# Union of India & Ors v. Sati Nath Khan & Anr

- **Citation:** (2019) 2 ILRA 1001
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-27
- **Case number:** Service Bench No. 6 of 2006
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-ors-v-sati-nath-khan-anr-44515
- **Pages:** 15

## Headnote

A. Service Law - disciplinary proceedings
- Railway Servants (Discipline & Appeal)
Rules, 1968 - enquiry officer exonerated
the applicant-respondent as no charges
were proved - disciplinary authority
dissatisfied with the enquiry report
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
issued "disagreement memo" to the
applicant-respondent
-
ordered
for
compulsory retirement - no opportunity
to rebut the findings recorded by the
disciplinary authority was given to the
applicat-respondent
In light of the catena of judgments on this
point, the Court observed that before the
issuance of "disagreement memo" by the
disciplinary
authority,
an
opportunity
of
hearing has to be given to the delinquent
employee to the reversed findings of the
enquiry officer having failed to grant the
opportunity would violate the principles of
natural justice. Requirement of affording an
opportunity of hearing is a consequential right
to be heard. (Para 29)

Writ Petition dismissed (E-10)

Cases Cited:-

## Text

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2 All. Union of India & Ors. Vs Sati Nath Khan & Anr.
1001
[1993 Supp (4) SCC 536 : AIR 1993 SC
1048] observed as under: (SCC p. 551,
para 12)

"12. ... ''2. ... To perpetuate an
error is no heroism. To rectify it is the
compulsion of judicial conscience. In this,
we derive comfort and strength from the
wise and inspiring words of Justice
Bronson in Pierce v. Delameter [1 NY 3
(1847) : A.M.Y. p. 18] at p. 18:

"a Judge ought to be wise
enough to know that he is fallible and,
therefore, ever ready to learn: great and
honest enough to discard all mere pride
of opinion and follow truth wherever it
may lead: and courageous enough to
acknowledge his errors".' [ As observed
in Distributors (Baroda) (P) Ltd. v. Union
of India, (1986) 1 SCC 43, p. 46, para 2.]
"

(See
also
Ministry
of
Information & Broadcasting, In re
[(1995) 3 SCC 619] , Nirmal Jeet Kaur v.
State of M.P. [(2004) 7 SCC 558 : 2004
SCC
(Cri)
1989]
and
Mayuram
Subramanian Srinivasan v. CBI [(2006) 5
SCC 752 : (2006) 3 SCC (Cri) 83 : AIR
2006 SC 2449].)"

24. Keeping in view the admitted
fact that the petitioner is not qualified for
the post of Research Assistant, as he does
not
possess
the
degree
of
B.Sc.
Agriculture, and settled legal proposition
regarding
relaxation
of
eligibility/qualification prescribed for a
particular post to the effect that the same
can not be relaxed and appointment of a
person
who
does
not
possess
the
qualification of the post would be void as
well as the principles related to "Useless
Formality Theory" and principle of
"Negative Equality", which are applicable
in the facts of the present case, we are not
inclined to interfere in the impugned
orders dated 02.08.2011 and 17.03.2012
passed by respondent Nos. 2 and 3
respectively.

25. For the foregoing reasons, we do
not find any illegality in the impugned
orders dated 02.08.2011 and 17.03.2012,
passed by the opposite party Nos. 2 and 3
(Annexure Nos. 1 and 2 to the writ
petition).

26. Resultantly, the writ petition for
it lacks merit. Hence, dismissed with no
order as to costs
----------
(2019)10ILR A 1001

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.09.2019

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 6 of 2006

Union of India & Ors. ...Petitioners
Versus
Sati Nath Khan & Anr. ...Respondents

Counsel for the Petitioners:
Sri Anil Srivastava, Sri Amit Sharma, Sri
Neerav Chitravanshi, Sri S.P. Maurya.

Counsel for the Respondents:
Sri Prayas Srivastava, Sri R.C. Saxena.

A. Service Law - disciplinary proceedings
- Railway Servants (Discipline & Appeal)
Rules, 1968 - enquiry officer exonerated
the applicant-respondent as no charges
were proved - disciplinary authority
dissatisfied with the enquiry report
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
issued "disagreement memo" to the
applicant-respondent
-
ordered
for
compulsory retirement - no opportunity
to rebut the findings recorded by the
disciplinary authority was given to the
applicat-respondent
In light of the catena of judgments on this
point, the Court observed that before the
issuance of "disagreement memo" by the
disciplinary
authority,
an
opportunity
of
hearing has to be given to the delinquent
employee to the reversed findings of the
enquiry officer having failed to grant the
opportunity would violate the principles of
natural justice. Requirement of affording an
opportunity of hearing is a consequential right
to be heard. (Para 29)

Writ Petition dismissed (E-10)

Cases Cited:-

1. Yoginath D. Bagde Vs St of Mah & anr
(1999) 7 SCC 739

2. S.P. Malhotra Vs P N B (2013) 7 SCC 251

3. K.I. Shephard Vs U.O.I. (1987) 4 SCC 431

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Amit Sharma, learned
counsel for the petitioners and Sri R.C. Saxena,
learned counsel for the opposite parties.

2. By means of the present writ
petition, the petitioners have challenged
the judgment and order dated 13.09.2005,
passed in the Original Application No.
256 of 2005 (in short "OA") (Sati Nath
Khan v. Union of India and others) filed
before
the
Central
Administrative
Tribunal, Lucknow Bench, Lucknow (in
short "Tribunal") under Section 19 of the
Administrative Tribunal Act, 1985.

3. The Tribunal while passing the
impugned
order
dated
13.09.2005
considered the issue related to disagreement
memo issued by the Disciplinary Authority
to the applicant-respondent through the letter
dated 08.06.2004 in relation to the findings
recorded by the Enquiry Officer in the
Enquiry Report submitted by him vide letter
dated 16.04.2003. The Tribunal while partly
allowing
the
OA
considered
the
disagreement memo in the light of the
decision of the Apex Court in the case of
Yoginath D. Bagde v. State of Maharashtra
and another; (1999) 7 SCC 739. The
Tribunal while partly allowing the OA
recorded the specific observation, which
reads as under:-

"In the light of the decision of
the Apex Court in Yogi Nath D. Bagde v.
State of Maharashtra JT 1999 (7) SC-62,
if before disagreeing with the Enquiry
Officer the disciplinary authority has not
followed the due process of law it vitiates
the order of punishment. Non following
the due process and denial of reasonable
opportunity has caused prejudice to
applicant and is infraction to the principle
of natural justice, which are inbuilt in the
Rules if not specifically provided.

 In the light of our taking a final
view of the matter, the applicant has been
denied opportunity to show cause."

4. The Tribunal after interfering in the
order of punishment imposing the punishment
of compulsory retirement, affirmed in the
appeal, passed by the Disciplinary Authority
as well as the Order of Appellate Authority,
granted the liberty to the petitioners to proceed
in the matter in accordance with law. The
operative portion of the impugned order dated
13.09.2005 is quoted below for ready
reference:-

"In the light of the decision in
Bagde case (supra) and the disagreement
2 All. Union of India & Ors. Vs Sati Nath Khan & Anr.
1003
of the disciplinary authority with the
enquiry officer, this O.A. is partly allowed
on this issue. The order imposing the
compulsory retirement as affirmed in
appeal is set aside. The respondents are
directed
to
forthwith
reinstate
the
applicant in service. However, if so
advised, the respondents may proceed in
accordance with law. The intervening
period shall be regulated as per rules and
regulation on the subject. No costs."

5. Aggrieved by the Order dated
13.09.2005, the petitioners have filed the
present writ petition.

6. The brief facts of the case, which
are relevant for the purposes of the proper
adjudication of the issue involved, which
relate to "disagreement memo" as well as
the present writ petition, are to the effect
that the disciplinary proceedings were
initiated against the applicant-respondent
vide charge-sheet dated 08.05.2002. At
the time of issuance of charge-sheet, the
applicant-respondent was working on the
post of Reservation Clerk in the Northern
Railway at Lcuknow. Needless to say that
the applicant-respondent prior to issuance
of the charge-sheet dated 08.05.2002, was
suspended vide order dated 18.10.2001. It
appears from the charge-sheet that against
the applicant-respondent, three charges
were levelled. The same reads as under:-

"(1) He defrauded the Rly. by
manipulating in BPT No. 671646 as he
had indicated Rs.4410-00 passenger foil,
whereas record foil showing amounting
Rs.107-00 only. Thus by fraudulently
means he pocketed rs.4303-00.

(2) He intentionally mislead the
requisition from on which he generated
PNR No.213-0435999 of zero amount
against BPT No.671646 which was
manipulated by him.

(3) To cover-up his fraudulent
activity, he has prepared a requisition form
in the name of Rani Jha of 3050 dated
15/3/00 from LKO to Sakaldia and kept on
record so as to justified that BPT amounting
Rs. 107-00, but no such name of BPT No.
found indicated in the chart of 3050."

7. With regard to conducting the
disciplinary proceedings pursuant to the
charge-sheet dated 08.05.2002, Sri S.P.
Sethi, Enquiry Officer was appointed by
the Disciplinary Authority. The Enquiry
Officer
conducted
the
disciplinary
proceedings and after considering the
relevant material on record before him,
submitted his Report to the Disciplinary
Authority. The copy of the Enquiry
Report was also provided to the applicantrespondent vide letter dated 16.04.2003.

8. It is pertinent to point out here
that the Enquiry Officer exonerated the
applicant-respondent with respect to all
the charges levelled against the applicantrespondent in the charge-sheet. The
relevant portion of the Enquiry Report is
quoted below for ready reference:-

"Conclusion and Findings.

For the reasons recorded, I
have come to the conclusion that:-

Charge-1. Stands not proved.

Charge-2. Stands not proved.

Charge-3. Also stands not proved."

9. The Disciplinary Authority
considered the Enquiry Report and on
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
being dissatisfied with the findings
recorded by the Enquiry Officer, issued
the disagreement memo to the applicantrespondent vide letter dated 08.06.2004.
As issue involved in the present case is
related with the disagreement memo, so
the same is reproduced hereunder:-

"After
going
through
the
enquiry report, relied upon documents
(RUDs) and proceedings of the enquiry,
my considered views are as under:-

The charges brought out against
Sh. S.N. Khan, ERC/LKO are as under:-

1. Article No.1

He defrauded the Railway by
manipulating via BPT No.671646 as he
had indicated Rs. 4410/- in passenger foil
whereas record foil showed amount of Rs.
107/- only. Thus, by fraudulent means he
pocketed Rs. 4309/-.

IO in his enquiry report has
concluded
that
the
charge
remains
unsubstantiated. The reason for this charge
remaining unsubstantiated, as indicated in the
enquiry report, is the absence of original
RUDs. IO has also referred the judgment of
the Hon'ble CAT directing the Rly to produce
original RUDs.

Upon perusal of Hon'ble CAT's
judgment,
it
is
observed
that
the
documents to be produced in original are
not specifically mentioned. Therefore, IO
has erred in his judgment wherein instaed
of examining the defence vis a vis the
article of charges brought out, he has mis
interpreted
Hon'ble
CAT's
judgment
without making reference to the demand
of the C.O. submitted during enquiry in
line with Hon'ble CAT's directives.

It is noted from the proceedings
of the enquiry that in his defence
statement Sh. S.N. Khan had pointed out
that documents referred to at S.Nos.1, 2
and 4 of Annexure-III of the charge sheet
were required to be produced in original.
The documents listed at S.Nos.1, 2 & 4 of
Annexure-III are as under: -

1. PNR No.213-0435999 of AC
3 tier ex NZM to SBC.

2.
Passenger
foil
of
BPT
No.671646 dated 24.03.2000.

3. TDL No.045616 issued by
SS/JHS against PNR No.213-0435999
dated 19.04.2000.

It is observed from the above
that original BPT, TDR and PNR existed.
It is also a matter of record that Sh. A.K.
Saxena,
CVI/N.Rly.
had
visited
CCM/Refund
Office/C.Rly.,
on
16.11.2000, during investigations in this
regard. Sh. A.K. Saxena, CVI/N.Rly was
successful in obtaining photocopies of
these documents, which is on record. It
appears that the originals were misplaced
during transit in dak from C. Rly.
Vigilacne to N.Rly. Vigilance. However, I
am inclined to give benefit of doubt to Sh.
S.N. Khan, ERC/LKO since prosecution
could not produce these 3 original
demanded
RUDs
after
their
misplacement/loss in transit, in line with
Hon'ble CAT's judgment. I agree with the
IO's findings in respect of this charge.

Article No.11

He intentionally misplaced the
requisition on which he generated PNR
No.2130-0435990 of zero amount against
BPT.
2 All. Union of India & Ors. Vs Sati Nath Khan & Anr.
1005

IO in his enquiry report has
concluded that the charge remains
unsubstantiated. The reason for this
charge remaining unsubstantiated, as
indicated in the enquiry report, is the
absence of original BPT. IO has accepted
plea of the CO that he kept it on record
and how it was misplaced he was not
responsible.

In this context, perusal of
enquiry proceedings reveals the fact that
there was manipulation in the BPT.
Defence has never disputed this fact that
there was manipulation in the BPT. CO
during general examination by IO had
admitted in reply to Q.NO.4 that some
body might have played a mischief and
might have booked on 24.03.00 when he
had gone out for urinal or for drinking
water.

The plea of the CO is not
acceptable due to the following reasons:-

(i) There is a provision of
temporary locking of the computer by the
operator, which is resorted to by the
operator in case he has to leave the seat
for any emergency. CO should have
locked it while leaving his seat. It is
further noted that C.O. has failed to
provide details of documentary evidence
to support his claim. Clearly it is an after
thought, which has no legs to stand in the
eyes of law.

(ii) BPT book remains in the
personal custody of the person to whom it
is issued. How any other person can have
access to this BPT book and at the same
time the person concerned would exactly
know the BPT no. issued on 15.3.2000
and make reservations on this BPT on
24.3.2000 during the brief spell of
absence of the C.O. is a mystery.

(iii) Sh. S.N. Khan, ERC/LKO in
his statement vide Ex P-5 (A) had stated
that he new Dr. Renu Makkar personally.
It was the same person in whose name
reservation was made on BPT No.671646
ex NZM to SBC dated 24.03.2000. Sh.
S.N.
Khan,
ERC/LKO
had
further
admitted that he had issued PNR NO.2130435999 by train NO.2430 ex NZM to
SBC.

(iv) Sh. S.N. Khan, ERC/LKO
did not use double-sided carbon for
preparing BPT as evident from the office
copy of the BPT NO.671646, which bears
the amount of Rs.107/-. In his defence, Sh.
S.N. Khan has submitted that double sided
carbon paper had not been issued by the
office. The explanation of Sh. Khan is
hardly tenable in view of the fact that use
of double-sided carbon is a normal
practice and under the circumstances of
the case, it appears to be a deliberate
attempt on the part of Sh. Khan to hide his
mis deeds.

Under the above circumstances,
misplacement of requisition form clearly
indicates that it was an intentional act
done
deliberately
with
malafide
intentions.

In view of the facts, evidence on
record and circumstances brought out as
above, I do not agree with the findings of
the IO in respect of this charge since he
has failed to analyse the evidence on
record. I hold the CO guilty of this
charge.

Article No.III
1006 INDIAN LAW REPORTS ALLAHABAD SERIES

To cover up this fraudulent
activity, he had prepared a requisition
form in th name of Ms. Rani Jha in train
no.3050 dated 15.03.2000 ex LKO to
Sakaldia and kept on record so as to
justify the BPT amounting to Rs. 107/- but
no such name or BPT no. was found
indicated in the chart of train no.3050.

IO in his enquiry report has
concluded that the charge remains
unsubstantiated. The reason for this
charge remaining unsubstantiated, as
indicated in the enquiry report, is the nonavailability of original BPT. IO has not
accepted the prosecution plea that the CO
had prepared requisition in the name of
Ms. Rani Jha in train No. 3050 dt.
15.3.2000 to cover up his fraudulent
activity.

CO did not dispute issue of BPT
No. 671646 amount Rs. 107/- dt. 15.3.2000
ex LKO to Sakaldia. CO also did not dispute
making reservation for the passenger
concerned by generating PNR of zero
amount on the strength of BPT No. 671646
amount Rs. 107/- dt. 15.3.2000. CO has
further submitted that the reason for nonexistence of the name of Ms. Rani Jha in the
chart of train No. 3050 is that he had made
the entry in the working chargt.

Ex P-8 is the requisition form
said to have been submitted by the
passenger fro reservation in train No.
3050. Perusal of Ex P-8 reveals that it
does not indicate the authority on the
strength of which reservation was made
by generating PNR of zero amount. Even
if BPT No. was endorsed by the CO in the
working chart, the same ought to have
been indicated in the requisition form,
which was mandatory in view of the fact
that zero amount PNR was being
generated. Non-indication of BPT no on
Ex P-8 clearly indicates malafides on the
part of the CO as brought out in the
charge sheet.

In view of the facts, evidence on
record and circumstances brought out as
above, I do not agree with the findings of
the IO in respect of this article of charge
since he has failed to analyse the evidence
on record. I hold the CO guilty of this
charge.

In view of the facts, evidence on
record and circumstances as brought out
and discussed above, I do not agree with
the findings of the IO in respect of the
article of charges II & III. I hold Sh. S.N.
Khan, ERC/LKO guilty of the charges
brought out against him under article of
charges II & III."

10. After the issuance of the
disagreement memo, the applicant-respondent
submitted his detailed reply dated 08.07.2004.
Thereafter, the Disciplinary Authority vide
order
dated
28.10.2004
awarded
the
punishment of compulsory retirement from
Railway services.

11.

The
applicant-respondent
aggrieved by the order dated 28.10.2004,
filed the departmental appeal and the
Appellate Authority dismissed the appeal
vide order dated 10.02.2005.

12. Aggrieved by the orders dated
28.10.2004 and 10.02.2005, the applicantrespondent filed an OA No. 256 of 2005
before the Tribunal at Lucknow, which
was
partly
allowed
vide
impugned
judgment and order dated 13.09.2005.

13. While entertaining the present
writ petition, this Court has passed an
2 All. Union of India & Ors. Vs Sati Nath Khan & Anr.
1007
interim order in favour of the petitioners
on 04.01.2006, which reads as under:-

"Sri Prayas Srivastava, who has
filed short counter affidavit on behalf of
opposite party No. 1 is directed to file
counter affidavit within three weeks. The
petitioner may file rejoinder affidavit
within two weeks thereafter.

List/put
up
this
case
on
07.03.2006, on which date the petitioner's
counsel shall produce the record relating
to the disciplinary enquiry.

Till then the impugned judgment
and order dated 13.9.2005 passed by the
Central
Administrative
Tribunal,
Lucknow, shall remain in abeyance. The
petitioner shall pay all the retiral benefits,
which are payable to an employee against
whom compulsory retirement order has
been passed and the opposite party No. 1
shall complete the necessary formalities
at the earliest."

14. Assailing the judgment and order
dated 13.09.2005, passed by the Tribunal, Sri
Amit Sharma, learned counsel for the
petitioners, on the basis of the pleadings on
record, submitted that the Tribunal misread
the material on record. The applicantrespondent, in enquiry proceedings, was
given full opportunity in accordance with
provisions
of
the
Railway
Servants
(Discipline & Appeal) Rules, 1968 and
principles of natural justice to defend himself
in
the
disciplinary
proceedings
were
followed. Even the Disciplinary Authority
and Appellate Authority, while dealing with
the case of the applicant-respondent, applied
their mind.

15. He further submitted that the
Tribunal has acted illegally as an
Appellate Authority and looked into the
material
on
which
the
Competent
Authority arrived at a conclusion that the
applicant-respondent is guilty of charges
levelled against him.

16. He further submitted that the
Tribunal has failed to take note of the fact
that
the
reasons
recorded
by
the
Disciplinary Authority were sound and
the applicant-respondent had failed to
satisfy by means of representation dated
08.07.2004. Otherwise also, the applicantrespondent could not satisfy that as to
what prejudice has been caused to him.

17. He further submitted that the
Tribunal has failed to appreciate that the
Disciplinary
Authority
acted
in
accordance with the settled position of
law
and
communicated
a
detailed
disagreement
memo
indicating
the
reasons for disagreement from the finding
of the Enquiry Officer.

18. It is further submitted that the
Tribunal has failed to take note of the fact
that the disagreement memo prepared by
the Disciplinary Authority was clear on
each issue and the same does not suffer
from any lacuna especially when the
applicant-respondent
responded
in
response to the said disagreement memo
and preferred a representation dated
08.07.2004.

19. Learned counsel for the
petitioners lastly submitted that the
Tribunal has erred in applying the ratio of
Yoginath D. Bagde's case in the present
matter. In the matter of Yoginath D.
Bagde, the Disciplinary Authority had
failed to issue any disagreement memo
whereas
in
the
present
case,
the
Disciplinary Authority had issued a
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
detailed disagreement memo to the
applicant-respondent.

20. Per contra, learned counsel for
the applicant-respondent, Sri R.C, Saxena
submitted that the case of the petitioners
is squarely covered under the judgment
passed in the case of Yoginath D. Bagde
(supra).

21. In order to support his submissions,
learned counsel for the applicant-respondent
placed relevant contents of the disagreement
memo, which are quoted hereinabove. On the
basis of the contents of the disagreement
memo as well as the law laid down by the
Apex Court in the case of Yoginath D. Bagde
(supra), learned counsel for the applicantrespondent submitted that the tentative
reasons of disagreement to the findings
recorded by the Enquiry Officer are required
to be mentioned in the disagreement memo
and if the Disciplinary Authority records a
conclusion/finding then it would be improper
and illegal and would be violative to the
principles of natural justice. He pointed out
that after recording reasons, the Disciplinary
Authority in the disagreement memo has
recorded specific conclusion/finding with
respect to the charge Nos. 2 and 3 levelled
against the applicant-respondent.

22. Learned counsel for the
applicant-respondent further submitted
that considering the conclusion drawn by
the Disciplinary Authority as well as the
findings recorded in the disagreement
memo by the Disciplinary Authority, the
Tribunal interfered in the impugned
orders and passed the judgment and order
dated 13.09.2005, under challenge.

23. It is further submitted that the
Tribunal has followed the law laid down
by the Apex Court, which is applicable in
the facts and circumstances of the case
and as such, there is no illegality and
infirmity in the impugned order dated
13.09.2005.

24. It is further submitted that at the
time of filing of OA, the applicantrespondent was 56 years old i.e. in the
year 2005 and during the pendency of the
writ petition, the applicant-respondent has
attained the age of superannuation, as
such, in the interest of substantial justice,
the matter may not be remanded back to
the petitioners to reanimate the issue.
Accordingly, the prayer is to dismiss the
writ petition.

25. We have considered the rival
submissions of learned counsel for the
parties and gone through the record
carefully.
26. We are not dwelling on other issues
involved in the present writ petition, as
the learned counsel for the parties have
addressed this Court only on the issue
related to the disagreement memo issued
by
the
Disciplinary
Authority
and
considered by the Tribunal while partly
allowing the OA of the applicantrespondent.

27. As the Tribunal has relied upon
the principles settled by the Apex Court in
the case of Yoginath D. Bagde (supra), as
such, we think it proper to reproduce the
relevant portion of the same:-

"28. 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.
2 All. Union of India & Ors. Vs Sati Nath Khan & Anr.
1009
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.

29. 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 enquiring 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 the disciplinary
authority finally disagrees with the
findings of the enquiring 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 enquiring
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 enquiring 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
enquiring authority are not germane and
the finding of "not guilty" already
recorded by the enquiring authority was
not liable to be interfered with.

30. Recently, a three-Judge
Bench of this Court in Punjab National
Bank v. Kunj Behari Misra [(1998) 7 SCC
84 : 1998 SCC (L&S) 1783 : AIR 1998 SC
2713] relying upon the earlier decisions
of this Court in State of Assam v. Bimal
Kumar Pandit [AIR 1963 SC 1612 :
(1964) 2 SCR 1] , Institute of Chartered
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
Accountants of India v. L.K. Ratna
[(1986) 4 SCC 537 : (1986) 1 ATC 714]
as also the Constitution Bench decision in
Managing
Director,
ECIL
v.
B.
Karunakar [(1993) 4 SCC 727 : 1993
SCC (L&S) 1184 : (1993) 25 ATC 704]
and the decision in Ram Kishan v. Union
of India [(1995) 6 SCC 157 : 1995 SCC
(L&S) 1357 : (1995) 31 ATC 475] has
held that: (SCC p. 96, para 17)

"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
enquiry 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 him
a hearing. When the enquiring 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
enquiry 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."

The Court further observed as
under: (SCC p. 96, para 18)

"When the enquiry is conducted
by the enquiry officer, his report is not
final or conclusive and the disciplinary
proceedings do not stand concluded. The
disciplinary proceedings stand concluded
with the decision of the disciplinary
authority. It is the disciplinary authority
which can impose the penalty and not the
enquiry officer. Where the disciplinary
authority itself holds an enquiry, an
opportunity of hearing has to be granted
by him. When the disciplinary authority
differs with the view of the enquiry officer
and proposes to come to a different
conclusion, there is no reason as to why
an opportunity of hearing should not be
granted. It will be most unfair and
iniquitous that 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 on the officer.
In our opinion, in any such situation, the
charged officer must have an opportunity
to represent before the disciplinary
authority before final findings on the
charges are recorded and punishment
imposed."

The Court further held that the
contrary view expressed by this Court in
State Bank of India v. S.S. Koshal [1994
Supp (2) SCC 468 : 1994 SCC (L&S)
1019 : (1994) 27 ATC 834] and State of
Rajasthan v. M.C. Saxena [(1998) 3 SCC
385 : 1998 SCC (L&S) 875] was not
correct.

31. In view of the above, a
delinquent employee has the right of
hearing not only during the enquiry
proceedings conducted by the enquiry
officer into the charges levelled against
him but also at the stage at which those
findings
are
considered
by
the
disciplinary authority and the latter,
2 All. Union of India & Ors. Vs Sati Nath Khan & Anr.
1011
namely, the disciplinary authority forms a
tentative opinion that it does not agree
with the findings recorded by the enquiry
officer. If the findings recorded by the
enquiry officer are in favour of the
delinquent and it has been held that the
charges are not proved, it is all the more
necessary to give an opportunity of
hearing to the delinquent employee before
reversing those findings. The formation of
opinion should be tentative and not final.
It is at this stage that the delinquent
employee should be given an opportunity
of hearing after he is informed of the
reasons on the basis of which the
disciplinary authority has proposed to
disagree with the findings of the enquiry
officer. This is in consonance with the
requirement of Article 311(2) of the
Constitution as it provides that a person
shall not be dismissed or removed or
reduced in rank except after an enquiry in
which he has been informed of the
charges
against
him and given
a
reasonable opportunity of being heard in
respect of those charges. So long as a
final decision is not taken in the matter,
the enquiry shall be deemed to be
pending. Mere submission of findings to
the disciplinary authority does not bring
about
the
closure
of
the
enquiry
proceedings. The enquiry proceedings
would come to an end only when the
findings have been considered by the
disciplinary authority and the charges are
either held to be not proved or found to be
proved and in that event punishment is
inflicted upon the delinquent. That being
so, the "right to be heard" would be
available to the delinquent up to the final
stage. This right being a constitutional
right of the employee cannot be taken
away by any legislative enactment or
service rule including rules made under
Article 309 of the Constitution.

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.

35.
Since
the
Disciplinary
Committee did not give any opportunity of
hearing to the appellant before taking a
final decision in the matter relating to the
findings on the two charges framed
against him, the principles of natural
justice, as laid down by a three-Judge
Bench of this Court in Punjab National
Bank v. Kunj Behari Misra [(1998) 7 SCC
84 : 1998 SCC (L&S) 1783 : AIR 1998 SC
2713] referred to above, were violated.

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
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
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
[(1998) 7 SCC 84 : 1998 SCC (L&S) 1783 :
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. Postdecisional 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."

28. In the case of S.P. Malhotra Vs.
Punjab National Bank, reported in (2013)
7 SCC 251: (2013) 2 SCC (L & S) 673,
the Apex Court reiterated the earlier view
on the issue related to disagreement
memo. The relevant paras read as under:-

"13. In ECIL [ECIL v. B.
Karunakar, (1993) 4 SCC 727 : 1993 SCC
(L&S) 1184 : (1993) 25 ATC 704 : AIR
1994 SC 1074] , only the first issue was
involved and in the facts of this case, only
second issue was involved. The second issue
was examined and decided by a three-Judge
Bench of this Court in Kunj Behari Misra
[Punjab National Bank v. Kunj Behari
Misra, (1998) 7 SCC 84 : 1998 SCC (L&S)
1783 : AIR 1998 SC 2713] wherein the
judgment of ECIL [ECIL v. B. Karunakar,
(1993) 4 SCC 727 : 1993 SCC (L&S) 1184
: (1993) 25 ATC 704 : AIR 1994 SC 1074]
has not only been referred to, but
extensively quoted, and it has clearly been
stipulated that wherein the second issue is
involved, the order of punishment would
stand vitiated in case the reasons so
recorded by the disciplinary authority for
disagreement with the enquiry officer had
not been supplied to the delinquent and his
explanation had not been sought. While
deciding the said case, the Court relied
upon the earlier judgment of this Court in
Institute of Chartered Accountants of India
v. L.K. Ratna [(1986) 4 SCC 537 : (1986) 1
ATC 714 : AIR 1987 SC 71] .

14.Kunj Behari Misra [Punjab
National Bank v. Kunj Behari Misra, (1998)
7 SCC 84 : 1998 SCC (L&S) 1783 : AIR
1998 SC 2713] itself was the case where the
disciplinary authority disagreed with the
findings recorded by the enquiry officer on
12-12-1983 and passed the order on 15-121983
imposing
the
punishment,
and
immediately
thereafter,
the
delinquent
officers therein stood superannuated on 3112-1983. In Kunj Behari Misra [Punjab
National Bank v. Kunj Behari Misra, (1998)
7 SCC 84 : 1998 SCC (L&S) 1783 : AIR
1998 SC 2713] this Court held as under:
(SCC p. 97, para 19)

"19. The result of the aforesaid
discussion would be that the principles of
2 All. Union of India & Ors. Vs Sati Nath Khan & Anr.
1013
natural justice have to be read into
Regulation 7(2). As a result thereof,
whenever
the
disciplinary
authority
disagrees with the enquiry authority on any
article of charge, then before it records its
own findings on such charge, it must record
its tentative reasons for such disagreement
and give to the delinquent officer an
opportunity to represent before it records its
findings. The report of the enquiry 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 enquiry 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 supplied)

15. The Court further held as
under: (Kunj Behari Misra case [Punjab
National Bank v. Kunj Behari Misra, (1998)
7 SCC 84 : 1998 SCC (L&S) 1783 : AIR
1998 SC 2713] , SCC p. 97, para 21)

"21.
Both
the
respondents
superannuated on 31-12-1983. During the
pendency of these appeals, Misra died on
6-1-1995 and his legal representatives
were brought on record. More than 14
years have elapsed since the delinquent
officers had superannuated. It will,
therefore, not be in the interest of justice
that at this stage the cases should be
remanded to the disciplinary authority for
the start of another innings."

16. The view taken by this Court
in the aforesaid Kunj Behari Misra case
[Punjab National Bank v.