Permod Kohli, J. - (1.) PETITIONER is aggrieved of Notification No. 1779 dated 5 July, 2005, issued by the Joint Secretary, Human Resources Development Department, Government of Jharkhand, Ranchi, imposing punishment of reduction in rank upon the petitioner by reducing his pay scale of Junior Selection Grade (Rs.3000 -4500/ -, un -revised) to the pay scale of Basic Grade (Rs. 2200 -4000/ - un -revised) from the date of issuance of the notification.
(2.) PETITIONER was serving as District Superintendent of Education, Dumka. He was placed under suspension with effect from 1st March, 2002 on certain allegations of service misconduct. He was served with the charge sheet vide Resolution No. 893 dated 31st March, 2002 and as many as nine charges were framed. One Sri K.K. Srivastava, Director, Higher Education, Human Resources Development Department, Government of Jharkhand, Ranchi was appointed as enquiry officer to conduct the departmental proceeding against the petitioner. After completion of the enquiry, the enquiry officer submitted his report to the Government vide letter No. 20 dated 3rd September, 2002 and exonerated the petitioner from all the charges. It is alleged that even though the enquiry officer exonerated the petitioner, no decision was taken forcing the petitioner to file W.P.(S) No. 6992 of 2002 before this Court. This writ petition came to be disposed of vide order dated 22nd January, 2003. This Court taking into consideration the long time in disposal of the departmental proceedings and non -payment of subsistence allowance directed revocation of the suspension order with immediate effect i.e. the date of passing of the judgment. Respondents were further directed to conclude the departmental proceedings within two months and the petitioner was granted liberty to challenge the departmental proceeding on the failure of the respondents to conclude the same within the time specified. Further directions for payment of current salary and the arrears of subsistence allowance were also given. The respondents failed to comply the Court's order within the time specified. However, they issued Notification No. 1127 dated 16tn April, 2003, revoking the suspension of the petitioner. Respondents also issued another order No. 81 dated 3rd June, 2003, initiating fresh enquiry proceeding against the petitioner. Being aggrieved by this order of fresh enquiry, the petitioner filed another writ petition being W.P.(S) No. 2856 of 2003 before this Court. This writ petition was also finally disposed of vide .order dated 5th November, 2003, whereby, the order initiating fresh enquiry was quashed and the respondents were allowed liberty to proceed with the departmental proceedings on the basis of earlier enquiry report, in accordance with law. It was also observed that if the disciplinary authority is not satisfied with the findings of the enquiry officer, he can disagree with the findings. Some clarification of this order was made vide order dated 25 November, 2003, which is not relevant for the purposes of present controversy. Thereafter, the respondents sought certain explanation from the petitioner vide letter No. 1753 dated 3rd July, 2004, to which the petitioner replied vide his letter No. 970 dated 26 July, 2004. After about more than one year of the submission of explanation, the impugned order dated 5 July, 2005 came to be issued by the respondents, imposing major punishment of reduction in pay scale i.e. from Junior Selection Grade (Rs. 3000 -4500/ -, un -revised) to the Basic Grade (Rs. 2200 -4000/ -, un -revised). Reduction in pay scale is one of the major punishments, specified in Rule 49 of the Civil Services (Classification, Control & Appeal) Rules, 1930, whereas Rule 55 of these Rules prescribes procedure for holding enquiry into the charges. Relevant extracts from Rules 49 and 55 are reproduced hereunder: 49. The following penalties may, for good and sufficient reason and as hereinafter provided, he imposed upon members of the services comprised in any of the classes (1) to (5) specified in Rule 14, namely: xxx xxx xxx (iii) Reduction to a lower past of time -scale, or to a lower stage in a time -scale. xxx xxx xxx 55. Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal. compulsory retirement [or reduction] shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal court or by a Court -Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and on any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable lime, to put in a written statement of his defence and to stale whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross -examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer, conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing be waived, where there is a difficulty in observing exactly the requirement of the rule and those requirements can be waived without injustice to the person charged. The full procedure prescribed in this rule need not be followed in the case of a probationer discharged in the circumstances described in Explanation II to Rule 49. In such cases, it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the grounds on which it is proposed to discharge him and his reply duly considered before orders are passed. Although there is no specific provision in the Rules including Rule 55 empowering the disciplinary authority to disagree with the findings and report of enquiring authority, but such a power has to be conceded to the Disciplinary authority being the punishing authority. It is the disciplinary authority who has the right and power to take a decision on the enquiry report. Even if the rule is silent, such a right is to be read in the rule itself by virtue of the power of the disciplinary authority to take action on the enquiry report.
(3.) THIS Rule, however, clearly mandates that before imposing any of the punishments specified in Rule 55, the disciplinary, authority has to provide an opportunity to the delinquent officer to defend himself. Thus, where disciplinary authority decides to disagree with the enquiry report, it is obligatory for it to record its reasons for such disagreement and to communicate the same with the proposed punishment to the delinquent employee, seeking his explanation/response to the same.;