Judgment:
1. Two spinal questions of law emerge out of this O. A. filed by the applicant: (a) While the Rules provide for the Disciplinary Authority to consider the inquiry report and in case of disagreement it is the Disciplinary Authority which could strike a note of disagreement with reasons thereof, whether instead of the Disciplinary Authority, Appellate Authority could record such a disagreement? (b) Whether judicial intervention is permissible at the stage when the note of disagreement is recorded by the Competent Authority? 2. A brief calendar bearing on the landmark events, giving the core facts relevant and required for consideration of the above questions, is necessary right at the beginning.
3. The applicant, posted as Executive Engineer, Jhansi, North Central Railway, had to face a charge sheet dated 29.10.1997 for certain alleged misconducts, which he stoutly denied by his reply dated 06.02.1998. The logical sequence of appointment of Inquiry Officer, conducing of inquiry and submission of inquiry report dated 16.10.2000 followed, the I.O. rendering his finding as the charges proved. The applicant had penned a representation against the same, complaining violation of the principles of natural justice. As no decision on the report of the I.O. and the representation of the applicant was forthcoming, the applicant filed O.A. 1042/2002 before this Tribunal, which, by order dated 13.09.2002 directed the respondents to take appropriate decision in the matter and pass a reasoned, speaking order.
4. The above order of the Tribunal resulted in the Disciplinary Authority remitting the case back to the Inquiry Authority for examination of certain witnesses providing opportunity to the applicant to cross examine the same, vide order dated 25.09.2002. This drill was undertaken by the I.O. who had in the course of inquiry expunged the "incomplete statement" by the witnesses, which was also not signed and proceeded further and the inquiry culminated into a report by the I.O.dated 24.02.2003, and this time he had rendered the finding as 'charges not proved'. On receipt of the copy of the inquiry report, the applicant being fully satisfied accepted the findings of the I.O., vide his letter dated 06.01.2004. Despite a lapse of about six months, since upon the inquiry report there was no response from the respondents as to the final decision which according to the applicant cannot but be an order of exoneration as per the order dated 8.8.2002 of the Railway Board, the applicant had moved O.A. No. 678/2004 in July, 2004 which was disposed of by the Tribunal with a direction to take a final decision in the matter, vide order dated 16.07.2004.
5. According to the applicant, respondent No. 3, i.e. the G.M., N.C.R., issued a "disagreement memo" dated 15.07.2004, with a malafide intention to prolong the inquiry and punish the applicant. This has, according to the applicant, forced him to again approach the Tribunal by filing O.A. No. 854/2004 which was disposed of by the Tribunal with a direction to the applicant to file objection to disagreement memo and with a direction to the Disciplinary Authority to dispose of the objection within a time frame, vide order dated 17.08.2004. In compliance with the direction of the Tribunal, the applicant had filed his objection on 03.08.2004 and as within the stipulated time of two months calendared by the Tribunal the Disciplinary Authority failed to take decision on the same, the applicant had to move a Misc.
Application and time was granted to the respondents to take decision in the disciplinary matter. In the pleadings in regard to the above stated Misc. Application, some averments of the respondents gave the clear indication that the earlier disagreement memo by the Disciplinary Authority was not as a result of his own independent decision but was a decision at the instance of the Railway Board.
6. Utilizing the time granted by the Tribunal, respondent No. 2 (the Appellate Authority) has passed another disagreement memo without setting aside the first disagreement memo issued by the Disciplinary Authority. Order dated 22.02.2005, impugned herein refers.
7. It is this disagreement memo issued by the Appellate Authority that has been subjected to challenge in this O.A. on various grounds, the prime of which is, vide Ground No. (viii), that under the D & A Rules, 1968, the Appellate Authority has no power to issue disagreement memo and thus, issue of the said memo is without jurisdiction.
8. As the earlier disagreement memo passed by the Disciplinary Authority had not been set aside by any formal order of the higher authorities, the applicant has prayed for quashing and setting aside not only of the disagreement memo dated 22.02.2005 of the Appellate Authority but also that of the Disciplinary Authority i.e. order dated 15.07.2004.
9. Respondents were put to notice and no counter was filed but the Counsel for the respondents vehemently argued that the action on the part of the Appellate Authority is fully legal. In this regard, he had submitted as under: In terms of Rule 10(3) of Railway Servants (D&A) Rules, 1968, where the Disciplinary Authority is of the opinion that the penalty warranted is such as is not within its competence, he shall forward the records of the inquiry to the appropriate Disciplinary Authority who shall act in the manner as provided in these rules. Thus, the shifting of power of the Disciplinary Authority to Railway Board is well within the provision of Railway Servants (D & A) Rules. The General Manager in this case is of the opinion that the penalty warranted in this case is not within its competence and thus the case was forwarded to Railway Board for further action in the matter.
As regard disagreement memo dated 22.02.2005, it is to state that the General Manager, N.C. Railway had already taken an independent view on Inquiry Officer's Supplementary Report and held the charges proved against the Inquiry Officer's findings that the charges were not proved. However, since no disagreement memo was issued to Shri C.D. Sharma, the Railway Board merely pointed out the procedural infirmity which was later on removed by the General Manager. Thus it is not that the disagreement memo was issued at the instances of the Railway Board but the General Manager had already given his findings after due application of mind and the procedural lapse left in the disciplinary proceedings were later on removed by the General Manager, N.C. Railway which was for the benefit of the charged officer and intended to provide reasonable opportunity of defence to him.
10. In his written submission, while submitting on the above lines, the Counsel for the respondents has also made available the relevant Rules on the subject i.e. Action on the inquiry report, which is reproduced below. A few judgments were also found attached to the written submission filed by the respondents, (1997) SCC (L & S) 135,1994 (28) ATC 810; however, it is found that they are not directly or proximately covering the issue involved in this O.A.11. As regards the provision relating to the D.A's reference to the Appellate Authority to pass appropriate orders, apart from inviting our attention to Para 10(3) of the D&A Rules, 1968 as extracted above, the learned Counsel for the respondents has also referred to the provisions relating to powers under the disciplinary Rules of various authorities in respect of Group A and Group B officers.
12. On the side of the applicant, the learned Counsel for the applicant has stressed the point that a valuable right of appeal would be completely lost, in case the Appellate Authority performs the functions of the Disciplinary Authority. The learned Counsel for the applicant had emphasized that regarding disagreement memo, the Rules contemplate only the Disciplinary Authority and at this stage, there is no question of the Appellate Authority entering the scene. In his submission, the applicant has relied upon the following decisions:State of Punjab v. V. K. Khanna (2001) 2 SCC 330 : 2001 (3) SLJ 402 (SC).Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant (2001) 1 SCC 182.
(e) Order dated 23.04.2004 of the High Court of Judicature for Rajasthan at Jaipur Bench in S.B. Civil Writ Petition No. 4679/2000.
13. We have given our anxious consideration and had scanned through the entire pleadings and also gone through the authorities cited by the learned Counsel for the applicant.
14. First the rule position. The Counsel for the respondents contended that vide Rule 10(3) of the D&A Rules, 1968, the Disciplinary Authority can well refer the matter to the Railway Board and it is this provision that was pressed into service in this case. The said Rule 10(3) reads as under:(1) XXX XXX XXX(2) XXX XXX XXX (3) Where the Disciplinary Authority is of the opinion that the penalty warranted is such as is not within its competence, he shall forward the records of the inquiry to the appropriate Disciplinary Authority who shall act in the manner as provided in these Rules.
15. A bare reading of the above rule would go to mean that the stage at which this rule could be pressed into service is when the Disciplinary Authority, after considering the inquiry report decides to impose penalty and that here again, he is of the opinion that the penalty warranted is such as is not within his competence. This stage would be arrived at when: (a) the I.O. renders his findings as the charges stand proved and the applicant on receipt of the same furnishes his representation and the D.A. after dispassionately considering the same decided to impose penalty; or (b) the I.O. renders his finding as the charges not proved and that the D.A. disagrees, gives his disagreement memo to the delinquent employee who submits his representation to such a disagreement and thereafter, the D.A. after dispassionately considering the same takes a decision to impose penalty.
16. In so far as the case of the applicant is this O.A. is concerned, the above stage has not reached at all. The stage is that the I.O. has rendered his report as per which the finding is that the charges have not been proved. This is the stage undisputed by any party. Crossing this stage, of course, the D.A. has already rendered his disagreement vide order dated 15.07.2004 in retort to which the applicant has given his representation on 3.08.2004, which has not been actioned upon.
Meanwhile, a fresh memo of disagreement has been issued from the Railway Board and it is that order which is impugned herein. If the earlier memo of disagreement issued by the D.A. remains alive, then there is absolutely no question of one more memo of disagreement and that too from an authority not vested with the power to issue such memo of disagreement; Be that as it may, in so far as the case in hand is concerned, as stated earlier, the stage is only at the level of issue of disagreement memo. That far and no further. Hence, recourse to the provisions contained in Rule 10(3) of the D&A Rules, 1968 cannot be resorted to at this stage.
17. Now, we have to consider the contentions of the learned Counsel for the applicants, whether, by virtue of the Appellate Authority having taken the position of the Disciplinary Authority, the applicant stands to lose a valuable right of appeal. The applicant is functioning as an Executive Engineer and under Rule 9 of the D & A Rules, 1968, the charge sheet was issued vide memorandum dated 29.10.1997. The same has been signed by the then General Manager and the memorandum begins with the words, "The undersigned proposes to hold an inquiry against Shri C.D. Sharma, DEC (Spl) AGC under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968." This clearly shows that the Disciplinary Authority in this case is the General Manager. If ultimately, the Disciplinary Authority could impose any punishment within his powers, then the Railway Board becomes the Appellate Authority, As such, if the Appellate Authority steps into the shoes of the Disciplinary Authority, who would act as the Appellate Authority would be the question. The schedule III appended to the D&A Rules, 1968 provides for full powers to the Railway Board as Disciplinary Authority in which even the President becomes the Appellate Authority. Hence, in case the Disciplinary Authority viz. the General Manager is of the opinion that penalty other than those specified in Clauses (i) to (vi) of Rule 6 is warranted in the facts and circumstances of the case, then invoking the provisions of 10(3) of the Rules, he may approach the Railway Board and in that events the Board has to specified in clear terms that the Appellate Authority would be the President. Instead, if the Disciplinary Authority himself imposes the penalty within his powers, then it is the Railway Board which is the Appellate Authority.
If the Appellate Authority comes into the seen even before the decision to impose penalty is arrived at, the same deprives the applicant of a valuable opportunity. In any event the entry of the Appellate Authority, viz. a the Railway Board at this juncture is bad in law.
18. Now, dealing with the second question formulated in Para 1 of this order viz,, whether the judicial intervention could be permitted at a stage when the Disciplinary Authority chooses to issue disagreement memo.
19. Section 19 of the Administrative Tribunals Act, 1985 stipulates that subject to other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for redressal of his grievance.
The term "order" means an order made by the Government or a Government controlled local or other authority, or Corporation. Of course, the order should pertain to any matter within the jurisdiction of a Tribunal and obviously the matter should be one falling under the term 'service matters' as defined in Section 3(q) of the Act. The disciplinary matters do fall within the term and as such any order passed in a disciplinary matter can be agitated before this Tribunal.
However, when Section 20 is kept in mind, the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant Service Rules. Representation against the disagreement memo is one such remedy available and as such ordinarily at such a stage where the individual has been served with a disagreement memo, a Tribunal may not entertain the case. It is, therefore, to be seen whether the case of the applicant has something extraordinary so as to entertain the application. In regard to the same, the applicant has relied upon a number of decisions of the Apex Court and of the Hon'ble High Court of Judicature for Rajasthan at Jaipur. The same are discussed as hereunder:State of Punjab v. V.K. Khanna (2001)2 SCC 330 : 2001(3) SLJ402 (SC): The Apex Court in the above case has held; 33. While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delved into by any Court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge-sheet or the authority concerned is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law Courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official.
It is not a question of shielding any misdeed that the Court would be anxious to do, it is the due process of law which should permeate in the society and in the event of there being any affection of such process of law that law Courts ought to rise up to the occasion and the High Court, in the contextual facts, has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings.In Nagaraj Shivarao Karjagi v. Syndicate Bank, the Apex Court 17. We are indeed surprised to see the impugned directive issued by the Ministry of Finance, Department of Economic Affairs (Banking Division). Firstly, under the Regulations, the Bank's consultation with Central Vigilance Commission in every case is not mandatory.
Regulation 20 provides that the Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a vigilance angle. Even if the Bank has made a self-imposed rule to consult the Central Vigilance Commission in every disciplinary matter, it does not make the Commission's advice binding on the punishing authority. In this context, reference may be made to Article 320(3) of the Constitution. Article 320(3) like Regulation 20 with which we are concerned provides that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on all disciplinary matters affecting a civil servant including memorials or petitions relating to such matters. This Court in A.N. D'Silva v. Union of India has expressed the view that the Commission's function is purely advisory. It is not an Appellate Authority over the Inquiry Officer or the Disciplinary Authority. The advice tendered by the Commission is not binding on the Government. Similarly, in the present case, the advice tendered by the Central Vigilance Commission is not binding on the Bank or the punishing authority. It is not obligatory upon the punishing authority to accept the advice of the Central Vigilance Commission.
The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the Disciplinary Authority or the Appellate Authority as to how they should exercise their power and what punishment they should impose on the delinquent officer.In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant (200l) 1 SCC 182, the Apex Court has held : 19. While it is true that in a departmental proceeding, the Disciplinary Authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of administrative action is feasible and the same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable....
(d) Punjab National Bank v. Kunj Behari Misra , is the case which directly deals with the one of the law points involved in this case. In that case the Apex Court has held: 3. The Enquiry Officer gave the respondents opportunity of being heard. In this report submitted in connection with the enquiry against Misra, he found him guilty only of one charge, namely, that he did not sign the relevant register from 20.10.1981 to 9.11.1981 but exonerated him of charges two to six. As far as Goel is concerned, the Enquiry Officer in his report found him not guilty of any of the charges and exonerated him.
4. On receipt of the reports from the Enquiry Officer, the Disciplinary Authority, namely, the Regional Manager of the appellant-Bank to whom the reports were submitted did not agree in the case of Misra with the findings of the Enquiry Officer in respect of charges two to six and by a short order dated 12.12.1983, passed an order holding that it was an undisputed position that Misra being Assistant Manager was in the joint custody of the keys of the currency chest and he had personal responsibility towards the safe custody of the cash and that no material had been placed during the enquiry proceedings to establish that he had discharged his duties in the manner expected of him. The Disciplinary Authority accordingly held Misra to be responsible for the shortage in question and held that a minor penalty of proportionate recovery ought to be imposed on the respondent for the loss of Rs. 1 lakh caused to the Bank due to negligence on his part in the discharge of his duties. Similarly in the case of Goel, the Disciplinary Authority did not agree with the enquiry report and passed an order dated 15.12.1983 directing proportionate recovery of the loss of Rs. 1 lakh caused to the Bank by him. It may here be noticed that during the pendency of these disciplinary proceedings, both Misra and Goel superannuated on 31.12.1983. The Disciplinary Authority accordingly directed the recovery of the money from the Bank's contribution to the provident fund of the respondent-officers.
5. The respondents then filed appeals to the Appellate Authority but they were unsuccessful. Thereupon Misra filed Civil Writ Petition No, 3197 of 1984 before the Lucknow Bench of the Allahabad High Court while Goel filed Civil Writ Petition No. 1192 of 1984 in the High Court at Allahabad. The main contention of the respondents in the said writ petitions was that the Disciplinary Authority, who had chosen to disagree with the conclusions arrived at by the Enquiry Officer, could not have come to adverse conclusions without giving them an opportunity of being heard and the orders passed against them were liable to be quashed. This contention found favour with the High Court who, while allowing Misra's writ petition vide its judgment dated 20.2.1990, quashed the order imposing penalty and directed the appellants to release the retirement benefits including provident fund and gratuity. Following the aforesaid decision, the writ petition filed by Goel was allowed by the High Court on 10.1.1995 and a similar direction was issued for the release of the retirement benefits like provident fund and gratuity etc., to the said respondent.
7. The only contention urged by Mr. V.R. Reddy, learned Senior Counsel for the appellant, was that the Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977 (for short "the Regulations") did not require an opportunity of being heard being given to the delinquent officers when the Disciplinary Authority disagreed with the findings of the Enquiring Authority once the Enquiring Authority had given a hearing to them. It was further submitted by the learned Counsel that the requirement of giving such a hearing could not be read into the said Regulations and no prejudice could be said to have been caused to the respondents inasmuch as the Enquiring Authority had given full opportunity to them.
9. On behalf of the respondents, it was submitted that even if there was no provision in the Regulations, nevertheless it was incumbent upon the punishing authority to give notice to the respondents if the said authority desired to differ with a favourable finding recorded by the Enquiry Officer. It was also submitted that the findings recorded by the Disciplinary Authority were contrary to the provisions of the Regulations and were based on surmises and conjectures.
7. Action on the enquiry report. -(1) The Disciplinary Authority, if it is not itself the Enquiring Authority, may, for reasons to be recorded by it in writing, remit the case to the Enquiring Authority for fresh or further enquiry and report and the Enquiring Authority shall thereupon proceed to hold the further enquiry according to the provisions of Regulation 6 as far as may be.
(2) The Disciplinary Authority shall, if it disagrees with the findings of the Enquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.
(3) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee, it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty.
(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned.
A bare reading of the above Regulations shows that on furnishing of the charge-sheet, full opportunity is required to be given to the delinquent officer to prove his innocence. This is a case where the Disciplinary Authority decided that procedure contained in Regulation 6 be followed. Under Regulation 6(2), the Disciplinary Authority, instead of conducting the enquiry itself, chose to appoint another person as the "Enquiring Authority" to enquire into the imputations of misconduct. On the conclusion of the proceedings in the manner provided by Regulation 6, the Enquiring Authority has to forward its report to the Disciplinary Authority along with all relevant records. The said report has to contain the Enquiring Authority' s findings on each of the charges framed against the delinquent officer. According to Sub-regulation (3) of Regulation 7, the Disciplinary Authority, having regard to the findings on all or any of the articles of charge, imposes any of the penalties specified in Regulation 4. This obviously implies that where the Enquiring Authority has found all or any of the charges proved against the delinquent officer and the Disciplinary Authority agrees with the said findings, then it can proceed to impose any of the penalties specified in the said Regulation.
11. The controversy in the present case, however, relates to the case where the Disciplinary Authority disagrees with the findings of the Enquiring Authority and acts under Regulation 7(2). The said sub-regulation does not specifically state that when the Disciplinary Authority disagrees with the findings of the Enquiring Authority and is required to record its own reason for such disagreement and also to record its own finding on such charge, it is required to give a hearing to the delinquent officer.
12. Shri Reddy relied on the decision of this Court in S.S. Koshal case. In that case, the Disciplinary Authority disagreed with the findings of the Enquiry Officer which was favourable to the delinquent. A question arose whether the Disciplinary Authority was required to give a fresh opportunity of being heard. At p. 470, a Division Bench (Coram: B.P. Jeevan Reddy and B.L. Hansaria, JJ.) while coming to the conclusion that fresh opportunity was not required observed as follows: (SCC p. 470, Para 6).
6. So far as the second ground is concerned, we are unable to see any substance in it. No such fresh opportunity is contemplated by the regulations nor can such a requirement be deduced from the principles of natural justice. It may be remembered that the Enquiry Officer's report is not binding upon the Disciplinary Authority and that it is open to the Disciplinary Authority to come to its own conclusion on the charges. It is not in the nature of an appeal from the Enquiry Officer to the Disciplinary Authority. It is one and the same proceeding. It is open to a Disciplinary Authority to hold the enquiry himself. It is equally open to him to appoint an Enquiry Officer to conduct the enquiry and place the entire record before him with or without his findings. But in either case, the final decision is to be taken by him on the basis of the material adduced.
This also appears to be the view taken by one of us (B.P. Jeevan Reddy, J.) as a Judge of the Andhra Pradesh High Court in Mahendra Kumar v. Union of India. The second contention accordingly stands rejected.
Reliance was also placed on M.C. Saxena case. In this case also the Disciplinary Authority disagreed with the findings of the Enquiry Officer and after recording reasons in this regard, it held that the charges against the delinquent officer stood established. In coming to this conclusion, it was observed that while disagreeing the only requirement was that the Disciplinary Authority should record reasons for disagreement and it was not necessary in such a case for the delinquent Government servant to be afforded a further opportunity of hearing.
14. In Ram Kishan case disciplinary proceedings on two charges were initiated against Ram Kishan. The Enquiry Officer in his report found the first charge not proved and the second charge partly proved. The Disciplinary Authority disagreed with the conclusion reached by the Enquiry 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 Enquiry Officer and that, therefore, the finding based on that show-cause notice was bad in law, a two-Judges Bench at p. 161 observed as follows: (SCC Para 10) The purpose of the show-cause notice, in case of disagreement with the findings of the Enquiry Officer, is to enable the delinquent to show that the Disciplinary Authority is persuaded not to disagree with the conclusions reached by the Enquiry Officer for the reasons given in the enquiry report or he may offer additional reasons in support of the finding by the Enquiry Officer. In that situation, unless the Disciplinary Authority gives specific reasons in the show-cause on the basis of which the findings of the Enquiry 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 Enquiry 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.
15. At this stage, it will be appropriate to refer to the case of State of Assam v. Bimal Kumar Pandit, decided by a Constitution Bench of this Court. A question arose regarding the contents of the second show-cause notice when the Government accepts, rejects or partly accepts or partly rejects the findings of the Enquiry Officer. Even though that case relates to Article 311 (2) before its deletion by the 42nd Amendment, the principle laid down therein, at p. 10 of the report, when read along with the decision of this Court in Karunakar case will clearly apply here. The Court observed at SCR pp. 10-11 as follows: We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311(2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter: but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the Enquiring Officer are, according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Article 311 (2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in Article 311(2) justify the view that the failure to make such a statement amounts to contravention of Article 311(2). In dealing with this point, we must bear in mind the fact that a copy of the enquity report had been enclosed with the notice, and so, reading the notice in common sense manner, the respondent would not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the Enquiring Officer in their entirety.
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2).
As a result thereof, whenever the Disciplinary Authority disagrees with the Enquiry Authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings.
The report of the Enquiry Officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the Disciplinary Authority to accept the favourable conclusion of the Enquiry Officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the Disciplinary Authority records its findings on the charges framed against the officer.
20. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants.State Bank of India v. K.P. Narayanan Kutty , wherein at page 454 it has been held: 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.
7. Therefore, we are in respectful agreement with the decision of this Court in Punjab National Bank case being directly on the point.
21. The above decision clearly holds that if there be an illegality at the stage of disagreement by the D.A. with the findings of the I.O., judicial intervention is justified.
22. Yet another decision cited by the learned Counsel for the applicant is Order dated 23.04.2004 of the High Court of Judicature for Rajasthan at Jaipur Bench in S.B. Civil Writ Petition No. 4679/2000. In that case the Hon'ble High Court has referred to the case of Kunj Behari (supra) and the Court has held as under:- 7. A look at the aforequoted Regulation demonstrates that at the conclusion of enquiry, the Inquiring Authority has to prepare a report of the inquiry, recording its findings on each charges together with the reasons therefore and report to the Disciplinary Authority, along with the record of inquiry consisting of statement of charges and statement of allegations given to the employee, his defence, evidence, oral and documentary in the course of enquiry.
The Disciplinary Authority thereafter has to record its findings on each charge after considering the material placed before it.
8. In the case on hand I find flagrant violation of Sub-clause (a) of Regulation 7. There is nothing on record that could establish that the Disciplinary Authority after considering the material placed before it, recorded its findings on each charge levelled against the petitioner. A look at the letter dated June 17, 2000 goes to show that Deputy Secretary asked the Commissioner Enquiries III to re-enquire the charges. Even intimation about re-enquiry was not sent to the petitioner. In the said letter the date on which the Disciplinary Authority arrived at the conclusion has also not been mentioned. Learned Counsel for the respondent although made attempt to justify that regulation was completed with in letter and spirit but I find myself unable to agree with the submission.
In so far as the case of the applicant is concerned, the legal flaw is that the Disciplinary Authority has, instead of considering the representation of the applicant against the memo of disagreement issued by him (i.e. the D.A.) on 15.07.2004 as mandated to him vide order dated 17th August, 2004 in O.A. No. 854/2004, referred the matter to the Appellate Authority i.e. the Railway Board, which is not in conformity with the Rules. Reference to the Appellate Authority in this case is at a stage when the Appellate Authority cannot enter the scene at all. The Appellate Authority has absolutely no say in the disciplinary matter at the early stage of "action on the inquiry report." His giving the disagreement memo is certainly usurpation upon the powers of the Disciplinary Authority. Though the D.A. could allow this to happen, and abrogates his own powers, if the action of the respondent results in a grave prejudice to the applicant, and if the action is violative of the rules on the subject, the action taken by the Appellate Authority cannot but be held to be "bad in law".
23. In view of the above, we have no hesitation to come to the conclusion that the impugned order cannot be legally sustained and the same is accordingly quashed and set aside. The O.A. is partly allowed.
However, since in respect of disagreement struck at by the Disciplinary Authority, which was assailed by the applicant in the earlier O.A. No.854 of 2004, this Bench has passed an order for consideration of the representation made by the applicant against same, vide order dated 17.08.2004 (Annexure A-12), any order quashing the said memo of disagreement dated 15,07.2004 would amount to overruling the decision of the Coordinate Bench, which this Bench is not permitted to do so.
Hence, the disagreement memo dated 15.07.2004 of the Disciplinary Authority shall stand and on the basis of the representation already made by the applicant, the Disciplinary Authority shall consider the case "dispassionately" and arrive at a just conclusion. This exercise shall be completed within a period of four months from the date of communication of this order.
24. This is the fourth round of litigation and as the applicant has been forced to move the Tribunal at every stage, we are inclined to allow cost in favour of the applicant, which is quantified at Rs 2,500.