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Sh. Parvesh Choubey vs Govt. Of Nct Through: on 14 September, 2009
Article 309 in The Constitution Of India 1949
Yoginath D. Bagde vs State Of Maharashtra & Anr on 16 September, 1999
Article 20(2) in The Constitution Of India 1949
Article 311 in The Constitution Of India 1949

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Central Administrative Tribunal - Delhi
Shri Rajeev Kumar vs Deputy Director Of Education on 19 January, 2012

Central Administrative Tribunal

Principal Bench

O.A.No.2127/2011

New Delhi, this the 19th day of January, 2012

Honble Shri Shailendra Pandey, Member (A)

Honble Dr. Dharam Paul Sharma, Member (J)

Shri Rajeev Kumar

TGT (Drawing)

GBSSS Bawana

Delhi.  Applicant

(By Advocate: Shri S.N.Tripathi)

Versus

Govt. of NCT of Delhi

Through the Chief Secretary

IP Estate, New Delhi.

The Secretary

Ministry of Education

Govt. of NCT of Delhi

Old Secretariat, Delhi.

The Director of Education

Directorate of Education

Govt. of NCT of Delhi

Old Secretariat

Delhi  54.

Deputy Director of Education

Distt. North West  A,

Directorate of Education

Old Secretariat

Delhi  54.  Respondents

(By Advocate: Mrs. Harvinder Oberio)

O R D E R

By Shailendra Pandey, Member (A):

In this OA, the applicant has challenged the following orders:

Order dated 6.12.2010, imposing the penalty of reduction to two lower stages in the time scale of pay for a period of one year upon the applicant with further direction that he will not earn increment of pay during this period and after the expiry of the period, the reduction will have the effect of postponing the future increment of his pay, and further that the entire period of his suspension be treated as `Not Spent on Duty for all purposes, of the disciplinary authority, and Order dated 11.03.2011, dismissing the appeal dated 10.01.2011 of the applicant, of the appellate authority.

2. The brief facts of the case, as gathered from the pleadings, are that the applicant, who was appointed as TGT in GBSSS Khajuri Khas, Delhi, and was working as a Drawing Teacher, was issued a recordable warning on 27.06.2007 on a complaint alleging corporal punishment to students of GBSSS, Khajuri Khas. A chain of complaints in this regard were stated to have been received by the respondents from the parents/students and HOS. Later, a news item also appeared in this regard in the Times of India dated 08.09.2007. It is stated that in a preliminary enquiry conducted against the said applicant on 10.09.2007, the allegation of corporal punishment was stated to have been established, and he was found guilty of brutally beating the students. The applicant was suspended vide order dated 11.09.2007, and thereafter a Memorandum of Chargesheet dated 27.09.2007 was issued to him, and an inquiry officer was appointed vide order dated 05.10.2007 to inquire into the charge framed against him. However, during pendency of the inquiry, the suspension was revoked by the disciplinary authority vide order dated 30.11.2009 on the intervention of this Tribunal [OA No.421/2009 dated 10.09.2009]. The applicant resumed duties on 30.12.2009. The inquiry officer submitted his findings on 16.04.2010, holding the charge as not proved. The disciplinary authority, after serving a note of Disagreement dated 05.10.2010 against the findings of the inquiry officer and after receiving the reply dated 25.10.2010 to the said disagreement note, imposed the said punishment vide its order dated 6.12.2010. The applicant filed an appeal dated 10.01.2011, which was rejected by the appellate authority on 11.03.2011. Hence, the present OA has been filed seeking the following reliefs: to set aside the impugned orders of the disciplinary authority and the appellate authority, including the order that the period of suspension may be treated as not spent on duty for all purposes.

3. The main grounds raised in this OA, in support of his claim, are that:

a) that this is a case of double jeopardy as a minor penalty in the form of a recordable warning dated 27.06.2007 had already been issued to the applicant and entered in his service record and there was no complaint thereafter, except the report in the press about the same complaints. Therefore, his suspension, and initiation of further disciplinary proceedings against him and imposition of a major penalty for the same complaints, is in violation of Article 20(2) of the Constitution of India which provides that No person shall be prosecuted and punished for the same offence more than once. b) that the definitive disagreement with the finding of the inquiry officer recorded by the disciplinary authority at the stage of the disagreement note itself shows his bias and a pre-determined view against the applicant and that the impugned order passed by him stands vitiated keeping in view the Full Bench Judgement of this Tribunal in OA No.577/2009 [Sh. Raja Ram & Anr. V. Govt. of NCT of Delhi & Others, decided on 08.10.2010] and is, therefore, unsustainable in law. c) that the impugned order passed by respondent No.3 and upheld by Respondent No.2 is on the basis of no evidence inasmuch as documents which were not brought in evidence were relied upon for reversing the finding of Not Proved by I.O. and treating the charges as proved, thus rendering it perverse.

d) That the Disciplinary Authority failed to appreciate the evidence given by Shri Devidass, Principal that some anti-social elements were using the students as a tool and spoiling the atmosphere of the school and that the applicant was not so much at fault and the principal had conveyed this fact to the Department on 26.11.2007 itself. That the Disciplinary Authority/Appellate Authority have succumbed to media pressure and have not acted fairly in accordance with law and have passed their respective orders arbitrarily, without proper analysis and evaluation of evidence brought on record, in violation of the principles of natural justice. That the punishment imposed is too harsh.

4. The respondents have opposed the OA and have stated that there were a series of complaints from students of Class VI & VII of GBSSS, Khajuri Khas against the applicant. The same were inquired into by the Principal of BGSSS Dayal Pur, Delhi and the applicant was found to be guilty of the offence alleged against him. The applicant had also admitted and apologized for his mistakes in his written statement and a recordable warning had been issued by the department vide letter dated 27.06.2007 to the applicant.

4.1. It is further stated that a recordable warning is not a penalty, therefore, this case cannot be treated as one of double jeopardy. Further, the recordable warning was issued by the Principal to the applicant for the offence dated 27.06.2007, so that the applicant may improve his habit of beating/punishing students. 4.2. It is further stated that based on a chain of complaints received against the applicant, and on the news item published in the Times City of Times of India, a Charge Memorandum dated 27.09.2007 was issued against the applicant under Rule 14 of the CCS (CCA) Rules, 1965 and that the impugned orders were issued after concluding of Inquiry proceedings as per due procedure, and after giving the applicant full opportunity to participate in the inquiry proceedings. The respondents have also denied the submission of the applicant that they had proceeded in the matter in a pre-determined manner. Therefore, the respondents pray that the OA be dismissed with costs.

5. In the rejoinder, the applicant has stated that the allegations against him were engineered by anti social elements who abound in that area and who had on an earlier occasion too, vitiated the atmosphere in the School. The Department unfortunately succumbed to their pressure and during the inquiry persuaded the applicant to accept the charge so as to end the controversy and close the matter. However, contrary to the assurance to close the matter, a recordable warning was unjustly issued to the applicant on 27.06.2007 to appease these anti-social elements. 5.1. It is further stated that these anti-social elements also got the same allegations published in The Times of India dated 08.09.2007, and the Department got `panicky and decided to make him a scapegoat. As a result, he was suspended and disciplinary proceedings were initiated against him. The inquiry officer held the charges as `not proved as the department had failed to produce any victim or eye witness of the episode during the course of inquiry. The disciplinary authority, however, arbitrarily and whimsically held the charges as proved without giving any valid reason, and the so called `disagreement note given by the disciplinary authority, being definitive, was also not a `tentative disagreement note as required under the rules, and as reiterated in the decision of the Honble Apex Court in Yoginath D. Bagde vs. State of Maharastra, 1999 SCC (L&S) 1385 and in the decision of the Full Bench of this Tribunal in OA 577/2009 ibid. The disciplinary authority order is, therefore, illegal and unsustainable but has been rubber stamped by the appellate authority without application of mind, both orders should, therefore, be quashed and set aside.

6. We have heard the counsel for both sides and have been through the pleadings of the case including the official record.

7. For the sake of ready reference, we may recall the series of events/proceedings in this case.

7.1. On receipt of complaints about brutal beating of students and on the basis of a preliminary inquiry, a `Recordable Warning was issued to the applicant dated 27.06.2007 as under:

Whereas a complaint has been received from the parents and students of Class VIth and VIIth of GBSSS, Khajoori Khas, Delhi against Sh. Rajiv Kumar, Drawing Teacher of their school.

Whereas Principal, GBSSS, Dayal Pur has enquired the above complaint and found Sh. Rajiv Kumar, Drawing Teacher being the guilty of offence committed by him.

Also whereas, Sh. Rajiv Kumar, Drawing Teacher has admitted and apolized for his mistake in his written statement.

Now, therefore, I the undersigned, reviewed the reply of the official and found not upto the mark. Hence, a `Recordable Warning may be issued to Sh. Rajiv Kumar, Drawing Teacher with the direction to be more careful in future while discharging his official duties.

7.2. After issue of the aforesaid Recordable Warning, orders were received under U.O.No.PS/DE/20076826 dated 8.09.2007, for an inquiry into the contents of the newspaper report on 8th Sept. 2007 in the Times of India against Sh. Rajeev Kumar, Drg. Tr., GBSSS Khajoori Khas, on the same allegation of beating of students. An inquiry Committee was constituted and a preliminary inquiry was conducted on 10.09.2007, wherein it was observed as under: Sh. Rajeev Kumar is a medical case, he is undergoing treatment at Manav Vyavhar Sambandh Sansthan for depression and other mental diseases.

He has admitted his fault of beating the students.

On the complaint of students an inquiry was conducted previously and a recordable warning was issued to Rajeev Kumar on 29/6/07 by the DDE (NE).

All the students whose statements are endorsed have corroborated that Sh. Rajeev Kumar beats students occasionally without any rhyme and reason.

The Principal and the Vice Principal of the School have also stated in their written statements that Sh. Rajeev Kumar is a mentally disturbed case. He beats students at times without any provocation. He also misbehaves with them because of his mental depression.

The statements of the Students, Vice Principal, Principal and Sh. Rajeev Kumar are placed in the file along with the copies of warning dated 29.06.07 and of his treatment going on in the Manav Vyavhar Sambandh Sansthan for ready reference.

It would be in the fitness of the case that Mr. Rajeev Kumar, Drawing Teacher of the School may be transferred to another school, far away from his residence.

7.3. Thereafter, the applicant was suspended vide order dated 11.09.2007 and a Memorandum of Chargesheet dated 27.09.2007 was issued to him and an inquiry officer was appointed vide order dated 05.10.2007 to inquire into the charge framed against him, which was as under: Whereas, Shri Rajeev Kumar while working as Drawing Teacher in BGSSS, Khajoori Khas, Delhi  110 094 has been found in the habit of severely beating the students of the School in a form of punishment. A chain of complaints were received from the parents/Students and HOS. This has been followed by a News item with a clipping carried out in the Times of India dated 08.09.2007. During the course of preliminary enquiry conducted against the teacher on 10.09.2007, the charge has been established. Shri Rajeev Kumar, Drawing Teacher was found guilty of brutally beating the students. This act of misdemeanor on the part of Shri Rajeev Kumar, Drawing Teacher, GBSSS, Khajoori Khas, Delhi  110 094 is unbecoming of a Govt. Servant especially in case of a teacher who is supposed to be a role model for his students and society.

THUS indulging in the said commission and commissions act of misconduct Shri Rajeev Kumar, Drawing Teacher has violated stipulated provisions of Sub-Rule 3 (i)(iii) set forth in the CCS (CCA) Conduct Rules, 1965.

7.5. The inquiry officer, submitted his findings and observed that the charges framed against the applicant are not proved. However, the disciplinary authority, disagreeing with the findings of the inquiry officer, served a Disagreement Note on the applicant on 05.10.2010 (reproduced later in this order), and after considering his reply to the said note, imposed upon the applicant the aforesaid punishment vide its order dated 6.12.2010. The appeal filed by the applicant was rejected by the appellate authority vide its order dated 11.03.2011.

The applicant has sought quashing of these orders on the grounds mentioned in Para 3 above.

8. We do not accept the submission that this is a case of double jeopardy as a recordable warning is not a punishment. We also do not propose to reappreciate the evidence as we are of the view that in disciplinary matters the executive authorities concerned must be allowed to arrive at their own findings and conclusions subject, of course, to the charged official being given full opportunity to defend himself and also subject to the case not being one of `no evidence. Also, proportionality of punishment is something that is to be decided by the disciplinary/appellate authorities. However, when we come to ground (b) regarding the `Disagreement Note recorded by the disciplinary authority, we find that the submission of the applicant in this regard has considerable merit in it as discussed hereinafter.

8.1. In a disciplinary proceeding, after receipt of the inquiry officers report, the disciplinary authority goes through it carefully and has several options open to him. If the charges have been held by the inquiry officer to be not proved or partially proved, the disciplinary authority may agree with the finding and exonerate the charged officer. If, however, the disciplinary authority disagrees with the inference of the inquiry authority, he may record a tentative note of disagreement and communicate it to the charged officer along with the copy of the inquiry report for the charged officer to make a representation against the note of disagreement of the disciplinary authority. The disciplinary authority may decide to punish the charged officer or exonerate the charged officer, after considering the representation against the note of disagreement.

8.2. Rule 15 (2) of the CCS (CCA) Rules, 1965 provides for recording of a `note of disagreement in such cases, the relevant part of which is extracted below:

15. (2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit , if he is so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.

(emphasis added)

It is also pertinent to note that disciplinary proceedings are quasi-judicial in nature and the principles of natural justice fully apply. It is, therefore, expected that the inquiry authority and the disciplinary authority/appellate authority, etc., shall act judiciously, fairly and without any prejudice.

8.3. As already noted above, Rule 15 (2) expressly provides that the disciplinary authority may record his tentative reasons for disagreeing with the inquiry authority. In other words, the disagreement should at this stage not be a definitive or final disagreement. This is necessary so as to afford a fair opportunity to the charged official to put across his views with regard to the tentative reasons given, after considering which the disciplinary authority may then arrive at a final view. The issue then becomes one of the use of appropriate words to indicate that the reasoning given by the disciplinary authority can be considered to be tentative vis-`-vis the use of words, terms or phrases, which may give to the note of disagreement the colour of finality in which event it ceases to be tentative. It is precisely this issue that a Full Bench of this Tribunal in OA No.577/2009 [Sh. Raja Ram & Anr. V. Govt. of NCT of Delhi & Others], decided on 08.10.2010 had dealt with. Relevant observations of the Full Bench are reproduced below: 3. In the Random House dictionary of the English language the word tentative has been defined as follows:

"Tentative: unsure, not definite or positive; hesitant".

What is then the purport of Rule 15 as regards the tentative reasons for disagreement? It should mean that the disciplinary authority does not agree with the conclusions of the enquiry authority, yet its reasons for disagreement are not definite or positive. It would then depend on the expression used for disagreeing with the conclusions of the enquiry authority, which would show whether the reasons are definite and positive or not so.

4. The issue is no longer res integra. The Honourable Supreme Court considered the issue in Yoginath D. Bagde Vs. State of Maharastra, 1999 SCC (L&S) 1385. The disciplinary committee of the High Court disagreed with the findings of the enquiry authority in the proceedings against Yoginath D Bagde, a judicial officer. The note of disagreement reads thus:

`Discussed: For the reasons recorded in Annexure `A hereto, the Committee disagrees with the finding of the enquiry officer and finds that the charges levelled 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 enquiring authority and the reasons recorded by this Committee."

(emphasis added)

The Honourable Supreme Court while dealing with the contentions made the following observations:

In view of the provisions contained in the statutory rule extracted above, it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, "an opportunity of hearing" may have to be read into the rule by which the procedure for dealing with the enquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be `not guilty by the enquiring authority, is found `guilty without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded.

(emphasis added)

It was further observed that:

34. Along with the show-cause notice, a copy of the findings recorded by the enquiry officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.

37. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by the learned counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank (AIR 1998 SC 2713) in which it had been categorically provided, following earlier decisions, that if the disciplinary authority does not agree with the findings of the enquiry officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the disciplinary authority that the findings already recorded by the enquiry officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case.

38. The Disciplinary Committee consisted of five seniormost Judges of the High Court which also included the Chief Justice. The Disciplinary Committee took a final decision that the charges against the appellant were established and recorded that decision in writing and then issued a notice requiring him to show cause against the proposed punishment of dismissal. The findings were final; what was tentative was the proposal to inflict upon the appellant the punishment of dismissal from service.

(emphasis added)

The issue was also considered by the Honourable Delhi High Court in CWP 2665/2002, Commissioner of Police Vs. Constable Pramod Kumar and another decided on 12th September 2002. The note of disagreement was recorded by the disciplinary authority, about which the High Court observed that "[I]n its notice to show cause, however, the authority arrived at a final conclusion and the same was not a tentative one." The matter was in an appeal before the Honourable Delhi High Court from an order of this Tribunal, in which the Tribunal, after noting Yoginath D Bagde (supra), had allowed the Application and set aside the note of disagreement. The Honourable Delhi High Court noted as follows in paragraph 7 of the judgement cited above:

7. The inquiry report submitted by the Inquiry Officer is a detailed one. He considered all the materials on record and arrived at a finding of fact that the delinquent officers are not guilty. The disciplinary authority, however, recorded his positive finding to the effect that upon notice of the entire material on record the respondents are guilty. The said findings are contained in about six and a half pages. Nowhere in the findings did he suggest that such findings are tentative ones. .. ..  . ..

In Union of India and others Vs. Dr. V T Prabhakaran, WP) number 559/2010 also the High Court made the following observations on this issue:

23. With the two viewpoints noted above, it assumes importance to note that evidenced by the decision of the Supreme Court reported as 1999 (7) SCC 739 Yoginath D. Bagde vs. State of Maharashtra & Ors., the jurisprudence in service law is that the disciplinary authority should not prejudge the gravamen of the allegations or for that matter even the charge, and should not use language which shows that the disciplinary authority has already made up its mind. It is only after the inquiry is over and the delinquent is heard with respect to the report of the inquiry officer; and when exonerated at the inquiry but the disciplinary authority not agreeing with the report, upon hearing him qua the note of disagreement, the final opinion has to be rendered. It is important to highlight that in Yoginath D. Bagdes case (supra) conclusive determination of the guilt by the disciplinary authority before giving an opportunity to the delinquent to respond to the note of disagreement was held to be a case of a closed mind qua the response of the delinquent, resulting in the disciplinary authority denuding himself the jurisdiction to decide with reference to the response of the delinquent to the note of disagreement.   ..

8. The Honourable Supreme Court, in Yoginath D Bagde (supra), had held the decision of the disciplinary committee of the High Court to be wrong, not because it had proposed penalty in the note of disagreement but because a final view about the guilt of the charged officer had been taken. It is clear from the observation of the Supreme Court that findings were final: what was tentative was the punishment. In our view this could only be interpreted as saying that the findings should be tentative. The observation of the Supreme Court in K L Shepherd (supra) is significant that once a decision is taken, it is more likely than not to be upheld and not changed merely on consideration of the representation. During the course of arguments the learned counsel for the Government of NCT of Delhi wondered as to what the disciplinary authority should record, if it cannot record that the charges stand proved by the reasoning given by the disciplinary authority. The correct procedure in our view is for the disciplinary authority to record that the disciplinary authority does not agree with the conclusions of the inquiry authority on the grounds, which may then be stated. The grounds can thereafter be mentioned, without concluding that the charge(s) is/are proved. The charged officer will then have an opportunity to repel the reasoning of the disciplinary authority. Only after going through the representation of the charged officer against his reasoning in the note of disagreement, the disciplinary authority may come to any conclusion about the charges being proved or not proved. If the disciplinary authority comes to the conclusion about the guilt of the charged officer without hearing him, it would show an inbuilt bias and the cause of the charged officer will suffer. In essence, inferring of guilt without giving an opportunity to the charged officer to be heard would be in gross violation of the principles of natural justice that an employee should be given full opportunity to defend himself before being held to be guilty. The Article 311 of the Constitution also mandates that no employee would be dismissed, removed or reduced in rank without being given a reasonable opportunity of being heard. The CCS (CCA) Rules have been framed under the proviso to the Article 309 of the Constitution and these are thus statutory rules and cannot be trifled with lightly. The rules have to be followed in letter and spirit. Therefore, if the rules provide that the disciplinary authority has to give tentative reasons for disagreeing with the inquiry authority, it is definitely precluded from expressing definite and positive finding of guilt in the note of disagreement and thereby giving only a post- decisional hearing to the charged officer.

9. In the light of the above we hold that a note of disagreement would not be tentative if it states that the charges against the charged officer stand proved. Mere expression of such view would make the note of disagreement bad in law and liable to be quashed and set aside. The reference is thus answered. The OA is remanded to the DB. (emphasis supplied)

9.1. We now proceed to examine the present case in the light of the aforesaid legal position. It is noticed that the disciplinary authority in its `Disagreement Note dated 05.10.2010 clearly mentioned, in its conclusion, as under: Now, therefore, I, P.Krishnamurthy, Disciplinary Authority in this case, disagree to the findings of the Inquiry Authority and hereby direct the said Shri Rajeev Kumar, Drawing Teacher to submit his written representation, if any, within 10 days of the receipt of this Disagreement Note, failing which the matter will be processed without any further notice/information to him in this matter. The copy of the Inquiry Report is also enclosed herewith.

A plain reading of the above, clearly suggests that the Disciplinary Authority had arrived at a final conclusion and not a tentative one. It is common experience that once a final decision/conclusion has been taken/arrived at, there is a tendency to uphold it subsequently and in such a situation a representation may not really yield any fruitful purpose. In the instant case, the disciplinary authority having recorded a final conclusion (as opposed to a tentative one), would proceed further in the matter with a closed mind. An authority which proceeds in the matter of this nature with a pre-determined mind, cannot be expected to act fairly and impartially.

9.2. To sum up, while disagreeing with the findings of the Inquiry Officer, the Disciplinary Authority was required to state his tentative reasons for the proposed disagreement, to enable the applicant to put forth his submissions with regard to such tentative reasons, and then after considering the submission/representations of the applicant, take a final decision in the matter (as in the alternative his sending his note of disagreement to the charged officer to have his say would constitute an empty formality).

9.3. We have no hesitation in holding that the `Disagreement Note dated 05.10.2010 issued by the disciplinary authority does not show that it is a tentative view (as opposed to a final view) of the disciplinary authority.

9.4. In view of the above, we must hold that the note of disagreement as recorded by the disciplinary authority does not comply with the principles laid down in the Full Bench Judgement of this Tribunal referred to above and in the Honble Apex Courts Judgement in Yoginatha D. Bagdes case (supra), as is unsustainable in law. Therefore, the disciplinary authoritys order dated 06.12.2010 and the appellate authoritys order dated 11.03.2011 would need to be quashed and set aside, and the matter would need to be remitted back to the disciplinary authority to start the departmental proceedings afresh, if so advised, from the stage of supplying of a copy of the inquiry report to the applicant as per the rules along with a fresh Note detailing tentative reasons for disagreement (if any), and then on the basis of reply received to pass further orders as may be deemed appropriate in the facts and circumstances of the case. The above directions would be complied within a period of three months from the date of receipt of a copy of this order. We order accordingly. No costs.

(Dharam Paul Sharma) (Shailendra Pandey)

Member (J) Member (A)

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