Central Administrative Tribunal - Delhi
Hc Bishan Dutt vs Govt. Of Nctd Through on 12 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2141/2012 New Delhi this the 12th day of December, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) HC Bishan Dutt, No. 495/SW, S/o Sh. Ram Kishan Sharma, WZ-34, Vill & PO-Pushingipur, Janakpuri, New Delhi-58. Applicant. (By Advocate Shri Sachin Chauhan) Versus 1. Govt. of NCTD through The Commissioner of Police (DAP), Police Headquarters, I.P. Estate, MSO Building, New Delhi. 2. The Joint Commissioner of Police, Prov. & Logistics through The Commissioner of Police, Police Headquarters, I.P. Estate, MSO Building, New Delhi. 3. The Dy. Commissioner of Police, Prov. & Logistics through The Commissioner of Police (DAP), Police Headquarters, I.P. Estate, MSO Building, New Delhi. Respondents. (By Advocate Mrs. P.K. Gupta) O R D E R (ORAL)
Shri G. George Paracken:
The challenge in this O.A is against the order dated 23.11.2010 whereby a departmental inquiry was initiated against the applicant, the disagreement note of the disciplinary authority dated 26.09.2011 disagreeing with the findings of the Inquiry Officer, disciplinary authoritys order dated 28.10.2011 awarding the punishment of forfeiture of one year approved service temporarily for a period of one year entailing proportionate reduction in his pay and further regularisation of excess leave availed by him as EOL and the appellate authoritys order dated 28.05.2012 rejecting his appeal.
2. The brief facts of the case are that a departmental inquiry was initiated against the applicant and the co-delinquent ASI Balbir Singh No. 667/D on the following charges:
I, Nirmal Kaur, ACP/DE Cell, EO charge you ASI Balbir Singh No. 667/D & HC Bishan Dutt, No. 804/L that while in the year 2009 you were posted at P&L unit in HACR Branch & MT section respectively, you ASI Balbir Singh, No. 667/D were detailed in HACR Branch, when pending OB Register of lower subordinates from constabulary No. 501 to onward was checked, the pending OBs regarding 12 days EL from 16.02.99 to 27.02.99, 25 days EL from 06.06.09 to 30.06.09, 20 days EL from 01.07.09 to 20.07.09, 10 days EL from 21.10.09 to 30.10.09 & 30 days commutted leave from 11.08.09 to 09.09.09 in respect of HC (MT) Bishan Dutt, No. 804/L had been found to be crossed from the OB Register but these were not deducted from HC Bishan Dutts leave account, similarly pending OBs of 26 days EL from 11.05.09 to 05.06.09 had also been crossed in OB register, out of which 15 days EL w.e.f. 11.05.09 to 25.05.09 have been found deducted and remaining 11 days EL w.e.f. 26.05.09 to 05.06.09 have not been found deducted from the leave account of the HC (MT) Bishan Dutt, No. 804/L & with the result HC (MT) Bishan Dutt, No. 804/L has availed excess ELs as under:
Leave Due Leave Availed Balance From To Total No. From To Total No. I/08 6/08 63 29.01.08 22.02.08 25 38 07.05.08 20.06.08 45 -07 7/8 12/08 15-1=14 22.12.08 31.12.08 10 04 I/09 6/09 15+4=19 01.01.09 02.01.09 02 17 16.02.09 27.02.09 12 05 11.05.09 05.06.09 26 -21 06.06.09 30.06.09 25 -46 7/09 12/09 15-5=10 21.10.09 30.10.09 10 -20 On perusal the record it has also been found that you HC (MT) Bishan Dutt, No. 804/L has availed excess 7 days in the first half of the year 01.08 to 06.08, 46 days in Ist half of year I/09 to 06/09 & 20 days EL in the year 7/09 to 12/09. Thus you HC (MT) Bishan Dutt, No. 804/L has availed 73 days excess EL (7 days + 46 days + 20 days) excess. You ASI (Min.) Blabir Singh, No. 667/D being dealing hand of HACR Branch were supposed to regularise by granting EOL. You ASI (Min.) Balbir Singh had verified 63 days EL on the application of HC (MT) Bishan Dutt, No. 804/L w.e.f. 07.05.08 without deducting 25 days EL availed by HC (MT) Bishan Dutt, No. 804/L from 29.01.08 to 22.02.08 due to non receipt of OB from SIP Branch. You HC (MT) Bishan Dutt, No. 804/L manipulated the leave due in your credit by adding one before 63 making the leave due as 163. You HC (MT) Bishan Dutt, No. 804/L also concealed the facts of availing of 25 days EL from 29.01.08 to 22.02.08. Similarly the dealing clerk of HACR Branch had verified 25 days leaves due in the credit of you HC (MT) Bishan Dutt, No. 804/L as on 08.05.09 on the leave application of you HC (MT) Bishandutt, No. 804/L w.e.f. 11.05.09. You HC (MT) Bishan Dutt, No. 804/L had also manipulated the leave due in your credit by adding one before 25 making the leave due as 125 on the said application form & you HC (MT) Bishan Dutt, No. 804/L had availed 71 days EL continuously. On checking the Ch. Roll of HC (MT) Bishan Dutt, No. 804/L it was found that you ASI (Min.) Balbir Singh, No. 667/D had completed the leave account from 7/9 to 12/09 & 1/10 to 6/10 & it was the duty of you ASI (Min.) Balbir Singh, No. 667/D to first deduct the leaves availed by HC (MT) Bishan Dutt, No. 804/L during the half year 1/09 to 06/09 and 07/09 to 12/09 but you ASI (Min.) Balbir Singh, No. 667/D did not deduct the leave from leave account & you ASI (Min.) Balbir Singh, No. 667/D also removed the pending OBs from OB register with some ulterior motive to facilitate HC (MT) Bishan Dutt, No. 804/L by providing loss to exchequer. The Ch. Roll from constabulary No. 1 to 500 were in the charge you ASI Balbir Singh No. 667/D & not of HC (Min.) Bishan Dutt, No. 804/L. Even though you ASI (Min.) Balbir Singh, No. 667/D completed the leave account of HC (MT) Bishan Dutt No. 804/L without deducting the leave availed by him due to reasons best known.
The above act on the part of you ASI (Min) Balbir Singh No. 667/D and you HC (MT) Bishan Dutt No. 804/L amount to gross misconduct, lack of professionalism and dereliction in discharge of your official duties, which render you liable to be punished under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
3. After a detailed inquiry in the matter, the Inquiry Officer submitted his report on 24.08.2011 holding that the aforesaid charges against both the delinquents have not been substantiated. The Inquiry Officer examined the evidence on record in the following manner before arriving at the aforesaid conclusions:
The main allegation against both the delinquent ASI (Min) Balbir Singh No. 667/D and HC MT Bishan Dutt No. 804/L are that ASI Balbir Singh No. 667/D & HC Bishan Dutt, No. 804/L that while in the year 2009 they were posted at P & L Unit in HACR Branch & MT section respectively. ASI Balbir Singh, No. 667/D was detailed in HACR Branch, when pending OB register of lower subordinates from constabulary No. 501 to onward was checked, the pending OBs regarding 12 days EL from 16.02.09 to 27.02.09, 25 days EL from 06.06.09 to 30.06.09, 20 days EL from 01.07.09 to 20.07.09, 10 days EL from 21.10.09 to 30.10.09 & 30 days commuted leave from 11.08.09 to 09.09.09 in respect of HC (MT) Bishan Dutt, No. 804/L had been found to be crossed from the OB, Register but these were not deducted from HC Bishan Dutts leave account, similarly pending OBs of 26 days EL from 11.05.09 to 05.06.09 had also been crossed in OB register, out of which 15 days EL w.e.f. 11.05.09 to 25.05.09 have been found deducted and remaining 11 days EL w.e.f. 26.05.09 to 05.06.09 have not been found deducted from the leave account of the HC (MT) Bishan Dutt, No. 804/L & with the result HC (MT) Bishan Dutt, No. 804/L has availed excess ELs as under:-
Leave Due Leave Availed Balance From To Total No. From To Total No. I/08 6/08 63 29.01.08 22.02.08 25 38 07.05.08 20.06.08 45 -07 7/8 12/08 15-1=14 22.12.08 31.12.08 10 04 I/09 6/09 15+4=19 01.01.09 02.01.09 02 17 16.02.09 27.02.09 12 05 11.05.09 05.06.09 26 -21 06.06.09 30.06.09 25 -46 7/09 12/09 15-5=10 21.10.09 30.10.09 10 -20 On perusal the record it has also been found that delinquent HC (MT) Bishan Dutt, No. 804/L has availed excess 7 days EL in the first half of the year 01.08 to 06.08, 46 days in Ist half of year I/09 to 06/09 & 20 days EL in the year 7/09 to 12/09. Thus HC (MT) Bishan Dutt, No. 804/L has availed 73 days excess EL (7 days + 46 days + 20 days) excess. ASI (Min.) Balbir singh, No. 667/D being dealing hand of HACR Branch were supposed to regularise by granting EOL. ASI (Min.) Balbir Singh had verified 63 days EL on the application of HC (MT) Bishan Dutt, No. 804/L w.e.f. 07.05.08 without deducting 25 days EL availed by HC (MT) Bishan Dutt, No. 804/L from 29.01.08 to 22.02.08 due to non receipt of OB from SIP Branch. HC (MT) Bishan Dutt, No. 804/L manipulated the leave due in your credit by adding one before 63 making the leave due as 163. You (MT) Bishan Dutt, No. 804/L also concealed the facts of availing of 25 days EL from 29.01.08 to 22.02.08. Similarly the dealing clerk of HACR Branch had verified 25 days leaves due in the credit of HC (MT) Bishan Dutt, No. 804/L as on 08.05.09 on the leave application of HC (MT) Bishan Dutt, No. 804/L w.e.f. 11.05.09. HC (MT) Bishan Dutt, No. 804/L had also manipulated the leave due in his credit by adding one before 25 making the leave due as 125 on the said application form & HC (MT) Bishan Dutt, No. 804/L had availed 71 days EL continuously. On checking the Ch. Roll of HC (MT) Bishan Dutt, No. 804/L it was found that ASI (Min.) Balbir Singh, No. 667/D had completed the leave account from 7/9 to 12/09 & 1/10 to 6/10 & it was the duty of ASI (Min.) Balbir Singh, No. 667/D to first deduct the leaves availed by HC (MT) Bishan Dutt, No. 804/L during the half year 1/09 to 6/09 & 7/09 to 12/09 but ASI (Min.) Balbir Singh, No. 667/D did not deduct the leave from leave account & ASI (Min.) Balbir Singh, No. 667/D also removed the pending OBs from OB register with some ulterior motive to facilitate HC (MT) Bishan Dutt, No. 804/L by providing loss to exchequer. The Ch. Roll from constabulary No. 1 to 500 were in the charge of ASI Balbir Singh No. 667/D & not of HC (Min.) Bishan Dutt, No. 804/L. Even though ASI (Min.) Balbir Singh, No. 667/D completed the leave account of HC (MT) Bishan Dutt No. 804/L without deducting the leave availed by him due to reasons best known. Three PWs were examined in support of the prosecution theory and to rebut the charge one DW as well as joint defence statement was submitted by both the delinquent. From the deposition of PWs/DWs it has been established that HC/MT Bishan Dutt No. 804/L, posted in P&L has submitted leave application for the grant of 12 days EL w.e.f. 16.2.09 to 27.02.09, 25 days EL from 6.6.09 to 30.6.09, 20 days EL from 1.7.09 to 20.7.09, 10 days EL from 21.10.09 to 30.10.09 and 30 days commutted leave w.e.f. 11.08.09 to 9.9.09 and as per deposition of PW-2 W/SI Daya Rani the leaves were sanctioned by the competent authority which are duly verified by HACR/dealing asstt. Of the Ch. Roll Branch and the same were put though OBs and proper official order for sanctioning leaves were issued as is evident vide Ex PW-2/P but PW-2 has not identified the signature of the HACR/Branch asstt who had verified these leaves moreover all these leaves are entered in OB register as per deposition of PW-1 vide Ex PW-1/A but has refused to say by whom the cuttings were made in the OB register.
Undersigned has gone through the depositions of PWs, DW and exhibits brought on DE file during DE proceeding. PW-1 HC Mukesh Chand, No. 12/L deposed that earlier he was detailed in HACR Branch who produced OB register from serial No. 501 to 1020 & the OB register copy has been exhibited as ExPW-1/A. The leaves are found to be entered in OB register but not deducted from the leave account of delinquents, HC (MT) Bishan Dutt. This PW did not depose that who was supposed to make the entries as well as to deduct leaves from the leave account of HC (MT) Bishan Dutt, No. 814/L & the leaves are not found to be entered in the Ch. Roll of the delinquent. From the above said deposition it could not be establish that delinquent ASI (Min.) Balbir Singh was supposed to do so.
PW-2 W/SI Daya Rani who produced Fauzi Mishal and OB register related to the leaves in question in respect of HC (MT) Bishan Dutt, No. 814/L. The photo copies of leaves sanctioned are found to be appended with Fauzi Mishal. The leave applications Ex PW-2/A&B were found verified by HACR Branch & leaves are shown due in these applications. The PW has admitted that the leaves are sanctioned on the applications of delinquent HC (MT) Bishan Dutt, No. 814/L. He is also not found to be aware about the date on which the OBs were received by HACR Branch.
PW-3/W SI (Min.) Shanti Devi deposed that HC Mukesh (PW-1) who was posted in HACR Branch had told her verbally that there is no entry of EL and commutted leaves in respect of HC (MT) Bishan Dutt, No. 814/L period from 12 days EL (16.02.09 to 27.02.09), 25 days EL (06.06.09 to 30.06.09), 20 days EL (01.07.09 to 20.07.09) and 30 days commutted leave (11.08.09 to 09.09.09) in Ch. Roll of HC (MT) Bishan Dutt, No. 814/L whereas the entries are available in OB Register and have been crossed cross lined. There is no entry of 26 days EL in OB Register whereas 15 days EL are entered in Ch. Roll. Delinquent ASI (Min.) Balbir Singh has not deducted the leaves from the leave account for the period 06/10 without deducting the leave which has been updated in his own handwriting. She had further deposed that delinquent ASI (Min) Balbir Singh was working on the seat of CR-II who made entries in the Ch. Roll of HC (MT) Bishan Dutt, No. 814/L unauthorizedly. 73 days excess leave have been availed by delinquent HC (MT) Bishan Dutt, No. 814/L. She had admitted that delinquent ASI (Min.) Balbir Singh 667/D was posted in HACR Branch vide order No. 8317-35/Estt./P&L dated 27.07.09. Despite opportunities the PW did not produce work distribution order of HACR Branch. She further admitted that she is not aware who had marked cross line in OB register. She had further admitted that she is not aware who had added one before 63 & 25.
DW-1 HC Hari Kishan had deposed that in June, 2010 when he visited HACR Branch in connection with his in statement. WSI Shanti HACR P&L was rebuking to delinquent. ASI Balbir Singh & was pointing him Meena Caste Chor Meena Chori Karte Hen. The DW had admitted that delinquent ASI (Min.) Balbir Singh had made complaint against WSI Shanti Devi & he had given his statement against W/SI Shanti Devi.
In view of above, it become clear that delinquent ASI (Min.) Balbir Singh has been posted in CR Branch since 27.07.09 vide order No. 8317-35/Estt. Dated 27.07.09 & the OBs which were alleged to be not entered in the Ch. Roll of co-delinquent HC (MT) Bishan Dutt, No. 814/L are as under:-
12 days EL (16.02.09 TO 27.02.09), 25 day EL (06.06.09 to 30.06.09), 20 days EL (01.07.09 TO 20.07.09) & 30 days commutted leave (11.08.09 to 09.09.09) & further alleged not to have deducted the availed leaves from the leave account for the period 1/8 to 6/8, 7/8 to 12/8, 1/9 to 6/9 & the leaves account from 7/9 to 12/9 is alleged to have completed by delinquent deducting the previous availed leaves & as such co-delinquent has availed 73 days more leaves i.e. (7+46+20) for the period 1/8 to 6/8, 1/9 to 6/9 & 7/9 to 12/9. Delinquent HC (MT) Bishan Dutt, No. 814/L has availed 73 days more leaves & one was found to be added on the leaves shown balance i.e. 63 as 163, 25 as 125 moreover the leaves are found to have been sanctioned by competent authority.
From the depositions of PWs, DWs & defence statement of the delinquents it could not be proved against delinquent ASI Balbir Singh, No. 667/D that he had not completed the CR of co-delinquent HC (MT) Bishan Dutt, No. 814/L for the period upto 20.07.09 as this delinquent was posted in CR Branch as on 27.07.09. In these circumstances it has become clear that the person who was posted in CR Branch having the Ch. Roll of delinquent HC (MT) Bishan Dutt, No. 814/L in his custodian had not entered the OBs upto 20.07.09 whereas he was supposed to complete the Ch. Roll on receipt of the OBs from concerned Branch. Similarly the leaves entered by delinquent ASI (Min.) Balbir Singh for the period 21.10.09 to 30.10.09 & 11.08.09 to 09.09.09 unauthorizedly are concerned it could not be clear who was supposed to complete the leave account & Ch. Roll of HC (MT) Bishan Dutt, No. 814/L as the work distribution order could not be produced by PW-3 despite ample opportunity given to her & relying upon the office order No. 879/HAP P&L dated 06.04.11 it is found that no such distribution of work of Ch. Roll branch was issued. Delinquent ASI (Min.) Balbir Singh when completed the leave account of the HC (MT) Bishan Dutt, No. 814/L has shown leaves as minus 4.
4. However, the disciplinary authority did not agree with the aforesaid findings of the Inquiry Officer and recorded his disagreement note dated 26.09.2011 and sent the same to the applicant and the co-delinquent along with the copies of the Inquiry Officers report. The relevant part of the said note is as under:
The undersigned has carefully gone through the entire D.E. file, statements of PWs, charge, defence statement and statement of DW submitted by the delinquents. On careful perusal of D.E. file it revealed that the EO has failed to evaluate properly the Prosecution Evidence as well as facts available on records and concluded that the allegation could not be proved. There is enough material on record to disagree with the findings of the E.O. as discussed below:-
1. That ASI (Min.) Balbir Singh, No. 667-D was posted in Ch. Roll Branch/P&L on 27.07.2009 and he was entrusted the work of maintaining the Ch. Rolls from Sl. No. 1 to 500, and Ch. Rolls from Sl. No.501 and onwards were entrusted to Constable Jagdish. The Ch. Roll of HC (MT) Bishan Dutt, No. 804/L was at Sl. No. 804. Thus the ASI (Min.) Balbir Singh, No. 667-D had made entries unauthorisedly in the Ch. Roll of HC (MT) Bishan Dutt, No. 804/L.
2. In reply to charge ASI (Min) Balbir Singh, No. 667-D has accepted that he has completed the leave record for the period from 01.07.2009 to 31.12.2009 and from 01.01.2010 to 30.06.2010 in the absence of Constable Jagdish. When he has accepted that he entered/maintained the leave record of HC/MT then it was his responsibility and duty to first deduct all the entry of pending OBs of already availed leave which had been availed by HC/MT from his leave account and then update the leave record, but he did not enter the previous pending OBs due to the ulterior motive to give undue benefits to HC (MT) Bishan Dutt, 804/L.
3. As per Ex PW/2-B, the HC (MT) Bishan Dutt, No. 804/L was sanctioned 26 days EL from 11.05.2009 to 05.06.2009 and ASI (Min) Balbir Singh, No. 667-D has debited only 15 days E.L. w.e.f. 11.05.2009 to 25.05.2009 while he has completed the leave record of HC (MT) Bishan Dutt, No. 804/L.
4. The contention of EO that the work distribution order of HACR Branch was not produced by PW-3 i.e. HACR is not tenable. It is not mandatory to issue written order for the work distribution of each seat. In routine and in practice it is the prerogatives of Branch Incharge to allocate the work to each employee under his/her command verbally. Moreover, it has been admitted by ASI (Min) Balbir Singh, No. 667-D that he had made entries in the Ch. Roll of HC (MT) Bishan Dutt, No. 804/L when he was posted in Ch. Roll Branch, making entries correctly becomes his responsibility whether the same was done under written order of work distribution or under verbal direction of the Branch In-charge.
5. The deposition of DW has no relevancy with the charge made against the defaulters in the present DE. The charges are based on entries made in office records, hence, the incident or complaint narrated by the DW has got no bearing with the present DE proceedings.
6. EO has not held HC (MT) responsible for manipulation of leave due in the report of HACR on leave applications by adding 1 before 63 and 25. But it is crystal clear and has been proved from the exhibits that 1 has been added before 63 and 25. The defaulter HC (MT) Bishan Dutt, No. 804/L knew that leave was not due in his credit and he had added one before it and took the benefit of availing leave beyond the leave due. It is evident that after adding 1 before 25 the HC (MT) had availed 71 days E.L. continuously.
Departmental enquiry is not supposed to be conducted merely as a formality but the EO is supposed to draw her conclusion based on the merit of the case, which I find lacking in this case. Material facts available on record during the DE proceedings seems to be ignored by the EO facilitating delinquents an easy escape from such a serious allegation involving manipulation in official record. Even the fact admitted by defaulter ASI (Min) Balbir Singh, No. 667-D in his defence statement that he made entries in Ch. Roll of the HC (MT) has been totally ignored by the E.O. In the light of facts and circumstances mentioned above, it is clear that the EO has ignored most of the vital issues during enquiry and submitted her findings. The undersigned, therefore, does not agree with the findings of E.O. In my opinion the charge levelled against ASI (Min) Balbir Singh, No. 667-D and HC (MT) Bishan Dutt, No. 804/L stands proved and the defaulters cannot be allowed to escape from the onus of misconduct committed by them.
5. The applicant submitted a representation dated nil against the aforesaid disagreement note on a number of grounds and requested the disciplinary authority to withdraw the same and to exonerate him as he is innocent. However, the disciplinary authority vide its order dated 28.10.2011 awarded the punishment of forfeiture of one year approved service temporarily for a period of one year entailing proportionate reduction in his pay. Accordingly, his pay was reduced from Rs.10110/- + 2800/- to Rs.9730/- + 2800/- in the pay band of Rs.9200-20200/- + 2800/-. The period of 73 days excess leave availed by him was regularized as EOL. The appeals filed by him (appellant No.2) and co-delinquent (appellant No.1) were considered together by the appellate authority and vide order dated 28.05.2012 and while not fully agreeing with the quantum of punishment awarded to him by the disciplinary authority, the punishment awarded to appellant No. 1 was modified to that of written warning.
6. In this Original Application, the applicant challenged the aforesaid note of the disciplinary authority, order of the disciplinary authority imposing the aforesaid penalty and the appellate order rejecting the appeal on various grounds. The respondents have filed their reply refuting the submissions of the applicant. However, the applicant reiterated his submissions in his rejoinder to the reply affidavit of the respondents.
7. We have heard the learned counsel for the applicant Shri Sachin Chauhan and the learned counsel for the respondents Mrs. P.K. Gupta. The preliminary submission made by Shri Sachin Chauhan is that the disagreement note issued by disciplinary authority is not tentative as, within the body of disagreement note itself, the said authority has recorded that the charge has been proved against the applicant and nowhere he has stated that the reasons recorded by him in his note were `tentative in nature. He has, therefore, argued that the said note is bad in law and against the principles of natural justice. In that regard, Shri Sachin Chauhan has relied upon the order of the Full Bench of this Tribunal in OA 577/2009 Raja Ram Vs. GNCTD & Ors. wherein the issue regarding disagreement note in a departmental proceeding case against the findings of the Inquiry Officer has been discussed in detail. The relevant part of the said order reads as under:
3. In the Random House dictionary of the English language the word tentative has been defined as follows:
"Tentative: unsure, not definite or positive; hesitant".
What is then the purport of Rule 15 as regards the tentative reasons for disagreement? It should mean that the disciplinary authority does not agree with the conclusions of the enquiry authority, yet its reasons for disagreement are not definite or positive. It would then depend on the expression used for disagreeing with the conclusions of the enquiry authority, which would show whether the reasons are definite and positive or not so.
4. The issue is no longer ret integra. The Honourable Supreme Court considered the issue in Yoginath D. Bagde Vs. State of Maharastra, 1999 SCC (L&S) 1385. The disciplinary committee of the High Court disagreed with the findings of the enquiry authority in the proceedings against Yoginath D Bagde, a judicial officer. The note of disagreement reads thus:
Discussed: For the reasons recorded in Annexure `A hereto, the Committee disagrees with the finding of the enquiry officer and finds that the charges levelled against the delinquent judicial officer have been proved.
It was, therefore, tentatively decided to impose upon the judicial officer penalty of dismissal from service.
Let notice, therefore, issued to the delinquent judicial officer calling upon him to show cause why penalty of dismissal from service as prescribed in Rule 5(1)(ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 should not be imposed upon him.
Show-cause notice will be accompanied by a copy of the report of the enquiring authority and the reasons recorded by this Committee." (emphasis added) The Honourable Supreme Court while dealing with the contentions made the following observations:
In view of the provisions contained in the statutory rule extracted above, it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, "an opportunity of hearing" may have to be read into the rule by which the procedure for dealing with the enquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be `not guilty by the enquiring authority, is found `guilty without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded. (emphasis added) It was further observed that:
34. Along with the show-cause notice, a copy of the findings recorded by the enquiry officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.
37. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by the learned counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank (AIR 1998 SC 2713) in which it had been categorically provided, following earlier decisions, that if the disciplinary authority does not agree with the findings of the enquiry officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the disciplinary authority that the findings already recorded by the enquiry officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case.
38. The Disciplinary Committee consisted of five seniormost Judges of the High Court which also included the Chief Justice. The Disciplinary Committee took a final decision that the charges against the appellant were established and recorded that decision in writing and then issued a notice requiring him to show cause against the proposed punishment of dismissal. The findings were final; what was tentative was the proposal to inflict upon the appellant the punishment of dismissal from service. (emphasis added) The issue was also considered by the Honourable Delhi High Court in CWP 2665/2002, Commissioner of Police Vs. Constable Pramod Kumar and another decided on 12th September 2002. The note of disagreement was recorded by the disciplinary authority, about which the High Court observed that "[I]n its notice to show cause, however, the authority arrived at a final conclusion and the same was not a tentative one." The matter was in an appeal before the Honourable Delhi High Court from an order of this Tribunal, in which the Tribunal, after noting Yoginath D Bagde (supra), had allowed the Application and set aside the note of disagreement. The Honourable Delhi High Court noted as follows in paragraph 7 of the judgement cited above:
7. The inquiry report submitted by the Inquiry Officer is a detailed one. He considered all the materials on record and arrived at a finding of fact that the delinquent officers are not guilty. The disciplinary authority, however, recorded his positive finding to the effect that upon notice of the entire material on record the respondents are guilty. The said findings are contained in about six and a half pages. Nowhere in the findings did he suggest that such findings are tentative ones. The concluding paragraph of the note of disagreement was also quoted in the judgement, which reads as follows:
8. He concluded:
The totality of the facts and circumstances of the case and evidence on record lends credence to the allegations made. This aspect of the charge, therefore, also stand proved against the Inspr. (emphasis added) The disciplinary authority had quoted copiously from his note of disagreement in the final order of punishment. It was then observed as follows in paragraphs 12 and 13 of the judgement:
12. It is true that a disciplinary authority is entitled to disagree with the findings of the Inquiry Officer.
13. However, while disagreeing with such findings, he must arrive at a decision in good faith. He, while disagreeing with the findings of the Inquiry Officer, was required to state his reasons for such disagreement but such a decision was required to be tentative one and not a final one. A disciplinary authority at that stage could not have pre-determined the issue nor could arrive at a final finding. The records clearly suggest that he had arrived at a final conclusion and not a tentative one. He proceeded in the matter with a closed mind. An authority which proceeds in the matter of this nature with a pre-determined mind, cannot be expected to act fairly and impartially. (emphasis added) Apart from the judgement of the Honourable Supreme Court in Yoginath D Bagde (supra), the judgement in K L Shephard and others Vs. Union of India and others, AIR 1988 SC 686 was also noted. The paragraph quoted in the judgement of the Honourable Delhi High Court reads thus:
16. We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. (emphasis added) The High Court also observed that bias or pre-judgement of guilt may even be a ground for quashing a charge-sheet. The judgement of this Tribunal was upheld.
5. However, in Union of India & Ors. Vs. Prof. P N Bhat, WP) no. 11754-58/2004, the Honourable Delhi High Court struck a different chord. The note of disagreement recorded by the disciplinary authority in case of P N Bhat, an employee of ICAR, is quoted below:
The undersigned is directed to refer to the subject cited above and to enclose herewith a copy of the report of the Inquiry Officer.
The inquiry report has been examined in the Council and it is proposed to differ with the findings of the Inquiry Officer in respect of the following articles of charge for reasons indicated alongside:-
Article of charge IV Inquiry officer has held the charge as not proved on the ground that the charge officer had repaid the excess amount. It would, however, be seen that an amount of Rs. 1227/- claimed in excess, was received by charged officer in January, 1990 and June, 1990 while the charged officer refunded the money only in January 1991 and November, 1991 i.e. only after the excess claim had been investigated into a Memo was issued to the charged officer on 27.6.1990. Thus, the charge that charged officer preferred a false claim is proved.
Article of Charge V Inquiry officer has held the charge that procedures were not followed in the purchase of Fermenter alongwith accessories at a cost of Rs. 15 lakhs as not proved because it was certified by the company that it was a proprietory item and no tenders were required to be called. It would, however, be seen that in the initial note itself, it has been mentioned that IVRI had purchased a Fermenter from M/s Bioengg. AG. Switzerland which was yet to be installed. The requisition for the Fermenter from the identified firm i.e. M/s L.H. Fermenter Limited, England, was signed by Dr. (Mrs.) Bhat (W/o Dr. P.N. Bhat) and Shri Rasool. No mention was made about the fact that the equipment was a proprietory item while the purchase was being processed. The certificate from the firm is undated and appears to have been added as an after thought.
Article of charge-VII Inquiry Officer has held the charge that no tenders were called for the purchase of image Analysis Systems at a cost of Rs. 18 lakhs from a West German firm in 1985 as not proved on the ground that the equipment was of proprietory nature and the purchase procedures were followed. It would be seen from records that, in the requisition for immediate purchase, there was no justification as to why there was such an urgency. There is no indication of any distress subsequently even though the equipment could be installed in December, 1986 i.e. after a gap of two years. DGS&D was also bye-passed on the pretext of emergency. Thus the charge that purchase procedures were not followed is proved.
If Dr. P.N. Bhat wishes to make any representation or submission on the findings of the Inquiry Officer and disagreement of the Council on some of the findings of the Inquiry Officer he may do so in writing to the disciplinary authority within fifteen days of receipt of this Memorandum. The disciplinary authority will take a suitable decision after considering the inquiry report and submission of the charged officer. The said P N Bhat approached this Tribunal in OA number 3155/2002 and the Tribunal, in the light of the wordings in the said note, and relying on Yoginath D Bagde (supra), considered the same to be a final expression of opinion by the disciplinary authority and held that to be in violation of rules for not being tentative. The matter was carried to the High Court in judicial review in the aforementioned Writ petition. The Honourable High Court held thus:
7. We have carefully perused the said disagreement note and on scrutinising thereof, we are of the considered opinion that disagreement note that has been prepared and finalized by the disciplinary authority was of tentative nature which is apparent from the expression used in the language of the aforesaid office memorandum. It is clearly stated that after examination of the inquiry report the Council has proposed to differ with the findings of the Inquiry Officer. The said expression clearly makes it clear that the aforesaid difference and disagreement is only tentative in nature and not a final decision. The same is also corroborated by the last paragraph of the said communication wherein it is clearly stated that the disciplinary authority would take a suitable decision after considering the inquiry report and submission of the charged officer. Therefore, whatever was recorded in the said disagreement note was apparently tentative in nature and not a final decision taken. The disciplinary authority proposed to take a final decision after scrutiny of the inquiry report and the reply, if any, received from the respondent.
8. In that view of the matter, the submission of the counsel for the respondent that the said disagreement note was a final decision and not a tentative opinion cannot be accepted. The Tribunal also fell into an error in considering the said opinion as a final opinion and not as a tentative opinion. The decision, which is referred to by the learned Tribunal in its decision, namely, Yoginath D. Bagade v. State of Maharashtra & Anr. reported in 1999 VIII AD (SC) 201, in our considered opinion is distinguishable on facts. A reading of the said decision would make it clear that in the said case not only the disciplinary authority, in the disagreement note, took a final decision in respect of disciplinary proceeding but also decided about the penalty which was to be imposed on the charged employee and decided to impose upon him the penalty of dismissal. In that context the aforesaid observations were recorded by the Supreme Court, which in our opinion have no application to the facts and circumstances of this case. In that view of the matter we are of the considered opinion that the decision which is rendered by the Tribunal can not be sustained and is against the settled principles of law and, therefore, the same is set aside and quashed. This judgement, however, did not notice the judgement of the High Court in Commissioner of Police Vs. Ct. Pramod Kumar (supra).
6. The matter again came up for hearing in Union of India Vs. Baljit Singh Sondhi, WP) number 11273/2009, decided on 19.07.2010. The said Baljit Singh Sondhi had filed an OA before this Tribunal, which was allowed on the ground that the disciplinary authority had held the charges to be proved in the note of disagreement. In the Writ Petition filed by the Union of India, the High Court, upheld the judgement of this Tribunal observing thus:
12. With the decision of the Supreme Court reported as (1998) 7 SCC 84 PNB Vs. Kunj Behari Misra, law got settled that if the Disciplinary Authority does not agree with the findings of the Inquiry Officer, a tentative opinion has to be formed by the Disciplinary Authority and has to be supplied to the charged officer for his response.
13. In Yoginath D. Bagdes case (supra) it was held that where the Disciplinary Authority does not for a tentative opinion but records a conclusive finding that the report of the Inquiry Officer is wrong, it would be a formality to thereafter issue a notice to the charged employee requiring him to respond to the notice concerned.
14. In Yoginath D. Bagdes case (supra), noting the aforesaid taint the order of the Disciplinary Authority was quashed without the matter being remanded.
15. On the facts of the instant case, the decision of the Tribunal cannot be faulted with as it is in conformity with the law declared in Yoginath D. Bagdes case. In Union of India and others Vs. Dr. V T Prabhakaran, WP) number 559/2010 also the High Court made the following observations on this issue:
`23. With the two viewpoints noted above, it assumes importance to note that evidenced by the decision of the Supreme Court reported as 1999 (7) SCC 739 Yoginath D. Bagde vs. State of Maharashtra & Ors., the jurisprudence in service law is that the disciplinary authority should not prejudge the gravamen of the allegations or for that matter even the charge, and should not use language which shows that the disciplinary authority has already made up its mind. It is only after the inquiry is over and the delinquent is heard with respect to the report of the inquiry officer; and when exonerated at the inquiry but the disciplinary authority not agreeing with the report, upon hearing him qua the note of disagreement, the final opinion has to be rendered. It is important to highlight that in Yoginath D. Bagdes case (supra) conclusive determination of the guilt by the disciplinary authority before giving an opportunity to the delinquent to respond to the note of disagreement was held to be a case of a closed mind qua the response of the delinquent, resulting in the disciplinary authority denuding himself the jurisdiction to decide with reference to the response of the delinquent to the note of disagreement.
7. Although in P.N. Bhat (supra), the view was taken that a note of disagreement would not cease to be tentative even if the view is expressed that the charges stand proved as long as opportunity is given to the charged officer to represent against the note of disagreement and as long as penalty is not proposed in the note of disagreement, yet the trend as seen from the recent judgements of the Honourable Delhi High Court in Baljit Singh Sondhi (supra) and Dr. V.T. Prabhakaran (supra) as relied upon by the Applicant, is that an expression of opinion about the charges being proved would amount to an expression of final opinion, as a consequence of which the note of disagreement would not be considered tentative, which is the requirement of Rule 15 ibid. We respectfully agree with this view.
8. The Honourable Supreme Court, in Yoginath D Bagde (supra), had held the decision of the disciplinary committee of the High Court to be wrong, not because it had proposed penalty in the note of disagreement but because a final view about the guilt of the charged officer had been taken. It is clear from the observation of the Supreme Court that findings were final: what was tentative was the punishment. In our view this could only be interpreted as saying that the findings should be tentative. The observation of the Supreme Court in K L Shepherd (supra) is significant that once a decision is taken, it is more likely than not to be upheld and not changed merely on consideration of the representation. During the course of arguments the learned counsel for the Government of NCT of Delhi wondered as to what the disciplinary authority should record, if it cannot record that the charges stand proved by the reasoning given by the disciplinary authority. The correct procedure in our view is for the disciplinary authority to record that the disciplinary authority does not agree with the conclusions of the inquiry authority on the grounds, which may then be stated. The grounds can thereafter be mentioned, without concluding that the charge(s) is/are proved. The charged officer will then have an opportunity to repel the reasoning of the disciplinary authority. Only after going through the representation of the charged officer against his reasoning in the note of disagreement, the disciplinary authority may come to any conclusion about the charges being proved or not proved. If the disciplinary authority comes to the conclusion about the guilt of the charged officer without hearing him, it would show an inbuilt bias and the cause of the charged officer will suffer. In essence, inferring of guilt without giving an opportunity to the charged officer to be heard would be in gross violation of the principles of natural justice that an employee should be given full opportunity to defend himself before being held to be guilty. The Article 311 of the Constitution also mandates that no employee would be dismissed, removed or reduced in rank without being given a reasonable opportunity of being heard. The CCS (CCA) Rules have been framed under the proviso to the Article 309 of the Constitution and these are thus statutory rules and cannot be trifled with lightly. The rules have to be followed in letter and spirit. Therefore, if the rules provide that the disciplinary authority has to give tentative reasons for disagreeing with the inquiry authority, it is definitely precluded from expressing definite and positive finding of guilt in the note of disagreement and thereby giving only a post- decisional hearing to the charged officer.
9. In the light of the above we hold that a note of disagreement would not be tentative if it states that the charges against the charged officer stand proved. Mere expression of such view would make the note of disagreement bad in law and liable to be quashed and set aside. The reference is thus answered. The OA is remanded to the DB.
8. We have considered the aforesaid preliminary submission of the applicants counsel. We have, therefore, examined it in the light of the aforesaid order of the Full Bench. It is seen that the disciplinary authority has categorically stated in the order as under:
EO has ignored most of the vital issues during enquiry and submitted her findings. The undersigned, therefore, does not agree with the findings of E.O. In my opinion the charge levelled against ASI (Min) Balbir Singh, No. 667-D and HC (MT) Bishan Dutt, No. 804/L stands proved and the defaulters cannot be allowed to escape from the onus of misconduct committed by them. The learned counsel for the respondents has not disputed the aforesaid legal submission of the learned counsel for the applicant. We, therefore, fully agree with him. We are also convinced that the aforesaid conclusion of the disciplinary authority is not a tentative one. Rather, the disciplinary authority clearly spoke out his mind what is quite possible to be indicative of the final order to be passed by it.
9. We, therefore, set aside the aforesaid disagreement note and the final orders of the disciplinary authority as well as the appellate authority. Consequently, the respondents shall restore all the benefits withdrawn from the applicant by way of the impugned orders forthwith. However, the disciplinary authority is at liberty to recommence the proceedings from the stage of show cause notice, if so advised. This O.A. is accordingly disposed of. However, we make it clear that we have not considered any of the other contentions of the applicants counsel challenging the impugned orders. There shall be no order as to costs.
(MRS. MANJULIKA GAUTAM) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD