- (1.) SABHAJEET Yadav, J. Heard Sri B. P. Yadav, learned Counsel for the petitioner and Sri Samir Sharma for the respondents. The counter-affidavit filed by Sri Samir Sharma is kept on record.
(2.) FEELING aggrieved against the order dated 31-10-1991 passed by the respondent No. 3 and order dated 8-7-1992 passed by the respondent No. 2 the petitioner has filed the above noted writ petition before this Court. A further relief of mandamus has been sought for directing the respondents to make full payment of salary to the petitioner for the period of suspension and also treat him in continuous service from the date of appointment till the order dated 8-7-1992. The aforesaid relief sought for, by the petitioner rests on the allegations that while working as Bus Conductor in U. P. S. R. T. C. a checking was held, upon the Bus to which the petitioner was deputed. Thereafter on the basis of the report of Checking party a charge-sheet has been served upon him. The petitioner has replied to the aforesaid charge-sheet. Thereafter a disciplinary inquiry has been conducted against him in which the charges levelled against the petitioner was found not proved and accordingly the petitioner has been exonerated from the charges by the Inquiry Officer entrusted to hold the disciplinary inquiry against the petitioner. The Disciplinary Authority while disagreeing with the findings of Inquiry Officer issued show- cause notice proposing the punishment of removal of the petitioner on receipt of which the petitioner has replied the aforesaid show-cause notice, but ultimately impugned order dated 31-10-1991 has been passed removing the petitioner from service and it was ordered that except the subsistence allowance paid during the period of suspension, the remaining salary of the petitioner be forfeited. FEELING aggrieved against the order of removal from service the petitioner preferred an appeal before appellate authority. Although the appellate authority has partly allowed the appeal of the petitioner by modifying the order passed by the Disciplinary Authority, whereby the petitioner has been reinstated in service, but as a fresh entrant in service and as a consequence of this order the petitioner shall be treated to be new entrant in service from the date of order passed by the appellate authority and he will lose the length of his entire service inasmuch as continuity of service including consequential benefits of service such as regular increments and seniority. Therefore, the petitioner has also challenged this order on various grounds mentioned in the writ petition. The submission of the learned Counsel for the petitioner in nutshell is that the allegations levelled against the petitioner in the charge-sheet was that in the Bus in question 80 passengers were found travelling at the time of checking of the Bus. Out of them 24 passengers were found without ticket and a collective ticket was issued by the checking party with 10 times penalty and matter was compounded on the spot by the checking party. It is admitted by complainant during the disciplinary inquiry that checking was held at a place where the Bus has covered a distance of only 100 meters after picking up passengers from taxi-stand, and was within a distance of one Kilometer from Bus Stand, when the petitioner was issuing tickets to the passengers, by that time tickets could neither be issued to all the passengers nor fare were realized from them, nor the Bus could reach to a distance by which the petitioner was required to ensure tickets to all passengers as such allegations levelled against the petitioner is wholly misconceived and not sustainable i. e. why inquiry officer holding the disciplinary inquiry against the petitioner has exonerated him from the charges levelled in the charge-sheet but Disciplinary Authority wrongly disagreed from the aforesaid finding without any justification under law. The learned Counsel for the petitioner has further urged that in that eventuality the Disciplinary Authority was required to afford an opportunity of hearing to the petitioner by communicating the proposed disagreement with the findings of the Inquiry Officer so as to enable him to make comment against such disagreement but no opportunity was given to the petitioner by the Disciplinary Authority before passing the impugned order against him. In support of the submission learned Counsel for the petitioner placed reliance upon a decision rendered by Hon'ble Apex Court in Punjab National Bank and Ors. v. Sri Kunj Bihari Misra, AIR 1998 SC 2713. In the aforesaid case the Hon'ble Apex Court has held that where the Disciplinary Authority disagrees with the findings of the Inquiry Officer it is necessary to the Disciplinary Authority to give opportunity to the delinquent employee before recording its conclusion. In para 19 of the decision Hon'ble Apex Court has observed as under : "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 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 representation before the Disciplinary Authority records its findings on the charges framed against the officer. " Thus, in view of the aforesaid observation made by Hon'ble Apex Court it is clear that whenever the Disciplinary Authority disagrees with the findings of Inquiry Officer 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 employee an opportunity to represent before it records its findings. In this connection learned Counsel for the petitioner has submitted that from the perusal of show-cause notice dated 28-11-1990 it is clear that the Disciplinary Authority did not communicate his tentative opinion or finding of disagreement with the finding of the Inquiry Officer alongwith the proposal of removal from service. Thus according to the learned Counsel for the petitioner it is not sufficient compliance of provisions of law. Therefore the impugned order passed by Disciplinary Authority is not sustainable in the eye of law.
(3.) AT this juncture it is to be pointed out that against the order passed by the Disciplinary Authority since the petitioner has preferred appeal before the appellate authority and after hearing the appeal the appellate authority has passed the impugned order therefore same stood merged in the order of appellate authority, therefore it is necessary to examine the said order. However, from the perusal of the findings recorded by the appellate authority it appears that the appellate authority itself has conceded that the inquiry held against the petitioner was found faulty in various respects but no reason has been assigned while awarding the punishment which is according to the petitioner is very harsh in given facts and circumstances of the case. The submission of the learned Counsel for the petitioner appears to be correct, and have substance. From the perusal of order passed by the appellate authority it is clear that although he has agreed with the submission of the petitioner in respect of denial of opportunity of hearing in the hands of Disciplinary Authority but while deciding the appeal he has neither remanded the matter back to Disciplinary Authority nor expressed any concluded opinion on merit of the charge levelled against the petitioner as to whether according to him it was found proved or not and further reinstatement of the petitioner in service as fresh entrant with loss of entire length of service alongwith consequential benefits without any reason appears to be erroneous and not sustainable in the eye of law. Accordingly the impugned order dated 8-7-1992 passed by Appellate Authority/divisional Head Manager is hereby quashed leaving it open to him to pass fresh order on merits, including quantum of punishment, if any, proposed to be awarded against the petitioner on the basis of such finding on merit of the charge of alleged misconduct. Such order shall be passed by the appellate authority within 3 months from the date of production of certified copy before him after affording fresh opportunity of hearing to the petitioner. Since the order passed by the Disciplinary Authority stood merged in the order of appellate authority therefore there appears no need to pass any further order in connection of the order passed by the Disciplinary Authority. With the aforesaid observations the writ petition stands finally disposed of. Petition disposed of. .;