Whether disciplinary inquiry concludes when inquiry officer submits his enquiry report?

Disciplinary Proceedings are said to conclude when the disciplinary authority passes an order on the report of the Enquiry Officer. On receipt of the enquiry report the disciplinary authority may adopt any of the following three courses:
(a) He may accept the finding of guilt recorded by the enquiry officer and after supplying copy of the enquiry report to the delinquent employee, proceed to pass the penalty order.
(b) He may disagree with the findings of the enquiry officer and remit the matter for further enquiry.
(c) He may disagree with the findings of the enquiry officer exonerating the employee and himself after giving show cause notice to the employee, proceed to pass orders imposing penalty on the delinquent employee
Thus, disciplinary proceedings do not conclude merely with the recording of findings by the enquiry officer when he submits the enquiry report.
since the disciplinary authority has not taken any decision regarding the finding of guilt against late Abdul Kareem prior to his death, it could not be said that the charge had been established against late Abdul Kareem as disciplinary proceedings are concluded only with the passing of the order of disciplinary authority and not when the enquiry officer submits his report

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 18653 of 2012

Decided On: 12.05.2014

Appellants: Gulam Gausul Azam
Vs.
Respondent: State of U.P.

Hon'ble Judges/Coram:B. Amit Sthalekar, J.

Citation: 2014(5)ADJ558, 2014 5 AWC4657All

1. The petitioner in this writ petition is aggrieved by the order dated 21.11.2011 whereby the retiral and other dues of late Abdul Kareem, father of petitioner No. 1 have been with held and the order dated 1.3.2012 whereby the claim for compassionate appointment made by the petitioner No. 1 has been rejected. The case of the respondents is that late Abdul Kareem obtained appointment in the Revenue Department as Lekhpal and he was sent for training of Lekhpal but thereafter it was alleged that the petitioner alongwith some other persons had obtained the appointment by concealment of facts and practicing fraud, therefore their services were terminated under the U.P. Temporary Government Service (Termination of Service) Rules, 1975. This order was challenged by the petitioner alongwith others in Writ Petition No. 1131 (S/S) of 1994 in which late Abdul Kareem was petitioner No. 4 and the writ petition was allowed on the ground that the services of the petitioner could be terminated after giving notice and after following the principles of natural justice. Against the judgment of the High Court dated 16.2.2000 a Special Appeal was filed which was dismissed on 8.10.2003. Thereafter a charge-sheet was issued to the petitioner on 20.5.2010 and departmental proceedings held against him. The enquiry officer submitted his report on 30.6.2011 which was received in the office of Deputy District Magistrate, Deoria on 3.7.2011 but on 15.7.2011 Abdul Kareem died. In this view of the matter, no departmental action against late Abdul Kareem could be concluded.

2. Nevertheless, the disciplinary authority has proceeded to pass the impugned order dated 21.11.2011 holding that since the charges against late Abdul Kareem had already been proved in the enquiry proceedings and it had been established that late Abdul Kareem had obtained the appointment by fraudulent means, therefore, he would not be entitled to any retiral benefits. This order has been challenged in the present writ petition. Subsequently, the claim for compassionate appointment of the petitioner No. 1 as son of late Abdul Kareem has also been rejected by the second impugned order dated 1.3.2012.

3. I have heard Shri Ashok Khare, learned senior counsel assisted by Shri Santosh Kumar Yadav for the petitioner and the learned standing counsel for the respondents.

4. Shri Ashok Khare submits that once the father of the petitioner No. 1 Abdul Kareem expired, the entire departmental proceedings abated and even if the enquiry officer had given his findings against late Abdul Kareem, the same could not be acted upon by the disciplinary authority. Shri Khare further submits that once Abdul Kareem had expired no punitive order could have been passed against him withholding his retiral benefits or any other benefits as it was always open for the disciplinary authority to disagree with the findings of the enquiry officer or to agree with the findings of the enquiry officer but due to the death of late Abdul Kareem nothing of this kind has happened, therefore, the disciplinary authority could not have passed the impugned order with holding the retiral dues of late Abdul Kareem, to be paid to his family members after his death. He further submits that since Abdul Kareem had expired before any penalty order could be passed against him he would be treated to be in service and for that matter in honorable service till his death without any stigma being attached to his appointment and on that ground the claim of the petitioner No. 1 for compassionate appointment could not have been rejected.

5. Learned standing counsel on the other hand submits that the charges against the petitioner had already been proved in the enquiry proceedings and his guilt having been established, there was nothing further left for the disciplinary authority except to accept the same, since it had been found in the enquiry that late Abdul Kareem had obtained appointment by producing fraudulent documents, therefore, he could not be rewarded with retiral benefits etc. after his death nor could the petitioner No. 1 be rewarded with appointment on compassionate ground.

6. It is not in dispute between the parties that departmental proceedings were initiated against late Abdul Kareem and the enquiry report was submitted on 3.7.2011 and that Abdul Kareem died on 15.7.2011. It is nobody's case that late Abdul Kareem was given any opportunity to submit his reply to the enquiry report. In these circumstances once Abdul Kareem had expired the entire departmental proceedings against him abated as no order has been passed by the disciplinary authority accepting or rejecting the findings of guilt recorded by the enquiry officer against late Abdul Kareem. The findings recorded by the enquiry officer would not be sufficient to deny the heirs of late Abdul Kareem his retiral dues and other benefits, merely because the charges had been proved in the enquiry proceedings. Ultimately it was for the disciplinary authority to take a decision as to whether the charges against late Abdul Kareem stood established or not irrespective of whatever be the findings of the enquiry officer and the Rules contemplate passing of penalty order against a Government servant.

7. Disciplinary proceedings are said to conclude when the disciplinary authority passes an order on the report of the Enquiry Officer. On receipt of the enquiry report the disciplinary authority may adopt any of the following three courses:

(a) He may accept the findings of guilt recorded by the enquiry officer and after supplying copy of the enquiry report to the delinquent employee, proceed to pass the penalty order.

(b) He may disagree with the findings of the enquiry officer and remit the matter for further enquiry.

(c) He may disagree with the findings of the enquiry officer exonerating the employee and himself after giving show-cause notice to the employee, proceed to pass orders imposing penalty on the delinquent employee.

8. Thus disciplinary proceedings do not conclude merely with the recording of findings by the enquiry officer when he submits the enquiry report.

9. There is another aspect of the matter. In the present case Abdul Kareem expired on 15.7.2011, i.e. before the disciplinary authority could pass any order on the enquiry report dated 3.7.2011. In the circumstances therefore, the master and servant relationship between Late Abdul Kareem and the respondents also came to an end with his death and therefore, the impugned order dated 21.11.2011 could not have been passed after the death of Abdul Kareem.

10. In my opinion therefore the disciplinary authority could not have passed the order dated 21.11.2011 withholding the retiral dues and other benefits of late Abdul Kareem. When Abdul Kareem died on 15.7.2011 he could not have been said to be a Government servant thereafter and therefore the order dated 21.11.2011 on the face of it is a wholly illegal and arbitrary order and has no basis in law and cannot survive.

11. So far as the matter of compassionate appointment of the petitioner No. 1 is concerned, for the same reasons that since the disciplinary authority has not taken any decision regarding the finding of guilt against late Abdul Kareem prior to his death, it could not be said that the charge had been established against late Abdul Kareem as disciplinary proceedings are concluded only with the passing of the order of disciplinary authority and not when the enquiry officer submits his report. In this view of the matter, the writ petition is allowed and both the impugned orders dated 21.11.2011 and 1.3.2012are quashed. The respondents are directed to take steps for payment of all retiral benefits to the legal heirs of late Abdul Kareem. So far as the order dated 1.3.2012 regarding rejection of the claim of petitioner No. 1 for compassionate appointment is concerned, a direction is issued to the District Magistrate, Deoria-respondent No. 3 to take a decision afresh in this regard having regard to the educational qualification of the petitioner No. 1 and availability of vacancy within a period of two months from the date a certified copy of this order is received in his office.

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