- (1.) THE petitioner constable challenges the impugned orders Annexures-6 and 8, whereby the petitioner was held guilty and punishment of stoppage of two increments was imposed on him.
(2.) PETITIONER was charge sheeted for not receiving the transfer order saying that he is on leave, therefore, he will not receive the transfer order. Enquiry Officer, after examining the entire material available on record, has opined that charge against the petitioner is not proved and the petitioner is held to be innocent. Copy of the enquiry report is available on record as Annexure-5 to the petition. However, Superintendent of Police/ disciplinary authority did not agree with the enquiry report and has passed the impugned order on 22.06.2004, against which petitioner instituted an appeal , which was also dismissed on 08.01.2006 by the Deputy Inspector General of Police. I have heard learned counsel for the parties and have perused the record. It is admitted fact that no notice was issued by the disciplinary authority before passing the impugned order thereby disagreeing with the enquiry Officer and finding the petitioner guilty and imposing penalty of stoppage of two increments. Hon'ble Supreme Court in the case of Yoginath D. Bagde Versus State of Maharashtra and another, reported in (1999) 7 Supreme Court Cases 739 in paragraph 31 has observed as under: "------a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges leveled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer-------".
(3.) LEARNED Single Judge of this Court in the case of Anil KumarJha Versus Bihar State Electricity Board & Ors., reported in 2004(1) J C R 122 (Jhr)in paragraph 5 has observed as under: "It is well settled that the disciplinary authority can disagree with the finding recorded by the Inquiry Officer but while disagreeing he must give notice to the delinquent categorically mentioning the reasons of his disagreement. If that is not done the order of punishment cannot be sustained in law. In this connection reference may be made to the two leading decisions of the Supreme Court reported in (1995) 6 SCC 157 and (1998) 3 SCC 385". In view of the judgments cited herein above, it is necessary that a notice be served on a delinquent employee and an opportunity of being heard be given to him if disciplinary authority intends to take contrary view to the view taken by the enquiry officer finding the delinquent innocent. In the case of Anil Kumar Jha (Supra) punishment of stoppage of two increment was imposed and in those circumstances also the learned Single Judge has opined that notice is necessary, if disciplinary authority disagrees with the opinion of the enquiry officer and intends to impose penalty.;