JUDGMENT
Pradip Mohanty, J.
1. The petitioner in this writ petition assails the order dated 23.11.2001 (Annexure-10) passed by the Orissa Administrative Tribunal, Bhubaneswar dismissing O.A. No. 223 of 1999 filed by the petitioner and confirming the order of punishment passed against him in the departmental proceeding vide Annexure-8, which was challenged on the ground of non-compliance of Sub-rule (10)(ii) of Rule-15 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 as well as violation of principle of natural justice.
2. The case of the petitioner is that while working as the S.D.O., Koraput, a departmental proceeding was initiated against him vide D.P. No. 2301 of 1986 for violation of Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956, misuse and abuse of official powers for private gain, violation of Government rules and orders, passing illegal orders, delaying the report under Section 6-A of the Essential Commodities Act with ulterior motive causing loss to the R.M.C., Dumuriput and negligence of duty. The petitioner filed his written statement of defence and the Commissioner for Departmental Inquiries was appointed to enquire into the above charges. The Inquiry Officer submitted his report suggesting to exonerate the petitioner from all the charges. But the Disciplinary Authority, i.e., the Government of Orissa, disagreeing with the findings of the Inquiry Officer, imposed punishment of reversion to the rank next below and treated the period of suspension as such. Challenging the said order of punishment, the petitioner filed O.A. No. 1386 of 1991 on the ground that non-furnishing of copy of the enquiry report together with the final order of the Disciplinary Authority disagreeing with the conclusion reached by the Inquiry Officer to the petitioner before infliction of punishment is violative of the principle of natural justice. The said O.A. was disposed of on merit by order dated 08.06.1997 setting aside the order of punishment and remitting the matter back to the Disciplinary Authority. In the said order, the petitioner was directed to submit his comments, if any, on the proposed punishment within one month from the date of receipt of a copy of the order and after receipt of the additional reply, if any, from the petitioner, the disciplinary authority was directed to dispose of the proceeding within three months thereafter. On receipt of the order of the Tribunal, the petitioner submitted interim comments basing upon the finding of the Inquiry Officer on 28.07.1997. Thereafter, the petitioner was asked to furnish his final comments, which he did on 24.12.1997. The Disciplinary Authority vide order dated 19.01.1999 imposed punishment of withholding of three consecutive increments with cumulative effect in the present scale and treating the period of suspension as such. Aggrieved, the petitioner filed O.A. No. 223 of 1997 on the ground that he was not allowed to represent against the proposed punishment and that the reasons for disagreement from the find-ing of the Inquiry Officer were not communicated to him. Opposite party No. 1 in its reply filed before the Tribunal stated that the order of the Tribunal in O.A. No. 1368 of 1991 has been complied with by asking the petitioner to submit his additional reply, if any. After considering the charges with reference to the additional reply of the petitioner as well as the findings of the Inquiry Officer, a fresh punishment order was issued on 19.01.1999 indicating the reasons for disagreeing with the findings of the Inquiry Officer. It was also stated in the reply that violation of Regulation 2 of 1956 had been made in Case No. 20/85, that the petitioner had misutilised his official power for private gain and failed to discharge his duty in terms of Rule 3 of the Government Servants’ Conduct Rules and that there was no question of legal infirmity. The Tribunal after hearing the parties, dismissed the O.A. vide the impugned order under Annexure-10 by holding that there is no material on record to show that the report of the Inquiry Officer suffers from infirmity or is perverse. It may be mentioned here that the Inquiry Officer had held the petitioner guilty of two charges, but had recommended to exonerate him for the agony and suffering undergone by him due to long suspension. When the disciplinary authority accepts the evidence and the conclusion, which receives support from the report of the Inquiry Officer, the Disciplinary Authority is entitled to hold that the delinquent officer is guilty of the charges. The Court or the Tribunal in its power of judicial review does not act as the appellate authority to appreciate the evidence and arrive at its own independent findings on the evidence. Against this order of the Tribunal, the petitioner has preferred the instant writ petition.
3. Mr. Sarangi, learned counsel for the petitioner assails the impugned order on the ground that the order under Annexure-8, i.e., the punishment order, is not in consonance with Sub-rule (10)(ii) of Rule 15 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962, there has been gross violation of principles of natural justice and there is absolutely no evidence against the petitioner in the inquiry report. In support of his contention, he has placed reliance on a decision of the apex Court in Yoginath D. Bagde v. State of Maharashtra .
4. We have gone through the impugned judgment of the Tribunal, judgment passed in the earlier O.A., inquiry report and the rules governing the field. Sub-rule 10(ii) of Rule-15, non-compliance of which is alleged by the petitioner, reads as under:
The orders passed by the disciplinary authority shall be communicated to the Government servant, who shall also be supplied with a copy of the report of inquiring authority and where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority as well as a copy of the advice of the Commission, where the Commission had been consulted, and brief statement of reasons for non-acceptance of the advice of the Commission, if the disciplinary authority has not accepted such advice.
On perusal of the aforesaid provision, it would be manifest that the Disciplinary Authority shall communicate the delinquent officer a copy of the report of the inquiring authority, the statement of findings together with the reasons for disagreement, if any, with the findings of the inquiring authority. But in the instant case, after the Tribunal’s judgment in the earlier O.A., the petitioner submitted his interim comments on 28.07.1997. He was asked to furnish his final comments, if any, vide letter dated 01.11.1 997 and he submitted his final comments on 24.12.1997. Thereafter, the punishment order was passed on 19.01.1999 withholding three consecutive increments with cumulative effect. It is worthwhile to mention that in the letter dated 01.11.1997, by which the petitioner was asked to submit his final comments, no reason was ascribed with regard to disagreement from the findings of the Inquiry Officer. Only he was asked to furnish his final comments.
5. The apex Court in Bagde’s case (supra) in para 33 of its judgment has held as under :
In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the ‘right to be heard’ would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away in any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.
6. Admittedly, in the case at hand, the Disciplinary Authority disagreed with the findings of the inquiry authority. But at no point of time, the petitioner was made to know about the reasons for such disagreement. He was also never asked to submit his reply to the proposed disagreement by the disciplinary authority. In other words, the disciplinary authority has taken a final decision that the charges levelled against the petitioner have been proved. The petitioner was only asked to show cause against the punishment, not against the proposed disagreement. The Tribunal has lost sight of the aforesaid fact. Since the disciplinary authority did not give any opportunity of hearing to the petitioner before taking final decision in the matter relating to the disagreement, there has been violation of principle of natural justice. In our considered opinion, the ratio decided in Bagde (supra) is squarely applicable to the present case.
7. For the reasons stated above, the impugned order of the Tribunal as well as the order of punishment is liable to be set aside.
8. In the result, the writ petition is allowed. The impugned order dated 23.11.2001 (Annexure-10) and the order of punishment dated 19.01.1999 (Annexure-8) are hereby quashed. No order as to cost.