IMPORTANT POINT
The central legal point established in the judgment is the requirement for the disciplinary authority to issue a tentative disagreement note and provide the employee with an opportunity to be heard before reaching a final decision, in accordance with the constitutional right of the employee.

JUDGMENT

Rekha Palli, J. (Oral)

CM APPL. 19101/2024 -Ex.

1. Exemption allowed, subject to all just exceptions.

2. The application stands disposed of.

W.P.(C) 4665/2024 & CM APPL. 19100/2024 -Stay.

3. The present writ petition under Articles 226 and 227 of the Constitution of India seeks to assail the order dated 19.09.2023 passed by the learned Central Administrative Tribunal (the Tribunal) in O.A. No. 3697/2015. Vide the impugned order, the learned Tribunal has allowed the original application filed by the respondent thereby setting aside the disagreement note dated 23.01.2013 alongwith the consequential penalty order dated 01.04.2013 as also the appellate order dated 05/06.09.2013 and the revisionary order dated 21.07.2014. It may be noted that the learned Tribunal was of the view that since the disagreement note had not been issued by the competent authority, i.e., the Insurance Commissioner but by the Additional Commissioner, the disagreement note as also the consequential penalty order were unsustainable.

4. Learned counsel for the petitioner submits that the learned Tribunal has gravely erred in holding that the Additional Commissioner could not commence disciplinary proceedings against the respondent. As per the Fifth Schedule of the Staff and Conditions of Service Regulations, the Additional Commissioner was the disciplinary authority for imposing minor penalty and was therefore competent to initiate disciplinary proceedings against any employee. Furthermore, as per Rule 13(2) of the CCS (CCA) Rules, 1965, a disciplinary authority competent to impose any of the minor penalties as specified in Rule 11 may institute disciplinary proceedings against any employee. She, therefore, contends that notwithstanding that the Additional Commissioner was not competent to impose any major penalty on the respondent; he was duly entitled to initiate the proceedings for major penalty, which aspect the learned Tribunal has failed to appreciate. She, therefore, prays that the impugned order be set aside.

5. On the other hand, Mr. V.K. Singh, learned counsel for the respondent, who appears on advance notice, supports the impugned order and submits that there is no infirmity in the order passed by the learned Tribunal. He submits that from a bare perusal of the disagreement note dated 23.01.2013, it is evident that the petitioners had already made up their mind to hold the respondent guilty of the charge despite the inquiry officer having exonerated her. He, therefore, contends that even if the petitioner's plea that the Additional Commissioner was competent to initiate disciplinary action against the respondent were to be accepted, once the disagreement note in itself was faulty, the penalty order was liable to be set aside. He, therefore, prays that the writ petition be dismissed.

6. Having considered the rival submissions of the learned counsel for the parties, especially the plea of the respondent that the disagreement note dated 23.01.2013 based on which the penalty order was passed was not a tentative note but conveyed the final decision of the petitioners to hold the respondent guilty, we may begin by noting the contents of the said disagreement note. The same read as under:

"DISAGREEMENT NOTE ON THE REPORT DATED 11.06.2012 OF I.A. RECEIVED IN CONNECTION WITH MEMO NO. 11-C/11/14/41/2008-VIG. DATED 28.07.2009 ISSUED TO SMT. SARASWATI RAWAT, SOCIAL SECURITY OFFICER

The Charged Official, Smt. Saraswati Rawat, SSO was issued a charge sheet vide above memorandum inter-alia for the following misconduct as per Article of Charge No. 1.

"Article of Charge No. 01

Smt. Saraswati Rawat, SSO while posted in insurance Branch Regional Office has conducted inspection of M/s. G.S.Apparels, ESI Code No. 11-40-81555-198 on 15.02.2008 and 29.02.2008 for the period from July, 2006 to January, 2008 along with LVR for the period from 07/2006 to 03/2007 and failed to detect omitted wages to the tune of Rs. 1,69,431.75 on which contribution of Rs. 11,013/- was payable.

B