Hon'ble Saurabh Lavania,J.
(As per Hon'ble Saurabh Lavania,J.) Heard Sri Amit Sharma, learned counsel for the petitioners and Sri R.C. Saxena, learned counsel for the opposite parties.
By means of the present writ petition, the petitioners have challenged the judgment and order dated 13.09.2005, passed in the Original Application No. 256 of 2005 (in short "OA") (Sati Nath Khan v. Union of India and others) filed before the Central Administrative Tribunal, Lucknow Bench, Lucknow (in short "Tribunal") under Section 19 of the Administrative Tribunal Act, 1985.
The Tribunal while passing the impugned order dated 13.09.2005 considered the issue related to disagreement memo issued by the Disciplinary Authority to the applicant-respondent through the letter dated 08.06.2004 in relation to the findings recorded by the Enquiry Officer in the Enquiry Report submitted by him vide letter dated 16.04.2003. The Tribunal while partly allowing the OA considered the disagreement memo in the light of the decision of the Apex Court in the case of Yoginath D. Bagde v. State of Maharashtra and another; (1999) 7 SCC 739. The Tribunal while partly allowing the OA recorded the specific observation, which reads as under:-
"In the light of the decision of the Apex Court in Yogi Nath D. Bagde v. State of Maharashtra JT 1999 (7) SC-62, if before disagreeing with the Enquiry Officer the disciplinary authority has not followed the due process of law it vitiates the order of punishment. Non following the due process and denial of reasonable opportunity has caused prejudice to applicant and is infraction to the principle of natural justice, which are inbuilt in the Rules if not specifically provided.
In the light of our taking a final view of the matter, the applicant has been denied opportunity to show cause."
The Tribunal after interfering in the order of punishment imposing the punishment of compulsory retirement, affirmed in the appeal, passed by the Disciplinary Authority as well as the Order of Appellate Authority, granted the liberty to the petitioners to proceed in the matter in accordance with law. The operative portion of the impugned order dated 13.09.2005 is quoted below for ready reference:-
"In the light of the decision in Bagde case (supra) and the disagreement of the disciplinary authority with the enquiry officer, this O.A. is partly allowed on this issue. The order imposing the compulsory retirement as affirmed in appeal is set aside. The respondents are directed to forthwith reinstate the applicant in service. However, if so advised, the respondents may proceed in accordance with law. The intervening period shall be regulated as per rules and regulation on the subject. No costs."
Aggrieved by the Order dated 13.09.2005, the petitioners have filed the present writ petition.
The brief facts of the case, which are relevant for the purposes of the proper adjudication of the issue involved, which relate to "disagreement memo" as well as the present writ petition, are to the effect that the disciplinary proceedings were initiated against the applicant-respondent vide charge-sheet dated 08.05.2002. At the time of issuance of charge-sheet, the applicant-respondent was working on the post of Reservation Clerk in the Northern Railway at Lcuknow. Needless to say that the applicant-respondent prior to issuance of the charge-sheet dated 08.05.2002, was suspended vide order dated 18.10.2001. It appears from the charge-sheet that against the applicant-respondent, three charges were levelled. The same reads as under:-
"(1) He defrauded the Rly. by manipulating in BPT No. 671646 as he had indicated Rs.4410-00 passenger foil, whereas record foil showing amounting Rs.107-00 only. Thus by fraudulently means he pocketed rs.4303-00.
(2) He intentionally mislead the requisition from on which he generated PNR No.213-0435999 of zero amount against BPT No.671646 which was manipulated by him.
(3) To cover-up his fraudulent activity, he has prepared a requisition form in the name of Rani Jha of 3050 dated 15/3/00 from LKO to Sakaldia and kept on record so as to justified that BPT amounting Rs. 107-00, but no such name of BPT No. found indicated in the chart of 3050."
With regard to conducting the disciplinary proceedings pursuant to the charge-sheet dated 08.05.2002, Sri S.P. Sethi, Enquiry Officer was appointed by the Disciplinary Authority. The Enquiry Officer conducted the disciplinary proceedings and after considering the relevant material on record before him, submitted his Report to the Disciplinary Authority. The copy of the Enquiry Report was also provided to the applicant-respondent vide letter dated 16.04.2003.
It is pertinent to point out here that the Enquiry Officer exonerated the applicant-respondent with respect to all the charges levelled against the applicant-respondent in the charge-sheet. The relevant portion of the Enquiry Report is quoted below for ready reference:-
"Conclusion and Findings.
For the reasons recorded, I have come to the conclusion that:-
Charge-1. Stands not proved.
Charge-2. Stands not proved.
Charge-3. Also stands not proved."
The Disciplinary Authority considered the Enquiry Report and on being dissatisfied with the findings recorded by the Enquiry Officer, issued the disagreement memo to the applicant-respondent vide letter dated 08.06.2004. As issue involved in the present case is related with the disagreement memo, so the same is reproduced hereunder:-
"After going through the enquiry report, relied upon documents (RUDs) and proceedings of the enquiry, my considered views are as under:-
The charges brought out against Sh. S.N. Khan, ERC/LKO are as under:-
1. Article No.1 He defrauded the Railway by manipulating via BPT No.671646 as he had indicated Rs. 4410/- in passenger foil whereas record foil showed amount of Rs. 107/- only. Thus, by fraudulent means he pocketed Rs. 4309/-.
IO in his enquiry report has concluded that the charge remains unsubstantiated. The reason for this charge remaining unsubstantiated, as indicated in the enquiry report, is the absence of original RUDs. IO has also referred the judgment of the Hon'ble CAT directing the Rly to produce original RUDs.
Upon perusal of Hon'ble CAT's judgment, it is observed that the documents to be produced in original are not specifically mentioned. Therefore, IO has erred in his judgment wherein instaed of examining the defence vis a vis the article of charges brought out, he has mis interpreted Hon'ble CAT's judgment without making reference to the demand of the C.O. submitted during enquiry in line with Hon'ble CAT's directives.
It is noted from the proceedings of the enquiry that in his defence statement Sh. S.N. Khan had pointed out that documents referred to at S.Nos.1, 2 and 4 of Annexure-III of the charge sheet were required to be produced in original. The documents listed at S.Nos.1, 2 & 4 of Annexure-III are as under: -
1. PNR No.213-0435999 of AC 3 tier ex NZM to SBC.
2. Passenger foil of BPT No.671646 dated 24.03.2000.
3. TDL No.045616 issued by SS/JHS against PNR No.213-0435999 dated 19.04.2000.
It is observed from the above that original BPT, TDR and PNR existed. It is also a matter of record that Sh. A.K. Saxena, CVI/N.Rly. had visited CCM/Refund Office/C.Rly., on 16.11.2000, during investigations in this regard. Sh. A.K. Saxena, CVI/N.Rly was successful in obtaining photocopies of these documents, which is on record. It appears that the originals were misplaced during transit in dak from C. Rly. Vigilacne to N.Rly. Vigilance. However, I am inclined to give benefit of doubt to Sh. S.N. Khan, ERC/LKO since prosecution could not produce these 3 original demanded RUDs after their misplacement/loss in transit, in line with Hon'ble CAT's judgment. I agree with the IO's findings in respect of this charge.
Article No.11 He intentionally misplaced the requisition on which he generated PNR No.2130-0435990 of zero amount against BPT.
IO in his enquiry report has concluded that the charge remains unsubstantiated. The reason for this charge remaining unsubstantiated, as indicated in the enquiry report, is the absence of original BPT. IO has accepted plea of the CO that he kept it on record and how it was misplaced he was not responsible.
In this context, perusal of enquiry proceedings reveals the fact that there was manipulation in the BPT. Defence has never disputed this fact that there was manipulation in the BPT. CO during general examination by IO had admitted in reply to Q.NO.4 that some body might have played a mischief and might have booked on 24.03.00 when he had gone out for urinal or for drinking water.
The plea of the CO is not acceptable due to the following reasons:-
(i) There is a provision of temporary locking of the computer by the operator, which is resorted to by the operator in case he has to leave the seat for any emergency. CO should have locked it while leaving his seat. It is further noted that C.O. has failed to provide details of documentary evidence to support his claim. Clearly it is an after thought, which has no legs to stand in the eyes of law.
(ii) BPT book remains in the personal custody of the person to whom it is issued. How any other person can have access to this BPT book and at the same time the person concerned would exactly know the BPT no. issued on 15.3.2000 and make reservations on this BPT on 24.3.2000 during the brief spell of absence of the C.O. is a mystery.
(iii) Sh. S.N. Khan, ERC/LKO in his statement vide Ex P-5 (A) had stated that he new Dr. Renu Makkar personally. It was the same person in whose name reservation was made on BPT No.671646 ex NZM to SBC dated 24.03.2000. Sh. S.N. Khan, ERC/LKO had further admitted that he had issued PNR NO.213-0435999 by train NO.2430 ex NZM to SBC.
(iv) Sh. S.N. Khan, ERC/LKO did not use double-sided carbon for preparing BPT as evident from the office copy of the BPT NO.671646, which bears the amount of Rs.107/-. In his defence, Sh. S.N. Khan has submitted that double sided carbon paper had not been issued by the office. The explanation of Sh. Khan is hardly tenable in view of the fact that use of double-sided carbon is a normal practice and under the circumstances of the case, it appears to be a deliberate attempt on the part of Sh. Khan to hide his mis deeds.
Under the above circumstances, misplacement of requisition form clearly indicates that it was an intentional act done deliberately with malafide intentions.
In view of the facts, evidence on record and circumstances brought out as above, I do not agree with the findings of the IO in respect of this charge since he has failed to analyse the evidence on record. I hold the CO guilty of this charge.
Article No.III To cover up this fraudulent activity, he had prepared a requisition form in th name of Ms. Rani Jha in train no.3050 dated 15.03.2000 ex LKO to Sakaldia and kept on record so as to justify the BPT amounting to Rs. 107/- but no such name or BPT no. was found indicated in the chart of train no.3050.
IO in his enquiry report has concluded that the charge remains unsubstantiated. The reason for this charge remaining unsubstantiated, as indicated in the enquiry report, is the non-availability of original BPT. IO has not accepted the prosecution plea that the CO had prepared requisition in the name of Ms. Rani Jha in train No. 3050 dt. 15.3.2000 to cover up his fraudulent activity.
CO did not dispute issue of BPT No. 671646 amount Rs. 107/- dt. 15.3.2000 ex LKO to Sakaldia. CO also did not dispute making reservation for the passenger concerned by generating PNR of zero amount on the strength of BPT No. 671646 amount Rs. 107/- dt. 15.3.2000. CO has further submitted that the reason for non-existence of the name of Ms. Rani Jha in the chart of train No. 3050 is that he had made the entry in the working chargt.
Ex P-8 is the requisition form said to have been submitted by the passenger fro reservation in train No. 3050. Perusal of Ex P-8 reveals that it does not indicate the authority on the strength of which reservation was made by generating PNR of zero amount. Even if BPT No. was endorsed by the CO in the working chart, the same ought to have been indicated in the requisition form, which was mandatory in view of the fact that zero amount PNR was being generated. Non-indication of BPT no on Ex P-8 clearly indicates malafides on the part of the CO as brought out in the charge sheet.
In view of the facts, evidence on record and circumstances brought out as above, I do not agree with the findings of the IO in respect of this article of charge since he has failed to analyse the evidence on record. I hold the CO guilty of this charge.
In view of the facts, evidence on record and circumstances as brought out and discussed above, I do not agree with the findings of the IO in respect of the article of charges II & III. I hold Sh. S.N. Khan, ERC/LKO guilty of the charges brought out against him under article of charges II & III."
After the issuance of the disagreement memo, the applicant-respondent submitted his detailed reply dated 08.07.2004. Thereafter, the Disciplinary Authority vide order dated 28.10.2004 awarded the punishment of compulsory retirement from Railway services.
The applicant-respondent aggrieved by the order dated 28.10.2004, filed the departmental appeal and the Appellate Authority dismissed the appeal vide order dated 10.02.2005.
Aggrieved by the orders dated 28.10.2004 and 10.02.2005, the applicant-respondent filed an OA No. 256 of 2005 before the Tribunal at Lucknow, which was partly allowed vide impugned judgment and order dated 13.09.2005.
While entertaining the present writ petition, this Court has passed an interim order in favour of the petitioners on 04.01.2006, which reads as under:-
"Sri Prayas Srivastava, who has filed short counter affidavit on behalf of opposite party No. 1 is directed to file counter affidavit within three weeks. The petitioner may file rejoinder affidavit within two weeks thereafter.
List/put up this case on 07.03.2006, on which date the petitioner's counsel shall produce the record relating to the disciplinary enquiry.
Till then the impugned judgment and order dated 13.9.2005 passed by the Central Administrative Tribunal, Lucknow, shall remain in abeyance. The petitioner shall pay all the retiral benefits, which are payable to an employee against whom compulsory retirement order has been passed and the opposite party No. 1 shall complete the necessary formalities at the earliest."
Assailing the judgment and order dated 13.09.2005, passed by the Tribunal, Sri Amit Sharma, learned counsel for the petitioners, on the basis of the pleadings on record, submitted that the Tribunal misread the material on record. The applicant-respondent, in enquiry proceedings, was given full opportunity in accordance with provisions of the Railway Servants (Discipline & Appeal) Rules, 1968 and principles of natural justice to defend himself in the disciplinary proceedings were followed. Even the Disciplinary Authority and Appellate Authority, while dealing with the case of the applicant-respondent, applied their mind.
He further submitted that the Tribunal has acted illegally as an Appellate Authority and looked into the material on which the Competent Authority arrived at a conclusion that the applicant-respondent is guilty of charges levelled against him.
He further submitted that the Tribunal has failed to take note of the fact that the reasons recorded by the Disciplinary Authority were sound and the applicant-respondent had failed to satisfy by means of representation dated 08.07.2004. Otherwise also, the applicant-respondent could not satisfy that as to what prejudice has been caused to him.
He further submitted that the Tribunal has failed to appreciate that the Disciplinary Authority acted in accordance with the settled position of law and communicated a detailed disagreement memo indicating the reasons for disagreement from the finding of the Enquiry Officer.
It is further submitted that the Tribunal has failed to take note of the fact that the disagreement memo prepared by the Disciplinary Authority was clear on each issue and the same does not suffer from any lacuna especially when the applicant-respondent responded in response to the said disagreement memo and preferred a representation dated 08.07.2004.
Learned counsel for the petitioners lastly submitted that the Tribunal has erred in applying the ratio of Yoginath D. Bagde's case in the present matter. In the matter of Yoginath D. Bagde, the Disciplinary Authority had failed to issue any disagreement memo whereas in the present case, the Disciplinary Authority had issued a detailed disagreement memo to the applicant-respondent.
Per contra, learned counsel for the applicant-respondent, Sri R.C, Saxena submitted that the case of the petitioners is squarely covered under the judgment passed in the case of Yoginath D. Bagde (supra).
In order to support his submissions, learned counsel for the applicant-respondent placed relevant contents of the disagreement memo, which are quoted hereinabove. On the basis of the contents of the disagreement memo as well as the law laid down by the Apex Court in the case of Yoginath D. Bagde (supra), learned counsel for the applicant-respondent submitted that the tentative reasons of disagreement to the findings recorded by the Enquiry Officer are required to be mentioned in the disagreement memo and if the Disciplinary Authority records a conclusion/finding then it would be improper and illegal and would be violative to the principles of natural justice. He pointed out that after recording reasons, the Disciplinary Authority in the disagreement memo has recorded specific conclusion/finding with respect to the charge Nos. 2 and 3 levelled against the applicant-respondent.
Learned counsel for the applicant-respondent further submitted that considering the conclusion drawn by the Disciplinary Authority as well as the findings recorded in the disagreement memo by the Disciplinary Authority, the Tribunal interfered in the impugned orders and passed the judgment and order dated 13.09.2005, under challenge.
It is further submitted that the Tribunal has followed the law laid down by the Apex Court, which is applicable in the facts and circumstances of the case and as such, there is no illegality and infirmity in the impugned order dated 13.09.2005.
It is further submitted that at the time of filing of OA, the applicant-respondent was 56 years old i.e. in the year 2005 and during the pendency of the writ petition, the applicant-respondent has attained the age of superannuation, as such, in the interest of substantial justice, the matter may not be remanded back to the petitioners to reanimate the issue. Accordingly, the prayer is to dismiss the writ petition.
We have considered the rival submissions of learned counsel for the parties and gone through the record carefully.
We are not dwelling on other issues involved in the present writ petition, as the learned counsel for the parties have addressed this Court only on the issue related to the disagreement memo issued by the Disciplinary Authority and considered by the Tribunal while partly allowing the OA of the applicant-respondent.
As the Tribunal has relied upon the principles settled by the Apex Court in the case of Yoginath D. Bagde (supra), as such, we think it proper to reproduce the relevant portion of the same:-
"28. 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.
29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the disciplinary authority to disagree with the findings of the enquiring authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The rule does not specifically provide that before recording its own findings, the disciplinary authority will give an opportunity of hearing to a delinquent officer. 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 the disciplinary authority finally disagrees with the findings of the enquiring 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 enquiring 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 enquiring 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 enquiring authority are not germane and the finding of "not guilty" already recorded by the enquiring authority was not liable to be interfered with.
30. Recently, a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Misra [(1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] relying upon the earlier decisions of this Court in State of Assam v. Bimal Kumar Pandit [AIR 1963 SC 1612 : (1964) 2 SCR 1] , Institute of Chartered Accountants of India v. L.K. Ratna [(1986) 4 SCC 537 : (1986) 1 ATC 714] as also the Constitution Bench decision in Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] and the decision in Ram Kishan v. Union of India [(1995) 6 SCC 157 : 1995 SCC (L&S) 1357 : (1995) 31 ATC 475] has held that: (SCC p. 96, para 17) "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: (SCC p. 96, para 18) "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 v. S.S. Koshal [1994 Supp (2) SCC 468 : 1994 SCC (L&S) 1019 : (1994) 27 ATC 834] and State of Rajasthan v. M.C. Saxena [(1998) 3 SCC 385 : 1998 SCC (L&S) 875] 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.
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.
35. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to the findings on the two charges framed against him, the principles of natural justice, as laid down by a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Misra [(1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] referred to above, were violated.
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 [(1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : 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."
In the case of S.P. Malhotra Vs. Punjab National Bank, reported in (2013) 7 SCC 251: (2013) 2 SCC (L & S) 673, the Apex Court reiterated the earlier view on the issue related to disagreement memo. The relevant paras read as under:-
"13. In ECIL [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] , only the first issue was involved and in the facts of this case, only second issue was involved. The second issue was examined and decided by a three-Judge Bench of this Court in Kunj Behari Misra [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] wherein the judgment of ECIL [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] has not only been referred to, but extensively quoted, and it has clearly been stipulated that wherein the second issue is involved, the order of punishment would stand vitiated in case the reasons so recorded by the disciplinary authority for disagreement with the enquiry officer had not been supplied to the delinquent and his explanation had not been sought. While deciding the said case, the Court relied upon the earlier judgment of this Court in Institute of Chartered Accountants of India v. L.K. Ratna [(1986) 4 SCC 537 : (1986) 1 ATC 714 : AIR 1987 SC 71] .
14.Kunj Behari Misra [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] itself was the case where the disciplinary authority disagreed with the findings recorded by the enquiry officer on 12-12-1983 and passed the order on 15-12-1983 imposing the punishment, and immediately thereafter, the delinquent officers therein stood superannuated on 31-12-1983. In Kunj Behari Misra [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] this Court held as under: (SCC p. 97, para 19) "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."
(emphasis supplied)
15. The Court further held as under: (Kunj Behari Misra case [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] , SCC p. 97, para 21) "21. Both the respondents superannuated on 31-12-1983. During the pendency of these appeals, Misra died on 6-1-1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings."
16. The view taken by this Court in the aforesaid Kunj Behari Misra case [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] has consistently been approved and followed as is evident from the judgments in Yoginath D. Bagde v. State of Maharashtra [(1999) 7 SCC 739 : 1999 SCC (L&S) 1385 : AIR 1999 SC 3734] , SBI v. K.P. Narayanan Kutty [(2003) 2 SCC 449 : 2003 SCC (L&S) 185 : AIR 2003 SC 1100] , J.A. Naiksatam v. High Court of Bombay [(2004) 8 SCC 653 : 2004 SCC (L&S) 1190 : AIR 2005 SC 1218] , P.D. Agrawal v. SBI [(2006) 8 SCC 776 : (2007) 1 SCC (L&S) 43 : AIR 2006 SC 2064] and Ranjit Singh v. Union of India [(2006) 4 SCC 153 : 2006 SCC (L&S) 631 : AIR 2006 SC 3685] .
17. In Canara Bank v. Debasis Das [(2003) 4 SCC 557 : 2003 SCC (L&S) 507 : AIR 2003 SC 2041] this Court explained the ratio of the judgment in Kunj Behari Misra [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] , observing that it was a case where the disciplinary authority differed from the view of the inquiry officer.
"26. ... In that context it was held that denial of opportunity of hearing was per se violative of the principles of natural justice." (Debasis Das case [(2003) 4 SCC 557 : 2003 SCC (L&S) 507 : AIR 2003 SC 2041] , SCC p. 578, para 26)
18. In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] ."
In the light of the judgment rendered by the Apex Court with regard to issuance of "Disagreement Memo", we hold as under:-
(i) An opportunity of hearing has to be given to a charged employee for reversing the findings of the Enquiry Officer.
(ii) Denial of opportunity of hearing to the charged employee before reversing the findings of Enquiry Officer would be violative of the principles of natural justice. Requirement of affording of opportunity of hearing is a consequential right to be heard.
(iii) Disciplinary Authority before framing its final opinion, has to convey its tentative reasons for disagreeing with the findings of Enquiry Officer to the charged employee and ask for his reply.
(iv) After taking note of reply, if any, to the tentative reasons for disagreeing with the findings of Enquiry Officer provided to the charged employee, the reasoned and speaking order has to be passed.
The Hon'ble Apex Court in the case of K.I. Shephard v. Union of India; (1987) 4 SCC 431 in regard to principle of opportunity of hearing held as under:-
"15. Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment."
In the light of principles settled on the issue related to reversing of findings of Enquiry Officer and issuance of disagreement memo, we have to consider the disagreement memo for coming to the conclusion that whether the same is in accordance with law or not. Accordingly, we would like to quote the relevant portion of the disagreement of memo, which reads as under:-
"In view of the facts, evidence on record and circumstances brought out as above, I do not agree with the findings of the IO in respect of this article of charge since he has failed to analyse the evidence on record. I hold the CO guilty of this charge.
In view of the facts, evidence on record and circumstances as brought out and discussed above, I do not agree with the findings of the IO in respect of the article of charges II & III. I hold Sh. S.N. Khan, ERC/LKO guilty of the charges brought out against him under article of charges II & III."
From the above quoted portion of the disagreement memo, it is apparent/evident that the Disciplinary Authority before considering the reply of the charged employee has recorded the findings/conclusion and by the same reversed the findings of the Enquiry Officer. The same is contrary to settled principles of Law.
Considering the principles laid down by the Apex Court in the above referred judgments as well as the conclusion drawn by the Disciplinary Authority, quoted hereinabove, in the disagreement memo, we find that the present case is squarely covered under the aforesaid judgments.
For foregoing reasons, we do not find any force in the submissions of the learned counsel for the petitioners, Sri Amit Sharma to the effect that the case of the applicant-respondent is on different footing and the ratio laid down by the Apex Court in the case of Yoginath D. Bagde (supra) would not apply.
For the reasons and findings recorded hereinabove, we are of the view that the interference is not required in the judgment and order passed by the Tribunal. The writ petition for it lacks merit. Hence, dismissed with no order as to costs.
However, in fact of the case i.e. age of litigation and litigant, we are not remitting the matter back to the petitioners for considering the case of the applicant-respondent in accordance with law. In the interest of substantial justice, we direct that the period w.e.f. the date of order of punishment till attaining the age of superannuation would only be counted for the purposes of pensionary/post retiral dues and other benefits and the applicant-respondent would not be entitled for the salary with respect to the said period.
Order Date :- 27.09.2019 Arun/-