JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. Heard learned counsels for the parties.

2. This writ petition has been filed for the following reliefs:

“For quashing of the memo no. 1388 dated 10.8.2006 (Annexure-7) passed by Respondent no. 2 who has no jurisdiction, whereby and whereunder after revoking his suspension order following punishment has been imposed:

(i) Pay of the petitioner was fixed on lowest scale of pay.

(ii) No monetary benefits will be given for the suspension period except subsistence allowance.

(iii) The petitioner will not be allowed to handle any independent charge.”

Arguments of the Petitioner

3. Learned counsel for the petitioner submits that out of three charges, the petitioner was found guilty of one charge i.e. Charge No. 2 and the concluding portion of the enquiry report held the petitioner guilty of charges which was subject matter of charge no. 1 wherein the petitioner was found not guilty. The learned counsel submits that even the disciplinary authority has mechanically passed the order of punishment by only quoting and referring to the concluding portion of the enquiry report.

4. The learned counsel for the petitioner has also submitted that the present case is a case of no evidence in as much as no oral evidence was adduced although the documents were considered by the enquiry officer. He submits that in absence of oral evidence, the documents were not proved and therefore it is case of no evidence. He has referred to a judgment reported in Allahabad Bank and Others vs. Krishna Narayan Tewari, (2017) 2 SCC 308 to submit that in case of findings based on “no evidence” interference is called for under Article 226 of the Constitution of India.

5. The learned counsel for the petitioner has also referred to paragraph no. 15 of the writ petition to submit that the Secretary did not have the jurisdiction to initiate departmental proceedings against the petitioner and therefore the entire proceeding is vitiated.

6. The learned counsel for the petitioner has referred to order dated 25.02.2021 to submit that his submissions have been recorded in the said order which may also be considered. Vide order dated 25.02.2021, following contentions of the petitioner were recorded:

(i) The disciplinary authority is basically the appellate authority, as such, the petitioner has been deprived to appeal against the order passed by the disciplinary authority. In support of this contention, learned counsel relied upon the judgment passed in W.P. (S) No. 5987 of 2008.

(ii) The disciplinary authority while disagreeing with the view of the Inquiry Officer who had exonerated the petitioner from charges did not issue any show cause notice rather changed the Inquiry Officer itself which is not permissible in the eye of law. In support of his contention, he relied upon the judgment reported in (1998) 7 SCC 84 Para 17-19.

(iii) The entire punishment has been imposed on the basis of document but no witness has been examined and document has not been accepted which is against the settled principle of law and the case has become case of no evidence.

Arguments of the Respondents

7. The learned counsel for the respondents on the other hand has submitted that there is no scope for re-appreciation of materials which was subject matter of consideration by the enquiry officer and the petitioner was found guilty. The learned counsel submits that there is no perversity in the impugned proceedings and the order of punishment and therefore no interference is called for.

8. Learned counsel for the respondent-State has referred to Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 annexed with the counter-affidavit to submit that the Secretary has got the power to initiate proceeding in terms of Rule 12 of the Rules and appeal can be filed before higher authority in terms of Rule 4.

Scope of interference in disciplinary proceedings

9. The scope of interference in the matter of disciplinary proceedings has been summarized in the judgment passed