Uoi vs Abid Ali
2010 Latest Caselaw 4001 Del

$~22
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision: 30th August, 2010

+                          W.P.(C) 8640/2009

        UOI                                       ..... Petitioner
                       Through:   Mr.V.P.Uppal, Advocate

                                  versus

        ABID ALI                                 ..... Respondent
                       Through:   Ms.Meenu Maini, Advocate


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE MOOL CHAND GARG

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated 10.12.2008 the Tribunal has held that since the Inquiry Officer did not examine the respondent under rule 14 (18) of the CCS (CCA) Rules, 1965 and additionally because the tentative reasons recorded by the Disciplinary Authority to disagree with the report of the Inquiry Officer were conclusive in nature, the impugned order levying penalty was liable to be quashed.

2. With respect to the first reasoning of the Tribunal we note that as per the decision reported as (1980) 3 SCC 304 Sunil Kumar Banerjee Vs. State of West Bengal & Ors., mere non-examination of a charged officer with respect to the incriminating circumstances against him, unless backed by

proof of prejudice, cannot vitiate the inquiry proceedings. The decision relied upon by the Tribunal reported as (1998) 3 SCC 227 Ministry of Finance and Anr. Vs. S.B.Ramesh is wholly inapplicable for the reason in the said case the charged officer had led no evidence in defence.

3. No prejudice has been shown.

4. That apart, the decision in S.B.Ramesh's case (supra) has been delivered by a two Judge Bench whereas the decision in Sunil Kumar Banerjee's case (supra) is by a three member Bench. Further, the decision in S.B.Ramesh's case has not noticed the decision in Sunil Kumar Banerjee's case.

5. As regards second ground, of the note of disagreement not being tentative; suffice would it be to state that this ground was never urged by the respondent when he responded to the Disciplinary Authority. He never took the plea that the Disciplinary Authority has already made up its mind and it would be a useless formality to require him to respond to the note of disagreement. No such plea was raised in the appeal or the revision filed. It was taken up for the first time before the Tribunal.

6. It is apparent that the Disciplinary Authority has not been prejudiced by the language of the note of disagreement for the reason all contentions urged by the respondent while dealing with his response to the note of disagreement have been dealt with by the Disciplinary Authority while imposing the penalty.

7. Learned counsel for the respondent states that it is a case of no evidence and since the Tribunal has not discussed this aspect of the matter the proceedings be remanded to the Tribunal for fresh adjudication.

8. Having perused the pleadings in the original application filed by the respondent we find that amongst others, a plea has been raised that it is a case of no evidence and that the report of the Inquiry Officer brings out this facet. This has admittedly not been dealt with by the Tribunal.

9. Accordingly, while disposing of the writ petition and setting aside the impugned order dated 10.12.2008 we restore OA No.1135/2008 for adjudication by the Tribunal but limited to the question whether there is any evidence to indict the respondent or it is a case of no evidence.

10. No costs.

CM No.5795/2009

Dismissed as infructuous.

PRADEEP NANDRAJOG, J.

MOOL CHAND GARG, J.

JULY 30, 2010 rk