PRADEEP KANT, R. D. SHUKLA, JJ.

( 1 ) THE petitioner being aggrieved by an order passed by U. P. Public Services Tribunal dated 31. 3. 1994, has approached this Court under Article 226 of the Constitution of India.

( 2 ) THE petitioner was appointed as peon in the year 1960 in the Sales Tax Department, but while being posted in the office of the Commissioner Sales Tax, Lucknow, was placed under suspension vide order dated 31st January, 1985 and the Assistant Commissioner, Sales Tax (Administration) was appointed as Enquiry Officer. The petitioner was served with it charge-sheet in which the petitioner was charged that he was directly or indirectly giving cooperation to a Firm namely; M/s. Shanti Enterprises and has violated the Government Servant conduct Rules 3 and 15.

( 3 ) A reply was submitted to the charge-sheet denying all the charges by stating that he has no concern or interest in the business of his son who was actually the owner of the said Firm. In the reply the petitioner requested for personal hearing and cross-examination of the witnesses. The enquiry Officer, however, exonerated the petitioner from all charges. The punishing authority did not agree with the findings recorded by the Enquiry Officer and after considering the entire material on record he came to the conclusion that the charges are proved against the petitioner and passed the order of dismissal of the petitioner from service. The petitioner has raised various pleas including the plea that the punishment order of dismissal was passed against the evidence on record. But it has been mainly urged before the Court that when the enquiry officer had exonerated the petitioner from all the charges, the disciplinary authority or appointing authority could not have inflicted the punishment of dismissal from service after disagreeing with the findings of the Enquiry Officer without affording any opportunity of hearing to the petitioner.

( 4 ) THE Public Service Tribunal after perusing the enquiry report, though observed that the petitioner was exonerated from the charges and, therefore, a notice should have been given if the punishing authority was willing to disagree with the report of the Enquiry Officer, even then, dismissed the claim petition.

( 5 ) THE Tribunal took note of the judgment passed by the Apex Court in the case of Narain Misra v. State of Orissa, reported in (1969) SLR 657, where it has been held that when there is difference of opinion between the Enquiry Officer and the Disciplinary authority a notice should be given to the employee about the attitude of the punishing authority, upheld the order of dismissal of the petitioner on a queer reasoning that although the petitioner was not heard and natural justice demands that the petitioner should have been given an opportunity by the punishing Authority but since all the enquiry proceedings took place in his presence where he did not raise any objection and there is no provision of issuance of a second show-cause notice, therefore, the impugned order need not be set aside. The Tribunal further observed that the impugned order of dismissal from service was a very detailed order in which the Punishing authority has assigned his own reasons for arriving at his conclusion and, therefore, the submission of the petitioner that he has not been issued a show-cause notice, has lost its significance. Further according to the Tribunal that since the petitioner has filed an appeal which has also been dismissed, the plea of lack of opportunity was not open to the petitioner any more.

( 6 ) IN the case of Punjab National Bank and Ors. v. Kuni Behari Misra, reported in (1998) 7 SCC 84, the Apex Court has held that if there is disagreement in the opinion of the Enquiry Officer and Disciplinary Authority/appointing Authority, the delinquent would be entitled to an opportunity before any order of punishment could be passed.

( 7 ) IN Yoginath D. Bogde v. State of Maharashtra and Anr. , reported in (1999) 7 Supreme

Click Here to Read the rest of this document