THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.22911 of 2009 Dated: 17.02.2010 Between: Chand Shah & 7 others. … Petitioners And The Director General of Police, Central Reserve Police Force, Block No.01, Kendriya Karyala Parisar, Lodhi Road, New Delhi-03., and 3 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.22911 of 2009 ORDER : The writ petitioners who were in the service of Central Reserve Police Force (CRPF) filed this writ petition seeking a declaration that the order dated 3.6.2009 passed by the 4th respondent imposing the punishment of compulsory retirement and the order passed by the 2nd respondent – Appellate authority – dated 26.9.2009 enhancing the said punishment to removal from service as arbitrary, illegal and in violation of the principles of natural justice. Brief facts are as under : The 4th respondent vide proceedings dated 28.1.2009 proposed inquiry against the petitioners under Rule 27 of the CRPF Rules, 1955 alleging that the petitioners had committed misconduct and that they colluded with one another and issued a fake transfer order dated 22.7.2004 purportedly issued by Commandant (Pers- II), Dte. Genl. CRPF, New Delhi showing their transfers to different offices/units. It was also alleged that the petitioners were guilty of misbehaviour and that they had adopted illegal methods by offering bribe or other malpractices or unfair means for getting the transfer order in their favour. The petitioners submitted their explanations denying both the charges framed against them. A joint departmental enquiry was conducted and the Enquiry Officer submitted his final report dated 7.5.2009 holding that Charges 1 & 2 were partially proved against the petitioners. However, the 4th respondent / disciplinary authority vide his proceedings dated 18.5.2009 while furnishing a copy of the enquiry report dated 7.5.2009 informed the petitioners that he was inclined to disagree with the enquiry report pertaining to Article-II of the charges and called upon the petitioners to make their representation, if any, in writing within 15 days. The reasons for such disagreement were also furnished reiterating that it was evident from the strong circumstantial evidence that all the delinquents whose names were figured in the fake transfer order had adopted illegal methods by offering bribes or other malpractices or unfair means for getting the transfer order in their favour and therefore the charges in Article-II framed against all the petitioners stood proved beyond any doubt. In response to the same, the petitioners submitted their explanation stating that there was no evidence against them and that they were not involved in the alleged offence in any way. Thereupon the 4th respondent vide proceedings dated 3.6.2009 while concluding Article-I of the charge levelled against the petitioners herein was proved partially and Article-II of the charge was proved fully, held that the petitioners had adopted illegal methods by offering bribe or other malpractices or unfair means for getting the transfer order in their favour and committed an act of grave misbehaviour which is punishable under Section 11 (1) of the CRPF Act, 1949. Accordingly penalty of compulsory retirement was imposed in exercise of powers vested under Rule 27 (a) of CRPF Rules, 1955. Aggrieved by the same, the petitioners preferred Appeals to the 2nd respondent under Rule 28 of CRPF Rules, 1955 on 15.6.2009. The petitioners also filed W.P.No.15008 of 2009 challenging the penalty imposed by the 4th respondent. The said writ petition was disposed of by this Court with a direction to the 2nd respondent to dispose of the appeals expeditiously within a period of six weeks. Thereafter, the 2nd respondent – Appellate authority – issued a show-cause notice under Rule 29 (d) of the CRPF Rules, 1955 proposing to enhance the punishment of compulsory retirement to removal from service and asking the petitioners to make their representation, if any. Despite the explanation submitted by the petitioners, the 2nd respondent by a common order dated 26.09.2009 enhanced the punishment of compulsory retirement to that of removal from service. Aggrieved by the said orders, the present writ petition is filed. I have heard the learned counsel for both the parties and perused the material available on record, as well as the counter- affidavit filed on behalf of the respondents. The learned counsel for the petitioner at the outset submitted that the action of the 4th respondent – Departmental authority – in differing with the findings of the enquiry officer without notice to the petitioners is in violation of principles of natural justice and therefore on that ground alone the 4th respondent’s order dated 3.6.2009 and the subsequent order dated 26.9.2009 passed by the 2nd respondent in dismissing the appeals are liable to be set aside. While placing reliance upon the decisions of the Supreme Court in YOGINATH D. BAGDE v. STATE OF MAHARASHTRA[1], STATE BANK OF INDIA v. V.K.P. NARAYANAN KUTTY[2] and LAV NIGAM v. CHAIRMAN AND MD., ITI LTD.[3] the learned counsel for the petitioner contended that it is obligatory on the part of the disciplinary authority, when he intends to differ with the findings recorded by the Enquiry Officer, to issue a notice to the delinquent officers giving the reasons on which he proposed to disagree with the findings. In YOGINATH D. BAGDE’S case (1 supra) the Supreme Court was dealing with an order of dismissal from service passed under the provisions of Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. Having considered the scope of Rule 9 of the said Rules, it was held as under: 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 Inquiring Authority or disagree with those findings. If it does not agree with the findings of the Inquiring Authority, it may record its own findings. Where the Inquiring 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 Inquiring 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 Inquiring 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 Inquiring 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 Inquiring 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 Inquiring 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. We have already extracted Rule 9 (2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the Disciplinary Authority to disagree with the findings of the Inquiring Authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9 (2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "tentative" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with. From the ratio laid down in the above decision, it is clear that even where the Rules are silent, an opportunity of hearing has to be given to the delinquent officer before disagreeing with the findings of the inquiring authority and holding that the charges were established. It is also clear that the disciplinary authority has to communicate to the delinquent officer the tentative reasons for disagreeing with the findings of the inquiring authority. While reiterating the said view in a later decision in V.K.P. NARAYANAN KUTTY’S case (2 supra), the Supreme Court rejected the contention raised by the appellant therein that the order of dismissal could not be set aside unless it is shown that some prejudice was caused to the delinquent officer. In the light of the consistent view taken by the Apex Court in various decisions, I find force in the submission of the learned counsel for the petitioner that the procedure followed by the 4th respondent while disagreeing with the findings recorded by the Enquiry Officer was in violation of the principles of natural justice. It is true that the 4th respondent vide his proceedings dated 18.5.2009 while furnishing a copy of the enquiry report, gave his reasons for disagreement with the findings of the enquiry officer and called upon the petitioners to submit their defence. However the disagreement report shows that the 4th respondent arrived at a conclusion that the charges in Article-II against the petitioners stood proved beyond any reasonable doubt. The tenor of the said disagreement makes it clear that the 4th respondent recorded clear findings and the same cannot be termed as mere tentative reasons for disagreement with the findings of the inquiring authority. In the circumstances, the opportunity given to the petitioners to make their representation was only an empty formality and thus the 4th respondent’s order dated 30.06.2009 was not in conformity with principles of natural justice. Hence the said order dated 30.6.2009 is liable to be set aside on that ground alone. Consequently, the 2nd respondent’s order dated 26.09.2009 shall also stand set aside. Accordingly, both the orders of the respondents 2 and 4 dated 26.09.2009 and 30.06.2009 respectively are hereby set aside and the Writ Petition is disposed of granting liberty to the respondents to continue the proceedings from the stage of communicating the tentative reasons of the disciplinary authority for differing with the findings of the Enquiry Officer and providing an opportunity of hearing to the petitioners to show that the findings of the enquiry officer did not suffer from any error and conclude the proceedings as expeditiously as possible, preferably within a period of three months from the date of receipt of this order. Keeping in view that the petitioners failed to raise the objection at the earliest opportunity or at least before the Appellate Authority and allowed both the respondents 2 and 4 to conclude the proceedings culminating in the impugned orders, it is made clear that the question whether the petitioners would be entitled to back wages and other benefits consequent to the quashing of the impugned orders in this writ petition shall be decided according to law after the conclusion of the proceedings by the 4th respondent and depending on the final outcome. Writ Petition is accordingly disposed of. No costs. ______________ G. ROHINI, J. Dt. 17.02.2010 gbs [1] (1999) 7 SCC 739 [2] (2003) 2 SCC 449 [3] (2006) 9 SCC 440