Central Administrative Tribunal - Jaipur
Pawas Prasoon vs M/O Tourism on 28 March, 2024
1
OA No. 576/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 576/2015
Order reserved on :09.02.2024
Date of order:28.03.2024
CORAM:
HON'BLE MS. RANJANA SHAHI, MEMBER (J)
HON'BLE SHRI LOK RANJAN, MEMBER (A)
Pawas Prasoon s/o Shri Late Ram Pravesh Sharma
aged about 42 yrs r/o S-200, School Block,
Shakarpur, Delhi-110092, presently posted as Tourist
Information Officer, India Tourism, Jaipur.
...Applicant
(By Adv: Shri B.K. Jatti)
Versus
1. Union of India through its Secretary Ministry of
Tourism, Transport Bhawan, Parliament Street,
New Delhi-110001.
2. Regional Director (North), India Tourism Delhi-
88, Jan Path, New Delhi-110001.
3. Assistant Director General, India Tourism Jaipur,
State Hotel Khasa Kothi Campus, Jaipur-302001.
...Respondents.
(By Adv: Shri L.M. Bhardwaj)
2
OA No. 576/2015
ORDER
Per : Hon'ble Shri Lok Ranjan, Member (A)
The Applicant, who was working as Tourism Information Officer, India Tourism Jaipur, had filed the present O.A. against the Impugned communication dated 27/10/2014 of Respondent by which the Applicant had been only informed in the context of his Revision Petition that the penalty imposed upon him by the Disciplinary Authority vide Order dated 13/01/2012 had been upheld by the Appellate Authority vide Order dated 05/10/2012 ; and no further action was pending in the Ministry of Tourism with regard to this case. But the Revision Petition dated 28.08.2014 filed by the Applicant against the Order dated 13.01.2012 of the Disciplinary Authority and the Order dated 05.10.2012 of the Appellate Authority had not been forwarded / considered.
2. On the basis of the pleadings by the parties, the matrix of facts relevant in this case inter alia had emerged as follows briefly. The applicant who was working as T.I.O. India Tourism. The services of the 3 OA No. 576/2015 Applicant were transferred from Ministry of Tourism vide letter dated 28.11.2002 and he had accordingly joined India Tourism on 09.12.2002 at New Delhi. In course of being posted as Tourism Information Officer in India tourism thereafter, he had been transferred between New Delhi and Jaipur on certain occasions. Eventually, while working as TIO at Jaipur, the Respondents had proposed to proceed with disciplinary proceedings under the relevant provisions of CCS CCA Rules, 1965 against the Applicant for his imputed instances of misconduct / misbehaviour pertaining to his previous postings at India Tourism New Delhi. As part of the prescribed process for the disciplinary action under the said rules, a Memo dated 07.06.2011 was served on the Applicant, intimating that that it was proposed to take action against him under Rule 16 of CCS (CCA) Rules, 1965 enclosing the statement of the imputations of misconduct or misbehavior on which the action was proposed to be taken. The Applicant having been given the opportunity to make such representation as he wished to against the same, had furnished the representation dated 17.06.2011 - and had thereby denied all the 4 OA No. 576/2015 allegations of imputations of misconduct or misbehavior, along with brief assertions rebutting the same.
3. It had also emerged that after examining the Applicant's representation dated 17.06.2011, the Disciplinary Authority (Respondent No. 2) had however found it necessary to hold a disciplinary inquiry against the Applicant and proceeded to frame the related charge-sheet, which had included eight Articles of charge. The Memorandum dated 10.08.2011 conveying the institution of the Disciplinary Inquiry was eventually served upon the Applicant and the Presenting Officer and Inquiry Officer had also been appointed. In his initial statement of defence vide his email dated 03.10.2011 addressed to the Respondent No.2, the Applicant/Charged Officer mentioned that the charges against him pertain to matters that were very old and had been responded to at the relevant time by him ;and were liable to be deemed as closed in view of no further communication to him in their regard. He had requested that to frame his reply to the Memorandum 5 OA No. 576/2015 dated 10.08.2011 in detail, he be provided with additional documents - viz., the rule to enable Respondents to override section 300 of Cr.P.C., 1973 and open closed matters ; official documents such as attendance registers, ACRs, airport duty roster and message register for the period since 2003 ; action taken on his reply to the various Memorandum issued to him etc. He had also sought to see the file related to his disciplinary case. He had additionally mentioned of an alleged conspiracy against him in his office intending to harm him in his professional career.
4. It was also found that the Inquiry Officer had proceeded with the departmental inquiry that was conducted in stages through a preliminary hearing on 14.10.2011 and subsequent hearings on 14.12.2011 and 23.12.2011, the daily order-sheets of each of which had also been drawn-up. The Inquiry Officer later had compiled his Inquiry Report related to the disciplinary proceeding against the Applicant/CO on 29.12.2011 and forwarded the same to the Disciplinary Authority. However, a copy of the Inquiry Report had not been provided to the Applicant/CO, 6 OA No. 576/2015 prior to the final orders in consideration of the same being passed by the Disciplinary Authority (Respondent No.2). The Disciplinary Authority had considered the report of the Inquiry Officer and upon being satisfied that the inquiry was conducted as per the prescribed procedure and held articles II, III, IV and V as proved. Further in exercise of power conferred ruled 15(3) of CCS CCA rules, 1965 imposed the minor penalty of withholding of next three increments of pay upon the Applicant/CO vide his order dated 13.01.2012. The Applicant/CO had thereafter, vide his representation dated 21.03.2012, appealed to the Appellate Authority - who had eventually conveyed vide order dated 05.10.2012 that the Disciplinary Authority had rightly concluded the inquiry and the penalty imposed was commensurate with the misconduct of the Applicant/CO and that the penalty imposed upon him by the Disciplinary Authority vide Order dated 13.01.2012 was upheld and the appeal dated 21.03.2012 filed by the Applicant/CO was accordingly disposed off. The Applicant/CO had thereafter made a Revision Petition dated 28.08.2014 against the order of the Disciplinary 7 OA No. 576/2015 Authority dated 13.01.2012 and order dated 05.10.2012 of the Appellate Authority. In response to this, the impugned order dated 27.10.2014 was conveyed by the Regional Director (North) [Respondent No. 2], stating that the penalty imposed by the Disciplinary Authority was upheld by the Appellate Authority and the same had been conveyed to him; pursuant to which no further action was pending in the Ministry of Tourism with regard to this case, but not intimating regarding the outcome of the Revision Petition dated 28.08.2014 of the Applicant / Charged Officer.
5. The case of the Applicant in the O.A. was that no document was supplied to him in response to the request vide his letter dated 3/10/2011 and subsequent letter dated 13/12/2011 which would have enabled him to file a comprehensive reply to the chargesheet dated 10.08.2011 served upon him. He had also stated that the hearings in the inquiry were very brief and summary in nature. The IO had not gone into each article of charge, the Applicant/CO's reply, the evidence available in relation to each article 8 OA No. 576/2015 of charge etc. He had mentioned that at the preliminary hearing dated 14/10/2011, the Applicant/CO was informed about the charges levelled against him and had denied all the charges - but was restrained from mentioning his defence. Further, at the first hearing in the case, the content of articles of charges was briefly taken note of, each of which were completely denied by the Applicant, who had sought documentary evidence to prove those, but that was not done. In the second hearing on 14.12.2011, only the Articles II and V of the chargesheet were discussed, mainly the latter. It was recorded thereby that the Applicant/CO had admitted that he had faulted by not reporting for duty on time for facilitating the Secretary (Tourism) for reasons beyond his control ; and that his statement regarding the said mistake having happened unwillingly without willful negligence and his prayer for lenient consideration was deemed as admission of his guilt. The Applicant/CO had thereby sought to present that how in course of the Inquiry, despite denial of all charges and despite seeking additional documents which were not provided and further without appreciation of 9 OA No. 576/2015 written evidence or examination/cross-examination of witnesses, the Inquiry had been completed.
6. The Applicant had also presented that even while finalizing the Inquiry Report on 29.12.2011, no effort had been made to analyze the Articles of charges in relation to the available evidence and the Inquiry Officer had directly drawn the conclusions in an extremely summary manner as follows :
" 9. Conclusion The Charged Officer denied the charges on the date of preliminary hearing held on 14.10.2011.
However, during the subsequent hearings held on 14.12.2011 and 23.12.2011, the CO had stated that the old cases pertaining to his absence from duty at the airport and failure to report for duty and extension of leave without prior permission may be condoned, as the cases are more than 5- 8 years old.
Neither the CO nor the IO wanted to have any further examination of any document or witness. Therefore, the inquiry was concluded.
10. Findings :10 OA No. 576/2015
1. Article I does not sustain
2. Article II proved
3. Article III proved
4. Article IV proved
5. Article V proved
6. Article VI does not sustain
7. Article VII does not sustain
8. Article VIII does not sustain "
7. The Applicant had also submitted that relying upon the said Inquiry Report dated 29.12.2011, the Disciplinary Authority had without application of mind and further without sharing it for the comments of the Applicant/CO proceeded to issue the order dated 13.01.2012 - and thereby ordered imposition of minor penalty of withholding next three increments of pay of the Applicant/CO. It is also presented by the Applicant/CO that being aggrieved by that the inquiry was done in three sittings without taking into account documents on record and adducing evidence of any of the witness and similar summary nature of the order dated 13.01.2012 that had also relied upon the improper inquiry, the Applicant made an appeal to the 11 OA No. 576/2015 Appellate Authority seeking his consideration on account of arbitrariness in the proceedings thus far ; but the same was also rejected without considering the matter properly, vide order dated 05.10.2012 against the Applicant/CO, that was conveyed to him by Respondent No.2. The Application/CO had tried to file through proper channel a detailed Revision Petition dated 26.08.2014 thereafter, which was not considered duly, but a mere information was provided vide impugned Order dated 27.10.2014 of Respondent No.2 that no further action was pending in Ministry of Tourism with regard to the case. Accordingly the Applicant in this O.A. had prayed that the provisions of Rule-14 of the CCS (CCA) Rules, 1965 nor principles of natural justice had been followed by the Respondents and the entire process suffered from non-application of mind. The Applicant had therefore prayed for quashing the impugned Order dated 27.10.2014 of the Respondent No.2, Order dated 05.10.2012 of the Appellate Authority ; the Order dated 13.01.2012 of the Disciplinary Authority ; and the Chargesheet communicated vide the Memo dated 10.08.2011.
12OA No. 576/2015
8. On the other hand, the Respondents have mentioned that the Applicant was negligent in the performance of his duties and had been served with several Memos by India Tourism Delhi on account of unauthorized absence from his duties many times, without prior intimation and approval of the competent authority. He had even been arrested by the police, apart from a chargesheet being served upon him vide order dated 07.06.2011 on account of his negligence and dereliction of duties. It is averred by the Respondents that the disciplinary proceedings pursuant to the memorandum dated 07.06.2011 were conducted duly following the various provision of CCS (CCA) Rules, 1965 and the Applicant had not raised any objection during the course of said inquiry but had also signed the daily order sheet indicating that he was satisfied with the proceeding of the inquiry. Moreover, all desired documents were supplied to or shown to the Applicant during the course of the inquiry. Further the Disciplinary Authority had also recorded clearly in the order dated 13.01.2012 that the inquiry had been conducted as per prescribed 13 OA No. 576/2015 procedure and upon the appeal being filed subsequently by the Applicant, the Appellant Authority had with due application of mind and considering all the facts/points relevant in the case, formed the view that the Disciplinary Authority had rightly concluded and the penalty held as commensurate with misconduct.
The respondents have also averred that the Applicant. He could also not proved that his unauthorized absence was for reasons beyond the control of the Applicant. Hence, the Applicant was not entitled for the reliefs prayed for by him.
9. In the backdrop of the material before us through the pleadings in this case and further the applicable rules and guidelines in this regard, we find it apposite to examine the scope of jurisdiction of CAT in the matter of disciplinary action in respect of Central Civilian Employees. Department of Personnel & Training, vide OM No. 11012/1/90-Estt.A dated 28.02.1990 had circulated the observations of the Hon'ble Apex Court [in the cases of Shri Parma Nanda Vs. State of Haryana and others [1989(2) Supreme 14 OA No. 576/2015 Court Cases 177] on the question whether the Tribunal could interfere with the penalty awarded by the competent authority on the ground that it is excessive or disproportionate to the misconduct proved, essentially bringing out in summary that the Hon'ble Supreme Court held that the Tribunal could exercise only such powers which the civil courts or the High Courts could have exercised by way of judicial review. It was further observed that "....The jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. The power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Art.309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter." 15 OA No. 576/2015 xx xxxx "...We may, however, carve out one exception to this proposal. There may be cases where the penalty is imposed under Clause (a) of the second proviso to Art 311(2) of the Constitution. Where the person without inquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreasonable or uncalled for, having regard to the nature of the criminal charge, the Tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under Clause (a)."
10. Further, the Department of Personnel & Training, vide OM No. Department of Personnel & Training, vide the OM No. 11012/6/94-Estt.(A) dated 28.03.1994 had circulated the observation of the Hon'ble Apex Court in a Judgement of State Bank of India Vs. Samarendra Kishore Endow [1994(1) SLR516], whereby the Hon'ble Supreme Court had reiterated that a High Court or Tribunal has no power to substitute its own discretion for that of the authority ; and further observed that -
"On the question of punishment, learned counsel for the respondent submitted that the punishment awarded is excessive and that lesser punishment would meet the 16 OA No. 576/2015 ends of justice. It may be noticed that the imposition of appropriate punishment is within the discretion and judgement of the disciplinary authority. It may be open to the appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under 'Article 226 is one of judicial review'. It "is not an appeal from a decision, but a review of the manner in which the decision was made". In other words the power of judicial review is meant "to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court."
xx xxxx "It would perhaps be appropriate to mention at the stage that there are certain observations in Union of India Vs. Tulsiram Patel (AIR 1985 SC 1416), which at first look appear to say that the court can interfere where the penalty imposed is "arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service." It must, however, be remembered that Tulsiram Patel dealt with cases arising under proviso (a) to Article 311(2) of the Constitution. Tulsiram Patel overruled the earlier decision of this Court in Challappan (AIR 1975 SC 2216). While holding that no notice need be given before imposing the penalty in a case dealt with under the said proviso, the Court held that if a disproportionate or harsh punishment is imposed by the disciplinary authority, it can be corrected either by the Appellate Court or by High Court. These observations are not relevant to cases of penalty imposed after regular inquiry."
17OA No. 576/2015
11. We further deem it appropriate to advert to the observations of the Hon'ble Apex Court in Civil Appeal No.2707 of 2022 in the case of Anil Kumar Upadhyay Vs. Director General, SSB and Ors that summarized the law laid down in respect of the judicial review and interference of the courts in the matter of disciplinary proceedings.
"8. On the judicial review and interference of the courts in the matter of disciplinary proceedings and on the test of proportionality, few decisions of this Court are required to be referred to :
i) In the case of Om Kumar (supra), this Court, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as 'Wednesbury principles'.
... ... when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited ... ... that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.
ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, this Court observed and held as under: 18 OA No. 576/2015
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being factfinding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under:
"19. The principles discussed above can be summed up and summarised as follows:
19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.
19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.19 OA No. 576/2015
19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.
19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-
delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge- sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable."
12. We also deem it instructive to advert to the observations of the Hon'ble Supreme Court in Civil Appeal No.s7939-7940 OF 2022 arising out of SLP (Civil) No. 3524-25 of 2022 and Civil Appeal No.s7941-42of 2022 arising out of SLP (Civil) No. 11021-22 of 2022 - both in the case of Union of India &Ors, Vs. Subrata Nath that had comprehensively gone into the issues related to the judicial review and 20 OA No. 576/2015 interference of the courts in the matter of disciplinary proceedings as follows :
"15. It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere.
16. In the above context, following are the observations made by a three-Judge Bench of this Court in B.C. Chaturvedi (supra) :
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives 21 OA No. 576/2015 support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
xxx xxxxxx 22 OA No. 576/2015 xxx xxxxxx
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."[Emphasis laid]
17. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, a two Judge Bench of this Court held as below :
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be 23 OA No. 576/2015 grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India, Union of India v. G. Ganayutham, Bank of India v. Degala Suryanarayana and High Court of Judicature at Bombay v. Shashikant S. Patil).[Emphasis laid]
18. In Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu, a two Judge Bench of this Court referred to several precedents on the Doctrine of Proportionality of the order of punishment passed by the Disciplinary Authority and held that :
"21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."24 OA No. 576/2015
19. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran held thus :
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;25 OA No. 576/2015
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
20. In Union of India and Others v. Ex. Constable Ram Karan, a two Judge Bench of this Court made the following pertinent observations :
"23. The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary authority.
24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review 26 OA No. 576/2015 on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."
21. A Constitution Bench of this Court in State of Orissa and Others (supra) held that if the order of dismissal is based on findings that establish the prima facie guilt of great delinquency of the respondent, then the High Court cannot direct reconsideration of the punishment imposed. Once the gravity of the misdemeanour is established and the inquiry conducted is found to be consistent with the prescribed rules and reasonable opportunity contemplated under the rules, has been afforded to the delinquent employee, then the punishment imposed is not open to judicial review by the Court. As long as there was some evidence to arrive at a conclusion that the Disciplinary Authority did, such an order becomes unassailable and the High Court ought to forebear from interfering. The above view has been expressed in Union of India v. Sardar Bahadur.
22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power 27 OA No. 576/2015 to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P.Gunasekaran(supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefore."
13. Therefore, in light of the law regarding the scope of the Tribunal in respect of the disciplinary proceedings against Central government employees as clearly enunciated by the Hon'ble Apex Court and as cited at the foregoing paragraphs 9 to 12 herein ; and keeping in view the records of and averments related to the disciplinary proceedings - inter alia that these were conducted by the competent authority at each 28 OA No. 576/2015 stage ; that there were no procedural irregularities in conducting the disciplinary inquiry by the Inquiry Officer or on the part of Disciplinary Authority in dealing with the case of the Applicant and that principles of natural justice had been complied with - we shall consciously refrain from a reappreciation of evidence on grounds of its inadequacy or reliability or from correcting any error of fact.
10. Nonetheless, upon having gone through the copy of the day-to-day proceedings during the Inquiry and the final Inquiry Report, the picture that emerged was as summarized hereafter for better appreciation. We noted that out of a total of eight articles of charge against the Applicant, in all four articles of charge had been held as not proved / not sustainable in the Inquiry Report dated 29.12.2011of the Inquiry Officer. These had included the first article of charge against the Applicant/Charged Officer (CO) which had pertained to non-attendance of his duties at the airport counter Delhi ; the sixth article of charge pertaining to Applicant/CO not joining on transfer at Jaipur for a long time and threatening the officer 29 OA No. 576/2015 responsible for his transfer to Jaipur-; the seventh article of charge pertaining to the Applicant/CO being found missing from office habitually without any proper approval/permission and putting false attendance on the register ; and the eighth article of charge pertaining to Applicant/CO although being sufficiently warned verbally and through memorandum to improve upon the attendance and performance of duty, but had failed to improve and instead shown hostility and disobedience toward seniors etc. On the other hand four other articles of charge had been held to be proved - viz., the second article of charge which had pertained to the Applicant/CO not being found on duty at the airport on 16.07.2010 without furnishing a proper reply ; the third article of charge pertaining to extension of leave without permission on 02.02.2011 un-authorizedly although contested by the Applicant/CO by stating that he was actually present on the duty on the said date ; the fourth article of charge pertaining to Applicant having not been found on duty on 06.03.2011 and of having behaved in a manner unbecoming of a government servant upon being served with a memorandum for the same ; and, 30 OA No. 576/2015 the fifth article of charge pertaining to the Applicant/CO reporting late for duty on 15.12.2010 to facilitate the Secretary, Tourism who was proceeding on an official tour.
11. Further, we also note from the day-to-day proceedings of the enquiry that there had been three such dates of the enquiry viz. - firstly that held on 14.10.2011 which was in the nature of preliminary hearing where the appointment of the presenting officer, copy of charge sheet along with articles of charge, list of relied upon documents and the list of witnesses by whom the charges were to be proved had been shared with the Applicant/CO. The Applicant had not admitted to any of the charges, whereupon it was informed to him that enquiry will be held in respect of the charges which were not admitted. In the second hearing on 14.12.2011, the fact of the statement of article of charges framed against Applicant were noted and the CO had completely denied all the charges and had sought documentary evidence which proved the charges against him. He had also mentioned that upon receipt of various 31 OA No. 576/2015 memorandums, suitable reply was given by the Applicant but no further communication was received from the office for communicating that his explanation was not satisfactory. In the third hearing dated 23.12.2011, the article of charge No.2 and article of charge No.5 only were mentioned and the Applicant/CO had admitted that he had faulted by not reporting for duty on time for facilitating Secretary, Tourism due to circumstances beyond his control and that a mistake had occurred unwillingly and there has been no willful negligence, though morally he was responsible for completed devotion to duty and pleaded that a lenient view may be taken.
12. Upon examination of the Inquiry Report dated 29.12.2011, we find that this included mainly the substance of only selected articles of charges and the very brief proceedings as indicated here-in-above ;and had without entering into detailed analysis of the evidence available on record vis-à-vis the articles of charge and without presenting any witnesses, summarily recorded the conclusions and findings as cited hereunder :
32OA No. 576/2015
" 9. Conclusion The Charged Officer denied the charges on the date of preliminary hearing held on 14.10.2011.
However, during the subsequent hearings held on 14.12.2011 and 23.12.2011, the CO had stated that the old cases pertaining to his absence from duty at the airport and failure to report for duty and extension of leave without prior permission may be condoned, as the cases are more than 5- 8 years old.
Neither the CO nor the IO wanted to have any further examination of any document or witness. Therefore, the inquiry was concluded.
10. Findings :
1. Article I does not sustain
2. Article II proved
3. Article III proved
4. Article IV proved
5. Article V proved
6. Article VI does not sustain
7. Article VII does not sustain
8. Article VIII does not sustain "33 OA No. 576/2015
13. Thus, no attempt whatsoever had been made by the Inquiry Officer to derive those conclusions/findings with judicious reasoning. Therefore, we find that the conduct of the inquiry against the Applicant failed the basic / essential requirement of linking the articles of charges to conclusions through supporting evidence, relevant information and analysis. Thus, the Inquiry Report findings are seen to be largely a reiteration of the articles of charges ; and clearly would fall under the category where on the basis of information available as part of the Inquiry, any reasonable person could not derive unambiguously the conclusions reached in the Inquiry.
13. We also note that even considering that the Applicant had sought a lenient view to be taken at the Inquiry, he had never accepted the charges and not expressed as such in writing. In fact, the Applicant had vide his representation dated 17.06.2011 had denied each of the articles of charge in writing that ought to have necessitated a detailed and judicious inquiry. Also, the Applicant/CO has asked for 34 OA No. 576/2015 additional documents for preparing his defence, again indicating that he had not accepted the articles of charge as such. Even though these may not have been found fit to be relied upon, the Inquiry Officer had not recorded in writing the refusal to provide those documents along with cogent and substantial reasons. Also, the conclusions could not be derived in unambiguous term.
14. Moreover, from the record before us, it could also be observed that the Disciplinary Authority had agreed with the findings of the Inquiry Authority and proceeded to impose punishment upon the Applicant/CO. However, the copy of findings of the Inquiry Report were not shared with the Applicant/CO to allow him to make any representation prior to determination of the punishment by the Disciplinary Authority as per the prescribed Rules. Further the orders of the Appellate Authority have also not been communicated directly but through the Regional Officer, North, who happened to be the Disciplinary Authority.
35OA No. 576/2015
15. On all these counts, we hold that the Inquiry conducted against the Applicant/CO in the present case and the report of the Inquiry Officer and subsequent action of the Disciplinary Authority as well as the Appellate Authority are not sustainable as per law. Accordingly, the report of the Inquiry Officer dated 29.12.2011 and the impugned Order dated 13.01.2012 of the Disciplinary Authority and the impugned Order dated 05.10.2012 of the Appellate Authority dated are quashed and set aside hereby.
16. We also order that the case along with its entire record be reverted to the Disciplinary Authority at first for consideration of the need for a detailed Inquiry on the articles of charges in the Memo dated 07.06.2011 and for a reasoned Inquiry Report thereupon ; and if considered so, for a duly detailed Inquiry Report to be obtained by the Disciplinary Authority, inter alia while providing due opportunities for his defence to the Applicant and recording reasons and analysis of available evidence and examination of witnesses appropriately. Further in case so considered, the Disciplinary Authority shall closely follow-up for 36 OA No. 576/2015 ensuring completion of the said Inquiry in a time bound manner, within a period of three months from the date of receipt of this Order. Further consequent steps shall be followed as per the procedure under the prescribed Rules and relevant guidelines.
18. In view of the same and for the reasons stated, the present O.A. is allowed to the extent of the observations hereinabove. However, there shall be no order as to costs.
(Lok Ranjan) (Ranjana Shahi) Member (A) Member (J) !Vv