JUDGMENT Hon’ble Devendra Kumar Arora, J.—Heard learned counsel for the parties. 2. By means of present writ petition, the petitioner is seeking a writ in the nature of certiorari for quashing of the order dated 30.3.2010 passed by the opposite party No. 2/ disciplinary authority, (contained in Annexure-1 to the writ petition), by which the punishment of the special entry and withholding of arrears of salary and allowances of suspension period has been passed. The petitioner also seeks a writ of mandamus commanding the opposite parties to make payment of arrears of salary and allowances of the suspension period forthwith alongwith interest. 3. Since in the present writ petition purely a legal question of law is involved, as such with the consent of parties the same is being considered and disposed of at the admission stage without calling any response from the opposite parties. 4. The brief facts of the case, as culled out from the pleadings of the writ petition, are that the petitioner is presently posted as Stenographer-II at Regional Office, Dairy Development Uttar Pradesh, Lucknow Mandal, Lucknow. One Sri Shree Bhagwan Sharma, Statistics/ Drawing Disbursing Officer, Headquarter, Dairy Development, Uttar pradesh made a complaint on 28.2.2007 to the Additional Dairy Commissioner, Dairy Development U.P., Lukcnow in respect of ‘Marpeet’ with him and also lodged an F.I.R. against three persons including the petitioner at Police Station Kotwali Hazaratganj, Lucknow, which was registered as Case Crime No. 126/2007, under Section 332 and 323 I.P.C. 5. The petitioner was placed under suspension vide order dated 1.3.2007 and disciplinary proceedings were initiated against the petitioner under U.P. Government Servants (Disciplinary & Appeal) Rules, 1999 (here-in-after referred to as the Rules, 1999) with the directions to the Enquiry Officer to submit enquiry report within a period of one month. The petitioner feeling aggrieved against the order dated 1.3.2007 approached this Court by means of Writ Petition No. 1704 (S/S) of 2007; Ram Shankar Srivastava v. State of U.P. and others. During pendency of the said writ petition, the charge-sheet dated 2.3.2007 was brought on record through supplementary counter-affidavit dated 18.4.2007. the petitioner after receipt of the charge-sheet alongwith supplementary counter-affidavit submitted his tentative reply to the charge-sheet on 25.4.2007 to the Enquiry Officer and subsequently final reply was submitted on 9.1.2008. The petitioner was provisionally reinstated vide oder dated 31.1.2008. During pendency of the said writ petition, the charge-sheet dated 2.3.2007 was brought on record through supplementary counter-affidavit dated 18.4.2007. the petitioner after receipt of the charge-sheet alongwith supplementary counter-affidavit submitted his tentative reply to the charge-sheet on 25.4.2007 to the Enquiry Officer and subsequently final reply was submitted on 9.1.2008. The petitioner was provisionally reinstated vide oder dated 31.1.2008. The Enquiry Officer after conducting the detailed enquiry as per law submitted his report on 20.2.2008 before the Disciplinary Authority exonerating the petitioner from the charges. The Disciplinary Authority kept the matter pending and did not take any decision on the garb of pendency of writ petition before this Court. The Writ Petition No. 1704 (S/S) of 2007 was finally disposed by this Court vide judgment and order dated 2.2.2010 with the directions to the opposite party No. 2 to pass appropriate order latest by 31.3.2010 in accordance with law. 6. After the directions of this Court dated 2.2.2010 the petitioner was served with a show-cause notice dated 5.3.2010 requiring him to submit his reply on the proposed punishment of special entry and withholding of arrears of salary and allowances of suspension period. The Disciplinary Authority in the show-cause notice mentioned that after going through the documentary evidence and statement he disagrees with the findings of the Enquiry Officer and came to the conclusion that the charges levelled against the petitioner are proved and the petitioner was required to submit his reply against the proposed punishment. The petitioner submitted a detailed reply to the show-cause notice dated 18.3.2010 and it was specifically mentioned in his reply that the complainant Shree Bhagwan Sharma himself in his cross-examination clearly stated that the petitioner has never misbehaved nor made any hindrance in his working. It was also brought on record by the petitioner that in the criminal case lodged against the petitioner alongwith two other persons on the same set of facts and evidences, Investigating Officer has already submitted final report observing that no such incident has taken place and the said report has also been accepted by the competent Court. The Disciplinary Authority by means of impugned order dated 30.3.2010 imposed the punishment, which are not provided under Rules, 1999. 7. The Disciplinary Authority by means of impugned order dated 30.3.2010 imposed the punishment, which are not provided under Rules, 1999. 7. The submission of learned counsel for the petitioner is that the special adverse entry and withholding of arrears of salary and allowances of suspension period are not enumerated as punishment under Rules, 1999 and, as such, the impugned order dated 30.3.2010 is not sustainable in the eyes of law. 8. Learned counsel for the petitioner further submitted that before taking final decision in the matter with respect to the findings of the Enquiry Officer the petitioner was not given any opportunity of hearing in any manner whatsoever by the Disciplinary Authority and the Disciplinary Authority by means of show-cause notice dated 5.3.2010 asked the reply of the petitioner only against the proposed punishment and did not ask any reply against the final decision which has already been taken by the Disciplinary Authority prejudicial to the petitioner holding him guilty of the charges against the findings of the Enquiry Officer. In fact the Disciplinary Authority first took a final decision that charges levelled against the petitioner are established and thereafter recorded the reasons and issued a notice requiring him to show-cause against the proposed punishment. The act of the Disciplinary Authority calling upon the petitioner to show-cause against the proposed punishment is in gross violation of principles of natural justice and in fact it was incumbent upon the Disciplinary Authority to first record the reasons for disagreement of the findings of the Enquiry Officer and thereafter called upon the petitioner on the point of disagreement and after providing adequate opportunity to the petitioner should have taken decision with respect to the charges and, thus, deprived the petitioner of being heard on the issue of disagreement with the findings of Enquiry Officer. The Disciplinary Authority after disagreeing with the findings recorded by the Enquiry Officer in favour of the petitioner held the petitioner guilty of the charges even against the material on record. 9. The Disciplinary Authority after disagreeing with the findings recorded by the Enquiry Officer in favour of the petitioner held the petitioner guilty of the charges even against the material on record. 9. Learned counsel for the petitioner further submitted that in criminal case No. 126 of 2007 registered at Police Station Hazaratganj, Lucknow under Sections 332/323 I.P.C. against three persons including the petitioner based on same charges and evidences the Investigating Officer submitted a final report on 6.5.2007 before the competent Court mentioning therein that on investigation it was found that no incident as alleged has taken place and the final report was accepted by the competent Court on 24.1.2009 and this fact has also not appreciated by the Disciplinary Authority though the petitioner specifically mentioned in his reply annexing the relevant documents. 10. It is also submitted by the learned counsel for the petitioner that the sequence of events and the impugned order establish the fact that the impugned order suffers from voice of malice and arbitrariness as such is bad in law and is liable to be quashed by this Court. 11. Learned Standing Counsel while opposing the writ petition submitted that there is nothing illegal in the impugned order of punishment and the disciplinary authority while disagreeing with the findings of the Enquiry Officer gave opportunity to the petitioner to submit his reply against the proposed punishment and it was open for the petitioner to challenge the observation of the Disciplinary Authority in his reply. The learned Standing Counsel further submitted that the standard of prove in departmental proceedings and in the criminal proceedings are different and in the criminal proceedings strict rule of evidence is followed whereas in the departmental proceedings, the evidence is appreciated on preponderance of evidence. 12. I have considered the arguments of learned counsel for the respective parties and gone through the record of the writ petition. 13. The following basic questions are required for consideration of this Court. “(i) Whether the Disciplinary Authority is required to give opportunity to the delinquent employee at the stage of disagreement with the findings of Enquiry Officer ? (ii) Whether the Disciplinary Authority after disagreeing with the findings of Enquiry Officer can take a final decision in the matter and is only required to ask the delinquent employee against the proposed punishment ?” 14. (ii) Whether the Disciplinary Authority after disagreeing with the findings of Enquiry Officer can take a final decision in the matter and is only required to ask the delinquent employee against the proposed punishment ?” 14. From perusal of the record of the writ petition, it is admitted position that in the criminal proceedings on the same set of charges, the competent Court accepted the final report of the Investigating Officer to the effect that on investigation no such incident of ‘Marpeet’ was found to be taken place. Secondly, the complainant Shri Bhagwan Sharma in his cross-examination stated that the petitioner has neither misbehaved with him nor made any hindrance in his working. The Disciplinary Authority while disagreeing with the findings of the Enquiry Officer came to the conclusion that the charges levelled against the petitioner are proved and only show-cause notice was issued against the proposed punishment. 15. It is settled position that it is open to the Disciplinary Authority either to agree or disagree with the findings of the Enquiry Officer, if the Disciplinary Authority does not agree with the findings of the Enquiry Officer, he is required to record his own finding, where the Enquiry Officer has found a delinquent employee guilty of the charges and the Disciplinary Authority agrees with those findings, there would arise no difficulty. So also, if the Enquiry Officer has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties arises only in all those cases in which the Enquiry Officer has recorded a positive finding to the effect that the charges were not proved or exonerated the delinquent employee of the charges, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent employee at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. This difficulty relates to the question of giving an opportunity of hearing to the delinquent employee at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the rules are in this regard are silent and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent employee and records findings different from those of the Enquiry Officer that the charges were established, “an opportunity of hearing” may have to be read into the rule by which the procedure for dealing with the Enquiry Officer’s report is provided principally because it would be contrary to the principles of natural justice if a delinquent employee, who has already been held to be “not guilty” by the Enquiry Officer, is found “guilty” without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of “not guilty” has already been recorded. In fact the stage where the Disciplinary Authority finally disagreed with the findings of Enquiry Officer, he is required to give an opportunity of hearing to the delinquent employee so that he may have an opportunity to indicate that the findings recorded by the Enquiry Officer does not suffer from any error and there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent employee the tentative reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Enquiry Officer so that the delinquent employee may indicate that the basis or reasons of which Disciplinary Authority proposes to disagree are not germane and the findings recorded by the Enquiry Officer is not liable to be interfered with. 16. The Hon’ble Supreme Court in the matter of Punjab National Bank v. Kunj Bihari Mishra, (1998) 7 SCC 84 , while relying upon the earlier decision in State of Assam v. Bimal Kumar Pandit, AIR 1963 SC 1612 , the Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537 , Managing Director ECIL v. B. Karunakar, (1993) 4 SCC 727 and Ram Kishan v. Union of India, (1995) 6 SCC 157 , observed in paras17 and 18 as under : “17. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.” “18. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer’s report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed.” 17. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed.” 17. In sum and substance, it can be easily said that a delinquent employee has a 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 the said findings are considered by the Disciplinary Authority and latter, the Disciplinary Authority forms a tentative opinion that he does not agree with the findings recorded by the Enquiry Officer and it is necessary for the Disciplinary Authority to give an opportunity of hearing to the delinquent employee before reversing the findings in favour of him. The formation of opinion should be tentative and not final. Accordingly, the questions raised in the present petition are answered. 18. In the present case, the show-cause notice dated 5.3.2010 reveals that the Disciplinary Authority instead of coming to the tentative conclusion recording the proving of charges against the petitioner, came to the final conclusion that the charges against the petitioner have been proved and issued show-cause notice on the proposed punishment. In other words, the findings of the Disciplinary Authority were final and the proposal to inflict upon the petitioner the punishment was tentative. Therefore, it is admitted case of final decision without giving an opportunity of hearing to the petitioner at the stage at which the Disciplinary Authority proposes to differ from findings of the Enquiry Officer. 19. In view of the above discussions, this Court comes to the conclusion that the impugned order of punishment dated 30.3.2010 has been passed in gross violation of principles of natural justice and thus the same cannot sustain in the eyes of law. Hence, the impugned order dated 30.3.2010 is hereby quashed. However, it is open for the competent authority to re-initiate the proceedings from the stage of disagreement with the findings of the Enquiry Officer and take final decision afresh after affording due opportunity. 20. Accordingly, the writ petition is allowed. There shall be no order as to costs. ————