1993) 3 SLJ 193 , wherein the Hon''ble Supreme Court, held thus:--

"We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311(2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter: but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this category of case, the action proposed to be taken could be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer, are according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Article 311(2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But whether the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in Article 311 (2) justify the view that the failure to make such a statement amounts to contravention of Article 311(2). In dealing with this point, we must bear in mind the fact that a copy of the enquiry report had been enclosed with the notice, and so, reading the notice in common sense manner, the respondent could not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the enquiring officer in the entirety."

Thus, by now it is a well settled law that the principles of natural justice have to be read into Regulations and where the Disciplinary Authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to delinquent officer an opportunity to represent before its records its findings. Thus, it can safely be concluded that it is requirement of the principles of natural justice that the Disciplinary Authority which has to take a final decision and impose the penalty, has to afford an opportunity to the officer charged of the misconduct to file representation before the Disciplinary Authority.

In the case of S.P. Malhotra (supra), reiterating the earlier view in case of ECIL (supra) and Kunj Behari Mishra (supra), the Hon''ble Supreme Court, held thus:--

"7. In view of the rival submissions made by the learned counsel for the parties, two separate issues are involved in the instant case, namely, (a) requirement of issuing a second show cause notice by the Disciplinary Authority to the delinquent before imposing the punishment; and (b) serving the copy of the reasons recorded by the Disciplinary Authority disagreeing with the findings recorded by the Enquiry Officer. In the case of ECIL (supra), only the first issue was involved and in the facts of this case, only second issue was involved. The second issue was examined and decided by a three-Judge Bench of this Court in Kunj Behari Misra (supra), wherein the judgment of ECIL (supra) has not only been referred to, but extensively quoted, and it has clearly been stipulated that wherein the second issue is involved, the order of punishment would stand vitiated in case the reasons so recorded by the Disciplinary Authority for dis-agreement with the Enquiry Officer had not been supplied to the delinquent and his explanation had not been sought. While deciding the said case, the 6Page 7 court relied upon the earlier judgment of this court in Institute of Chartered Accountants of India Vs. L.K. Ratna and Others, AIR 1987 SC 71 : (1987) 61 CompCas 266 : (1986) 3 CompLJ 352 : (1986) 57 CTR 121 : (1987) 164 ITR 1 : (1986) 1 JT 671 : (1986) 2 SCALE 614 : (1986) 4 SCC 537 : (1986) 3 SCR 1049 itself was the case where the Disciplinary Authority disagreed with the findings recorded by the Enquiry Officer on 12.12.1983 and passed the order on 15.12.1983 imposing the punishment, and immediately thereafter, the delinquent officers therein stood superannuated on 31.12.1983. In Kunj Behari Misra (supra), this court held as under: "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 charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. 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 charges framed against the officer."

(Emphasis added)

In view of the above, it is now well settled that the employee who is neither under suspension nor any departmental proceedings have been initiated against him, his name has to be brought on the select list, if he is otherwise found suitable for promotion.

In the instant case at hand, there is no material placed on record to substantiate the fact that on the day and date, the petitioner was considered and promoted vide order dated 29th August, 1983, any departmental proceedings was pending against him or contemplated.

For the reasons and discussions herein above, the writ applications succeed and are hereby allowed. The petitioner is entitled to all consequential benefits as a consequence of his promotion vide order dated 29th August, 1983.

The respondents are directed to complete the exercise aforesaid and release the benefits, as a consequence of the promotion aforesaid, within a period of three months from the date of receipt of a certified copy of this order.

In view of the final adjudication on the writ applications, the stay application(s) stand closed.

However, in the facts and circumstances of the case, there shall be no order as to costs.