Central Administrative Tribunal - Delhi
Subhash Chandra Ghidiyal vs Union Of India Others : Through on 3 March, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.3415/2013 New Delhi this the 03rd day of March, 2014 Honble Shri G.George Paracken, Member (J) Honble Shri P.K. Basu, Member (A) Subhash Chandra Ghidiyal S/o Shri Ram Chandra Ghildiyal R/o HImadri Avenue, Nehru Gram Road, Dehradun. ..Applicant By Advocate: Shri M.K. Bhardwaj. Versus Union of India Others : through 1. The Secretary, Ministry of Information and Broadcasting, Govt. of India, Shastri Bhawan, New Delhi-110001. 2. The Director General (AIR), Akashwani Bhagwan, Sansad Marg, New Delhi. 3. The Chief Engineer (Civil) Civil Construction Wing, AIR 6th Floor, Soochna Bhawan, CGO Complex, New Delhi. Respondents By Advocate: Shri S.M. Arif. ORDER
Shri G.George Paracken, M(J) Applicant has challenged the disciplinary proceedings initiated against him which culminated in imposing upon him the penalty of Reduction by two stages in the time scale of pay for a period of 3 years with further direction that the officer will not earn increments of pay during the above period of reduction and on expiry of above period, the reduction will have the effect of postponing the future increments of pay of the officer.
2. The brief facts of the case are that the Applicant was proceeded under Rule 14 of the CCS (CCA) Rules, 1965 vide Memorandum No.7/110/91-Vig.(i) dated 21.08.2002. The substance of the imputation of misconduct or misbehaviour for which the enquiry was proposed to be held as set out in the Articles of Charges enclosed with the said Memorandum which are as under:-
Article-I That the said Shri Subhash Chandra while functioning as Assistant Engineer (E), CCW, AIR, Bhopal during the period 1988-89, had measured the axcess quantity of conduit than required, for payment of secured advance for the work, Construction of 6 Nos. Type A, 40 Nos. Type B, 32 Nos. Type C, 24 Nos. Type D, 2 Nos. Type E with 2 Nos. servant quarters at T.V. Centre, Bhopal (SH: Internal E.I. & Fans i/c Distribution board, lightening conductor and street lighting).
Due to measurement of excess quantity of conduits, the amount to the tune of Rs.38,820/- have been made as superfluous payment because of release of secured advance on quantities measured higher than actually required at site.
Article-II That the said Shri Subhash Chandra while functioning as AE(E), AE(E), CCW, AIR, Bhopal, during the period 1988-89, had proposed the rates of conduit more than admissible, as per terms and conditions of the agreement for the work Construction of 6 Nos. Type A, 40 Nos. Type B, 32 Nos. Type C, 24 Nos. Type D, 2 Nos. Type E with 2 Nos. servant quarters at T.V. Centre, Bhopal (SH: Internal E.I & Fans i/c Distribution board, lightening conductor and street lighting).
Due to assessment of higher rates adopted, an overpayment (though temporary) to the tune of Rs.30,000/- was made, providing undue financial aid to the contractor.
Article-III That the said Shri Subhash Chandra while functioning as Junior Engineer (E), CCW, AIR, Bhopal, during the period 1988-89 had measured the items of laying of underground cable, which was not laid confirming to standard depth as specified in the specification and contract for the work Construction of 6 Nos. Type A, 40 Nos. Type B, 32 Nos. Type C, 24 Nos. Type D, 2 Nos. Type E with 2 Nos. servant quarters at T.V. Centre, Bhopal (SH: Internal E.I. & Fans i/c Distribution board, lightening conductor and street lighting). He has also proposed the bill for this item, for payment and the payment was effected without full check measurement by AE(E) being the hidden and costly item.
Article-IV That the said Shri Subhash Chandra while functioning as Assistant Engineer (E), CCW, AIR, Bhopal, during the period 1988-89, had accepted the measurement and proposed the bill of street light swaged steel tubular pole of less diameter, then specified in the contract specification, for the work Construction of 6 Nos. Type A, 40 Nos. Type B, 32 Nos. Type C, 24 Nos. Type D, 2 Nos. Type E with 2 Nos. servant quarters at T.V. Centre, Bhopal (SH: Internal E.I. & Fans i/c Distribution board, lightening conductor and street lighting). This act of Sh. Subhash Chandra leads to acceptance of substandard item.
3. After detailed enquiry in the matter, the Inquiry Officer submitted his report dated 25.09.2006 holding that none of the aforesaid Articles of Charges have been proved. However, the Disciplinary Authority, vide its order No.7/110/91-Vig.Vol.II dated 15.05.2009, disagreed with the aforesaid findings of the Inquiry Officer and held that Articles-I, III and IV have been partly proved. The relevant part of the said order reads as under:-
Whereas inquiry officer in his report dated 25.9.2006 has concluded that charges as Not proved on the ground that there has been no loss to the Govt., there is no proof of any malafide intention and on the following facts:-
1. The required quantities of the 19mm and 25mm dia conduits were assessed as 10,000 mt. and 1000 mt. respectively by the JE (E) in charge of the work.
2. Sh. V.K. Singh SE(E), CCW, AIR, Nagpur who was EE(E) of the project during 1988-89 has stated as below in the examination-in-Chief:
The filed staff has to assess on the basis of the available drawing site condition and requirement of the component of the material in the quoted job work. As per the procedure laid down in the CPWD manual field staff has to assess the quantity with their experience and judgment..Conduit in the quoted job work of the agreement was correct and as per their practical experience. The above implies that the deviation in the assessment was unintentional and without any motive.
3. It is also confirmed from various document that the excess materials assessed by mistake/oversight have been utilized at/diverted to other project and Govt. has gained in the process as the material cost had gone up in the meantime.
4. Also as per CTE observation on excess payment, penal interest @ 18% has been recovered from the agency for the period (10/88 to 10/94) till adjustment.
Whereas after careful examination of the said Inquiry Report the undersigned disagrees with the findings of Inquiry Officer in respect of Article I, III and IV as per the following reasons:-
Article-I:- Though there was no loss to the Govt. it was clear that over assessment was made for the purpose of conduits and the recovery was made according to the CTE observations. Hence, Sh. Subash Chandra cannot be fully absolved from the responsibility of the excess payment to the agency even though the same has been recovered later. Hence, Article I held as partly proved.
Article-III:- It is clear that cable was not laid as per specification and the Division, office could not assess the less depth of the cable which was pointed out by CTE and recovery was made subsequently. The article of the charge is partly proved.
Article-IV:- Though the recovery was made later, it is clear that street poles of lesser diameter were measured and authorized for payment by Sh. Subhash Chandra, which was not as per specification. The article of charge is partly proved, for not initiating deduction prior to CTE observation.
4. Applicant made his representation dated 23.06.2009 against the aforesaid disagreement note. He has stated that when the Inquiry Officer submitted a speaking and reasoned report holding that the charges have not been proved, dissenting with the aforesaid findings and stating that the Articles of Charges have been partly proved is incorrect. He has also stated that all the Articles of Charges have been issued to him after inordinate delay of 14 years since execution work in question relates to the year 1988. Further, he has submitted that due to long duration of the pendency of the case he has been suffering from some kind of undeclared punishment as he has been denied the benefits of the 2nd ACP since May, 2006. Further, according to him, Shri V.K. Singh, the then Executive Engineer (E) who was in-charge of the work and who has also been issued with the same charges had been exonerated. He has, therefore, requested the Disciplinary Authority to exonerate him also of the aforesaid charges in the interest of justice. However, the Disciplinary Authority passed the impugned punishment order dated 02.08.2010 as aforesaid. The Applicant filed a statutory appeal dated 06.10.2010 against the aforesaid order of the Disciplinary Authority to the President of India but the same was rejected vide the impugned order No.F.C-13013/49/91-CW-1 Vol.III/102 dated 02.04.2013.
5. The Applicant has challenged the aforesaid orders in this Original Application on the grounds that there was inordinate delay in initiating disciplinary proceedings and then concluding it. He has submitted that the charges admittedly, pertained to the period 1988-89 but it was concluded after 24 years in 2013. The enquiry proceedings itself was initiated only after 10 years on 21.08.2002 and it was finalized only after another 11 years. As a result, his entire career has been spoiled. In this regard he has relied upon the judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh & Another AIR 1990 SC 1308 wherein it was held as under:-
The irregularities which were the subject-matter of the enquiry are said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair, to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."
Again, he has relied upon the judgment of the Apex Court in the case of State of Punjab Vs. Chamal Lal Goyal JT 1995(2) 18 wherein it has been held as under:-
9. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take adecision on the totality of circumstances. In other words, the court has to indulge in a process of balancing.
He has also relied upon the judgment of the Apex Court in the case of in the case of State of Andhra Pradesh Vs. N. Radhakrishnan JT 1998 (3) SC 123 wherein it has been held as under:-
It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
Further, he has relied upon the judgment of the Apex Court in P.V. Mahadevan Vs. M.D., T.N. Housing Board 2005 (6) SCC 636 wherein the Apex Court has considered its earlier judgments both in Bani Singhs case (supra) and Radhakishnans case (supra) and held as under:-
19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."
6. Further, he has relied upon the judgment of the Apex Court in the case of Food Corporation of India Vs. V.P. Bhatia (1998) 9 SCC 131 wherein it has been held as under:-
4. It is no doubt true that undue delay in initiation of disciplinary proceedings may cause prejudice to the employee concerned in defending himself and, therefore, the courts insist that disciplinary proceedings should be initiated with promptitude and should be completed expeditiously. The question as to whether there is undue delay in initiation of disciplinary proceedings or whether they are being unnecessarily prolonged has to be considered in the light of the facts of the particular case. On an examination of the facts of this case we find that the alleged misconduct came to light in April 1986 after the CBI carried surprise checks in April 1986 and the samples that were taken were found to be substandard by the Forest Research Institute, Dehradun. Thereafter, the CBI took up the investigation in the matter suo motu and submitted its report on 30-12-1988 wherein it recommended the holding of disciplinary proceedings against the employees concerned including the respondents. Shri Vivek Gambhir, the learned counsel for the appellants, has invited our attention to paragraph 1.7 of Chapter III of Volume I of the Vigilance Manual of the Central Vigilance Commission which has been adopted by the appellant-Corporation wherein it is stated;
'Once a case has been entrusted to the CBI for investigation further inquiries should be left to them and departmental inquiry, whether fact-finding or formal under the Discipline and Appeal Rules, if any, commenced already, should be held in abeyance till such time as the investigation by the CBI has been completed. Parallel investigation of any kind should be avoided. Further action by the administrative authority should be taken on the completion of the investigation by the CBI on the basis of their report'.
7. He has also stated that the Disciplinary Authority was pre-determined to punish the Applicant as he has categorically disagreed with the findings of the Enquiry Officer. What has been stated by the disagreement note by the Disciplinary Authority was as under:-
Whereas after careful examination of the said Inquiry Report the undersigned disagrees with the findings of Inquiry Officer in respect of Article I, III and IV.
By the aforesaid action, the Disciplinary Authority was acting in contravention of sub-rule (2) of Rule 15 of the CCS (CCA) Rules, 1965 which provides as under:-
(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
8. He has also stated that the Disciplinary Authority has violated the instructions issued in this regard by the Department of Personnel and Training vide its OM No.11011/22/1994-Estt(A) dated the 27th November, 1995. The relevant part of the said OM reads as under:-
that where the inquiring authority holds a charge as not proved and the disciplinary authority takes a contrary view, the reasons for such disagreement in brief must be communicated to the charged officer along with the report of inquiry so that the charged officer can make an effective representation. This procedure would require the disciplinary authority to first examine the report as per the laid down procedure and formulate its tentative views before forwarding the report of inquiry to the charge officer.
9. Further, he has submitted that identical Articles of Charge were issued to Shri V.K. Singh, Executive Engineer (Electrical) also by the Respondents vide its Memorandum No.C-14015/1/2003-Vig dated 31.05.2004 in connection with alleged irregularities committed in the construction of staff quarters at TV Centre, Bhopal. As in the case of the Applicant, the Inquiry Officer submitted his report on 03.02.2006 holding that all the six Articles of Charges have been not proved. The Disciplinary Authority has also held that Articles I, III and IV have been partly proved and referred the matter to the CVC for their second stage advice. The CVC vide their OM No.Y/I&B/7/34499 dated 05.09.2006 advised for imposition of suitable major penalty to Shri V.K. Singh. A copy of the aforesaid enquiry report dated 03.02.2006 along with reasons for disagreement note with Inquiry Officers report by the Disciplinary Authority and copy of the CVCs second stage advice dated 05.09.2008 was sent to the Shri V.K. Singh to make representation, if any, against it vide Respondents OM dated 21.09.2006. Shri Singh submitted his representation/letter dated 18.05.2007 but the same was rejected by the Disciplinary Authority and decided to impose one of the major penalties on him and the case was referred to the UPSC vide its letter dated 28.01.2008. UPSC on the other hand, vide their letter No.F.3/365/2007-S.I dated 17.09.2008 decided to exonerate the Applicant from the charges. Thereafter, the matter was referred to the Department of Personnel and Training for their advice but they advised that the Disciplinary Authority shall consider all the relevant aspect of the case, as also the recommendations of the CVC and their earlier stand in the mater by testing the same against the advice of the UPSC and record reasons for the final decision taken. Meanwhile, the Applicant (Shri V.K. Singh) has also moved OA No.409/2009 before this Tribunal and vide order dated 19.02.2009 this Tribunal disposed of the said OA by observing that if the enquiry has already been concluded and the Respondents shall pass final order expeditiously, preferably within a period of 4 months from the date of receipt of a copy of this order, subject to cooperation by the Applicant. Thereafter, the Disciplinary Authority passed its order dated 20.04.2009 exonerating Shri V.K. Singh from the charge leveled against him vide the Respondents memo dated 31.05.2004. However, the Disciplinary Authority took different views in the matter and exonerated Shri Singh. The Articles of Charges against him were as under:-
Article-I That the said Shri V.K. Singh while functioning as Executive Engineer (E), CCW, AIR, Bombay, during the period 1988-89 had made payment of secured advance for excess quantity of conduit than required for the work of construction of 6 nos. type-A, 40 Nos. Type B, 32 Nos. Type C, 24 Nos. Type D, 2 Nos. Type E with 2 Nos. Servant Quarters at T.V. Centre, Bhopal (SH: Internal E.I. & fans i/c Distribution Board, Lightening Conductor and street lighting).
By allowing excess quantity of conduits, an amount to the tune of Rs.38,820/- has been made as superfluous payment as secured advance on quantities measured higher than actually required at site.
Article-II That the said Shri V.K. Singh while functioning as Executive Engineer (E), CCW, AIR, Bombay, during the period 1988-89 had proposed the rates of conduit more than admissible, against the terms and conditions of the agreement for the work of construction of 6 nos. type-A, 40 nos. type B, 32 Nos. Type C, 24 Nos. Type D, 2 Nos. Type E with 2 Nos. Servant Quarters at T.V. Centre, Bhopal (SH: Internal E.I. & fans i/c Distribution Board, Lightening Conductor and street lighting).
Due to assessment of higher rates adopted for payment of secured advance, an overpayment to the tune of Rs.28,875/- was made, providing undue financial aid to the contractor.
Article-III That the said Shri V.K. Singh while functioning as Executive Engineer (E), CCW, AIR, Bombay, during the period 1988-89 had accepted the items of laying of underground cable which was not laid conforming to standard depth as specified in the specification of contract for the work of construction of 6 nos. type-A, 40 Nos. Type B, 32 Nos. Type C, 24 Nos. Type D, 2 Nos. Type E with 2 Nos. Servant Quarters at T.V. Centre, Bhopal (SH: Internal E.I. & fans i/c Distribution Board, Lightening Conductor and street lighting). He has also made payment for this item, and the payment was effect without full check measurement by EE (E) being the hidden and costly item.
Article-IV That the said Shri V.K. Singh while functioning as Executive Engineer (E), CCW, AIR, Bombay, during the period 1988-89 had accepted the item and made payment of street light poles of lesser diameter, and which were erected at less depth than specified in the contract specification for the work of construction of 6 nos. type-A, 40 Nos. Type B, 32 Nos. Type C, 24 Nos. Type D, 2 Nos. Type E with 2 Nos. Servant Quarters at T.V. Centre, Bhopal (SH: Internal E.I. & fans i/c Distribution Board, Lightening Conductor and street lighting). This act of Shri V.K. Singh lead to acceptance of substandard item.
Article-V That the said Shri V.K. Singh while functioning as Executive Engineer (E), CCW, AIR, Bombay, had released advance payment on hand receipt to the agency on 22-2-90 for an amount of Rs.50,000/- without initiating from sub-division and this amount had not been deducted from any bill of agency against the work of construction of 6 nos. type-A, 40 Nos. Type B, 32 Nos. Type C, 24 Nos. Type D, 2 Nos. Type E with 2 Nos. Servant Quarters at T.V. Centre, Bhopal (SH: Internal E.I. & fans i/c Distribution Board, Lightening Conductor and street lighting), under agreement No.266/EE(E)/BOM/CCW/88-90. Entries of this payment dated 22-2/90 had been recorded on the cover of the agreement after the entries of dated 22-6-92, i.e. 28 months later.
Later on Shri V.K. Singh, has intimated as SE(E) Nagpur that this payment was made against L.R.S. at AIR Dhule against work done but not measured.
The above action of Shri V.K. Singh, EE(E) is clear violation of powers for appropriation and re-appropriation of funds (para 2.5.4 of CPWD manual vol.II).
Article-VI That the said Shri V.K. Singh, EE(E), CCW, AIR Bombay has passed the Ivth RA bill of the agency for the work of construction of 6 nos. type-A, 40 Nos. Type B, 32 Nos. Type C, 24 Nos. Type D, 2 Nos. Type E with 2 Nos. Servant Quarters at T.V. Centre, Bhopal (SH: Internal E.I. & fans i/c Distribution Board, Lightening Conductor and street lighting), under No.266/EE(E)/BOM/CCW/88-90, on 22-6-92, for minus payment of Rs.(-) 46,336/-. But he did not make any effort to recover the amount for the agency. The Vth and final bill was prepared for Rs.(-) 45,996 and an amount of Rs.54698.00 i/c interest, has been deposited by the agency through a DD dated 22-10-94 followed by further deposit of Rs. 25,000/- on 21-2-95. Thus excess payment as advance had been made (though recovered later) to the agency allowing him undue financial benefit in violation of section 32 of CPWD Manual Vol.II.
10. Respondents in their reply have not controverted the factual position as stated by the Applicant in this OA. However, they have submitted that the charge sheet was issued to the Applicant based on the prima facie irregularities/lapses committed by him as brought out after having concluded the investigation in the matter. They have also submitted that in his representation dated 23.06.2009, Applicant has stated as under:-
My submission for this article is as under due to the hilly and rocky condition of Shimla Hills site digging up to the specified depth of 75 cm was not possible for the entire length of cable trench. The same I had mentioned in MB No.101 page 75 with remarks not laid properly, less depth digged.
These specific comments was recorded by me as JE (E) in the MB prior to the CTE inspection and bill was submitted to Shri G.S. Bhatti, AE (E) and the same was forwarded by him to Division office for pass and payment with proposing part rate Rs.25/- against full rate Rs.30/.
They have, therefore, submitted that it was a clear admission on the part of the Applicant that cable was not laid as per specification and division office could not assess the less depth of the cable, which was pointed out by the CTE and recovery was made subsequently. Further, according to them, even though the Inquiry Officer has held that the charges have not been proved, the Disciplinary Authority has issued the Disagreement Note dated 15.05.2009 with proper reasons. They have also stated that though there was delay in initiating the charge sheet, it was due to the fact that number of officers were involved in the process. Further, they have stated that in the case of Shri V.K. Singh the Disciplinary Authority has agreed to accept the advice of the UPSC to exonerate him.
11. We have heard the learned counsel for the Applicant Ms. Priyanka Bhardwaj with Shri M.K. Bhardwaj and the learned counsel for the Respondents Shri S.M. Arif. Admittedly, the charge against the Applicant relates to the period 1988-89 and the Memorandum of Charges was issued to him only on 21.08.2002, i.e., after a delay of nearly 12 years. Again, the disciplinary proceedings took another 8 more years till the Disciplinary Authority passed its order on 02.08.2010. Further, a full-fledged enquiry was held in the matter and the Inquiry Officer rendered a speaking and reasoned report that none of the charges leveled against the Applicant was proved. However, the Disciplinary Authority in an arbitrary manner held that three out of four charges have been partly proved. As submitted by the Applicant, such categorical assertion on the part of the Applicant is in violation of sub-rule (2) of Rule 15 of the CCS (CCA) Rules, 1965 which has been extracted above. The Department of Personnel and Training also in its OM OM No.11011/22/1994-Estt(A) dated the 27th November, 1995 has stated that when the Disciplinary Authority decides to disagree with the report of the Enquiry Officer, it shall record only tentative reasons for disagreement. The Apex Court in its judgment in the case of Punjab National Bank Vs. Kunj Behari Misra (1998) 7 SCC 84 held as under:-
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer.
12. The Apex Court reiterated the same view in Yoginath D. Begde vs. State of Maharashtra (1999) 7 SCC 739. The relevant part of the said judgment is as under:-
29.But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with.
13. The Honble High Court of Bombay in the case of Shumsunder Yashwant More v. State of Maharashtra decided on 13.07.2010 also held that the order of punishment passed by the disciplinary authority without considering the reply given by the petitioner cannot be sustained. The relevant part of the said order reads as under:-
8. At this stage, a reference is required to be made to the ruling of the Apex Court in the case of Punjab National Bank and Ors. V/s. Kunj Behari Misra, (1998) 7 SCC 84. In the said case, the Supreme Court found that the disciplinary authority differed from the findings of the inquiry officer, which report was in favour of the chargesheeted employee. It is found that in such cases, the disciplinary authority is required to give opportunity to the concerned delinquent. The Supreme Court in Para No. 18 of its judgment, held as under : -
"18. Under Regulation 6, the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry 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 impost the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry 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 inquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the inquiry 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 inquiry as explained in Karunakar case.
9. Considering the aforesaid aspect, the impugned orders are not sustainable and are required to be set aside. In the normal circumstances, we would have remanded the matter back to the disciplinary authority for passing fresh orders. However, it is pointed out that the petitioner has already attained the age of superannuation on 30-04-1997 i.e. two days after passing of the impugned order. It would now not be just and proper to remand the matter back to the disciplinary authority, as the petitioner already stands retired since more than 13 years. It is required to be borne in mind that the inquiry was initiated against the petitioner in the year 1989 and it was continued for more than 8 years while the petitioner was in service. In our view, it would not be just and proper to remand the matter back to the disciplinary authority and to start the proceedings from the stage from which it is found to be vitiated. The impugned orders of disciplinary authority as well as subsequent orders passed by the 1st and 2nd appellate authority, are accordingly set aside. Rule is made absolute in the aforesaid terms. Whatever benefits the petitioner is entitled to by virtue of this order, the same may be released to him within a period of twelve weeks from today.
14. The Punjab and Haryana High Court in its judgment dated 03.07.2003 in the matter of M.S. Chauhan Vs. State Bank of India 2003 4 SCT 577 has also held as under:-
If the punishing authority is differing with the findings of Inquiry Officer, who has exonerated the delinquent on all or a few charges and the punishing authority proposes to punish the delinquent on those charges, it is obligatory upon the punishing authority to issue a show cause notice to him giving reasons of his disagreement and proposed action and afford him an adequate opportunity in his defence.
15. The Apex Court in the case of Lav. Nigam vs. Chairman and Managing Director, I.T.I. and Ors.( 2006 SCC (L&S) 835) has also held as under:-
If a Disciplinary Authority differs with the findings of inquiry officer, he is bound to give a notice setting-out of his conclusion to the appellant. It is only after hearing the appellant, the Disciplinary Authority will arrive at a finding of guilt. If punishment is proposed another notice relating to, it is to be issued.
16. We have also seen that there were 4 Articles of Charges against the Applicant and 6 Articles of charges against Shri V.K. Singh. All the four Articles of Charges against the Applicant were identical to the first four charges leveled against Shri V.K. Singh. While the Applicant was working as a Junior Engineer (E), CCW AIR Bhopal during the year 1988-89, Shri V.K. Singh was working as EE (E) CCW AIR Bombay. The Applicant was working under the said Shri V.K. Singh. As in the case of the Applicant, the Inquiry Officer held in the case of Shri V.K. Singh also that the charges have not been proved but the Disciplinary Authority held a contrary view that those charges have been partly proved. However, finally accepting the advice of the UPSC to exonerate him, the Disciplinary Authority exonerated Shri V.K. Singh from all the charges but as the Applicants case was not referred to the UPSC for advice, the Disciplinary Authority on its own punished him. We, therefore, find that the Applicant has been discriminated even in the matter of awarding punishment even though the charges against him and Shri V.K. Singh were identical.
17. In the above facts and circumstances of the case, we allow this OA. Consequently, the disciplinary proceedings initiated against the Applicant vide the charge memo dated 21.08.2002, disagreement note of the Disciplinary Authority dated 15.05.2009, the impugned order of punishment passed by the Disciplinary Authority dated 02.08.2010 and the order passed by the Appellate Authority dated 02.04.2013 are quashed and set aside. We also direct the Respondents that the Applicant shall be given all the consequential benefits including promotion/up-gradation from the dates they were due to him. However, we make it clear that since the Applicant has not worked in any higher post, he will not be entitled for any arrears of pay and allowances. The Respondents shall comply with the aforesaid directions by passing necessary orders within a period of 2 months from the date of receipt of a copy of this order.
18. There shall be no order as to costs.
(P.K. BASU) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh