Allowed

Laxmi Narayan Sharma v. State and Ors.

Rajasthan HC8 Jan 2019CW/3560/2000

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed a writ petition quashing disciplinary orders that imposed punishment for absence despite an enquiry finding charges unproved and denied pension for the suspension period, citing violation of natural justice.

What did the court decide?

Quashed the punishment orders dated 01.07.1988 and 15.05.1989, other appellate and review orders, and directed release of arrears to the petitioner within three months.

Laxmi Narayan Sharma Vs State and Ors. — Service and Employment | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 3560/2000

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Laxmi Narayan Sharma S/o Shri Prasadi Lal Sharma, R/o Mahamadpur, Teh. Toda Bhim, Distt. Karauli, (Raj.)

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----Petitioner

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Versus

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State of Rajasthan through the Secretary to Government, Home Department, Secretariat, Jaipur.

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The District Superintendent of Police, Sawaimadhopur.

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Dy. Inspector General of Police, Bharatpur Range, Bharatpur.

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----Respondent For Petitioner(s) : Mr. Darshan Shree, Adv. For Respondent(s) : Dr. A.S. Khangarot, Adv.

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

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08/01/2019

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1. The short question involved in the present writ petition is that whether the Disciplinary Authority could have punished the petitioner of charges levelled against him after the Enquiry Officer had not found the charges to be proved. Admittedly, the Enquiry Officer while submitting his report dated 20.06.1988, found all the four charges as not proved against the petitioner levelled against him of having remained absent from duty for a period of 24 days on account of sickness. The petitioner denied the charges and also submitted medical documents in proof thereof. Having examined the medical documents, the Enquiry Officer did not find any of the charges proved. However, the Disciplinary Authority has punished the petitioner by stopping of three annual grade increments with cumulative effect and also has further treated the period during

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(2 of 4)

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[CW-3560/2000]

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suspension has to be not counted for duty and pension also. Further, it has also treated the period during which the petitioner remained unwell and absent from duty as period to be treated as extraordinary leaves. The orders were passed on 01/02-07-1988 and 15.05.1989.

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2. Learned counsel for the petitioner submits that before having passed the punishment order, the petitioner was not given any opportunity nor a disagreement notice was served upon him. He relied on the law laid down by the Apex Court in Punjab National Bank & Ors. Versus Kunj Behari Misra, 1998 (7) SCC 84 , to submit that a disagreement notice is necessary and essential before disagreeing with the enquiry report and a delinquent is required to be given an opportunity to answer to the points of disagreement.

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3. Learned counsel appearing for the State while supporting the order does not deny the fact of the petitioner having not been disagreement notice. However, he submits that the view taken by the Apex Court is a subsequent position of law and on that count the punishment order ought not to be disturbed.

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4. I have considered the submissions, find that the petitioner was exonerated of the charges by the Enquiry Officer however the Disciplinary Authority has held him guilty of remaining willfully absent. In Krushnakant B. Parmar Versus Union of India & Anr. (2012) 3 SCC 178 , the Apex Court has held that if a person has placed on record documents to show that he was unwell and the said documents have not been doubted to be forged, it cannot be stated or held that the concerned person is willfully absent and therefore misconduct cannot be said to have been made out. That apart, in view of the law laid down in Punjab National Bank &

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(3 of 4)

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[CW-3560/2000]

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Ors. Versus Kunj Behari Misra (supra), the Apex Court has held

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as under:-

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“18……...When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer 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. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed.

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19……...As a result thereof whenever 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 the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry 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 inquiry 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.”

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5. As disagreement notice was not given in this case, I am of the view that the writ petition deserves to be allowed. The punishment order dated 01/02.07.1988 wherein the petitioner has been punished with stopping of three grade increments with cumulative effect is accordingly quashed and set-aside.

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6. It is also noticed that the Disciplinary Authority has denied the period of suspension to be counted for the purpose of service

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(4 of 4)

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[CW-3560/2000]

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or pension and gratuity, etc. Such a course adopted by the Disciplinary Authority is also illegal and unjustified. Suspension is an incident of service and a person has to be treated as in service under the period, therefore, which he remained under suspension under Rule 54, the only question which the concerned Disciplinary Authority could have directed was whether to release the salary apart from substantive allowance for the suspension period. In view of the findings already arrived at hereinabove, the order dated 15.05.1989 also deserves to be quashed and set-aside accordingly.

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7. The writ petition is allowed. Accordingly, the orders dated 01/02.07.1988 as well as the order dated 15.05.1989 and the appellate order dated 13.06.1989 and review order dated 28.08.1993 are quashed and set-aside with all consequential benefits. Arrears to which the petitioner would be entitled shall be released to him within a period of three months. No costs.

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(SANJEEV PRAKASH SHARMA),J

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R.Vaishnav

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Laxmi Narayan Sharma v. State and Ors.

Case brief

What is this about?

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Laxmi Narayan Sharma v. State and Ors.

Case brief

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