Sanjay Kumar Dwivedi,J. - (1.) Heard Mr. Rajesh Kumar, learned counsel for the petitioner and Ms. Kanchan Kumari, learned A.C. to A.A.G. appearing for the respondents.
(2.) The petitioner has preferred this writ petition for quashing the appellate order dated 27.09.2008 issued by the Joint Secretary, Punishment order of Censure dated 03.04.2007 issued by the respondent no. 2 against the petitioner. It is alleged that the petitioner was called on 22.01.2005 through D.I.G. of Police south Chotanagpur Range, Ranchi to proceed to Barrackpur (West Bengal) to bring Rifle to need to requirement of Assembly Election, he did not proceed and it was further alleged that he kept his mobile phone and other phone switched off to avoid message from the State Govt. if relayed. But the petitioner was neither served any kind of Govt. order nor he was asked by his immediate officer D.I.G. of police South Chotanagpur Range, Ranchi under whom he was working at that time, and no office order was issued to proceed to Barrackpur (W.B.) in connection with the Assembly Election of 2005. On 24.06.2005 another office order was issued by the respondent no. 2 wherein the petitioner was put under suspension under Rule 96 of the Bihar Service Code with a direction that his Head Quarters will be in the office of the Regional inspector General of Police, South Chotanagpur Division, Ranchi and a departmental proceeding decided to be conducted in connection with the alleged charge of indiscipline, negligence of duty and disobedience. Pursuant to that show cause filed by the petitioner objectively the respondent no. 2 issued an office order dated 17.02.2006 wherein the suspension order was revoked however, it was ordered that a departmental proceeding was continued. The departmental proceeding was conducted in connection with the charge sheet dated 24.06.2005 and the inquiry officer submitted the inquiry report wherein the petitioner was exonerated from the charges after giving warning. He has not been held guilty of the alleged charges. The respondents differing from the enquiry report imposed the punishment of Censure on the petitioner, without any notice to the petitioner and without recording the reasons for such difference, which is not tenable in the eyes of law.
(3.) Mr. Rajesh Kumar, learned counsel for the petitioner submits that the punishment imposed upon the petitioner by the disciplinary authority in differing with the enquiry report and without recording any reason for such disagreement as also without providing any opportunity to file show cause against the proposed punishment, is fit to the quashed. He further submits that it was incumbent upon the disciplinary authority to hear the petitioner. He further submits that the opinion of disciplinary authority differing from the information of inquiry report and this has not been communicated to the petitioner. Learned counsel for the petitioner relied upon the case of Punjab National Bank and Ors.Vs. Kunj Behari Misra reported in (1198) 7 SCC 84 on the paragraph 18 which stipulates as under : "Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry 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 enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry 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. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case." ;