Delhi High Court
Manmeet Pokhriyal vs Union Of India And Ors on 23 July, 2024
Author: Rekha Palli
Bench: Rekha Palli
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23.07.2024
+ W.P.(C) 1559/2021
MANMEET POKHRIYAL .....Petitioner
Through: Mr. Ankur Chhibber, Mr. Anshuman
Mehrotra, Mr. Nikunj Arora, Mr.
Amrit Kaul, Mr. Prahil Sharma & Mr.
Arjun Panular, Advs.
versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr. Vikrant N. Goyal with Ms. Nikita
Goyal, Advs.
SI Shiv Kumar Singh.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
REKHA PALLI, J (ORAL)
1. The petitioner has approached this Court under Article 226 of the
Constitution of India assailing the order dated 16.11.2020 passed by the
respondents whereby he has been dismissed from service on the basis of a
'disagreement note' issued to him on 01.02.2017, of which also quashing is
sought.
2. Learned counsel for the petitioner submits that the petitioner was
exonerated not only in the departmental inquiry held against him on two
Charges as set out in the dismissal order but was also acquitted after a full
fledged trial by the CBI Court in respect of the same incident which forms
subject matter of the Articles of Charge against him. However, the
disciplinary authority, while disagreeing with the finding of the inquiry
officer, has come to a conclusion that the charges against the petitioner were
duly proved and has consequently, issued a note dated 01.02.2017 which,
though titled as a disagreement note is, in fact, conclusive in nature. By
placing reliance on a decision of this Court in Sunil Kumar vs. UOI: 2018
SCC Online Del 6433, he submits that the disagreement note and the
consequential dismissal order are liable to be set aside on this ground alone.
He, therefore, prays that the writ petition be allowed by directing the
respondents to reinstate the petitioner in service w.e.f. 24.11.2020 with all
consequential benefits.
3. On the other hand, Mr. Vikrant N. Goyal, learned counsel for the
respondents supports the impugned orders and submits that merely because
the disciplinary authority after examining the evidence led in the
departmental inquiry, opined that the charges against the petitioner were
proved, cannot imply that the said conclusion was a final conclusion and not
tentative. The very fact that the petitioner was given a show cause notice to
explain his stand before any final order was passed against him, in itself
shows that the disagreement note was only tentative in nature. He, therefore,
prays that the writ petition be dismissed.
4. Having considered the submissions of learned counsel for the parties
and perused the record, we find that the parties are ad idem that the
petitioner was exonerated in the departmental inquiry as also in the criminal
case by the CBI Court. It is only on the basis of the impugned disagreement
note dated 01.02.2017 that the petitioner has been dismissed from service
vide order dated 16.11.2020. Taking into account that it is the petitioner's
plea that this disagreement note that forms the basis of the dismissal order
was contrary to the settled legal position, we may refer to the relevant
extracts of the disagreement note, which read as under:
"The Inquiry Officer while evaluating the evidences has ignored the above
direct and circumstantial evidence and relied upon the defence statement
and defence brief. Therefore, the report of Inquiry Officer that the charge
levelled against Shri Manmeet Pokhriyal, Dy. Commandant "STANDS
NOT PROVED" not acceptable due to the reasons as enumerated above.
On the basis of oral as well as documentary evidence available in the DE
proceedings, the report of IO in the DE against Shri Manmeet Pokhriyal,
Dy. Commandant that the charges framed against him at Artic1e-1 and II
as not proved, has been disagreed upon and the Disciplinary Authority has
held the charges at Article-I & II framed against Shri Manmeet Pokhriyal,
Dy. Commandant (Charged Officer) as "PROVED" on preponderance of
probability based on the evidence I circumstantial evidence adduced
during the course of enquiry."
5. From a bare perusal of the aforesaid extract of the disagreement note,
it is evident that the disciplinary authority had, instead of forming a tentative
opinion regarding the petitioner's misconduct, given a conclusive finding
regarding his guilt. This course of action was held to be impermissible by
the Hon'ble Apex Court in Yoginath D. Bagde vs. State of Maharashtra:
(1999) 7 SCC 739. This decision has been consistently followed by this
Court in a number of cases and therefore, it would be apposite to refer to the
following extracts of the decision of this Court in Sunil Kumar (supra)
relied upon by the petitioner. The same reads as under:
15. A bare perusal of the disagreement note dated 03.01.2015, as
reproduced hereinabove, clearly shows that after examining the inquiry
proceedings the disciplinary authority had not only disagreed with the
Inquiry Report, but had conclusively opined that the petitioner had made
excess withdrawals from his GPF account and he could not be acquitted
from the charge leveled against him.
16. The aforesaid categorical findings of the Disciplinary Authority
clearly shows that instead of taking a tentative view while issuing a
disagreement note, the Disciplinary Authority had taken a final decision
that the charge against the petitioner stood proved. In fact, the
Disciplinary Authority has gone to the extent of holding that the
petitioner could not be acquitted from the charge leveled against him. In
these circumstances, we have no hesitation in holding that the
disagreement note was merely an eyewash as the Disciplinary Authority
had already made up its mind to hold the petitioner guilty.
17. In our aforesaid conclusion, we are fortified by the decision of the
Supreme Court in the cases of Punjab National Bank (supra) & Yoginath
D. Bagde (supra) and by the decision of this Court in the case of Rajpal
Singh (supra), on which reliance has been placed by the learned counsel
for the petitioner, In the case of Yoginath D. Bagde (supra), the Supreme
Court had, while dealing with similar facts held as under:-
"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 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) 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. Post-decisional opportunity of
hearing, though available in certain cases, will be of no
avail, at least, in the circumstances of the present case. "
(emphasis added)
18. For the aforesaid reasons, the impugned order dated 29.01.2015
imposing the penalty on the petitioner stands vitiated and is accordingly
quashed and set aside. As a consequence thereof, the order passed by the
appellate authority and revisional authority are also quashed as the
same do not deal with the aforesaid vital aspect of the matter.
19. While quashing the impugned penalty orders and the disagreement
note, the matter is remanded back to the Disciplinary Authority for
issuance of a fresh disagreement note if so advised, after following the
legal principles laid down in the aforesaid decisions of the Supreme
Court. It is however made clear that we have not dealt with merits of the
charge leveled against the petitioner and after issuing a fresh
disagreement, if so advised, the respondents would be free to take
appropriate action as per law. In case the petitioner feels aggrieved by
the decision taken, he will be at liberty to take legal recourse, as
available to him."
6. In the light of the aforesaid, once it is clear that the opinion arrived at
by the disciplinary authority was not tentative in nature but was a conclusive
finding regarding the petitioner's guilt, we have no other option except to set
aside the disagreement note as also all consequential orders passed on the
basis thereof.
7. The writ petition is, accordingly, allowed by setting aside the
disagreement note dated 01.02.2017 and the dismissal order dated
16.11.2020 and the matter is remanded back to the disciplinary authority for
issuance of a fresh disagreement note, if so advised, after following the legal
principles laid down in the aforesaid decisions. It is, however, made clear
that this Court has not expressed any opinion regarding the merits of the
charges against the petitioner, which aspect will be examined in appropriate
proceedings if the need so arises.
8. We further direct that the petitioner will be forthwith reinstated in
service and orders regarding the benefits, if any, payable to him for the
intervening period from the date of his dismissal till his reinstatement will
be taken in accordance with Fundamental Rule 54 after a fresh decision by
the respondents is taken in terms of this order
9. The petition is allowed in the aforesaid terms.
(REKHA PALLI)
JUDGE
(SHALINDER KAUR)
JUDGE
JULY 23, 2024
ab
