Saturday, 6 April 2019

Whether it is mandatory for disciplinary authority to issue second show cause notice if he disagree with report given by inquiry officer?

 From perusal of the said supplementary counter affidavit
especially para-4, it is quite clear that the respondents have not issued the
second show cause notice to the petitioner, but punished him after
differing with the findings incorporated in inquiry report. This procedure
which the respondents have adopted is in utter violation of the principles
of natural justice. The petitioner ought to have been issued a second show
cause notice indicating the ground of disagreement, before punishing him.
Thus, the punishment order cannot be sustained in the eyes of law as it
violates the principles of natural justice. Since the punishment cannot be
sustained, the appellate order also needs to be set aside.
8. Thus, I hereby set aside the order of punishment dated
29.09.2010, passed by the Disciplinary Authority as well as the appellate
order dated 10.03.2011, passed by the Appellate Authority.
9. The matter is remitted to the Disciplinary Authority. If the
Disciplinary Authority wants to proceed any further in the matter, he will
issue second show cause notice giving reasons as to why he is differing
with the inquiry report and will thereafter pass a reasoned order in
accordance with law.

IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1884 of 2018

Lalit Oraon Vs  State of Jharkhand

Coram:  Mr. Justice Ananda Sen
Dated:13.03.2019


 Heard learned counsel appearing for the petitioner and the
learned counsel for the respondents.
2. The petitioner, in this writ application, has challenged the order
contained in Memo No. 2847 dated 29.09.2010, by which the Disciplinary
Authority punished the petitioner after holding him guilty and imposed a
punishment of two black marks in addition to withholding of his salary on
the basis of no work no pay. The petitioner has also prayed for quashing
the order passed by the Appellate Authority, by which his appeal has been
dismissed and punishment order has been confirmed.
3. It is not necessary to state the facts of this case in detail as
because on the short point of law and on admitted fact, this case is being
disposed of.
4. The petitioner was a Constable in police department and was
posted at Gumla. He was served with a departmental charge sheet dated
04.04.2010, alleging misconduct. A departmental inquiry was held. In the
inquiry, the Inquiry Officer found the charges not to be proved against this
petitioner. After submission of the inquiry report, the Disciplinary
Authority punished the petitioner, disagreeing with the findings given in
the inquiry report. The punishment order was challenged in the
departmental appeal, which was also dismissed by the Appellate Authority.
5. The petitioner raises a short point of law in this case. He submits
that it is well within the jurisdiction and domain of the Disciplinary
Authority to differ with the findings of the Inquiry Officer, but if the
disciplinary Authority wants to punish the delinquent, a second show
cause notice has to be served and the reasons as to why he is differing
with the findings of the report of the Inquiry Officer have to be mentioned
in the show cause notice. He further submits that this process has not

been followed before passing the impugned order. He further submits that
no second show cause notice was issued and only on this ground, the
impugned order can be set aside.
6. This Court on the earlier occasion, i.e. 25.02.2019, directed the
respondents to file a short affidavit stating as to whether the second show
cause notice was served upon the petitioner or not. In compliance of the
said order, the respondents have filed a supplementary counter affidavit
on 08.03.2019. Para-4 of the said supplementary counter affidavit needs
to be quoted herein below:-
“4. That it is most humbly stated and submitted that as per the direction
dated 25.02.2019 by this Hon’ble Court the respondent no. 4,
Superintendent of Police, Gumla perused the record of Departmental
proceeding no. 4/2000 and found that the then disciplinary authority
deferred from the inquiry officer’s report and passed the punishment order.
But no second show cause notice has been issued to the petitioner.”
7. From perusal of the said supplementary counter affidavit
especially para-4, it is quite clear that the respondents have not issued the
second show cause notice to the petitioner, but punished him after
differing with the findings incorporated in inquiry report. This procedure
which the respondents have adopted is in utter violation of the principles
of natural justice. The petitioner ought to have been issued a second show
cause notice indicating the ground of disagreement, before punishing him.
Thus, the punishment order cannot be sustained in the eyes of law as it
violates the principles of natural justice. Since the punishment cannot be
sustained, the appellate order also needs to be set aside.
8. Thus, I hereby set aside the order of punishment dated
29.09.2010, passed by the Disciplinary Authority as well as the appellate
order dated 10.03.2011, passed by the Appellate Authority.
9. The matter is remitted to the Disciplinary Authority. If the
Disciplinary Authority wants to proceed any further in the matter, he will
issue second show cause notice giving reasons as to why he is differing
with the inquiry report and will thereafter pass a reasoned order in
accordance with law.
10. With the aforesaid observation and direction, this writ application
stands disposed of.
(Ananda Sen, J)

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