Goutam Debnath vs Hon‟Ble High Court Of Tripura And Ors

Arindam Lodh, J

Assailing the impugned order of penalty dated 01.07.2016 withholding the next three increments of pay without cumulative effect, the petitioner, who is a Grade-I Judicial Officer, has presented the writ petition before this Court with the following prayers:

"i. Issue Rule, calling upon the official respondents and each one of them, to show cause as to why a Writ of Certiorari and/or in the nature thereof, shall not be issued, for calling for the records, lying with them for rendering substantive and conscionable justice to the petitioner, for quashing/setting aside the impugned Order of Disagreement dated 03.06.2016 & the impugned Notification dated 01.07.2016 (Annexure-P16 & Annexure-P18 respectively supra);

ii. Issue Rule, calling upon the official respondents and each one of them, to show cause as to why a Writ of Mandamus and/or in the nature thereof, shall not be issued, for mandating/directing them, to revoke/rescind the impugned Order of Disagreement dated 03.06.2016 & the impugned Notification dated 01.07.2016 (Annexure-P16 & annexure-P18 respectively supra);

iii. Issue Rule, calling upon the official respondents and each one of them, to show cause as to why a Writ of Prohibition and/or in the nature thereof, shall not be issued, for prohibiting/restricting them, from acting in any manner, in furtherance of the impugned Order of Disagreement dated 03.06.2016 & the impugned Notification dated 01.07.2016 (Annexure-P16 & annexure-P18 respectively supra);

iv. Call for the records, appertaining to this petition;

v. After hearing the parties be pleased to make the Rule absolute in terms of i. to iii. above;

vi. Any other Relief(s) as to this Hon'ble High Court may deem fit and proper;"

Brief facts, sans unnecessary details, may be narrated herein below for deciding the issues as raised in this writ petition.

Having graduated in law, the petitioner had applied for appointment to the post of Gr-III Officer in the Tripura Judicial Service (TJS) and being emerged out successful, he denied joining to that post. Thereafter, pursuant to a selection process to fill up the post of Gr-I Officer in the Tripura Judicial Service (TJS), the petitioner participated therein, and he stood first. Accordingly, the Governor of Tripura on the recommendation of the then Gauhati High Court, Agartala Bench, Agartala issued appointment letter dated 20.01.2001 in favour of the petitioner in terms of the following recitals:

".......... Governor of Tripura on the recommendation of the Gauhati High Court, Agartala Bench, Agartala has been pleased to offer to Sri Goutam Debnath, Advocate with an appointment to the Grade-I of the Tripura Judicial Service on a pay of Rs. 14150/- per month in the scale of pay of Rs.14150-20000/-. .........."

Accordingly, the petitioner joined to that post. While he was discharging his duties as District & Sessions Judge, Kailashahar, under the then North Tripura District, now Unakoti Judicial District, the petitioner lodged a written complaint dated 02.08.2014 (Annexure-P4 to the writ petition) addressed to the Registrar General, High Court of Tripura contending, inter alia, that one Judicial Officer namely, Sri J. Murasingh had appeared in the court premises on 01.08.2014 at about 4.45 p.m. and had misbehaved with another judicial officer namely, Sri Sanjoy Bhattacharjee. The said officer had also ransacked the office of the Civil Judge, Sr. Div. and the Assistant Sessions Judge. In continuation of the earlier complaint, again on 02.08.2014 the petitioner had made another communication (Annexure-P5 to the writ petition) addressed to the Registrar General, High Court of Tripura revealing further details, on being inquired, that Sri Sanjoy Bhattacharjee, Civil Judge, Sr. Div. has stated above.

On receipt of the said complaint, a show cause notice was issued to Sri. J Murasingh, pursuant to which he had submitted his reply, inter alia, denying the charges, however, admitting that he had visited the court premises, in improper dress after consuming liquor. In his reply, the officer also made a prayer for accepting his apology (Annexure-P6 to the writ petition).

In his reply, the officer J Murasingh has also stated that the writ petitioner went to his quarter and both of them took drinks when the writ petitioner all on a sudden started addressing him as "Tippreh", "snub-nosed" etc. It is also stated by the said officer that the writ petitioner also made comments in regard to racial matters and caste distinction as well as racial character and other abusive languages.

After receipt of the said reply, the petitioner was directed to furnish his comments, pursuant whereto by the communication dated 09.09.2014 (Annexure P7 to the writ petition), the petitioner had submitted his reply. Thereafter, the Full Court of the High Court took a resolution to conduct preliminary inquiry. In course of such inquiry, altogether 8 non-judicial persons and 3 judicial officers were examined and finally a preliminary inquiry report (Annexure-P9 to the writ petition) was submitted.

A brief analysis of the statement of the non-judicial persons may be made, for convenience:

8.1. Smt. Jasoda Murasingh, wife of J. Murasingh was examined. She has stated that both her husband and the petitioner took drinks in their drawing room. Suddenly, there was altercation in between her husband and the petitioner. She has further stated that though they were altercating loudly in their drawing room but she could not understand on what matter they were altercating and after altercation at about 4.00-4.15 p.m. the petitioner left their quarter. She has further stated that at the time of taking drinks when her husband came to their bed room or kitchen to supervise the packing works she heard that the petitioner addressed her husband as "Tifra". She could not say whether any other judicial officer in Kailashahar went to their quarter on 01.08.2014 as noon time when the petitioner was present in their quarter, as she was busy in packing works.

8.2. Sri Chittaranjan Gope has stated that he went to the Co-operative Bank of Kailashahar at about 1200 noon and thereafter, at about 2.00 p.m. he returned to the quarter of Sri Murasingh when he found the petitioner talking with Sri Murasingh in the drawing room and they were talking in loud voice. The said witness has said nothing about what altercation was going on at that time.

8.3. Md. Taimur Ali has stated that both the writ petitioner and Sri Mujrasingh took liquor in the drawing room and at about 2.30/3.00 p.m. he heard hot altercation between both the officers. Thereafter, the writ petitioner left the quarter at about 4.00/4.15 p.m.

8.4. Sri Bimal Deb has stated that on the instruction of Sri. J Murasingh he brought 1 liquor bottle and he served some fruits to both of them. At about 2.30/3.00 p.m. they heard that hot altercation was going on between them but he could not say what the altercation was about.

8.5. Sri Swapan Das has stated that at about 10 a.m. he went to Kailashahar Court for giving attendance and then he went to the staff barrack which is situated just adjacent to the quarter of Sri. J Murasingh. He was engaged in packing the goods and articles belonging to Sri. Murasingh. The said witness could not say whether any judicial officer of Kailashahar visited the quarter of Sri. Murasingh between 1 p.m. and 4 p.m.

8.6. Sri Sankar Das has stated that at 10.05 a.m., the petitioner went to the court and attended court works in the Ejlash up to 1.30 p.m. Thereafter, the writ petitioner left the court at about 2.15 p.m. but he could not say where he went. Thereafter, at about 2.45 p.m. the petitioner again came back to the Court and did official works in his chamber. Then at about 4.45 p.m. the petitioner left the court for his residence. He has further stated that on that day he left the Court at about 5.15 p.m. when he saw that the petitioner was going to the Court complex of Chief Judicial Magistrate, Kailashahar.

8.7. Sri Bimal Das Gupta participated in the process of inquiry and has echoed the version of Sri Sankar Das.

8.8. Sri Pancham Kr. Singha has stated in course of the inquiry that on 01.08.2014 he placed the judicial records of the Family Court before the petitioner at about 1.30 p.m. and again at about 2.15 p.m. He could not say whether the petitioner left the court on that day during the court hours or not.

8.9 Sri Sanjoy Bhattacharjee, at the relevant period was working as Civil Judge, Sr. Div. and Assistant Sessions Judge, North Tripura district (now Unakoti Judicial District), Kailashahar. He has stated that on 01.08.2014 at about 2.30 - 2.45 p.m. he along with Sri Arindam Pal, CJM-cum-Civil Judge, Sr. Div. and Sri Manabendra Debbarma, Principal Counsellor, Family Court, Kailashahar went to the quarter of Sri.J Murasingh at Kazirgaon as he was scheduled to leave Kailashahar on the following morning. They found the petitioner sitting in the drawing room of Sri.J Murasingh and talking with him. They also found that the packing works of household goods/articles was going on at that time. They found one bottle of liquor and some fruits on a table in the drawing room of Sri.J MUrashing. The said officer has further stated that he was supposed to take possession of that quarter on the following day and during his visit Sri Murasingh had offered him drinks but he refused to take. He has categorically stated that he did not see either the petitioner or Sri Murasingh to take drinks during his short period of stay in that quarter. The said officer was at the quarter of Sri Murasingh for about 10/15 minutes after which he along with Manabendra Debbarma left the quarter. The said officer in his examination could not say when the petitioner left the quarter. He also could not say whether the petitioner came back to the court on that day from the quarter of Sri Murasingh.

8.10. In his statement, the said officer has further stated that on that day at about 4.30 p.m. when he was leaving and was at the gate of the court complex, his suit clerk informed him that Sri.J Murasingh was talking with his Sheristadar and also found that Sri Murasingh was dressed in a three quarter pant and his T-Shirt was lying on his shoulder. He talked to Sri Murasingh and it appeared to him that he was drunk at that time. He requested him to go back to his quarter as he was not in a proper dress. Then the said officer informed the matter to Sri Arindam Pal and the petitioner over phone. Thereafter, he saw that Sri Murasingh was going to the court complex of CJM, Kailashahar leaving his court premises and then he left the court premises for his residence. He has further stated that one officer Sri Sarabjit Choudhury, Civil Judge, Jr. Div. rang him and told him that the petitioner would talk to him and requested him over phone to go back to the court. Accordingly, at about 5.15 p.m. the said officer went back to the court and found the petitioner along with Sri. Arindam Pal and Sri. Sarabjit Choudhury sitting in the office chamber of Sri. Arindam Pal. At that time, he did not find Sri.J Murasingh in the court complex.

8.11. Sri Manabendra Debbarma, a Grade-II Judicial Officer has stated in his examination in course of inquiry that on 01.08.2014 at about 2.30/2.45 p.m. he along with other judicial officers namely, Sanjoy Bhattacharjee and Arindam Pal had visited the official quarter of Sr.J Murasingh but did not notice the petitioner to have consumed alcohol. Then there were altercations between the petitioner and Sri. J Murasingh. He has further stated that he found a bottle of foreign liquor in the drawing room of Sri. J Murasingh. He has further stated that the petitioner told him that a farewell party would be given to Sri. J Murasingh in the evening in the quarter of the District Judge and requested him to attend the said party. The said officer has categorically stated that he did not see either the petitioner or Sri. J Murasingh to take drinks in the drawing room.

8.12. Sri Arindam Pal, a judicial officer posted at Kailashahar at the relevant time has stated that on 01.08.2014 at about 2.15 p.m. Sri J Murasingh rang him over his cell phone and requested him to visit his quarter. On that day at about 2.45 p.m. he along with Sri. Sanjoy Bhattachajree and Sri. Manabendra Debbarma went to the quarter of Sri. J Murasingh when he found the petitioner and Sri. J Murasingh along with advocate Bireswar Sinha in the drawing room. They found that packing works of house hold articles was going on in the quarter of Sri. J Murasingh, who was scheduled to leave Kailashahar on the following morning. He has further stated that during their stay in the quarter, Sri J Murasingh offered him drinks but he refused and after 10 minutes he left the quarter. At about 5.00 p.m. Sri. Sanjoy Bhattacharjee informed him that Sri. J Murasingh went to his court and was not behaving properly and now he was going towards his court complex. After about 5/10 minutes one office staff told him that Sri Murasingh was sitting in the office room of his establishment. Then he went to his office room and found Sri. J Murasingh sitting in a chair and was not properly dressed and there was bleeding from one of his legs.

At that time, the petitioner rang him and inquired about Sri. J Murasingh. At about 5.25 p.m. when he was pursuing Sri. J Murasingh to board the office vehicle and leave the court complex, at that time the petitioner went to his office and scolded Sri Murasingh and asked him to leave the complex. Thereafter, the said officer accompanied Sri. J Murasingh and dropped him to his quarter. He also talked to the wife of Sri. J Murasingh and requested her to take care of him. He has further stated that he found a bottle of foreign liquor and some fruits in the centre table of the drawing room but he did not see either of the officers to take drinks.

After recording the preliminary statement of the witnesses, vide memorandum dated 11.02.2015 (Annexure-P-10 to the writ petition), a disciplinary proceeding was drawn up against the petitioner thereby framing three articles of charge against him. The said articles of charges are reproduced hereinbelow, in extenso, for convenience:

"THE STATEMENT OF ARTICLE OF CHARGES FRAMED AGAINST SRI GOUTAM DEBNATH, DISTRICT & SESSIONS JJUDGE, UNAKOTI JUDICIAL DISTRICT, KAILASHAHAR (ERSTWHILE NORTH TRIPURA JUDICIAL DISTRICT).

ARTICLE-I

That, Sri Goutam Debnath while functioning as District & Sessions Judge of erstwhile North Tripura Judicial District (now, Unakoti Judicial District), Kailashahar went to the residential Quarters of Sri Jesthamani Murasing, Judge, Family court, Udaipur, Gomati Judicial District [the then Civil Judge (sr. Div) & Asst. Sessions Judge, erstwhile North Tripura Judicial District, Kailashahar], at Kailashahar on 01.08.2014 at any time from 1.00 PM to 2.15 PM and thereafter, consumed alcohol (Foreign Liquor) with Sri Jesthamani Murasing sitting in the drawing room of Sri Murasing‟s Quarters during the court-working/office hours.

This act on the part of Sri Goutam Debnath is unbecoming of a Judicial Officer and thus, Sri Debnath has failed to maintain the dignity, integrity and high standard of conduct of a Judicial Officer and he has violated the code of conduct of a Judicial Officer and has thereby committed grave misconduct.

ARTICLE-II

That, during the aforesaid date and period and while functioning in the aforesaid office, Sri G. Debnath, during the course of taking drinks (Foreign Liquor) in the residential quarters of Sri Murasing, called Sri Murasing as „Tipperha‟, „snub-nosed‟ and „Tumi Lumba Chirba Lumba‟ and raised question on his qualities to be a Grade-I officer and engaged himself in an altercation with Sri Murasing on that day at that time.

This act on the part of Sri Goutam Debnath is unbecoming of a Judicial Officer and thus, Sri Debnath has failed to maintain the dignity, integrity and high standard of conduct of a Judicial Officer and he has violated the code of conduct of a Judicial Officer and has thereby committed grave misconduct.

ARTICLE-III

That, on the aforesaid date and while functioning in the aforesaid office, Sri G Debnath recorded false statement/mis-statement in the Court Case Diary dated 01.08.2014 of the Court of District & Sessions Judge, the then North Tripura Judicial District (now Unakoti Judicial district), Kailashahar to the effect that he did administrative and other work on that day in between 3.00 PM to 5.00 PM and left Court at about 4.45 PM, which is self-contradictory.

The above said act of Sri Goutam Debnath amounts to failure on his part to apply judicial mind and to maintain absolute devotion to duty and absolute integrity and further said act is unbecoming of a Judicial Officer and amounts to serious dereliction in duty and misconduct on his part."

In response thereto, the petitioner submitted his reply (Annexure-P-11 to the writ petition), inter alia, refuting the charges framed against him.

Thereafter, Inquiry Officer was appointed and the witnesses were cross-examined and after analysis of the oral and documentary evidence, the Inquiry Officer submitted his report (Annexure-P-12 to the writ petition). According to the Inquiry Officer, the articles of charges and the imputations made against the writ petitioner were not proved, and, thus exonerated the petitioner.

The Full Court of the High Court had considered the report of the Inquiry Officer and proposed to disagree with the same. According to the Full Court, the Inquiry Officer had applied the wrong test of proof beyond reasonable doubt and deviated from the established principle of preponderance of probability. Consequent to such disagreement, a show cause notice vide memorandum dated 08.06.2016 (Annexure P-15 to the writ petition) was issued to the petitioner along with the abstract of the decision of the Full Court meeting of this High Court dated 03.06.2016 (Annexure P-16 to the writ petition).

After receipt of the said show cause notice dated 08.06.2016 the petitioner submitted a detailed reply analyzing the evidence of the witnesses and other evidence on record. In the reply, the petitioner also emphasized on the unexplained delay in lodging the complaint by Sri J. Murasingh, on the basis of which disciplinary proceeding was initiated against the petitioner.

Having received the reply of the petitioner dated 22.06.2016 (Annexure P-17 to the writ petition) the Full Court held a meeting and vide notification dated 01.07.2016 (Annexure P-18 to the writ petition) the petitioner was served with an order of punishment in terms of the resolution dated 28.06.2016 imposing the penalty of withholding of the next three increments of pay without cumulative effect.

Mr. Somik Deb, learned counsel appearing for the petitioner in course of hearing has highlighted the following grounds, amongst others:

i) unexplained inordinate delay in lodging the complaint;

ii) non-disclosure of the tentative reasons for disagreement while issuing the show cause notice dated 08.06.2016;

iii) non-furnishing of the resolution dated 28.06.2016 passed by the Full Court imposing the aforestated penalty has caused serious prejudice to the petitioner being in breach of the principles of natural justice;

iv) non-approval of the Hon‟ble Governor of the Tripura at the time of initiation of the disciplinary proceedings and at the time of imposing the penalty, thereby infracting the mandates contained in Articles 233 and 235 of the Constitution of India;

v) non-appreciation of the evidence on record and non-discussion of the Inquiry Officer‟s report, thereby infracting Rule 15(2) of the CCS (CCA) Rules, 1965;

vi) application of the wrong test (proof beyond reasonable doubt instead of preponderance of probability) by the Inquiry Officer as the wrong premise assigned by the Full Court;

vii) non-application of mind by the Full Court while imposing the penalty upon the petitioner.

Mr. Deb, learned counsel for the petitioner has submitted that even though at para 4.4 of the writ petition, the petitioner had specifically asserted that "......... the petitioner was neither given any copy of the said resolution dated 28.06.2016 as to why the High Court was pleased to take the said resolution........" in response thereto at para 9 of the counter affidavit, the respondent Nos. 1 & 2 did not controvert the same and according to him, evidently it is clear that the respondent Nos. 1&2 have admitted that there has been a breach of the principle of natural justice thereby causing serious prejudice to the petitioner.

Mr. Deb has submitted that though he has taken a specific plea at para 4.5 of the writ petition that non-disclosure of the tentative reasons for disagreement while issuing the show cause notice dated 08.06.2016 has vitiated the said show cause notice, but the respondent Nos. 1 & 2 in reply to such specific averment have only averred a bald denial thereof at para 10 of the counter affidavit.

Learned counsel submits that his statement in the writ petition (para 4.6) that non-approval of the Hon‟ble Governor of Tripura at the time of initiation of the departmental proceeding and the time of imposing of the penalty has resulted in infraction of the mandates enshrined in Article 233 and 235 of the constitution of India, have been admitted by the respondent Nos. 1 & 2 in their counter affidavit (para 11). However, it was clarified by the learned counsel that the said action of the respondents was sought to be justified by the respondent Nos. 1&2 by referring to the Tripura Judicial Service Rules, 2003.

Referring to Rule 15 of the CCS (CCA) Rules, 1965, the learned counsel for the petitioner has submitted that because of non-appreciation of the evidence on record and non-discussion of the report of the Inquiry Officer, as mandated, the said provision has been infracted. Addressing the said contention of the petitioner, in the counter affidavit, the respondents have only averred a bald denial at para 12 of the counter affidavit.

It is strenuously argued by the learned counsel for the petitioner that while dealing with the plea of application of wrong test (proof beyond reasonable doubt instead of preponderance of probability) by the Inquiry Officer is a wrong premise assigned by the Full Court of the High Court as canvassed by the petitioner at para 4.9 of the writ petition, in response to which, according to the petitioner, the respondent Nos. 1 and 2 have only averred a bald reply at pra 14 of the counter affidavit. In the context, the learned counsel has submitted that only the test of probative value would be applicable for adjudging the credibility of two sets of conflicting evidence.

Mr. Deb, learned counsel has further emphasized that his plea of non-application of mind by the Full Court of this High Court while imposing the penalty has only been flatly denied by the respondent Nos. 1 & 2 at para 15 of the counter affidavit, without assigning any reason therefor.

In support of his submissions, Mr. Deb, learned counsel has pressed in to service, the following judicial pronouncements:

AIR 1963 SC 1612 - paragraph 8

(1995) 6 SCC 157- paragraph 10

(1998) 7 SCC 84- paragraphs 6, 10, 11, 12, 15, 18, 19

(1999) 7 SCC 739- paragraphs 6, 9, 15, 22, 27, 28, 29, 31, 32, 34, 35, 37, 52 & 53

(2003) 2 SCC 449 - paragraphs 3, 4, 6

(2004) 8 SCC 653 - paragraphs 6

(2004) 13 SCC 797 - paragraphs 1, 2

(2005) 7 SCC 597 -paragraph 10

(2006) 9 SCC 440 - paragraphs 4, 10, 13

(2007) 1 SCC 437 - paragraphs 11, 18

(2009) 2 SCC 570 - paragraph 23

(2013) 7 SCC 251 - paragraphs 1, 4, 7, 12(b), 14, 18 to 21.

Making reference to the evidence on record, Mr. Deb, learned counsel for the petitioner has submitted that the scanning of the depositions of the witnesses, namely, non-judicial persons and judicial officers would reveal that whereas only 02 (two) of the non-judicial persons have tried to implicate the petitioner by contending that there was altercation by and between the petitioner and Sri. J Murasing, but, such implication of the petitioner is not traceable from the deposition of the judicial officers as well as other non-judicial witnesses and thus, according to him, it is aptly clear that the depositions of two sets of witnesses were self-contradictory. Learned counsel contends that if the depositions of the Judicial Officers are accepted, then, the petitioner cannot be implicated in any manner whatsoever. According to the learned counsel, in such eventuality, it is the probative value that would be applicable.

Per contra, Ms P Dhar, learned counsel appearing for the respondent Nos. 1 & 2 has submitted that the penalty as aforestated has been imposed upon the petitioner following the established principle of law and in conformity with Article 233 and 235 of the Constitution of India and also Rule 15 of the CCS (CCA) Rules, 1965.

Ms Dhar, learned counsel has submitted that the petitioner is a Grade-I Judicial Officer with experience and knowledge in law, and he has, in his reply to the note of disagreement of the Full Court, not raised any plea of being prejudiced by the note of disagreement, for, there have been no reasons given (charge wise) for disagreement with the report of the Inquiry Officer.

According to Ms Dhar, if a delinquent officer raises a plea of prejudice, then, he has to specifically plead and show how he has been prejudiced, and unless and until it is established, the disciplinary proceeding against him would not be vitiated for any minor irregularity. Learned counsel has relied on the following decisions:

(2008) 4 SCC 31

(2006) 3 SCC 150

(2001) 6 SCC 392

AIR 2017 SC 5686

AIR 2000 SC 22

Controverting the submission of Mr. Deb, learned counsel for the petitioner, in regard to the need of taking prior sanction of the Governor of a State against a Grade-I Judicial Officer of the State, Ms Dhar, learned counsel for the respondent-High Court has contended that Article 233 and 235 of the Constitution of India ensures the independence of the judiciary from executive control by vesting "control of subordinate judiciary (both administrative and disciplinary action) in the High Court. She further contended that the High Court has the power of control over the subordinate judiciary including power to initiate disciplinary proceedings, pass an order of suspension during inquiry and pass an order imposing punishment on them and only in question of dismissal, removal or reduction in rank or termination of service of judicial officers on any count whatsoever, the High Court becomes the recommending authority and cannot itself pass an order and the formal order to give effect to such a decision has to be passed by the Governor on the recommendation of the High Court.

According to Ms Dhar, in the present case, punishment awarded to the petitioner is neither dismissal nor removal, nor reduction in rank or termination of service and hence, no order is required to be passed by the Governor for sanction prior to initiation of such disciplinary action is required to be taken from the Governor of the State.

In support of her submission, Ms Dhar has placed reliance upon the following decisions:

2012 AIR SCW 3996 (paragraphs 57, 58 & 59)

AIR 1988 SC 1388

AIR 1966 SC 447 (paragraph 7 to 18)

AIR 1979 SC 193 (paragraph 38 to 42)

AIR 1999 SC 3265

(1974) 2 SCC 831

AIR 1975 SC 613: (1975) 1 SCC 843

AIR 1974 SC 710 (Paragraph 45 to 47)

In regard to appreciation of evidence, in a disciplinary proceeding, Ms Dhar has submitted that the rule of appreciating evidence in a disciplinary proceeding is the rule of evidence based on preponderance of probability and no proof beyond reasonable doubt. Following decisions are cited substantiate the said plea:

(2003) 3 SCC 583,

(2006) 4 SCC 265

Lastly, Ms Dhar has contended that judicial review can only be undertaken in extraordinary cases where the decision is so arbitrary or irrational so as to shock the conscience of the court. She relied upon the following decisions:

AIR 2012 SC 2319,

AIR 2000 SC 22

In reply to the submission of Ms Dhar, learned counsel for the respondents, Mr. Deb, learned counsel for the petitioner has submitted that in view of the mandate contained in Article 311(2) of the Constitution of India read with the statutory mandate contained in Rule 15(2) of the CCS (CCA) Rules, 1965 non-recording of the tentative reasons for disagreement with the favourable finding of the Inquiring Officer, on the articles of charge, the departmental proceeding has stood vitiated.

Learned counsel further argued that the petitioner had the right of hearing not only during the inquiry proceedings conducted by the Inquiry Officer into the charges leveled against him but also at the stage at which these findings were considered by the disciplinary authority inasmuch as the disciplinary authority found a different opinion that it does not agree with the findings recorded by the Inquiry Officer. According to learned counsel, the formation of opinion by the disciplinary authority should be tentative and not final and only after giving an opportunity of hearing to the petitioner, the Hon‟ble Full Court ought to have passed the impugned order of disagreement dated 03.06.2016 (Annexure-P-16 to the writ petition).

Mr. Deb submits that it is an established principle of law that the rules of natural justice are to be read into the orders passed by a quasi judicial authority (disciplinary authority), thereby obligating such authorities to record its reasons, and in breach of those, such orders would be prejudicial to the interest of a government servant and non-assigning reasons in the order itself makes the notification dated 01.07.2016 a nullity. Mr. Deb has relied upon the following decisions:

(1990) 4 SCC 594, paragraphs 9, 36, 37, 39, 40.

(2007) 2 SCC 181 paragraphs 23, 24, 26, 30, 31, 48, 49, 50, 54 and 55

Finally, Mr. Deb, learned counsel has drawn our attention to the fact that prior to the imposition of penalty, the petitioner had reached the Super Time Pay Scale and therefore, in fact, the impugned order of punishment dated 01.07.2016 (Annexure P-18 to the writ petition) cannot at all be imposed on to the petitioner and in such a view of the matter, according to him, such imposition of penalty on to the petitioner reflects the non-application of mind by the disciplinary authority.

In the light of the aforesaid submission made by the learned counsel for the parties, the following questions emerge out for discussion and decision:

Whether the High Court needs to take prior sanction of the Governor of a State to initiate disciplinary proceeding against a Grade-I Judicial Officer of the State?

Whether it was obligatory on the part of the disciplinary authority to record its own tentative reasons for disagreement with the favourable findings of the Inquiry Officer on the articles of charge framed against the petitioner and non-recording of such reasons vitiates the entire proceeding keeping in mind the mandates envisaged in Article 311(2) of the Constitution of India, read with the statutory mandate contained in Rule 15(2), 15(3) and 15(4) of the CCS(CCA) Rules, 1965?

Whether rules of natural justice are to be read into the orders passed by a quasi judicial authority (disciplinary authority) thereby obligating such authority to record its reasons, on failure of which, such orders are prejudicial to the interest of a government servant?

To what extent judicial review is permissible by the Court?

Before adverting to the merits of submissions in regard to constitutional and statutory requirements of a disagreement note in a disciplinary proceeding we may first deal with the High Court‟s control over the subordinate judiciary and the extent of Governor‟s role in the context of the present case. The constitutional provisions relevant to the issue may be reproduced, for convenience.

"233. Appointment of district judges

(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment"

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"235. Control over subordinate courts:- The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law."

That apart, the Apex Court in the case of Yoginath D. Bagde Vs. State of Maharashtra & Anr., (1999) 7 SCC 739 relying upon several earlier decisions, while dealing with similar issue, has summarized the law and held thus:

"15. This Article contemplates control of the High Court over the subordinate Courts. Read with Articles 233 and 234, the word "control" used in Article 235 would indicate that although the Appointing Authority of the District Judge and officers other than District Judges is the Governor of the State, the words "control over district Courts and Courts subordinate thereto", which are words of wide connotation, vest in the High Court other facets of service of those officers, namely, their confirmation on completion of the period of probation, their postings, transfers and disciplinary matters including power to recommend major punishments. Thus, the "control" vested in the High Court is complete control subject only to the powers of the Governor in the matter of appointment, initial posting and promotion to the posts of District Judges. For imposing major punishment, including the punishment of dismissal, removal or reduction in rank, the High Court can, in exercise of its powers under Article 235 of the Constitution, hold disciplinary proceedings and recommend the punishment to be imposed on the delinquent to the Governor who alone would be competent to impose such punishment having regard to the provisions of Articles 233 and 234.

A controversy had erupted at one time whether the word "High Court" used in Article 235 would mean all the Judges sitting together in a Full Court meeting or merely a Committee of Judges appointed by the Chief Justice; in other words, whether the Full Court comprising of all the sitting Judges of the Court can act through a Committee of Judges for purposes of recommending the major punishment. A Full Bench of the Allahabad High Court in Batuk Deo Pati Tripathi v. State of U. P. took the view that the word "High Court" used in Article 235 meant the Full Court and not merely a Committee of Judges appointed by the Chief Justice. This decision was reversed by a Constitution Bench of this Court in State of Uttar Pradesh v. Batuk Deo Pati Tripathi. This Court observed as under SCC pp 112-13, para 14) :

"14. Having given our close and anxious consideration to that question, we regret that we are unable to share the view of the majority of the High Court Full Bench that by leaving the decision of the question of the respondent's compulsory retirement to the Administrative Committee, the Court had abdicated its constitutional function. According to the view of the majority, the act of the Court in allowing the Administrative Committee to decide that question under R. 1 of Chapter III of the 1952 Rules is an act of "self-abnegation" and therefore void. This approach betrays, with respect, a misunderstanding of the object of Article

The ideal which inspired the provision that the control over District Courts and Courts subordinate thereto shall vest in the High Courts is that those wings of the judiciary should be independent of the executive. Tracing the history of that concept, Hidayatullah, J. in State of West Bengal v. Nripendra Nath Baghchi, has highlighted the meaning and purpose of Article 235. It is in order to effectuate that high purpose that Article 235, as construed by this Court in various decisions, requires that all matters relating to the subordinate judiciary including compulsory retirement and disciplinary proceedings but excluding the imposition of punishments falling within the scope of Article 311 and the first appointments and promotions should be dealt with and decided upon by the High Courts in the exercise of the control vested in them. A proper understanding and appreciation of this position will be conducive to a correct assessment of the situation under examination in the instant case. For, knowing that the object of Article 235 is to ensure that independence of an important wing of the judiciary, the inquiry which assumes relevance is whether the procedure sanctified by the Rules of the High Court is in any manner calculated to interfere with or undermine that independence. Does that procedure involve "self-abnegation", by conceding the right of control to any outside authority? It is pertinent, while we are on this question, to know the context in which the expression "self-abnegation" was used by this Court. In Samsher Singh v. State of Punjab the action of the High Court in asking the State Government to depute the Director of Vigilance to hold an inquiry against a judicial officer was deprecated by this Court as an act of self-abnegation. The High Court abdicated its control over the subordinate judiciary, which includes the power to hold a disciplinary inquiry against a defaulting Judge, by surrendering that power to the executive. That, truly, was an act of self-abnegation. There is no parallel between what the High Court did in Shamsher Singh and what has been done in the instant case. Here, the decision to compulsorily retire the respondent was taken by the Judges of the High Court itself, though not by all. If some but not all Judges of the High Court participate in a decision relating to a matter which falls within the High Courts' controlling jurisdiction over subordinate Courts, the High Court does not efface itself by surrendering its power to an extraneous authority. The procedure adopted by the High Court under its Rules is not subversive of the independence of the subordinate judiciary, which is what Article 235 recognises and seeks to achieve. The true question then for decision is not the one by which the majority of the Full Bench felt oppressed but simply, whether the procedure prescribed by the High Court Rules is in any other matter inconsistent with the terms of Article 235 of the Constitution."

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Relying upon the extracts underlined above, learned counsel for the appellant contended that since in the instant case the matter was not circulated to all the individual Judges of the High Court nor was their opinion sought whether the appellant was liable to be dismissed from service, the recommendation of the High Court as also the ultimate order of the Governor of Maharashtra are bad in law and are liable to be quashed. This contention, though apparently supported by the observations of this Court in Rajiah's cases, cannot be accepted as in a latter decision in High Court of Judicature at Bombay v. Shirishkumar Rangarao Patil, a similar plea was rejected as it was found on a consideration of various resolutions adopted by the Bombay High Court that the Full Court having itself authorised the Chief Justice to constitute a Committee of Judges for disciplinary matters, whatever decision was taken by the Committee was treated to be a decision of the Full Court. This Court in paragraphs 10 and 11 of the report observed as under: ( SCC Pp 352-53 paras 10-11)

"10. It would thus be settled law that the control of the subordinate judiciary under Article 235 is vested in the High Court. After the appointment of the judicial officers by the Governor, the power to transfer, maintain discipline and keep control over them vests in the High Court. The Chief Justice of the High Court is first among the Judges of the High Court. The action taken is by the High Court and not by the Chief Justice in his individual capacity, nor by the Committee of Judges. For the convenient transaction of administrative business in the Court, the Full Court of the Judges of the High Court generally passes a resolution authorising the Chief Justice to constitute various committees including the committee to deal with disciplinary matters pertaining to the subordinate judiciary or the ministerial staff working therein. Article 235, therefore, relates to the power of taking a decision by the High Court against a member of the subordinate judiciary. Such a decision either to hold an enquiry into the conduct of a judicial officer, subordinate or higher judiciary, or to have the enquiry conducted through a District or Additional District Judge etc. and to consider the report of the enquiry officer for taking further action is of the High Court. Equally, the decision to consider the report of the enquiry officer and to take follow-up action and to make appropriate recommendation to the Disciplinary Committee or to the Governor, is entirely of the High Court which acts through the Committee of the Judges authorised by the Full Court. Once a resolution is passed by the Full Court of the High Court, there is no further necessity to refer the matter again to the Full Court while taking such procedural steps relating to control of the subordinate judiciary.

It is true that a resolution came to be passed authorising the Committee of five Judges to deal with imposition of punishment on judicial officers. The question, therefore, is whether it requires the Chief Justice and the Committee to initiate disciplinary proceedings. The "delegation of the function of the High Court in respect of punishment of judicial officers" is an exception of width and of wide amplitude to cover within its ambit the power to take a decision by the Committee from the stage of initiation of disciplinary proceedings, if necessary, till its logical end, viz. recommendation to the Government to impose a penalty proposed by the Committee. The recommendation is by the High Court, the controlling authority under Article 235 of the Constitution. Therefore, it is difficult to accept the contention of Shri Batra that the delegation is only for imposition of punishment on judicial officers. In fact, the High Court has no power to impose any punishment by itself. The appointing authority, viz., the Governor is the competent authority under the Constitution to impose punishment in accordance with the rules framed for the purpose. Therefore, the entire gamut of procedural steps of disciplinary action is by the High Court which is the controlling authority through the Committee constituted in that behalf by the Chief Justice of the High Court."

In regard to the first point, applying the aforesaid ratio decidendi, we repel the submission of the learned counsel for the petitioner that to impose penalty of withholding of increment, the competent authority is the Governor to notify such punishment and we hold that subject to Governor‟s power in the matter of appointment, initial posting and promotion to the post of District Judge and to impose a major penalty including punishment of dismissal, removal, reduction in rank of judicial officers, the High Court has complete control over the service matters of the judicial officers, like their confirmation on completion of probationary period, posting/transfers and disciplinary cases. We hold that only in case of removal, dismissal and reduction in rank the High Court will recommend its decision of such penalty and the Governor would act in accordance with the recommendation and notify the said punishment/penalty.

In view of the disagreement note dated 03.06.2016 the High Court issued a memorandum dated 08.06.2016 asking the petitioner to submit representation within 15 days. In the said memorandum dated 08.06.2016 the respondents only have reproduced the abstract of the resolution of the Full Court dated 03.06.2016, which is reproduced for convenience:

"Whereas, the Hon'ble High Court in its Full Court meeting held on 03.06.2016 has dis-agreed with the findings of the Inquiring Authority and held as follows:

"After assessment of the evidence of the SWs particularly the evidence of SWs 1, 2, 3, 4, 5, 6, 9, 10 & 11 together with the documentary evidence particularly Exbt. 7 (series) and consideration of the Enquiry Report and all other materials available on record, the Full court is of the view that all the 03 charges brought against Shri Debnath have been fully substantiated.

The Inquiring Officer while drawing up his findings on the charges failed to appreciate the fact that the standard of proof required in a disciplinary case is preponderance of probability and not proof beyond reasonable doubt. The Inquiring Officer seems to have applied the test of proof beyond reasonable doubt in the present case and found Shri Debnath not guilty of the charges which is not correct.

For the reasons aforesaid, the Full court is of the view that the finding of the Inquiring Officer on the charges against Shri Goutam Debnath is incorrect and unacceptable.

The Full Court, therefore, resolves that the Registrar General shall forward a copy of the Report of the Inquiring Officer together with the decision of the Full Court requiring Shri Goutam Debnath, now District & Sessions Judge of West Tripura Judicial District, Agartala to submit, if he so desires, his written representation to the High Court within 15 days in terms of Rule 15(2) of the CCS (CCA) Rules, 1965."

Now, therefore, Shri Goutam Debnath presently District & Sessions Judge, West Tripura Judicial District, Agartala is hereby required to submit his written representation, if he so desires, to the High Court within 15 days from today in terms of Sub-rule (2) of Rule 15 of CCS (CCA) Rules, 1965.

By Order

Sd/- Illegible

(SG Chattopadhyay) Registrar General"

Accordingly, the petitioner filed his written representation dated 22.06.2016 stating inter alia, that the articles of charge leveled against him have not been proved in any manner whatsoever, even keeping in mind the principle of preponderance of probability to prove the allegations leveled against the delinquent in a disciplinary proceeding.

Now, dealing with the issue as to whether it was obligatory on the part of the disciplinary authority to record its own tentative reasons for disagreement with the favourable finding of the inquiring authority on the articles of charge, we may take note of the references/citations as relied upon by the parties herein.

In this regard, we have carefully and meticulously scrutinized the inquiry report furnished by the inquiring authority and his reasoning to arrive at a finding in favour of the petitioner. The Inquiry Officer has discussed the oral as well as documentary evidence as adduced by the witnesses in course of the inquiry and only after that the Inquiry Officer has given his findings exonerating the petitioner. The Full Court being the disciplinary authority has given a disagreement note as according to Full court the Inquiry Officer could not appreciate the principle of judging a case of departmental proceeding where the standard of proof required is preponderance of probability and not proof beyond reasonable doubt.

The petitioner was informed about the note of disagreement and was asked to furnish his reply. Accordingly, the petitioner submitted a detailed representation describing the facts and circumstances stating inter alia, that the articles of charge framed against him are totally false and frivolous and also an afterthought. But on the disagreement note, the Full court imposed penalty upon the petitioner, as stated above.

We have taken note of a decision of the Apex Court in National Fertilizers Limited and Anr Vs. PK Khanna reported in (2005) 7 SCC 597 wherein their Lordships while deciding one of the issues as to whether it is necessary for the disciplinary authority to give reasons for agreeing with the inquiry officer‟s report when the delinquent officer has submitted a representation challenging the report of the inquiry officer. At para 10 of the said decision, the Apex Court has observed thus: [SCC.P.601. Para 10]

"10. It is apparent from sub-rule (2) that the disciplinary authority is not required to record its reasons if it concurs with the enquiry officer's findings in contradiction with the situation in which the disciplinary authority disagrees with the findings of the enquiring authority. Only in the latter case does sub-rule (2) expressly mandate that the disciplinary authority shall, if it disagrees with the findings of the enquiry officer record its reasons for such disagreement as well as its own findings on such charges."

In Mathura Prasad Vs. Union of India and Ors., reported in (2007) 1 SCC 437 the Supreme Court while interpreting Rule 10(3) of the Railway Servants (Discipline and Appeal) Rules, 1968 which is perimateria to Rule 15(1) and (2) of the CCS (CCA) Rules, 1965 had held thus: [SCC pp. 443, 444 para 18 & 19]

"18. Even if the enquiry officer had, in his first report, proceeded on surmises and conjectures as was observed by the High Court, the disciplinary authority could disagree with the said finding but it was, therefor, required to record its reasons. No reason was recorded. Sub-rules (2) and (3) of Rule 10 aim at achieving the same purpose. If sufficient materials are not available on record, a direction for holding a further enquiry may be issued in terms of sub-rule (2) of Rule 10 so as to enable the department to lead further evidence before him. For the said purpose also, reasons are required to be recorded by the disciplinary authority. An opportunity of hearing to the delinquent officer is required to be given. However, in the event, the disciplinary authority comes to the conclusion that the conclusion arrived at by the enquiry officer on the basis of the materials placed by the parties are incorrect, he may disagree with the said findings but even therefor, he is required to record reasons in support thereof. The requirement of sub-rule (2) or sub-rule (3) having not been complied with, the enquiry officer could not have arrived at a different finding. The High Court unfortunately did not consider this aspect of the matter.

When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under the sub-rules are required to be strictly followed. It is now well settled that a judicial review would like even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review."

In Roop Singh Negi Vs Punjab National Bank and Ors, reported in (2009) 2 SCC 570 the Apex Court while discussing the need for assigning reasons by the disciplinary authority as also the appellate authority had observed that the provisions of the Evidence Act may not be applicable in a departmental proceedings but the principles of natural justice are required to be strictly followed, in the following manner, as under: [SCC p 581, para 23]

"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of the selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

In SP Malhotra Vs. Punjab National Bank & Ors. reported in (2013) 7 SCC 251, the Apex Court was dealing with an appeal where the Division Bench of the Punjab & Haryana High Court at Chandigarh in Punjab National Bank Vs. SP Malhotra had reversed the judgment and order of the learned Single Judge by which, and whereunder the learned Single Judge had awarded the relief to the appellant, SP Malhotra on the ground that in case the disciplinary authority does not agree with the findings recorded by the Inquiry Officer in disciplinary proceedings, the disciplinary authority must record reasons for disagreement and communicate the same to the delinquent and seek his response and only after considering the same he can pass the order of punishment. The reversal judgment of the Division Bench of the Punjab & Haryana High Court was challenged before the Apex Court.

One of the issues taken up by the Apex Court while deciding the appeal was that in regard to "serving the copy of the reasons recorded by the disciplinary authority disagreeing with the findings recorded by the Inquiry Officer." Reference was made by the Apex Court to its decision in Punjab National Bank Vs. Kunj Behari Misra, (1998) 7 SCC 84 at para 14 of the case of SP Malhotra (supra) which is reproduced hereunder:

"14. Kunj Behari Misra 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 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)

In para 18 of SP Malhotra (Supra) it is held that:

"18. In fact, not furnishing the copy of the recorded reasons for disagreement from the inquiry 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."

We may profitably take note of the decision of the Apex Court in Rajesh Kumar & Ors. Vs. Dy. CIT and Ors, (2007) 2 SCC 181 wherein the Apex Court have discussed the necessity of observance of principles of natural justice in the following manner: [SCC.pp. 192, 193, 194, 195,199 and 200. Paras 23, 24, 26, 30, 31, 48, 49, 50, 54, 55]

"23. We, however, need not dilate on the said question being not very necessary for the purpose of this case. But it is beyond any cavil that ordinarily unless excluded by operation of a statute, the superior courts while exercising power of judicial review shall proceed on the basis that assignment of reasons is imperative in character. When an authority be it administrative or quasi-judicial adjudicates on a dispute and if its order is appealable or subject to judicial review, it would be necessary to spell out the reasons therefor. While, applying the principles of natural justice, however, the court must also bear in mind the theory of useless formality and the prejudice doctrine.

If an assessee files a return the same is not presumed to be incorrect. When the assessing officer, however, intends to pass an order of assessment, he may take recourse to such steps including the one of asking the assessee to disclose documents which are in his power or possession. He may also ask third parties to produce documents. Section 136 of the Act by reason of a legal fiction makes an assessment proceeding, a judicial proceeding. The assessment proceeding, therefore, is a part of judicial process. When a statutory power is exercised by the assessing authority in exercise of its judicial function which is detrimental to the assessee, the same is not and cannot be administrative in nature. It stricto sensu is also not quasi judicial.

By way of example, although it may not be very apposite, we may state that orders passed under Order XII of the Code of Civil Procedure by a court cannot be held to be administrative in nature. They are judicial orders and subject to the order which may be passed by higher courts in regard thereto.

Indisputably, the prejudice of the assessee, if an order is passed under Section 142(2A) of the Act, is apparent on the face of the statutory provision. He has to undergo the process of further accounting despite the fact that his accounts have been audited by a qualified auditor in terms of Section 44AB of the Act. An auditor is a professional person. He has to function independently. He is not an employee of the assessee. In case of a misconduct, he may become liable to be proceeded against by a statutory authority under the Chartered Accountants Act, 1949.

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Effect of civil consequences arising out of determination of lis under a statute is stated in State of Orissa v. Dr. Binapani Dei and Others [(1967) 2 SCR 625]. It is an authority for the proposition when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in this behalf compliance with principles of natural justice would be implicit. In case of denial of principles of natural justice in a statute, the same may also be held ultra vires Article 14 of the Constitution.

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In Swadeshi Cotton Mills v. Union of India [(1981) 1 SCC 664], Chinnappa Reddy, J., in his dissenting judgment summarized the legal position in the following terms:

"The principles of natural justice have taken deep root in the judicial conscience of our people, nurtured by Binapani, Kraipak, Mohinder Singh Gill, Maneka Gandhi etc. etc. They are now considered so fundamental as to be 'implicit in the concept of ordered liberty' and, therefore, implicit in every decision making function, call it judicial, quasi-judicial or administrative. Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and in no other.

No wider right than that provided by statute can be claimed nor can the right be narrowed. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. The implication of natural justice being presumptive it may be excluded by express words of statute or by necessary intendment.

Where the conflict is between the public interest and the private interest, the presumption must necessarily be weak and may, therefore, be readily displaced."

In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Others [1991 Supp (1) SCC 600], Ray, J. opined:

"It is now well settled that the 'audi alteram partem' rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally"

[See also Basudeo Tiwary v. Sido Kanhu University and Others, (1998) 8 SCC 194 and Uptron India Ltd. v. Shammi Bhan, (1998) 6 SCC 538]

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In any event, when civil consequences ensue, there is hardly any distinction between an administrative order and a quasi judicial order. There might have been difference of opinions at one point of time, but it is now well-settled that a thin demarcated line between an administrative order and quasi-judicial order now stands obliterated [See A.K. Kraipak and Others v. Union of India and Others - (1969) 2 SCC 262 and Chandra Bhawan Boarding and Lodging v. State of Mysore and Another AIR 1970 SC 2042 and S.L. Kapoor v. Jagmohan and Others - AIR 1981 SC 136].

Recently, in V.C. Banaras Hindu University v. Shrikant [2006 (6) SCALE 66], this Court stated the law, thus: "An order passed by a statutory authority, particularly when by reason whereof a citizen of India would be visited with civil or evil consequences must meet the test of reasonableness."

The expression "having regard to" in this context assumes some significance. An opinion must be formed strictly in terms of the factors enumerated therein. The expression indicates that in exercising the power regard must be had also to the factors enumerated therein together with all factors relevant for exercise of that power.

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It is trite, even if there is a possibility that the Tribunal would correctly follow the statutory provisions, still compliance with principles of natural justice would be required. [See R. v. Kensington and Chelsea Rent Tribunal, ex p. MacFarlane (1974) 1 WLR 1486]

Justice, as is well known, is not only to be done but manifestly seem to be done. If the assessee is put to notice, he could show that the nature of accounts is not such which would require appointment of special auditors. He could further show that what the assessing officer considers to be complex is in fact not so. It was also open to him to show that the same would not be in the interest of the Revenue."

Now, we may examine the decisions as relied upon by Ms P Dhar, learned counsel appearing for the respondent-High Court in support of her submission that no prejudice was caused to the petitioner and there is no breach of principles of natural justice. Ms Dhar, learned counsel has relied upon the decision of the Apex Court in Syndicate Bank & Ors. Vs Venkatesh Gururao Kurati, reported in (2006) 3 SCC 150 where the Apex Court has held that non-supplying of the document which was not relied by the Inquiry Officer during the inquiry, does not create any prejudice to the delinquent, in the manner as follows: [SCC p 159 para 18]

"18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."

Learned counsel for the respondents has further relied upon the State of UP Vs Harendra Arora & Anr., reported in (2001) 6 SCC 392. The instant case also relates to the question arising out of non-furnishing of inquiry report to the delinquent officer and the Apex Court in such circumstances had held thus: [SCC P 406 para 24]

"24. Turning now to the facts of the case on hand, it has to be seen whether by non-furnishing of the enquiry report the delinquent officer has suffered any prejudice. Undisputedly, after submission of enquiry report the State Government sent a show-cause notice to the delinquent pursuant to which he has shown cause and the disciplinary authority after considering the said show-cause reply, passed the order of dismissal. It is not the stand of the respondent that in the absence of the enquiry report he could not submit an effect show-cause reply before the order of dismissal was passed. Neither from the order passed by the Tribunal nor the High Court would it appear that the respondent had raised this point there that he could not file an effected show-cause reply in the absence of enquiry report nor has it been stated that in the show-cause reply it was complained that the delinquent had not been served with a copy of the enquiry report. From these facts, it is not possible to hold that the respondent has been prejudiced by non-furnishing of enquiry report."

Reliance also being placed upon a decision of the Apex Court in High Court of Judicature at Bombay, through its Registrar Vs Shashikant S. Patil & Anr., reported in (2000) 1 SCC 416 wherein the Apex Court has dealt with the power of disciplinary authority as well as the power of judicial review by the superior court in the following paragraphs as under: [SCC. Pp 423, 424 para 16,19,21]

"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.

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The reasoning of the High Court that when the Disciplinary Committee differed from the finding of the enquiry officer it is imperative to discuss the materials in detail and contest the conclusion of the enquiry officer, is quite unsound and contrary to the established principles in administrative law. The Disciplinary Committee was neither an appellate nor a revisional body over the enquiry officer's report. It must be borne in mind that the enquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials collected in such enquiry as well as the views expressed by the enquiry officer thereon. The findings of the enquiry officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision-making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the enquiry officer. But it is not necessary that the disciplinary authority should "discuss materials in detail and contest the conclusions of the enquiry officer". Otherwise the position of the disciplinary authority would get relegated to a subordinate level.

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Thus the Division Bench of the High Court has not approached the question from the correct angle which is evident when the Bench said that it is imperative for the Disciplinary Committee to discuss the materials in detail and contest the conclusions of the enquiry officer. The interference so made by the Division Bench with a well-considered order passed by the High Court on the administrative side was by overstepping its jurisdiction under Article 226 of the Constitution." (Emphasis Supplied)

In the instant case, the main reason for disagreeing with the findings of the inquiry authority, as assigned by the disciplinary committee, i.e. the Full Court of the High Court is that a disciplinary proceeding is not a criminal proceeding and the inquiry officer had proceeded on the wrong notion, since he failed to appreciate that standard of proof required in a disciplinary proceeding is preponderance of probability and not proof beyond reasonable doubt.

We have given our anxious thought to the finding of the Full Court of the High Court where it has simply stated that "after assessment of the evidence of the SWs particularly the evidence of SWs 1, 2, 3, 4, 5, 6, 9, 10 & 11 together with the documentary evidence particularly Exbt. 7 (series) and consideration of the Enquiry Report and all other materials available on record, the Full court is of the view that all the 03 charges brought against Shri Debnath have been fully substantiated. .........".

Now, If we summarize the case of Shashikant S. Patil & Anr.,(supra) it transpires that the finding of the inquiry officer is not binding and the punishing authority can come to its own conclusion, albeit, to arrive at such finding the disciplinary authority should bear in mind the views expressed by the inquiry officer and for this, detailed discussion on materials on record is not the requirement of law. Further, the judgment rendered in Venkatesh Gururao Kurati (supra) is related to non-supply of documents and enquiry report to the delinquent which is not relevant to the context of the present case.

In our considered view, the observation "the punishing authority can come its own conclusion" bears wide significance. Question will naturally arise as to, how the disciplinary authority would come to its own conclusion without application of mind; and further, how can it be said that the disciplinary authority has applied its mind, if there is total absence of any discussion as to how it assessed the evidence to hold the delinquent guilty of the charge of mischief?

At this juncture, we have taken note how the Apex court had dealt with the case of Shashikant S. Patil & Anr.,(supra). Some discussions made by their Lordship‟s while deciding the said case may be taken into account in our quest to trace out the amplitude of the meaning of the words "the disciplinary authority can come to its own conclusion". The Apex Court had discussed the facts of the case which are summarized at paragraphs 12 to 15, which are as follows:[SCC.Pp 422, 423 paras 12, 13, 14 & 15].

"12. The following facts are, therefore, crystal clear : First is, that the complainant made an application on 16-9-1985 for cancellation of the warrant of arrest which he believed to have been ordered by the magistrate. Second is that a month later i.e. on 15-10- 1985, the complainant was arrested by the police under a warrant of arrest issued by the first respondent and he was produced before the magistrate on 16-10-1985 who released him. Repudiation of those facts made by the first respondent is motivated to cover up the real facts.

Third is, that the warrant of arrest under which the complainant was arrested on 15-10-1985 should have been part of the records of the magistrate's Court. But in spite of detailed search the aforesaid warrant could not be traced. Such a surreptitious missing of that warrant is a strong circumstance which the Disciplinary Committee had countenanced against the first respondent.

Fourth is the fact that the Roznama (Proceedings Diary of the Court) maintained in the said criminal case as it is now made available is a fabricated document. We perused the original of that fabricated Roznama. It is unnecessary for us to enumerate the various broad grounds for showing that the present Roznama is a fabricated document, for, even the first respondent's counsel was unable to explain the glaring features of fabrication thereof. It was so fabricated as to suit the present stand of the first respondent that the complainant was not arrested and produced before him on 16-10-1985. It is important to point out that first respondent did not dispute that the aforesaid forged Roznama contains his signature at a number of places where the magistrate's signature should appear.

The Disciplinary Committee enumerated all the above reasons in its proceedings for dissenting from the Inquiry Officer's conclusions. In fact all such reasons have been set out in the notice issued by the Disciplinary Committee to the first respondent requiring him to show cause why the conclusions of the Inquiry Officer be dissented from."

A bare reading of para 15 of Shashikant S. Patil (supra), it is evinced that while differing with the reasons and findings of the inquiry officer, the disciplinary committee enumerated all the above reasons in its proceeding for dissenting from the inquiry officer‟s conclusion and further, the disciplinary committee had highlighted all such reasons in its notice served on the first respondent, i.e. Shashikant S. Patil, wherein he was asked to show cause why the conclusion of the inquiry officer should not be dissented with.

What we have gathered from the above extracts [from Shashikant S. Patil (supra)] is that the three Judges‟ Bench of the Supreme Court found that the disciplinary committee of the High Court, i.e. the punishing authority had set out the reasons, though, in brief, and thus afforded opportunity to the delinquent to address the reasoning of the disciplinary authority which the committee had differently viewed than that of the inquiry officer.

Having found that the disciplinary committee of the High Court had briefly given reasons expressing their contrary view to the reasoning of the inquiry officer and asked the delinquent to reply to those reasoning, in that perspective the Apex Court had held that it would not be the correct proposition of law that the disciplinary authority should discuss materials in detail and contest the conclusions of the inquiry officer. We reiterate that in the case in hand, the disciplinary authority only to hold a different view had stated that the standard of proof in a departmental inquiry is based on preponderance of probability.

This leads us to find out the meaning of "preponderance of probability". According to Black's Law Dictionary, 10th Edn. "preponderance" means superiority in weight, importance or influence; the quality of having a greater number or quantity of something. Again "preponderance of evidence" according to Black's Law Dictionary, 10th Edn. means that "the greater weight of evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight, that though not sufficient to free the mind wholly from all reasonable doubt but is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." - this is the burden of proof in most civil trials, in which the jury is instructed to find for the party, that on the whole, has a stronger evidence, however slight the edge may be.

Further, according to Black's Law Dictionary, 6th Edn. "Probability" means "likelihood; appearance of reality or truth; reasonable ground of presumption; verisimilitude; consonance to reason. The likelihood of a proposition or hypothesis being true, from its conformity to reason or experience, or from superior evidence or arguments adduced in its favour. A condition or state created when there is more evidence in favour of the existence of a given proposition than there is against it."

Again, according to Black's Law Dictionary, 6th Edn. "Probable" means "having the appearance of truth; having the character of probability; appearing to be founded in reason or experience. Having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt; likely." Again, "Probable cause" (Black's Law Dictionary, 6th Edn.) means "Reasonable cause; having more evidence for than against; a reasonable ground for belief in certain alleged facts; a set of probabilities grounded in the factual and practical considerations which govern the decisions of reasonable and prudent persons and is more than mere suspicion but less than the quantum of evidence required for conviction."

Further, the Supreme Court in M.B. Bijlani Vs. Union of India and Ors, reported in (2006) 5 SCC 88 has observed thus: [SCC p 95, para 25]

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. .............................."

If we juxtapose the meaning of preponderance and the decisions as outlined above, then it cannot be said in any way that when there is disagreement note given by the disciplinary authority or the punishing authority, there is no requirement of assigning any reasons for such disagreement. In the instant case, we do not find how the disciplinary authority had weighed the superior evidence which influenced the Full Court to disagree with the findings and reasoning of the inquiry officer. In order to find out the superior evidence, in our considered view, the disciplinary authority should have discussed some material particulars to take a different view than that of the inquiry officer. To justify superiority, one must say that for such reason/s something is inferior. As such, without comparative study there cannot be any distinction between superiority and inferiority.

Preponderance of probability does not mean proof without any sort of discussion on reasons which any reasonable person would or would not believe, and further, such reasoning must manifest from the findings of the quasi-judicial authority which is also the administrative authority. In administrative jurisprudence all decisions of the executive must be based on reasons which also should be prudent, which would be believable to a reasonable person.

In the nature of the present case, the Full Court being the decision making authority should have informed the charged judicial officer about the grounds which permitted it to disagree with the findings of the inquiry authority to enable the judicial officer to meet those grounds of disagreement, in absence of which, such decision would be in violation of the principles of natural justice.

On perusal of the record of the present case, we find that SW3 only heard loud talking, SW5 also head loud altercation but did not know the reason for such altercation. SW6 states, being the Bench Clerk of the petitioner, the petitioner did Ejlash Work till 1.30 p.m. and left court at 02.15 p.m. during lunch hour and returned to court at 2.45 p.m. and did official works till 4.45 p.m. and then returned home. SW7, being the private secretary of the charged officer, gave the same version. SW8, the clerk of the Family Court, placed the files of the Family court to the petitioner-charged officer at 1.30 p.m. and continued the work of the Family Court till 2.15 p.m. SW9, a Judicial Officer, did not give any incriminatory statement. SW10, another judicial officer along with SW9 and SW11, the then Chief Judicial Magistrate, went to the quarters of the complainant and found one lawyer Mr. B Singha and the petitioner shaking hands, and then requested him to leave the house of the complainant. SW11, the then Chief Judicial Magistrate also did not state a single incriminatory word against the petitioner-delinquent. Thus, the finding of the disciplinary authority in respect of SW3, 5, 6, 9, 10 & 11 is not supported by the evidence on record. In fact, the evidence of SW3, 5, 6, 9, 10 & 11 stands at a higher pedestal than that of the evidence of the complainant, SW1 and his wife, SW2.

However, the disciplinary authority did not consider the evidence of DW1, the official driver of the petitioner, DW2, the official peon of the petitioner and DW3, the petitioner himself. More so, it is an admitted position that on the report of the present petitioner lodged in the High Court the complainant was placed under suspension and while show cause notice was issued on the complainant he pleaded guilty and begged apology. While begging apology the complainant, after 18 days, took a defence that the present petitioner instigated him. But for 18 days the complainant did not lodge any complaint against the petitioner in the High Court and also did not explain any reason for such silence.

Such position of evidence invites/attracts the requirements of comparative study of all the evidences to determine or measure the superior evidence. To weigh the evidence, some discussion is necessary to establish the grounds of its disagreement. Failure to show such grounds would definitely cause prejudice to the delinquent-charged officer to properly reply and meet such grounds of dis-agreement.

As we have stated earlier that every quasi-judicial or administrative order must meet the test of reasonableness. It is now well settled that a thin demarcated line between a quasi-judicial order and an administrative order now stands obliterated. In our considered view, any opinion formed by a disciplinary authority or punishing authority in order to countenance the views expressed by the inquiry authority having civil or evil consequences must disclose its grounds and which also are to be informed to the delinquent-charged officer enabling him to deal with such grounds in his defence, otherwise, it would definitely cause serious prejudice to the petitioner and also principles of natural justice would be violated in such a case. In Rajesh Kumar (supra) the Apex court has held that "justice as is well known is not only to be done but manifestly shown to be done.........."

As such, in the present case, taking a cue from the long line of authorities as outlined above in Kunj Behari Misra (supra), Roop Singh Negi (supra), Mathura Prasad (supra), National Fertilizers Limited (supra), SP Malhotra (supra), Rajesh Kumar (supra) and Shashikant S Patil (supra), etc., if succinctly read with the meaning of the word "preponderance" (as per Black‟s Law Dictionary, 10th Edn.) we may arrive at a finding that decision making process of the disciplinary committee assumes the function of quasi-judicial or administrative authority and thus being the statutory authority has to observe the essential elements of principles of natural justice and in the present case, the decision of the Full court has failed to show any prudent ground of disagreement to the view of the inquiry authority and we further find that the rule of law which permeates our Constitution has not been observed substantially and procedurally. Moreover, rules of natural justice do not supplant but supplement the rules and regulations. [Delhi Transport Corporation vs. DTC Mazdoor Congress & Ors, 1991 Supp. (1) SCC 600].

A bare reading of the note of disagreement by the Full Court of this Court makes it clear that the Full Court being the disciplinary authority has already held in its meeting dated 03.06.2016 that "all the three charges brought against Shri Debnath have been fully substantiated" and the reasons assigned for that is that the standard of proof required in a disciplinary proceeding case is preponderance of probability. Being held the delinquent officer as guilty, the Full court asked the Registrar General to forward a copy of the report of the Inquiry Officer together with the decision of the Full court requiring the petitioner to submit his written representation within 15 days in terms of Rule 15(2) of the CCS (CCA) Rules, 1965.

The duty and obligation cast upon the disciplinary authority in the event of not giving note of disagreement other than the view taken by the Inquiring Officer was well-settled by the Apex Court in the case of Yoginath D Bagde (supra). The relevant paragraphs may be reproduced hereinbelow, in extenso, for convenience:

"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 Inquiring Authority or disagree with those findings. If it does not agree with the findings of the Inquiring Authority, it may record its own findings. Where the Inquiring 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 Inquiring 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 Inquiring 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 Inquiring 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 Inquiring 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 Inquiring 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.

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 Inquiring 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 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.

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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 in any legislative enactment or service rule including rules made under Article 309 of the Constitution.

Applying the above principles to the facts of this case, it would be noticed that in the instant case the District Judge (Enquiry Officer) had recorded the findings that the charges were not proved. These findings were submitted to the Disciplinary Committee which disagreed with those findings and issued a notice to the appellant requiring him to show-cause why he should not be dismissed from service. It is true that along with the show-cause notice, the reasons on the basis of which the Disciplinary Committee had disagreed with the findings of the District Judge were communicated to the appellant but the Disciplinary Committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established. The Disciplinary Committee, in fact, had acted in accordance with the statutory provisions contained in Rule 9(4)(i)(a) & (b). He was called upon to show-cause against the proposed punishment of dismissal as will be evident from the minutes of the Disciplinary Committee dated 21st June, 1993 which provide as under :-

"Decision:

Discussed.

For the reasons recorded in Annexure "A" hereto, the Committee disagrees with the finding of the Enquiry Officer and finds that the charges leveled against the delinquent Judicial Officer have been proved.

It was, therefore, tentatively decided to impose upon the Judicial Officer penalty of dismissal from service. Let notice, therefore, issued to the delinquent Judicial Officer calling upon him to show cause why penalty of dismissal from service as prescribed in Rule 5(1)(ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 should not be imposed upon him.

Show cause notice will be accompanied by a copy of the Report of the Inquiring Authority and the reasons recorded by this Committee."

These minutes were recorded after the Disciplinary Committee had considered the Enquiry Report and differed with the findings and recorded its final opinion in para 10 of its reasons as under :

"10. The Disciplinary Committee is of the opinion that the findings recorded by the Enquiry Officer on both the charges cannot be sustained. The Committee, after going through the oral and documentary evidence on record, is of the opinion that both the charges against the delinquent are proved. The delinquent is a Judicial Officer who has failed to maintain the absolute integrity in discharge of his judicial duties."

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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.

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In the instant case, we have scrutinised the reasons of the Disciplinary Committee and have found that it had taken its final decision without giving an opportunity of hearing to the appellant at the stage at which it proposed to differ with the findings of the Enquiry Officer. We have also found that the complainant's story with regard to the place at which the demand was allegedly made by the appellant was inconsistent. We have also noticed that the trap laid by the A. C. B., Nagpur against the appellant had failed and was held by the Enquiry Officer to be a farce and not having been laid with the permission of the Chief Justice. We have also noticed that there was absolute non-consideration of the statements of defence witnesses, namely, Dr. Naranje and Mr. Bapat, advocate, by the Disciplinary Committee. This factor in itself was sufficient to vitiate the findings recorded by that Committee contrary to the findings of the Enquiry Officer.

For the reasons stated above, we allow the appeal and set aside the judgment dated 21-6-1996 passed by the Bombay High Court by which the appellant's Writ Petition was dismissed. We hereby allow the Writ Petition and quash the order of dismissal dated 8-11-1993 passed by the State Government with the direction that the appellant shall be reinstated in service forthwith with all consequential benefits, including all arrears of pay which shall be paid to him within three months. There will be no order as to costs." (emphasis supplied)

After a meticulous scan of the principles laid down in Yoginath D. Bagde (supra) particularly, para 34, we should say that in the instant case, the decision of the Full Court was only a tentative one. According to us, applying the principles of Yoginath D. Bagde (supra) the disciplinary authority has committed an error of the established procedure of law enshrined in Rule 15(2) of the CCS (CCA) Rules, 1965 read with Article 311(2) of the Constitution of India and has to indicate the reasons on the basis of which it proposes to disagree with the findings recorded by the inquiring authority. Reliance being placed at para 31 of Yoginath D. Bagde (supra) we may say that the formation of opinion by the disciplinary authority should be tentative and not final. But in the instant case, the way the disciplinary authority recorded its decision in its meeting held on 03.06.2016, as we said earlier, is enough to say that the decision of the Full Court was final and not tentative.

The principle of natural justice speaks about "right to be heard" which should be available to the delinquent up to the filing stage and it is a constitutional right which cannot be taken away in any legislative enactment or service rules including rules made under Article 309 of the Constitution.

According to us, the decision taken by the Full Court in its meeting dated 03.06.2016 appears to be immaterial, rather to say an empty formality, to the delinquent as he was deprived of his legitimate "right to be heard" before the disciplinary authority would come to its final decision. Further, the petitioner was not made able to reply the inevitable finding of the disciplinary authority than to the favourable finding of the inquiry authority and this factor itself is sufficient to vitiate the decision of the disciplinary authority.

Rule 15(2) of CCS(CCA) Rules, 1965 and Article 311(2) of the Constitution of India mandate the disciplinary authority to record its reasons provisionally for such disagreement and come to the delinquent officer an opportunity to represent before it records its findings.

Taking a cue from the decision of the Apex Court in Kunj Behari Misra (supra) we hold that the report of the Inquiry Officer containing the 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 and non-assigning of such reasons or grounds of disagreement itself causes prejudice to the delinquent officer.

In the instant case, another important aspect, which is necessary to be dealt with, is that the disciplinary authority after receipt of the representation from the petitioner, i.e. the delinquent officer just reiterated its decision taken in the meeting dated 03.06.2016 and only distinction we find is that the disciplinary authority had imposed the penalty. On this point, we may profitably refer a decision of the Apex Court in Ranjit Singh Vs. Union of India and Ors. reported in (2006) 4 SCC 153 wherein Their Lordships had relied upon the decision of the Apex Court in State Bank of India Vs. K.P. Narayan Kutty reported in (2003) 2 SCC 449 wherein in para 21 the Apex Court had observed thus:

The said decision has been followed by this Court in State Bank of India and Others v. K.P. Narayanan Kutty, wherein it was clearly held that in such an event the prejudice doctrine would not be applicable, stating: (SCC Pp 454-55, para 6)

"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."

A three Judge Bench of the Apex Court in Kunj Behari Misra (supra) faced similar situation, as in the present case and reliance being placed on the case of Ram Kishan Vs. Union of India & Ors. reported in (1995) 6 SCC 157, at para 14 and 19 held thus:

In Ram Kishan's case disciplinary proceedings on two charges were initiated against Ram Kishan. The inquiry officer in his report found the first charge not proved and the second charge was partly proved. The disciplinary authority disagreed with the conclusion reached by the inquiry officer and a show-cause was issued as to why both the charges should not be taken to have been proved. While dealing with the contention that the disciplinary authority had not given any reason in the show-cause to disagree with the conclusions reached by the inquiry officer and that, therefore, the finding based on that show cause notice was bad in law, a two-Judge Bench at page 161 observed as follows : (scc. P 10)

". . . . The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show-cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect."

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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.

Applying the ratio laid down in Ram Kishan (supra) according to us, the disciplinary authority has to provisionally specify the reasons of disagreement. Again, similar issue came up before the Apex Court in State Bank of India Vs. Arvind Kumar Shukla reported in (2004) 13 SCC 797 wherein the Apex Court has dealt with the matter in the manner as follows:

"1. ................. The only question that arises for our consideration is whether in a case where disciplinary authority disagrees with the Inquiry Officer on certain articles of charges, then before it records its findings on such charge, is it duty bound to record its tentative reasons for such disagreement and give the same to the delinquent officer an opportunity to represent before it ultimately records its findings?

Mr. Sundravardan, the learned senior counsel appearing for the State Bank of India contended before us that in the case in hand, in fact, there has been no disagreement with the findings of the enquiring officer by the disciplinary authority, and on the other hand, the disciplinary authority on the accepted findings of the enquiring officer has recorded his conclusion differently on the basis of the relevant provisions of the rules, and therefore the question of giving an opportunity to the delinquent at that stage does not arise. To appreciate this contention, we have been taken through the findings of the enquiring officer and charges 1(a) and 1(d) as well as the reasonings and ultimate conclusion of the disciplinary authority on those two charges. On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived at by the enquiring 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 give 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, MANU/SC/0531/1998: (1998)IILLJ 809 SC. The Bench in the aforesaid case relied upon the earlier decision in the Institute of Chartered Accountant case MANU/SC/0083/1986 : [1987] ITR 1 (SC) : [1987] 164 ITR 1 (SC) as well as the Ram Kishan case MANU/SC/0065/1996 : (1996) ILLJ 982 SC and came to hold that the view expressed in S. S. Koshal (1994 AIR SCW 2901) and M. C. Saxena MANU/SC/0154/1998 : [1998] 1 SCR 1090 : [1998] 1 SCR 1090 cases do not lay down the correct law. Mr. Sundravardan, however, brought to our notice yet another 3-Judge Bench decision in the case of Union Bank of India v. Vishwa Mohan, MANU/SC/0272/1998 : (1998) ILLJ 1217 SC, and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in the Punjab National Bank case was not really there before the Court and the Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL v. B. Karunakar, MANU/SC/0237/1994 :(1994) ILLJ 162 SC. In the absence of any contrary decision of a 3-Judge Bench decision on the question in issue, we are bound by the earlier judgment of this Court in Punjab National Bank case, necessarily, therefore we do not find any merit in this appeal, which stands dismissed. (Emphasis supplied)

In our view, the Hon‟ble Judges of the Full Court, the punishing authority, in its process of arriving at a decision, must justify their decision of disagreement, by way of mentioning/recording their own views/grounds on a particular point, which the Inquiry Officer had mentioned in his report, and by that process the Full court has to record its own reasons. Keeping in mind the mandate of Article 311(2) of the Constitution of India, in our opinion, the requirement in the process of decision, is that the conclusions provisionally reached by the disciplinary authority, must specify its own reasons of disagreement in the notice itself, otherwise, it would be an empty formality to issue such show cause notice causing serious prejudice to the delinquent and would result grave miscarriage of justice towards him.

In regard to the remaining points, i.e. point Nos. (ii) & (iii), in view of the long line of authorities as outlined above, the order of punishment, i.e. the decision of the Full Court dated 01.07.2016 imposing penalty of withholding of three increments of pay without cumulative effect is not sustainable in law. The same is accordingly set aside and quashed.

The writ petition is allowed and accordingly disposed of. Pending applications, if any, also stand disposed of.