The main legal point established in the judgment is the requirement for the Disciplinary Authority to issue a tentative finding of guilt and provide an opportunity for the charged official to respond before imposing a penalty.

Valmiki J. Mehta, J.

W.P.(C) 2676/1998

1. A limited issue is urged on behalf of the petitioner. Petitioner by this writ petition impugns the order which has been passed by the Departmental Authorities. Disciplinary Authority imposed the penalty of reduction of pay by five stages in the same time scale for a period of five years with further stipulation that petitioner will not earn any increment of pay during the period of reduction and which will have the effect of postponing of future increments of pay. The Appellate Authority upheld the order passed by the Disciplinary Authority. What the counsel for the petitioner argues is that Disciplinary Authority in the present case while disagreeing with the findings of the Enquiry Officer arrived at a conclusion of guilt and then issued a show-cause notice only with respect to the penalty, and which is therefore illegal. It is argued that when the Disciplinary Authority disagrees with the findings of the Enquiry Officer, the Disciplinary Authority can only make a tentative finding and not a conclusive one, and the show cause notice which has to be issued cannot be for the penalty to be proposed, but has to be as to whether or not the findings of the Enquiry Officer should be set aside. The show cause notice issued by the Disciplinary Authority in the present case is, therefore, argued as being illegal.

2. Learned counsel for the petitioner has placed reliance upon a Division Bench judgment of this Court in Union of India vs. Baljit Singh Sondhi, 173 (2010) DLT 346 (DB) wherein the Division Bench of this Court relied upon the judgment of the Supreme Court in the case of Yoginath D. Badge vs. State of Maharashtra & Anr., (1999) 7 SCC 739 to hold that the Disciplinary Authority can only have a tentative view but it cannot give a final finding of guilt without hearing the charged official, and thereafter simply issue a show cause notice for a particular penalty. Paras 9 to 14 of the judgment in Union of India vs. Baljit Singh Sondhi (supra) read as under:

9. Same thing happened earlier on and was commented upon in the decision reported as X(199) SLT 276 (SC) = (1999) 7 SCC 739 Yoginath D. Badge v. State of Maharashtra and 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 appellant before finally recommending to the State Government to dismiss him from service, the principles of natural justice were fully complied with and that too at a stage earlier than the stage when the curtain was finally brought down on the proceedings. He contended that not only the findings recorded by the Enquiry Officer but the reasons for which the Disciplinary Committee had not agreed with those findings, were communicated to the appellant to whom a notice was also issued to show-cause why he be not dismissed from service. He further contended that the appellant submitted a reply in which he attacked the reasons for which the Disciplinary Committee had decided to disagree with the findings of the Enquiry Officer and, therefore, in the given circumstances of this case, it cannot be said that there was failure or denial of opportunity at any stage.”

11. The contention has been repelled in para 37 of the said decision where it has been held as under:

“37. The contention apparently appears to be sound but a little attention would reve