JUDGMENT & ORDER : Manojit Bhuyan, J. Heard Mr. S. Dutta, learned senior counsel representing the appellant, assisted by Ms. N. Modi, Advocate. Also heard Mr. H.K. Mahanta, learned counsel representing the sole respondent. 2. This intra-Court appeal is presented against the order dated 28.09.2015 passed in WP(C) 1126/2014. The appellant herein is the New India Assurance Company Ltd. 3. Facts to be noticed are that the respondent while working as Collective Cashier in the appellant's Company during the period from 02.09.2009 to 31.12.2009 was charged of having committed serious irregularities. Allegations made was for misappropriating Company's money, that is, the premium amount which he did not deposit in the bank and having utilized the same for his own interest. Irregularities were also alleged for having violated the Company's norms in late depositing the cash premium into the bank account maintained by the Company as well as having misappropriated the cash premium amounting to Rs. 2,65,289/-. For better appreciation of the three charges, the same are reproduced hereunder: "(1) Sri Pradip Hazarika SR. No. 29695, Assistant while working as a Collective Cashier at GDO-III, Guwahati during the period of 02-09-2009 to 31.12.2009 deliberately and with malafide intention, in gross violation of the Company's set Rules and Regulations has misappropriated Company's money i.e., premium amount by not depositing the money in Bank, and thus utilized the money for his own interest. (2) Sri Pradip Hazarika SR. No. 29695, Assistant, GDO-III, Guwahati while working as a Collective Cashier has committed serious irregularity and violated the Company's norms in late depositing of Cash Premium in the bank account under collection A/c 9100 maintained with Bank of India Guwahati Branch. (3) Sri Pradip Hazarika SR. No. 29695 Assistant, GDO-III, Guwahati while working as a Collective Cashier deliberately and with malafide intention has misappropriated the Company's money by not depositing the cash premium within the stipulated time of the Company. The amount of money misappropriated by Mr. Pradip Hazarika is Rs. 2,65,289/- as per the Bank Reconciliation Statement for the month December, 2009 to GDO-III, Guwahati. " 4. As against the Memorandum dated 01.09.2010 listing out the above three charges, the respondent filed written statement of defence. The explanations given in the written statement was not accepted and a departmental enquiry was initiated. Enquiry Officer and Presenting Officer were appointed to conduct the enquiry. " 4. As against the Memorandum dated 01.09.2010 listing out the above three charges, the respondent filed written statement of defence. The explanations given in the written statement was not accepted and a departmental enquiry was initiated. Enquiry Officer and Presenting Officer were appointed to conduct the enquiry. On conclusion of the enquiry, Report was submitted by the Enquiry Officer on 31.01.2011. The charge of misappropriation of the premium amount, which was quantified at Rs. 2,65,289/- were held not be fully proved while the charge of late depositing the cash premium was held to be proved. In other words, Charge Nos. 1 and 3 were not held to be fully proved and Charge No. 2 as proved. 5. On 05.12.2011, the Disciplinary Authority issued a notice to the respondent informing that he had been found guilty of all the three charges and that the Enquiry Officer had made contradictory observations with regard to Charge Nos. 1 and 3 as being partially proved. The respondent was given a second opportunity to defend himself in respect of the contradictory observations made by the Enquiry Officer and to explain why he should not be held guilty of all the charges. This letter of 05.12.2011, being of utmost significance for the purpose of determining the case, the same is reproduced hereunder: "The New India Assurance Company Limited North Eastern Regional Office, G.S. Road, Bhangagarh, Guwahati-781005 NIA/HRM/2011 5th Dec 2011/3463. Mr. P. Hazarika Assistant SR No. 29695. A.T. Road Branch Re:- Domestic Inquiry of RDA Major Penalty against yourself. This has reference to the domestic Inquiry conducted against you under RDA Major Penalty and the inquiry report submitted thereof by the Inquiry Officer. From the records and evidences including documentary proves available with us you have been found guilty of all the charges from Sl. No. 1, 2 and 3 as specified in the charge sheet issued against you. However, on perusal of the inquiry report, the Inquiry Officer has made contradictory observations and held the charges No. 1 and 3 as partially proved. In view of the above facts, you are hereby given an second opportunity to defend yourself under the provisions of 26(2) of CDA rules regarding the contradictory observations made by the Inquiry Officer if any, and why you should not be held guilty of all the charges issued against you as in Sl. Nos. 1, 2 and 3. In view of the above facts, you are hereby given an second opportunity to defend yourself under the provisions of 26(2) of CDA rules regarding the contradictory observations made by the Inquiry Officer if any, and why you should not be held guilty of all the charges issued against you as in Sl. Nos. 1, 2 and 3. You are advised to acknowledge this letter and furnish your reply within 15 days of receipt of this letter for further necessary action. Sd/- Dy. Manager Disciplinary Authority." 6. The respondent made his reply on 14.03.2012 supporting the findings of the Enquiry Officer in respect of Charge Nos. 1 and 3. As regards Charge No. 2, he questioned the findings thereof and reiterated that he could not be held responsible for late deposit of the premium money, which was due to systems failure. Order of removal from service was passed by the Disciplinary Authority on 15.06.2012. The appeal made before the Appellate Authority and thereafter the memorial submitted before the Chairman-cum-Managing Director stood rejected by orders dated 24.01.2013 and 06.11.2013 respectively. 7. The learned Single Judge exhaustively dealt with the facts in issue and allowed the writ petition by setting aside the order of penalty dated 15.06.2012. Interference was made primarily on the ground that the Disciplinary Authority while disagreeing with the findings on Charge Nos. 1 and 3 did not follow the procedure as prescribed under Rule 26(2) of The New India Assurance Company Ltd. (Conduct, Discipline & Appeal) Rules, 2003 (in short 'Rules of 2003') as well as the law laid down by the Supreme Court in Punjab National Bank v. Kunj Behari Misra, reported in (1998) 7 SCC 84 and in S.P. Malhotra v. Punjab National Bank and Others, reported in (2013) 7 SCC 251 . Direction was made to reinstate the respondent/writ petitioner in service with observation that it would be at the discretion of the Disciplinary Authority to impose a lesser/minor penalty, if considered necessary, in respect of Charge No. 2. A further observation was made that consequential benefits due on reinstatement would be subject to such lesser/minor penalty, if imposed. 8. The determination of this case is confined to the limited issue as to whether the procedure, as legally recognized, had been followed by the Disciplinary Authority while disagreeing with the findings of the Enquiry Officer in respect of Charge Nos. 1 and 3. 8. The determination of this case is confined to the limited issue as to whether the procedure, as legally recognized, had been followed by the Disciplinary Authority while disagreeing with the findings of the Enquiry Officer in respect of Charge Nos. 1 and 3. To start with, Rule 26 of the Rules of 2003, particularly sub-rule (2) thereof, prescribes that the competent authority, if it disagrees with the findings of the Inquiring Authority on any article of charge, it shall record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. On this point, the Supreme Court in Kunj Behari Misra (supra) have held that whenever a disciplinary authority disagrees with the Inquiring Authority on an article of charge, then before it records his own findings on such charge, it must record its tentative reasons for such disagreement and give opportunity to the delinquent officer to represent before it records its findings. The Supreme Court held that this procedure is in tune with the principles of natural justice, which cannot be denied to the charged officer. In S.P. Malhotra (supra), the Supreme Court held that not furnishing the copy of the recorded reasons for the disagreement itself causes prejudice to the delinquent and would per se be violative of the principles of natural justice. In yet another decision in Yoginath D Bagde v. State of Maharasthra and Another, reported in (1999) 7 SCC 739 , the Supreme Court observed as follows: "31. 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 leveled against him but also at the stage at which those findings are considered by the disciplinary authority and that 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. 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 being about the closure of the enquiry proceeding. The enquiry proceeding 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 by any legislative enactment or service rule including rules made under Article 309 of the Constitution. 35. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to the findings on the two charges framed against him, the principles of natural justice, as laid down by a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Misra referred to above, were violated. 37. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. 37. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by learned counsel is that a final decision with regard to the charges leveled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank in which it had been categorically provided, following earlier decisions, that if the disciplinary authority does not agree with the findings of the enquiry officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the disciplinary authority that the findings already recorded by the enquiry officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case." 9. Rule 26(2) of the Rules of 2003 and the ratio laid down by the Supreme Court in the aforesaid three cases clearly establishes that when the disciplinary authority proposes to differ with a finding of the Enquiry Officer, it is imperative that the delinquent officer must be given an opportunity of hearing on the tentative reasons given by the disciplinary authority for such disagreement. Mere issuance of a show cause notice would not serve the purpose, inasmuch as, in a departmental proceeding what is of ultimate importance is the finding of the disciplinary authority and such finding cannot be concluded by wishing away the principles of natural justice. 10. A mere perusal of the show cause notice dated 05.12.2011 would conclusively go to show that the procedure mandatorily to be adopted while disagreeing with the findings of the Enquiry Officer was not followed. The said Notice do not give out any tentative reasons for such disagreement, save and except, the statement that the Enquiry Officer had made contradictory observations and had held the Charge Nos. 1 and 3 as "partially proved". The said Notice do not give out any tentative reasons for such disagreement, save and except, the statement that the Enquiry Officer had made contradictory observations and had held the Charge Nos. 1 and 3 as "partially proved". Merely on the said statement, the respondent was asked to furnish reply as to why he should not be held guilty of all the charges leveled against him. This Notice, by no means, complies with the requirement under Rule 26(2) as well as the law laid down by the Supreme Court, as discussed above. On this ground itself, the order dated 15.06.2012 removing the respondent from service is not legally sustainable and stands vitiated. In this regard, the interference made by the learned Single Judge to the order of penalty cannot be disturbed. 11. However, the other important aspect of the matter is with regard to the directions made by the learned Single Judge to reinstate the respondent forthwith, leaving it open to the disciplinary authority to impose a lesser/minor penalty in respect of the Charge No. 2. A direction was also made that consequential benefits on reinstatement would be subject to such lesser/minor penalty if imposed. We respectfully disagree with the directions above in view of the Constitution Bench decision of the Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar, reported in (1993) 4 SCC 727 . In the said case, the Supreme Court held that where the Court/Tribunal sets aside the order of penalty, the proper relief that should be granted is to direct reinstatement of the delinquent with liberty to the authority concerned to proceed with the enquiry by placing the delinquent under suspension and continuing the enquiry from the stage of furnishing him with the report. In the instant case, the inquiry is required to be continued from the stage of furnishing to the respondent the tentative reasons for disagreeing with the articles of charge found in favour of the respondent by the Enquiry Officer and thereafter allowing him to make suitable representation in tune with the principles of natural justice. The Supreme Court also held that on the question whether the delinquent would be entitled to back wages and other benefits from date of his dismissal to the date of reinstatement, should invariably should be left to be decided by the authority concerned after culmination of the proceeding and depending on the final outcome. The Supreme Court also held that on the question whether the delinquent would be entitled to back wages and other benefits from date of his dismissal to the date of reinstatement, should invariably should be left to be decided by the authority concerned after culmination of the proceeding and depending on the final outcome. In terms of the ratio laid down, the reinstatement of the respondent should be treated as a reinstatement for the purpose of holding fresh inquiry from the stage of furnishing the tentative reasons of disagreement and no more, where such fresh inquiry is held. According to the Constitution Bench, this is the correct position in law. 12. In view of the foregoing discussions, this appeal stands partly allowed by affirming the learned Single Judge's order in setting aside the order of penalty dated 15.06.2012 but by modifying/altering the directions of the learned Single Judge to the extent that upon reinstatement of the respondent, the appellant Company would be at liberty to proceed with the enquiry by placing him under suspension and continuing the enquiry from the stage of furnishing him with the tentative reasons of disagreement with the findings of the Enquiry Officer in respect of Charge Nos. 1 and 3 by giving him opportunity to represent to rebut and by affording all opportunity of hearing. It is also made clear that consequential benefits due on reinstatement be left to be decided by the appellant Company depending upon the final outcome of the proceedings. To reiterate, the reinstatement would be only for the purpose of holding the fresh inquiry from the stage of furnishing the tentative reasons for disagreement and no more, where such fresh inquiry is held. Ordered accordingly. No cost.