PRADEEP NANDRAJOG, J. (Oral)

1. This common order shall dispose the aforesaid two writ petitions arising out of the common order dated 12th February 2009 passed by the Central Administrative Tribunal, Principal bench in OA Nos.2092/2007 and 520/2008.

2. The learned Tribunal, allowing the OAs, set aside the order passed by the Disciplinary Authority against the applicant i.e. respondent; quashed the inquiry report and the order of disagreement, and ordered to ensue the consequents in law pursuant to such quashing be bestowed upon the applicant/respondent within a period of two months; which required the petitioners to open the sealed cover relating to the DPC held in September 2006 for promotion of the respondent and grant benefits as per the recommendation of the DPC.

3. The respondent when working as Additional Commissioner of Income Tax, Range 10, Kolkata was issued a charge sheet imputing him of misconduct during the period June 1995 to June 1996 with four articles of charge against him, of which the enquiry officer exonerated him of two charges and held that the remaining two were partially proved.

4. The Disciplinary Authority, disagreeing with the findings of the Enquiry Officer penned a note discussing the evidence and returning conclusive and positive findings and holding in express words that all the charges stood fully proved and thereafter proceeded to issue a notice to the respondent enclosing therewith the finding of the Disciplinary Authority, but styling the same as a note of disagreement, calling upon the respondent to file a response.

5. The Tribunal has accordingly held that for all intents and purposes it is a case of the Disciplinary Authority passing an order holding the respondent guilty and then complying with the letter of the law by calling upon him to give a response.

6. The Tribunal has quashed as afore-noted.

7. It is urged by learned counsel for the petitioners that there is no taint found with the report of the Inquiry Officer and hence the Tribunal could not have quashed the inquiry report. Counsel urges that at best the Tribunal could have remanded the matter directing the Disciplinary Authority to withdraw the existing note of disagreement, which learned counsel concedes is not a tentative view but has finally concluded the matter, with further direction that the Disciplinary Authority should pen a tentative note of disagreement and then issue a fresh show cause notice and serve the same upon the respondent and pass a fresh order.

8. We agree with learned counsel that the Tribunal could not have quashed the inquiry report. But, it appears to be an oversight on the part of the Tribunal to do so. A reading of the impugned orders shows that the Tribunal has simply considered the issue arising out of the language of the note of disagreement, which actually for all intents and purpose is a final order recording positive findings disagreeing with the report of the inquiry officer and to this extent the observations in the impugned decision i.e. that the inquiry report is quashed, are set aside.

9. Same thing happened earlier on and was commented upon in the decision reported as (1999) 7 SCC 739 Yoginath D. Badge Vs State of Maharashtra& Anr. There also the Disciplinary Authority returned findings of a positive nature disagreeing with the Inquiry Report and then called upon the charged officer to respond.

10. It was urged before the Supreme Court that the Disciplinary Authority could be called upon to re-decide the matter. The contention urged was noted in para 36 of the decision which reads as under:-

“36. Mr. Harish N. Salve, learned Senior Counsel appearing on behalf of the respondent, has contended that the disciplinary proceedings come to an end either when the delinquent is exonerated of the charges or when punishment is inflicted upon him on charges being proved. Since in the instant case, the Disciplinary Committee had given an opportunity of hearing to the appe