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Judgment
O R D E R
PER HON’BLE JUSTICE ANIL KUMAR OJHA, MEMBER (J) Heard learned counsel for the applicant, learned counsel for the respondents and perused the records.
Through this Original Application, applicant has prayed for the following reliefs:
“a. Quash the impugned order, Annexure- 1 dated 25/06/2012; Annexure No. 2 dated 21/10/2015 and Annexure-3 dated 09/01/2017 passed by respondent no. 4, 3 and 2 respectively.
b. Direct to refund the amount of Rs. (4,35,184-89,675)= Rs 3,45,509/- (Rs. Three lacks forty five thousand five hundred and nine only)
c. Direct to pay interest @ 18% per annum on amount of Rs. 89,675/-from the date of deposit to the date on which the amount was refunded to the applicant, i.e. for the period 12/04/2010 to 06/09/2016.
d. Direct to pay interest @ 18% per annum on an amount of Rs. 3,45,509/- from the date of deposit i.e. 12/04/2010 to the date on which the refund will be paid.
e. Direct to treat the suspension period w.e.f. 16/03/2010 to 14/06/2010 as spent on duty with all consequential benefits.
f. Grant any other relief, which this Hon’ble Tribunal may deem fit, just and proper under the circumstances of the case.
g. Allow the Original Application with costs in favour of the applicant in the interest of justice, equity and fair play.”
Tersely put, the case of the applicant is that applicant was employee of the Respondent Department and he was served a chargesheet on 14.06.2010. After conclusion of inquiry, the Inquiry Officer found that charges not proved.
On 28.02.2012, the Disciplinary Authority gave the disagreement note. On 25.06.2012, Disciplinary authority awarded punishment of withholding of one increment for one year with cumulative effect.
Appeal preferred against the same was partly allowed by modifying the punishment order to withholding of one increment for one year without cumulative effect vide order dated 21.10.2015.
Review petition filed against appellate order also came to be dismissed vide order dated 09.01.2017.
Hence, this OA.
Respondents by filing their counter affidavit have, inter-alia, stated that disciplinary authority did not agree with the findings of the Inquiry Officer and as such he issued a disagreement note vide letter dated 28.02.2012 and a copy of the same was served upon applicant requiring him to submit his representation. The disciplinary authority considering the charges leveled against the applicant in the charge-sheet, report of the inquiry officer and the defence representation of the applicant came to the conclusion that on the basis of documentary evidence the charges were proved. Hence, order under challenge in the present OA is legally perfect.
Applicant by filing rejoinder affidavit reiterated the averments made in the Original application. Further stated that disciplinary authority submitted his disagreement note with predetermined guilt of notion and just to punish the applicant. Disciplinary authority failed to take into consideration that the findings of the inquiry officer are based on appreciation of the evidence led during the course of enquiry.
Learned counsel for the applicant submitted that findings of the Inquiry Officer recorded in the inquiry report (Annexure No. 7) clearly noted that the Article-I of charge not proved. Further submitted that disciplinary authority in his disagreement note held that allegation alleged is proved. In the disagreement note, tentative reason has not been given rather than with closed & predetermined mind findings have been recorded, hence, in view of the law laid down by Hon’ble Apex Court in the matter of Punjab National Bank vs. Kunj Bihari Mishra reported in (1998) 7 SCC 84, impugned punishment order deserves to be quashed.
Per contra, learned counsel for the respondents strongly opposed the aforesaid submissions and contended that in disagreement note (Annexure No. 8) there are only tentative reasons for disagreement and findings are not definite, hence, arguments advanced by learned counsel for the applicant are not sustainable in the eyes of law. OA deserves to be dismissed.
In Punjab National Bank vs. Kunj Bihari Mishra reported in (1998) 7 SCC 84 cited by the learned counsel for the applicant, Hon’ble Supreme Court made the following observations:
“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 favorable 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 a representation before the disciplinary authority records its findings on the charges framed against the officer.
From the aforesaid extract of the aforecited judgment, it is manifest that a responsibility is cast upon the disciplinary authority for recording tentative reasons in case such authority disagrees with the findings of the enquiry on any article of charge.
In view of the aforesaid legal proposition, the facts of the case are being analyzed.
In the Annexure No. 8 (page 59-60 of the paper-book), the relevant portion of disagreement note runs as follows:
“The Disciplinary Authority disagree with the findings of Inquiry Report to the following extent: As per Ex D-4 only the following a months of Khapra Mohal cash counter have been got deposited with AO(Cash) 0/0 GMTD Kanpur as detailed below-
S.No Batch No. No. of Vouchers Amount 1 9 23 26046/- 2 8 16 10889/- 3 7 28 15365/- 4 6 28 18939/- 5 5 28 18436/- Total 89675/- The Charged Officer was given opportunity to inspect the cash book and take copy thereof, even then Charged Officer failed to produce any documentary proof that the remaining amount as mentioned in Annexure-II have been deposited with AO(Cash) means that forged entry was made.
Secondly the Charged Officer has demanded certain additional documents which was declared not available but actually the custodian of these documents was the Charged Officer himself and if it was not supplied by the administration, it was pertinent on part of Charged Officer to produce documentary evidence to whom he has made over these documents in the charge.
“As the allegation alleged is proved.” Shri R.N. Verma, JAO is hereby given an opportunity to make representation, if any. The representation should be submitted in writing to the disciplinary authority within 15 days of receipt of this memo, failing which it will be presumed that he has no representation to make and further action will be taken by the disciplinary authority as per rules.”
From the perusal of aforesaid extract of the disagreement note, it is evident that nowhere it is mentioned that such disagreement is tentative or provisional. Further it is noticed that the disciplinary authority has found the charge fully proved without recording that such finding is tentative or provisional.
In view of above, we are of the considered opinion that disciplinary authority passed the impugned punishment order in violation of the law laid down by the Hon’ble Apex Court in the matter of Kunj Bihari Mishra (supra), hence, impugned punishment order deserves to be quashed.
Accordingly, the impugned orders dated 25.06.2012 (Annexure-1), 21.10.2015 (Annexure-2) and 09.01.2017 (Annexure-3) are quashed. However, respondents are at liberty to proceed afresh with the disciplinary proceedings from the stage of consideration of the inquiry report by the disciplinary authority. The said exercise may be completed within six months from the date of receipt of a certified copy of this order.
The OA is disposed of as above.
There shall be no order as to costs.
Pending M.As, if any, also stand disposed of.