IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 11655 of 2011 Date of Decision: July 8, 2011 U.T. Chandigarh Administration …Petitioner Versus Central Administrative Tribunal, Chandigarh and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Sameer Sachdeva, Advocate, for the petitioner. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant petition filed under Article 226 of the Consti- tution is directed against order dated 17.3.2011 (P-1), passed by the Chandigarh Bench of the Central Administrative Tribunal (for brev- ity, ‘the Tribunal’) holding that the order of punishment of stoppage of two increments with permanent effect, dated 2.5.2008 (A-1) and subsequent orders dated 14.8.2008 (A-2) and 27.5.2010 (A-3), passed in appeal and revision upholding the punishment, were un- sustainable in the eyes of law. The Tribunal has taken the view that once the trial Court has acquitted the applicant-respondent No. 2 Constable Dalbir Singh and he has been exonerated by the Enquiry Officer then there was no scope for the Appointing Authority to in- flict the punishment of stoppage of two increments on him. The ba- sic reason recorded in the order of the Tribunal is that the Appoint- CWP No. 11655 of 2011 ing Authority failed to record any disagreement note nor any oppor- tunity was afforded to show cause with the disagreement note. The Tribunal has opined that there could be no quarrel with the proposi- tion concerning obligation of recording disagreement note by the Appointing Authority dissenting from the Inquiring Authority, yet the procedure was required to be followed. On the basis of the afore- said premise, the order of punishment, dated 2.5.2008 and subse- quent orders passed in appeal and revision have been set aside. 2. It is appropriate to mention that the allegation against the applicant-respondent No. 2 was that he has assaulted one Atma Ram and an FIR No. 41, dated 29.3.2006, under Sections 323, 506 IPC at Police Station Sector 20, Panchkula, was registered against him. In the trial the applicant-respondent No. 2 was acquitted and in the departmental inquiry also he was exonerated of the charges by the Enquiry Officer. 3. Mr. Sameer Sachdeva, learned counsel for the petitioner has vehemently argued that the Tribunal has wrongly recorded the finding with regard to non-recording of dissenting note. He has drawn our attention to para 5 of the order dated 2.5.2008 wherein it is recorded that a show cause notice, dated 2.11.2007 (A-15), along with copy of the findings, was served on the applicant-respondent No. 2 proposing the punishment of dismissal from service. It was to the aforesaid show cause notice that he submitted the reply on 19.11.2007. Learned counsel has, however, maintained that in any case the Tribunal should have granted an opportunity for recording the disagreement note. 4. Having heard learned counsel and perusing the paper book we are of the considered view that no interference in the con- 2 CWP No. 11655 of 2011 clusion reached by the Tribunal would be warranted. It is true that the Tribunal has committed an error by recording that no disagree- ment note has been recorded whereas, in fact, a disagreement note has been recorded, which is incorporated in the show cause notice dated 2.11.2007 (A-15). Paras 2 and 3 of the show cause notice would be necessary to examine the nature of the dissenting note, which reads thus: “2. After following due procedure under the rules the Enquiry Officer conducted the enquiry and concluded given his findings not holding Constable Dalbir Singh No. 3328/CP guilty of charges mainly on the ground that the complainant Mr. Atma Ram has not supported the depart- mental case. 3. After going through the enquiry file and evidence on record I do not agree with the enquiry officer as the said witnesses has neither stated what the misunderstanding was and how it was cleared. A perusal of the FIR clearly indicate that complainant Mr. Atma Ram had named Const. Dalbir Singh No. 3328/CP. The statement of Mr. Atma Ram given in departmental proceedings does not inspire credence being devoid of details about the so called misunderstanding and clearance thereof. He seems to have been won over by the delinquent in crimi- nal proceedings as well as departmental proceedings. However, the charge stands proved against him. The misconduct of causing hurt and criminal intimidation committed by him is gravest and makes him untrust- worthy for upholding the rule of law being a member of 3 CWP No. 11655 of 2011 the disciplined force. Thereby call upon Const. Dalbir Singh No. 3328/CP to show cause as to why punishment of dismissal from service may not be imposed upon him for the grave misconduct on his part. His reply, if any, should reach my office within 15 days from the date of receipt of this notice failing which it would be presumed that he has nothing to say in his defence and an ex-parte decision would be taken accordingly.” 5. A perusal of the aforesaid paras would show that the En- quiry Officer has exonerated the applicant-respondent No. 2 after holding that the complainant Atma Ram did not support charges levelled against the Constable. However, the Appointing Authority expressed disagreement with the Enquiry Officer. All the same, it has failed to discuss any evidence which may support the allegation levelled against the applicant-respondent No. 2. The statement of Atma Ram made before the Enquiry Officer is sought to be rehabili- tated by making reference to his statement made in the FIR. The Appointing Authority has also concluded that the statement of Atma Ram in the disciplinary proceedings did not inspire credence as he was already won over by the applicant-respondent No. 2 in the criminal proceedings as well as in the departmental proceedings. It is not understood then how the charges could be deemed to be proved by referring to the statement made in FIR. The Appointing Authority has taken a long jump to reach the aforesaid conclusion without referring to any evidence worth the name. It is not possible to sustain the bald finding that the applicant-respondent No. 2 has committed misconduct for causing hurt and criminal intimidation to Atma Ram. Therefore, the view expressed by the Tribunal is ac- 4 CWP No. 11655 of 2011 cepted in its conclusion but we do not subscribe to the finding that no disagreement note was recorded. The Tribunal has failed to ap- preciate the facts correctly but incidentally has reached the correct conclusion. The order of the Tribunal to that extent is modified and the writ petition is dismissed. (M.M. KUMAR) JUDGE (GURDEV SINGH) July 8, 2011 JUDGE PKapoor 5