Full Judgment
(Oral) 1. Vide impugned order dated December 13, 2011 the Central Administrative Tribunal has allowed O.A.No.665/2011. Penalty of dismissal from service inflicted upon the respondent, who was the applicant before the Central Administrative Tribunal, has been set aside. The appellate order rejecting the departmental appeal filed has also been set aside. Permission to hold fresh inquiry, which as we would understand means, to take corrective action by issuing a note of disagreement has not been permitted. The matter stands closed.
2. The relevant facts would be that pertaining to the year 1997, when respondent was working as an Extra Departmental Branch Postmaster, he was served with a charge memo on November 30, 1998 alleging misappropriation of certain amounts, which undisputably stood credited to the account in the treasury, albeit lately.
3. At the inquiry, the respondent prayed for the department to produce certain documents alleging that the same were relevant and vital to the defence; a request which was denied.
4. Inquiry Officer submitted a report indicting the respondent and accepting the same the disciplinary authority imposed the penalty of removal from service upon the respondent as per the order dated November 30, 1998 against which appeal filed on February 22, 1999 was rejected on February 17, 2001.
5. Marching straight to the Central Administrative Tribunal, respondent filed O.A.No.319/2002 which was allowed by the Tribunal holding that the documents, production whereof was sought by the respondent being vital to the defence and even otherwise relevant, by not directing the same to be produced by the department, had tainted the inquiry proceedings. The result was the penalty being set aside and a direction to conduct a fresh inquiry after removing the taint which took place and thereafter proceed ahead.
6. At the remanded stage, documents production whereof was sought by the respondent was denied once again but the Inquiry Officer exonerated the respondent as per the order dated September 17, 2003. Respondent joined service and assumed charge on September 27, 2003. On September 15, 2004, the revisional authority, taking suo moto cognizance, set aside the order dated September 17, 2003 and directed fresh de novo inquiry to be conducted.
7. Fresh de novo inquiry resulted once again in a report being submitted on January 12, 2007 exonerating the petitioner.
8. Without serving any note of disagreement, the disciplinary authority, disagreeing with the finding recorded by the Inquiry Officer, vide order dated November 25/28, 2007 ordered respondent to be removed from service against which appeal filed stood rejected on March 30, 2009.
9. This necessitated the respondent to re-visit the Tribunal. He filed O.A.No.665/2010 which has been disposed of vide order impugned.
10. Suffice would it be to state that way back in the year 1998, in the decision reported as (1998) 7 SCC 8.PNB & Ors. vs. Kunj Behari Mishra, a facet of principles of natural justice brought out by the court was that if the disciplinary authority does not agree with the findings of not guilty return by the Inquiry Officer it must pen down a note of disagreement containing tentative reasons as to why the disciplinary authority was opining to the contrary. Thereafter, the said note of disagreement had to be served upon the delinquent for his response. Considering the response the decision had to be taken.
11. The aforesaid view was reiterated by the Supreme Court in a subsequent decision reported as (1999) 7 SCC 73.Yoginath Dagbe vs. State of Maharashtra & Anr.
12. We highlight that the Inquiry Officer, as per the latest inquiry report dated January 12, 2007, held that the charges were not proved. Without penning a note of disagreement and much less furnishing the same to the respondent for his response the disciplinary authority disagreeing with the view taken by the Inquiry Officer passed the penalty of removal from service.
13. Thus, it has to be held that the order levying penalty of removal from service was tainted by denial of principles of natural justice.
14. Ordinarily, one would have remanded the matter permitting the disciplinary authority to pen the note of disagreement and require the respondent to furnish his response thereto. But, noting, as the Tribunal has done, that the indictment pertains to the whims of 1997, the amount stated to be misappropriated was admittedly deposited in the treasury; the long passage of time, we are of the opinion that the ordeal already undergone by the respondent who has faced on the same charge as many as 3 inquiries warrants curtains to be brought down.
15. The writ petition is accordingly dismissed but without any order as to costs. C.M. No. 4236/2012 Dismissed as infructuous. (PRADEEP NANDRAJOG) JUDGE (VEENA BIRBAL) JUDGE JANUARY 22 2013 kks