Central Administrative Tribunal - Ernakulam
Raju Jacob vs Kunj Behari Mishra (1998) 7 Scc 84 on 12 November, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A No. 569 / 2008 Thursday, this the 12th day of November, 2009. CORAM: HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER HON'BLE MR K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER Raju Jacob, (Ex-Gramin Dak Sevak/Mail Deliverer, Manasseri P.O., Kukkom Sub Office, Calicut District.) Residing at: Nadukkudiyil House, Sajma Quarters, Thashe Thiruvambadi, Tiruvambadi.P.O. Calicut Dist. ....Applicant (By Advocate Mr TC Govindawamy ) v. 1. Union of India represented by The Secretary to the Government of India, Ministry of Communications, (Department of Posts), New Delhi. 2. The Senior Superintendent of Post Offices, Department of Pots, Calicut Division, Calicut-673 003. 3. The Sub Divisional Inspector of Post Offices, Deprtment of Posts, Kunnamangalam Sub division, Kunnmangalam. 4. The Sub Divisional Inspector, Calicut North Sub Division, Calicut. 5. The Post Master General, Northern Region, Calicut. ....Respondents (By Advocate Mr TPM Ibrahim Khan, SCGSC ) This application having been finally heard on 15.10.2009, the Tribunal on 12.11.2009 delivered the following: O R D E R
HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER The applicant's grievance is against the Annexure A-1 order of the disciplinary authority dated 28.8.2007 imposing him with the penalty of removal from service and the Annexure A-2 order dated 30.6.2008 of the appellate authority confirming the aforesaid order.
2. Brief facts: Disciplinary action was initiated against the applicant under Rule 10 of the Department of Posts, Gramin Dak Sevaks (Conduct & Employment) Rules 2001 vide Annexure A-3 letter letter 3.3.2005. He was also placed on put off duty pending enquiry. The Sub Division Inspector, Calicut North Sub Division was empowered to function as the appointing authority of the applicant with all powers to impose any of the penalty specified in Rule 9 of the Department of Posts, Gramin Dak Sevaks (Conduct & Employment) Rules 2001. The appellate authority of the applicant was Senior Superintendent of Post Offices Calicut Division.
3. The Statement of Articles of charge framed against the applicant was as under:
"That the said Shri Raju Jacob, GDSMD II, Manasseri BO [put off duty] failed to return the value of the unpaid money orders amounting to Rs.7600/-entrusted to him on 03.12.04 to the BPM Manasseri on 4.12.04 and hence contravened Rule 121(3) of the Postal Manual Volume VI [Part III] Sixth Edition and thereby failed to maintain absolute integrity and devotion to duty as required under Rule 21 of the Gramin Dak Sevaks [Conduct & Employment] Rules 2001."
4. The statement of imputations of misconduct or misbehaviour in support of articles of charge framed against him was as under:
"GDS BPM, Mnasseri BO vide his letter dated 4.12.04 informed the SDI [Postal], Kunnamangalam that the said Shri Raju Jacob had not returned the unpaid Mos and balance cash on 04.12.04 [entrusted to him on 03.12.04 by the BPM]. Immediate field inquiries conducted by the SDI [Postal], Kunnamangalam revealed that an amount of Rs.9250/-with the under mentioned Money Orders and six Registered Letters entrusted to Shri Raju Nacob, GDSMD II, Manasseri BO on 03.12.04 by the BPM, Manasseri under acquittance obtained in the BO Journal.
MO Number Office of Amount Rs.
Booking A4679 Kollam 1000 1146 TKM College 1500 5202 Chengannur 75 3853 Puthenpalli 150 5610 Bangalore 2500 3022 CAMO 1000 297 Pudiyangadi 500 1425 Champakulam 3000 But the said Shri Raju Jacob had returned the money orders on 04.12.04 without making appropriate entries in his Postman's book. He also failed to return the cash Rs.9250/- obtained by him on 03.12.04 for effecting payment of Money Orders to the BPM on 04.12.04. But he did return the following Money Orders with signature available in the scape provided for payee's signature but without the paying official's signature MO Number Office of Amount Rs.
Booking 3022 Bangalore GPO 1000 2970 Pudiyangadi 500 3852 Puthanpalli 150 Total 1650 Shri Raju Jacob, GDSMD II, Manaseri vide his statement dated 07.12.04 before the SDI, Kunnamangalam Sub Dn admitted to have received the above particularised eight money orders and Rs.9250/- from the BPM Manasseri on 03.12.04 along with six registered letters for effecting payment/delivery. He asserted to have effected payment of the above particularised three money orders amounting to Rs.1650 but had returned without affixing paying officia''s signature. He also admitted not to have returned the balance amount of Rs.7600/-to the BPM, Manassery on 04.12.04. Payee's of these three money orders when contacted by the SDI, Kunnamangalam admitted correct payment. Accordingly, value of these three money orders was charged under MO payment at Manasseri BO on 12.01.05 hence total amount defrauded by the said Shri Raju Jacob, GDSMD II, Manasseri BO [POD] stands reduced to Rs.7600/-. He asserted to credit the said amount vide his statement dated 07.12.04 before the SDI, Kunnamanglam. By the above act of failure to make appropriate entries in his Postman's book on 03.12.04 and failure to return the value of the unpaid money orders to the tune of Rs.7600/-to the BPM, Manasseri on 04.12.04, it is imputed that Shri Raju Jacob, GDSMD II, Manasseri [POD] contravened the provisions of Rule 110 & Rule 121(3) of the Postal Manual Volume VI [Part.III] sixth edition and thereby afield to maintain absolute integrity and devotion to duty as required under Rule 21 of the Department fo Posts Gramin Dak Sevaks [Conduct & Employment] Rules 2001."
5. After detailed enquiry into the charges levelled against the applicant, the enquiry officer vide Annexure A-5 enquiry report dated 4.1.2006 held that the prosecution has failed to prove a single article of charge framed against the applicant beyond doubt. The operative part of the report is as under:
"The proceedings, after the questioning of CGDS by the IO came to an end with the final sitting held on 28.10.2006. In order to avoid a confronting debate, the PO was asked to give a written brief of his argument and accordingly, I was in receipt of the same on 21.11.2006. The CGDS was asked to prepare his defense consulting the written brief of the PO. The written defense has been received by me on 30.12.2006.
I have gone through the entire depositions, the proceedings, and the written briefs of both the prosecution and the defense, carefully and have heedfully analysed the outcome of each and every deposition. The points nearing to the fact raised by both sides were thoroughly examined and weighed with the above mentioned 5 point of determination or issues inviting decisions. Now I have to give my own finding about the preponderance of probability as the fact is inherent for want of reliable witnesses and valid documents.
Both the evidence adduced by the disguised document Ext.P13 and the dissonant deposition of PW II are the two elements standing in the way of finding out the fact. But sill, I find that the preponderance of probability is favouring the defense side. Definitely, the prosecution has failed to prove the single article of charge beyond doubt, framed against the CGDS, Shri Raju Jacob."
6. The Disciplinary Authority has furnished a copy of the aforesaid enquiry report to the applicant vide the Annexure A-6 letter dated 26.03.2007 asking him to make representation, if any, within 15 days. According to the applicant, as the enquiry report was in his favour he did not make any representation. The disciplinary authority, however, after some time, issued the Annexure A-7 letter dated 5.4.2007 stating that after detailed inquiry into the charge, the inquiry officer could not have come to the conclusion that the charge not proved. According to the disciplinary authority, the essence of the charge was that the applicant failed to return the value at Rs.7600/-of the unpaid money orders entrusted to him on 03.12.2004 to the GDSBPM, Manasseri as required in the relevant rules and since there was no evidence to prove that the applicant had returned the value of the unpaid money orders to the GDSBPM, the charge against him stood proved. The Disciplinary Authority has therefore, directed the applicant to submit his representation within 15 days.
7. Applicant made the Annexrue A-8 representation dated 18.4.2007 stating that he was under put of duty from 7.12.2004 onwards and it had tarnished his image and he was treated as a thief by the society and his family has been isolated. He has also invited the attention of the Disciplinary Authority to the Enquiry Report and stated that the charge was not proved and the depositions of the PW2 was dubious and requested the disciplinary authority to reinstate him in service. The following part of his aforesaid representation is extracted as under:
"I.O. has recorded the following "Exhibit P5 was very important in the inquiry point of view because it was closely related to the essence of the charge and the subject matter of the imputation of misconduct sustaining the charge. Being a record showing the handing over of returns by me, the presence of the same would have been proved highly valuable. The essence of the charge remains hidden on the original document and dubious depositions of PW 2 as assessed by I.O."
8. However, the disciplinary authority, vide the impugned Annexure A-1 order dated 28.8.2007 stated that the enquiry officer's report that the prosecution has failed to prove a single article of charge against the applicant beyond doubt was on the basis of some minor omission or commission which usually occur on the part of Prosecution Witness during the course of business and some inconsistencies in deposition with the statements. According to the disciplinary authority, the point to be proved was that the applicant had properly returned the articles, cash etc entrusted him on 3.12.2004 and the fact was that the applicant did not return the articles and cash in respect of 3 paid Mos. Moreover, the Postman book was not written. The Disciplinary Authority has also observed that the applicant had categorically admitted vide Exhibit P10 that he did not return the unpaid cash of Rs.9250/-entrusted to him on 3.12.2004 but later on he has stated that the said Exhibit 10 was obtained from him under coercion. The Disciplinary Authority has also held that the inconsistency in the date of deposition of PW-2 or other minor irregularities cannot offset the deeds of the applicant. He has, therefore, disagreed with the findings of the Inquiry Officer and stated that he firmly believed that the charge was reasonably proved. Accordingly he was removed from service.
9. In the Annexure A-9 appeal dated 29.9.2007 the applicant has stated that when the Sub Divisional Inspector, Calicut North Sub Division was empowered to function as the ad hoc appointing authority and the disciplinary authority and the Inquiry Officer and PO were appointed by him vide memo No.INU/3-2/04-05 dated 3.3.2005 and the inquiry report was submitted to Shri P Ajit Kumar, Inspector of Posts, Calicut North Sub Division and the penalty of removal from service was imposed upon him by SDI, Kunnamangalam. Hence the orders of the disciplinary authority was arbitrary and illegal. He has further stated that the disciplinary authority did not record any disagreement note while forwarding the inquiry report to him. But later on, he proposed to disagree with the finding of the Inquiry Officer because of the outside influences which tempted him to reverse his decision. He has alleged bias and conspiracy behind the disagreement note of the disciplinary authority. He has also alleged that the report was kept in the freezer till hearing of the court case was commenced as the inquiry report was released on 3.1.2007 but the disciplinary authority's order was delayed till 28.8.2007. The applicant has alleged that the disciplinary authority has taken a negative decision on the inquiry report only to convince the court. He has submitted that Exhibit P5 was closely related to the essence of the charge and the subject matter of the imputation of misconduct sustaining the charge. Being a record showing the handing over of returns by the applicant, the presence of the same would have been proved highly valuable. As the essence of the charge remained hidden and the depositions of PW2 was assessed as dubious, the Inquiry Officer he commented about Exhibit P10 as under:
"Had the statement of the CGDS been recorded in the presence of neutral witnesses and was it correctly describing the event of dispute, focusing the charge, the same would have helped to do away with the uncertainly to a good extent."
10. The applicant has also submitted that he was the sole bread winner of the family and his family consisting of wife and 2 children and his father aged 77 years and they are living in a rendered accommodation. He has, therefore, requested that the impugned order or removal from service be quashed and he be reinstated in service.
11. However, the appellate authority, vide Annexure A-2 order dated 30.6.2008 stated that even the applicant has never denied the charges levelled against him but he has only pointing out certain technical reasons, like non communication of the order appointing SDI(P), Kunnamangalam as DA, delay in issue of orders by the DA etc.
12. The applicant has challenged both the Disciplinary Authority's and Appellate Authority's orders on the ground that they are arbitrary, discriminatory, contrary to law, opposed to the principles of natural justice and hence, violative of the constitutional guarantees enshrined in Articles 14, 16 and 311(2) and, therefore, are liable to be set side by this Tribunal. He further submitted that the prosecution has failed to prove the charges beyond doubt against the applicant. His other contentions is that the disagreement note by the disciplinary authority is nothing but an after thought in as much as that when the Enquiry Officer's report was communicated to him, the Disciplinary Authority did not disagree with it. The disagreement note was issued only subsequently. According to him, if there was any disagreement with the findings of the Enquiry Officer that should have been communicated while forwarding the Inquiry Report itself and not later. Further, the applicant submitted that the Disciplinary Authority while disagreeing with the Inquiry Officer's report, shifted the onus on him. Moreover, the case of the disciplinary authority is not that the findings of the Inquiry Officer were perverse or they were not capable of being arrived at by any person of ordinary prudence.
13. The respondents in the reply have submitted that the actual Appointing/Disciplinary Authority was the Sub Divisional Inspector (Postal), Kunnamangalam and it was in its absence that the Sub Divisional Inspector Calicut North Sub Division was appointed as the Ad hoc Disciplinary Authority.
Later, when the said post was filled up, the said authority has completed the rest of the process of enquiry. As regards the disagreement with the Inquiry Officer's report was concerned, they have submitted that it was an omission that the disagreement was not conveyed to the applicant with the Disciplinary Authority's letter dated 26.03.2007 asking the applicant to submit his representation, if any, on the inquiry report furnished to him. But when the aforesaid omission was later noticed, the disagreement was communicated to him on 5.4.2007. They have also submitted that the Disciplinary Authority only after going through the Inquiry report, the representation of the applicant and other connected records has imposed the punishment of "removal from service" upon the applicant. Annexure A-9 appeal submitted by the applicant was rejected by respondent-2 vide Annexure A-2 memo, finding no reason to interfere. The imposition of the punishment and upholding the order of punishment awarded by the Appellate Authority were not violative of any constitutional guarantees enshrined in Article 14 and 16 as they were imposed after observing all formalities and giving every opportunity to the applicant to defend himself. The punishment awarded was for good and sufficient reasons and Annexure A-1 and A-2 memos are fully sustainable. The punishment commensurate with the charges leveled against the applicant. All facts connected with the case were considered before passing Annexure A-1 and A-2 orders. The punishment was imposed after giving every opportunity to the applicant to defend himself. There was no avoidable delay.
Charge sheet could not be issued immediately when the official was put off duty. Verification of the past work done by the official has to be completed first. After completing the past work verification, charge sheet under Rule 10 of the GDS (Conduct and Employment) Rules, 2001 was issued on 27.07.2005 vide Annexure A-4 memo. Inquiry Officer and Presenting Officer were appointed on 24.08.2005. The Inquiry Officer commenced the Inquiry on 28.09.2005 and final sitting was held on 28.10.2006. The Presenting Officer submitted the written brief on 20.11.2006. The applicant submitted his written brief on 29.12.2006 and Inquiry Report was submitted on 4.01.2007. Eligible amount of exgratia payment was also paid to the applicant during the period he was placed under put off duty. The rate of exgratia amount was also enhanced on review. They have also denied the contention of the applicant that the onus proving the innocence of the applicant was not shifted to him, alleged. He was given every opportunity to defend his case. The Disciplinary Authority's order was self explanatory with reasons for imposing the punishment. Reasons for rejecting the appeal preferred by the applicant were well explained in Annexure A-2 order as well. As per Rule 80 of the P&T Manual Vol.III, in the case of Extra Departmental Agents, (now Gramin Dak Sevak Agents), prosecution is the general rule when the loss exceeds the amount of security deposit. The applicant had furnished security bond for Rs.4000/- only but there was a loss of Rs.7600/-in this case and hence the same was reported to Police and there was nothing irregular in it. The police case was registered for criminal offence, whereas the departmental case was for violation of departmental rules and conduct rules. The order imposing the punishment and the order in appeal were issued after following the relevant rules on the subject and they are not based on surmises and conjuncture as alleged by the applicant. The Disciplinary Authority has every right to disagree with the findings of the Inquiry Officer in a departmental inquiry. They reiterated that the applicant was punished not because he had failed to prove his innocence but it was because he was found guilty of the charges on the basis of the evidences adduced during the inquiry. Every opportunity was given to the applicant to defend his case and there is no denial of natural justice or Constitutional guarantees.
14. We have heard the learned counsel on both sides. The charge against the applicant was that he failed to return the voucher of the unpaid money orders amounting to Rs.7600/-entrusted to him on 3.12.2004 by the BPM, Manasseri on 4.12.2004. According to the statement of imputations of misconduct, an amount of Rs.9250/-which was the value of 9 money orders were entrusted to him. He effected payment of Rs.1650/-only and the balance amount of Rs.7600/-was defrauded. There were 2 witnesses and 14 documents on the part of the prosecution to prove the above charges. According to the Inquiry Officer, neither there were any reliable witnesses nor any valid documents to prove the charge. The Enquiry Officer emphatically held that the prosecution failed to prove the charge beyond doubt. The Disciplinary Authority simply conveyed the Inquiry Officer's report to the applicant for enabling him to make a representation. As the report was in his favour, the applicant did not make any representation. Later the Disciplinary Authority stated that the essence of the charge was that the applicant had failed to return the value (7600/-) of the unpaid money orders entrusted to him on 3.12.2004 to the GDSBPM, Manasseri as required in the relevant rules and after detailed enquiry, there was no evidence to prove that he had properly returned to value of the unpaid money orders to GDSBPM. The Disciplinary Authority has, therefore, held that the charges against him stood proved. Thereafter, the Disciplinary Authority directed the applicant to submit his representation.
15. First of all, the Disciplinary Authority has not given any reasons as to why he disagreed with the Enquiry Officer. Its only contention of the Disciplinary Authority was that after detailed enquiry into the charge, the enquiry officer could not have held that the charge was not proved. Thereafter, the Disciplinary Authority has proceeded to say that the charge was proved. There was no effort on the part of the Disciplinary Authority to analyse the material on record afresh to come to a conclusion different from that of the Enquiry Officer. Such a finding is quite arbitrary and against the principles of natural justice as laid down by the Apex Court in cases like Punjab National Bank and others v. Kunj Behari Misra [(1998) 7 SCC 84], Bank of India & anr v. Degala Suryanarayana [JT 1999 (4) SC 489], Yoginath D Bagde v. State of Maharashtra and another [(1999) 7 SCC 739], S.B.I. and others v. Arvind K Shukla [2001 AIR SCW 2472] and Ranjith Singh v. Union of India and others [ (2006) 6 SCC 153].
16. In Kunj Behari Misra's case (supra), it was 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 enquiry 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 enquiry 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 enquiry 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 a representation before the disciplinary authority records its findings on the charges framed against the officer.
20. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants. While agreeing with the decision in Ram Kishan case we are of the opinion that the contrary view expressed in S.S.Koshal and M.C.Saxena cases do not lay down the correct law."
17. In Degala Suryanarayana's case (supra), it was held as under:
"10. The law is well settled. The Disciplinary Authority on receiving the report of the Enquiry Officer may or may not agree with the findings recorded by the latter. In case of disagreement, the Disciplinary Authority has to record the reasons for disagreement and then to record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the Enquiry Officer for further enquiry and report."
18. In Yoginath D Bagde's case (supra), it was held as under:
"30. Recently, a three-Judge Bench of this Court in Punjab National Bank & Ors. vs. Kunj Behari Mishra (1998) 7 SCC 84 = AIR 1998 SC 2713, relying upon the earlier decisions of this Court in State of Assam vs. Bimal Kumar Pandit (1964) 2 SCR 1 = AIR 1963 SC 1612; Institute of Chartered Accountants of India vs. L.K. Ratna & Ors. (1986) 4 SCC 537 as also the Constitution Bench decision in Managing Director, ECIL, Hyderabad & Ors. vs. B. Karunakar & Ors. (1993) 4 SCC 727 and the decision in Ram Kishan vs. Union of India (1995) 6 SCC 157, has held that:
"It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."
The Court further observed as under :
"When the enquiry is conducted by the enquiry 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 impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry 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 enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry 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."
The Court further held that the contrary view expressed by this Court in State Bank of India vs. S.S. Koshal 1994 Supp.(2) SCC 468 and State of Rajasthan vs. M.C. Saxena (1998) 3 SCC 385 was not correct.
31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution."
19. The Apex Court has reiterated the aforesaid position of law in Arvind K Shukla's case (supra), the Apex Court held as under:
"...the disciplinary authority has disagreed with the conclusion and findings arrived a by the inquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and given to the delinquent officer an opportunity to represent before it recorded its ultimate findings. This question is concluded by a 3-Judge Bench decision of this Court in the case of Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84: (1998) AIR SCW 2762:AIR 1998 SC 2713:
1998 Lab IC 3012:1998 All LJ 2009). The Bench in the aforesaid case relied upon the earlier decision in the Institute of Chartered Accountant case (AIR 1987 SC 71) as well as the Ram Kishan case (1995AIR SCW 4027: AIR 1996 SC 255) and came to hold that the view expressed in S.S.Koshal (1994 AIR SCW 2901) and M.C.Saxena (1998 AIR SCW 965: AIR1998 SC 1150:
1998 Lab IC 1038) cases do not lay down the correct law."
20. In Ranjith Singh's case also the Apex Court held as under:
"20. In Punjab National Bank and Others v. Kunj Behari Misra [(1998) 7 SCC 84], this Court has clearly held that the principles of natural justice are required to be complied with by the Disciplinary Authority in the event he intends to differ with the findings of the Enquiry Officer observing:
"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 enquiry 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 enquiry 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 enquiry 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 a representation before the disciplinary authority records its findings on the charges framed against the officer."
21. The said decision has been followed by this Court in State Bank of India and Others v. K.P. Narayanan Kutty [(2003) 2 SCC 447], wherein it was clearly held that in such an event the prejudice doctrine would not be applicable stating:
"6... In para 19 of the judgment in Punjab National Bank case extracted above, when it is clearly stated that the principles of natural justice have to be read into Regulation 7 (2) [Rule 50(3)(ii) of the State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case] and the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court."
22. In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the Disciplinary Authority. He was also required to apply his mind to the materials on record. The Enquiry Officer arrived at findings which were in favour of the Appellant. Such findings were required to be over turned by the Disciplinary Authority. It is in that view of the matter, the power sought to be exercised by the Disciplinary Authority, although not as that of an appellate authority, but akin thereto. The inquiry report was in favour of the Appellant but the Disciplinary Authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was obligatory on his part, in absence of any show cause filed by the Appellant, to analyse the materials on records afresh. It was all the more necessary because even the CBI, after a thorough investigation in the matter, did not find any case against the Appellant and thus, filed a closure report. It is, therefore, not a case where the Appellant was exonerated by a criminal court after a full fledged trial by giving benefit of doubt. It was also not a case where the Appellant could be held guilty in the disciplinary proceedings applying the standard of proof as preponderance of the probability as contrasted with the standard of proof in a criminal trial, i.e., proof beyond all reasonable doubt. When a final form was filed in favour of the Appellant, the CBI even did not find a prima facie case against him. The Disciplinary Authority in the aforementioned peculiar situation was obligated to apply his mind on the materials brought on record by the parties in the light of the findings arrived at by the Inquiry Officer. He should not have relied only on the reasons disclosed by him in his show cause notice which, it will bear repetition to state, was only tentative in nature. As the Appellate Authority in arriving at his finding, laid emphasis on the fact that the Appellant has not filed any objection to the show cause notice; ordinarily, this Court would not have exercised its power of judicial review in such a matter, but the case in hands appears to be an exceptional one as the Appellant was exonerated by the Inquiry Officer. He filed a show cause but, albeit after some time the said cause was available with the Disciplinary Authority before he issued the order of dismissal. Even if he had prepared the order of dismissal, he could have considered the show cause as it did not leave his office by then. The expression "communication" in respect of an order of dismissal or removal from service would mean that the same is served upon the delinquent officer. [See State of Punjab vs. Amar Singh Harika, AIR 1966 SC 1313]"
21. Another aspect of the orders of the Disciplinary Authority is that in the absence of any valid evidence adduced by the prosecution witnesses against the applicant as per the report of the Enquiry Officer, it shifted the onus on the applicant and held that it was for him to prove that the charge against him was false. It only shows that there was no evidence before the Disciplinary Authority to prove the charge levelled against the applicant. Therefore, any order of penalty imposed upon the applicant is without having the charge against him is a perverse one. In Kuldeep Singh v. The Commissioner of Police and others [AIR 1999 SC 677], the Apex Court has held as under:
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse, But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be the conclusions would not be treated as perverse and the findings would not be interfered with."
22. We, therefore, allow the O.A. The impugned Annexure A-1 penalty order dated 28.8.2007 issued by the 3rd respondent and the impugned Annexure A-2 Appellate Order dated 30.6.2008 issued by the 2nd respondent are quashed and set aside. The respondents shall reinstate the applicant back to service with all consequential benefits including arrears of pay and allowances, as if the penalty advice memo dated 28.8.2007 and appellate order dated 30.6.2008 were not issued at all. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
K.GEORGE JOSEPH GEORGE PARACKEN ADMINISTRATIVE MEMBER JUDICIAL MEMBER trs