SHRI NITYANAND GAJANAND PATIL vs THE STATE OF MAHARASHTRA THROUGH SECRETARY AND ORS

NITIN W.SAMBRE, J.

 1. The petitioner is questioning the order dated October 5, 2015, December 18, 2015 and January 7, 2016 passed by respondent No.3 whereby the

report of the Enquiry Officer exonerating the petitioner from the charges levelled against him came to be rejected with further order of deÂnovo

inquiry against the petitioner.

The facts necessary for deciding the present petition are as under :Â​

After having joined the services with the respondentÂboard in August, 1994, the petitioner was put into charge of Handmade Paper Institute, Pune in

the capacity of Director in 2005. Thereafter, the petitioner was posted as a Project Director, District Office, Pune from 2007 to 2010 and since June,

2012 was posted as District Village Industry Officer at Thane District Office.

Having noticed that the petitioner has indulged into certain illegalities during his services as Director, Handmade Paper Institute, Pune, pursuant to

the provisions of Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 ('the Rules of 1979' for short), the petitioner was served with a

chargeÂ​sheet. Amongst other charges levelled against the petitioner are:Â​

a) Irregularities in drawing travel expeneses;

b) Not maintaining proper travel record while using the department vehicles;

c) Claiming excess transportation expenses;

d) Intentionally taking such decisions to cause financial losses to the board;

e) drawing salary of private individuals;

f) Drawing overtime to which petitioner was lawfully not entitled to.

Respondent No.2 Board vide resolution, has adopted the provisions of “the Rules of 1979â€. The respondents accordingly appointed an Enquiry

Officer to conduct inquiry. The Enquiry Officer after completing his inquiry submitted his report thereby exonerating the petitioner of all the charges

vide report dated October 10, 2014.

The Disciplinary Authority vide the impugned order noticed that the Enquiry Officer has conducted the inquiry in contravention of Rules 6.17 to

6.21 of the Departmental Enquiry Rule Book, 1991, rejected the report of the Enquriy Officer and ordered fresh inquiry pursuant to clause 7.3 of the

Departmental Enquiry Rule Book as is apparent from the impugned order dated October 10, 2015. As a consequence of the aforesaid order, a fresh

Enquiry Officer was appointed against the petitioner vide order dated December 18, 2015 and January 7, 2016. The petitioner was served with a

notice of hearing by the newly appointed Enquiry Officer. All these three orders dated October 5, 2015, December 18, 2015 and January 7, 2016 are

impugned in the present petition.

The learned counsel for the petitioner would urge that once the Enquiry Officer has submitted inquiry report in favour of the petitioner, exonerating

him of all the charges, option with the respondents is to accept the said report and absolve the petitioner of all the charges. He would submit that in

case if the respondent Nos.2 and 3 intend to reject the same, it should have preceded with a show cause notice to the petitioner for disagreement with

the report of the Enquiry Officer. According to him, neither any separate notice nor opportunity of hearing was granted to the petitioner before

issuance of the impugned orders. According to him, the order impugned is not sustainable in the eyes of law and is liable to be quashed and set aside

with direction to the respondents to pass an order absolving the petitioner of all charges.

Per contra, the learned counsel, Mr.Rohit P. Sakhdeo, for respondent Nos.2 and 3 opposed the claim of the petitioner and would urge that what has

been ordered by the respondents is deÂnovo inquiry. According to him, there is no necessity to issue notice while ordering deÂnovo inquiry as the

petitioner will be given opportunity of hearing during the inquiry. The petitioner has failed to demonstrate any prejudice, in absence of any notice to

him. He would then urge that there is no statutory right in favour of the petitioner which prompts or warrants issuance of notice or opportunity of

hearing to the petitioner, in case if the respondents are in disagreement with the report of the Enquiry Officer. He sought dismissal of the petition.

Considered the rival submissions.

In the present case, it is noted that an inquiry was conducted against the petitioner pursuant to the Rules of 1979 and it is not in dispute that the

services of the petitioner are governed by the said provisions.

The Enquiry Officer vide report dated October 10, 2014 has informed the respondents that the charges levelled against the petitioner were not

proved and as such, exonerated the petitioner of the charges levelled against him.

After the said report of exonerating the petitioner in the disciplinary proceedings was submitted to the respondents' employer, the Disciplinary

Authority by the impugned order dated October 5, 2015 rejected the report of the Enquiry Officer dated October 10, 2014 and pursuant to Rule 7.3

ordered deÂ​novo inquiry in the matter.

The learned counsel for the respondents is right in submitting that the Rule does not contemplate the opportunity of hearing to be offered to the

petitioner and issuance of personal notice before ordering deÂ​novo inquiry.

However, the law on the said issue is already well settled by the Apex Court in the matters of State Bank of India and others V/s. K.R.Narayanan

Kutty (2003) 2 SCC 449 , Yoginath D.Bagde V/s. State of Maharashtra and another A.I.R. 1999 SC 3734 and Punjab National Limited and others V/s.

Kunj Behari Mishra (1998) 7 SCC 84 wherein it is observed that in case if the Disciplinary Authority is not in agreement with the findings recorded by

the Enquiry Officer, the Disciplinary Authority should issue show cause notice to the delinquent like the petitioner and after hearing him should pass an

order. Even if such express provision cannot be noticed in the Service Rules, still the fact remains that compliance of the principles of natural justice

needs to be read in the relevant Rules. Appropriate support can be drawn from the judgment of the Apex Court in the matter of State Bank of India

and others V/s. K.P. Narayanan Kutty (cited supra) particularly in para 6 which reads thus :Â​

“ It was also contended on behalf of the appellants that the High Court committed an error in setting aside the order of dismissal when it was not

shown that any prejudice was caused to the respondent by not giving an opportunity to him by the disciplinary authority. In this regard the learned

counsel cited a decision of this Court in Union Bank of India V/s. Vishwa Mohan [1998] 4 SCC 310. As already noticed above, before the High Court

both the parties concentrated only on one point, namely, the effect of not providing an opportunity by the disciplinary authority when the disciplinary

authority disagreed with some findings of the enquiry officer. It was also not shown by the appellants before the High Court that no prejudice was

caused to the respondent in the absence of providing any opportunity by the disciplinary authority. The aforementioned case of Vishwa Mohan is of no

help to the appellants. The learned counsel invited our attention to para 9 of the said judgment. As is evident from the said paragraph this Court having

regard to the facts of that case, taking note of the various acts of serious misconduct, found that no prejudice was caused to the delinquent officer. In

para 19 of the judgment in Punjab National Bank case, extracted above, when it in clearly stated that the principles of natural justice have to be read

into Regulation 7(2) (Rule 50(3)(ii) of State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case) and

the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the Enquiry

Officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the

respondent, the order of dismissal could not be set aside by the High Court. â€​

It also worth mentioning here that the said judgment is also followed by one of us [Hon'ble Justice Shri Shantanu Kemkar] in the matter of Ram

Prasad Mandal V/s. Regional Manager, Cental Bank of India and others4 wherein para 10 is worth referring to which reads thus :Â​

“ So far as contention that the Disciplinary Authority has not communicated the petitioner the tentative reasons for disagreeing with the findings of

the enquiry officer, it is now well settled that even when the Rules in regard to giving opportunity to the officer are silent and Disciplinary Authority

does not give an opportunity of hearing to the delinquent officer and records finding different from those of the enquiring authority that the charges

against the officer were established, an opportunity of hearing has to be read into the Rule by which procedure for dealing with the enquiring

authority's report is provided because it would be contrary to the principles of natural justice if a delinquent officer who has already been held to be not

guilty by the enquiring authority, is found guilty without being afforded an opportunity of hearing on the basis of some evidence and material on which

the finding of not guilty has already been recorded. It is also well settled that the delinquent offier will have to be given an opportunity to persuade

Disciplinary Authority to accept the favourable conclusion of the enquiry officer and it is not necessary for the delinquent to show that some prejudice

was caused to him. See Punjab National Bank v. Kunjbihari Mishra, 1998 2 LLJ 809, Yoginath D. Bagde v. State of Maharashtra, 1999 AIR (SC)

3734 and State Bank of India and Ors. V. K.P. Narayan Kutti, 2003 2 LLJ 1.â€​

In the aforesaid background, what is required to be noticed is even if the petitioner gets an opportunity of hearing while deÂnovo inquiry will be

conducted against him, however, he has every right to submit explanation to the Disciplinary Authority on the issue of why the Disciplinary Authority

should agree / disagree with the findings recorded by the Enquiry Officer. If such opportunity is offered to the petitioner, it is always open for him to

pursue the Disciplinary Authority to reach to some different conclusion. The degree of prejudice is not an issue which is required to be commented

upon at this stage of the proceedings, but what is required to be noticed is the principles of natural justice needs to be read down in the relevant Rule

while dealing with the eventuality as is sought to be canvassed in the present petition.

That being so, the writ petition needs to be allowed in terms of prayer clauses (b), (c) and (d) which read as under :Â​

“(a) The impugned order dated 5Â10Â2015 (Exhibit 'C' hereto) passed by Respondent No.3 for scrapping the Enquiry Report may kindly be

quashed and set aside;

(b) The impugned order dated 18Â12Â2015 (Exhibit 'D' hereto) passed by Respondent No.3 for making fresh appointments of different Enquiry

Officer and Returning Officer, may kindly be quashed and set aside;

(c) The impugned communication dated 7Â1Â2016 (Exhibit 'E' hereto) issued by Respondent No.3 diorecting deÂnovo departmental enquiry against

the petitioner may kindly be quashed and set aside.

The matter is remitted back to the respondent authority viz. respondent Nos.2 and 3. If respondent Nos.2 and 3 are in disagreement with the

report dated October 10, 2014 of the Enquiry Officer, shall issue show cause notice to the petitioner calling upon him to submit his explanation and if

required, grant him hearing.

The respondent authority thereafter shall be free to pass an order as it deem fit, in the facts and circumstances of the case.

Needless to clarify that this Court has not gone into the merits of the matter.

The petition stands disposed of in the aforesaid terms.