IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 12500 of 2010 Date of Decision: 16.12.2010 Gurmel Singh …Petitioner Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others …Respondents CORAM: HON'BLE Mr. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. K.L. Kohli, Advocate, for the petitioner. Ms. Jai Shree Thakur, Advocate, for the respondents. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant writ petition under Article 226 of the Constitution is directed against order dated 22.1.2010 (Annexure P/35) passed by the Central Administrative Tribunal Chandigarh Bench, Chandigarh (for brevity 'The Tribunal') holding that the petitioner, who was a Driver, was liable to pay a sum of ` 25,710/- and the same has been deducted from his DCRG. The basis of the aforesaid order passed by the respondent-Department was an inquiry conducted in accident, which was allegedly caused by the petitioner on 11.9.2001. The inquiry Officer in his report did not find the petitioner guilty of any of the charges, which were levelled against him, as is recorded in the CWP No. 12500 of 2010 dissent note dated 24.5.2005 (Annexure P-22). However, the disciplinary authority namely the Director Transport, U.T. Chandigarh proceeded to disagree with the inquiry report in pursuance of the powers conferred under Punjab Civil Services (Punishment and Appeal), Rules 1970, the dissent note reads as under :- “And whereas the undersigned has gone through the finding of the enquiry officer and have come to the conclusion that the inquiry is not based on the facts and record. The inquiry officer has not appreciated the fact that although mechanical defects can occur but at the same time alertness of the driver concerned is also important in such cases where brakes have failed or some other mechanical defect has evolved in the vehicle. The driver concerned should have ensured while taking the vehicle on the road that the bus is in proper condition. In any way if he had anticipated any defect, he should have immediately brought this matter to the notice of his higher authorities or the mechanical staff. I do not agree with the findings of the enquiry officer on this account and I am of the considered view that there is some lapse on the part of the driver who has failed to avoid the accident by not taking proper case and application of mind. It is also pertinent to mention here that MACT Court has also awarded a sum of Rs. 1,72,000/- in favour of the claimant. It shows that the MACT Court must have been of the view that the negligence has been shown in this case. Besides an expenditure of Rs. 25,710/- was incurred on the repair of the damage caused to the bus due to negligence of Sh. Gurmail Singh D. No. 363.” 2 CWP No. 12500 of 2010 2. A perusal of the aforesaid para of the dissent note would show that the disciplinary authority has proceeded to disagree with the findings of the Inquiry Officer on the basis of his opinion and there is no evidence discussed for reaching a conclusion that the petitioner in fact was guilty. There can not be any conclusion on the basis of opinion of the disciplinary authority. It has to be necessarily based on the evidence which might have been left out by the inquiry officer from consideration while recording the findings exonerating the delinquent employee. There is a specific requirement of Rule 9 (2) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for brevity, ‘the Rules’), imposing an obligation on the disciplinary authority disagreeing on any of the articles of charge that it must record its reasons for each disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. The relevant extract of Rule 9 of the Rules is relevant to the controversy in hand and reads as under:- “9. Action on the inquiry report - (1) The punishing authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and the inquiring authority shall thereupon proceed to hold the further inquiring according to the provisions of Rule 8 as far as may be. (2) The punishing authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for each disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.” 3. The question which has been raised before us, has also been 3 CWP No. 12500 of 2010 considered by Hon’ble the Supreme Court in the case of Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84. The specific question formulated by their Lordships’ is as under:- “When the enquiry officer, during the course of disciplinary proceedings, comes to a conclusion that all or some of the charges alleging misconduct against an official are not proved then can the disciplinary authority differ from that and give a contrary finding without affording any opportunity to the delinquent officer.” 4. Placing reliance on Regulation 7(2) of the Punjab National Bank Officer Employees’ (Discipline and Appeal) Regulations, 1977, which is pari materia to Rule 9(2) of the Rules, as also the judgment of a Constitution Bench rendered in the case of Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727, their Lordships of Hon’ble the Supreme Court in para 17 has observed as under:- “17. ……If the inquiry officer had given an adverse finding, as per Karunakar's case [Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727] the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give 4 CWP No. 12500 of 2010 him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer, but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority.” 5. In para 18 of the judgment it has been held that the principles of natural justice have to be complied with in case the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion. It has further been observed that it would be most unfair and iniquitous where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer’s report and, while recording a finding of guilt, imposes punishment upon the officer. In para 19 it has been pointed out that on the language of Regulation 7(2), the principle of natural justice must be followed and proceeded to observe as under:- “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 inquiry authority on any article of charge, then before it records its own findings on such charge, it must record its 5 CWP No. 12500 of 2010 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 favourable 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.” (emphasis added) 6. The aforesaid view has also been followed and applied in the case of SBI v. Arvind K. Shukla, (2004) 13 SCC 797. Therefore, on statutory rule, principle and precedent no doubt is left that the disciplinary authority should have recorded reasons after looking into sufficiency of evidence to sustain the charges before it could disagree with the findings of the inquiry officer. The dissenting note recorded by the disciplinary authority on 24.5.2005 is a far cry from fulfilling the necessary requirement of the Rules. Therefore, the dissenting note as well as the subsequent proceedings based thereon are liable to be set aside. 7. We would have remanded the case back to the disciplinary authority for the purposes of proceeding afresh from the stage of recording a dissenting note. However, for various reasons the aforesaid course has not been adopted. Firstly, the learned counsel for the respondent Administration has not been able to show from the report of the inquiry officer that there is 6 CWP No. 12500 of 2010 any incriminating evidence sufficient to indict the petitioner, which may constitute the basis for recording a finding against him. Secondly, the total amount involved is only a sum of ` 25,710/- and thirdly the petitioner has superannuated from service on 30.6.2004. Therefore, it is better if the matter is given a finality at this stage itself. Accordingly, we hold that the petitioner could not have been subjected to recovery of ` 25,710/- as it could not be concluded that the aforesaid financial loss has been caused by him as he has been exonerated in the departmental inquiry. 8. In view of the above, the view taken by the learned Tribunal can not be sustained and is hereby set aside and the order of punishment directing recovery of ` 25,710/- is also quashed. We further direct that the petitioner be refunded the aforesaid amount, which was deducted from his DCRG. Consequentially, he would also be entitled to regularisation of period of suspension because once he is exonerated then the suspension can not be held to be justified. 9. The writ petition stands disposed of in the above terms. ` (M.M. KUMAR) JUDGE (RITU BAHRI) December 16, 2010 JUDGE ‘sp’/Pkapoor 7