Central Administrative Tribunal - Kolkata
Ram Darash Dosad @ R.D. Dosad vs Union Of India (Uoi) And Ors. on 1 May, 1998
JUDGMENT S. Dasgupta, Member (A)
1. The applicant in this original application filed under Section 19 of the Administrative Tribunals Act, 1985, was working as a semi-skilled worker in the Eastern Railway. On 17.8.80 he was placed under suspension in contemplation of a disciplinary proceeding which was eventually initiated by serving on him a charge-memo dt. 28.8.80 alleging gross misconduct inasmuch as he had physically obstructed certain co-workers from attending to de-lux rake and also snatched away railway tools from them forcibly, threatening them with dire consequence. An enquiry officer was appointed who after holding the enquiry submitted a report concluding that the charge against the applicant had been established. The disciplinary authority having accepted the finding of the enquiry officer, imposed on the applicant the penalty of removal from service by the impugned order dated 7/10.12.81. This order was passed by the respondent No. 4 i.e. Sr. Divisional Mechanical Engineer (C and W), Eastern Railway though the charge-memo was issued by the respondent No. 5 i.e. Asst. Mechanical Engineer (C and W), Eastern Railway, who had also issued the order appointing the enquiry officer. The applicant preferred an appeal against the order of removal from service before the Divisional Railway Manager, Eastern Railway, who by his order dt. 28.5.82 dismissed the appeal. The applicant thereafter filed a writ petition before the High Court of Judicature at Calcutta which was finally disposed of by an order directing the appellate authority to dispose of the appeal by a reasoned order after giving a personal hearing to the applicant. Thereafter, in purported compliance of the said order of the High Court of Calcutta, the appellate authority gave a personal hearing to the applicant and then passed the impugned appellate order dt. 8.3.89 again dismissing the appeal. This order was conveyed to the applicant by a latter dated 15.3.89. Being aggrieved, the applicant has filed the present application challenging the order dated 7.10.12.81 passed by the disciplinary authority and also the appellate order dated 8.3.89. He has prayed that both the orders be quashed and the respondents be directed to reinstate him to the original post and grade from which he was removed. He has further prayed that the entire period from the date of his suspension till the date of his reinstatement be treated as on duty for all purposes including payment of arrears of pay and allowances.
2. The applicant has challenged the disciplinary proceedings and the various orders passed pursuant thereto on several grounds. These grounds may be summarised and set out as follows:
(1) The charge framed is not specific and clear so as to convey any meaning, as a result of which the applicant did not have an opportunity to know what was the serious misconduct allegedly committed by him.
(2) Certain documents demanded by the applicant for the purpose of his defence were not furnished to him and this fact was brought to the notice of the enquiry officer at the very outset of the enquiry, but the enquiry officer did not care to comply with the statutory provisions in this regard prior to initiating the enquiry proceedings.
(3) In his report, the enquiry officer did not record the purported charge including the statement of misconduct and misbehaviour nor did he seek denial or acceptance of the said charge by the applicant.
(4) The conclusions recorded by the enquiry officer are based on extraneous consideration without proper evaluation of evidence on record and ignoring material evidence of certain witnesses including defence witnesses.
(5) The disciplinary authority without any application of mind and without evaluating the evidence on record, passed the order of removal from service.
(6) Although the disciplinary proceedings were initiated by the Asst. Mechanical Engineer, C and W, the penalty order was passed by the Sr. Divisional Mechanical Engineer, C and W, who being an official in the Jr. Administrative Grade, should be treated as the reviewing authority in respect of the applicant. Thus, the reviewing authority had exercised power of the disciplinary authority without proper application of mind and in excess of jurisdiction.
(7) The disciplinary authority did not provided the applicant an opportunity of making representation against the enquiry report and the findings of the enquiry officer. The disciplinary authority did not furnish to the applicant a copy of the enquiry report prior to issuance of the order of removal from service.
(8) The appellate authority did not make any objective evaluation of the various evidence mentioned in the subject matter of the appeal nor did he take into account various irregularities and denial of natural justice pointed out in the said appeal. The appellate order is violative of the statutory provisions contained in Rule 22 of the Railway Servants (Discipline and Appeal) Rules.
(9) The penalty imposed is disproportionate to the alleged misconduct.
3. The respondents have appeared and contested the case. In the reply filed by the respondents, the stand taken by them is that the disciplinary proceedings against the applicant were held in accordance with law and that the disciplinary authority, after accepting the findings of the enquiry officer, imposed the penalty of removal from service. After the initial appellate order was set aside by the High Court, the appellate authority considered the appeal afresh and passed a fresh appellate order after giving a personal hearing to the applicant. There has been no irregularity in the entire procedure as alleged by the applicant.
4. We heard the learned counsel for both the parties and perused the pleadings on record.
5. We shall now consider the various grounds raised by the applicant in challenging the order of the disciplinary authority as well as the appellate order ad seriatim in the light of the averments in the OA and the reply and also the law pertinent to the points raised.
6. The first ground taken by the applicant is that the charge framed is not specific and does not convey any meaning and thereby he was denied an opportunity to know what was the charge against him. In order to test the validity of this plea we have carefully gone through the charge framed against the applicant vide charge-memo dt. 28.8.80, a copy of which is at Annexure-C to the OA. The statement of the article of charge framed against the applicant reads as follows:
"That the said R.D. Dosad while functioning as SSK, T/No. 259 under SCW/ during the period on 17,8.80 serious misconduct unbecoming of railway servant."
The said article of charge is supported by the statement of imputation of misconduct which reads as follows :
"On 17.8.80 at about 7.00 hrs. while 103 UP (Deluxe Rake) was attending by Sri Satya Narayan, Fitter and Sri Ramnarayan, Fitter at 37 TK. Sri R.D. Dosad, SSK, physically obstructed them to attend the said Deluxe rake and snatched the Rly, tools from them forcibly and threatened them with dire consequence."
7. It is clear from the text of the imputation of misconduct that the basis of the article of charge against the applicant of having committed serious misconduct unbecoming of a railway servant has been indicated in the said statement of imputation. The imputation is that the applicant physically obstructed certain other workers from attending to deluxe rake and snatched railway tools from them forcibly and also threatened them with dire consequence, This allegation certainly constitutes serious misconduct and therefore, we do not see any vagueness in the charge framed against the applicant. The learned counsel for the applicant urged that merely saying that the applicant committed serious misconduct unbecoming of a railway servant did not convey any meaning to the applicant. We are unable to accept this plea since the article of charge has to be read along with the statement of imputation and when read together they certainly give a substance to the charge against the applicant. This plea is, therefore, rejected.
8. The next plea of the applicant is that certain documents demanded by him for the purpose of his defence were not furnished to him and although this fact was brought to the notice of the enquiry officer at the very outset of the enquiry; the latter did not care to comply with the statutory provisions in this regard. The material averments in this regard are contained in paras 4.9, 4.10 and 4.12 of the petition. It appears that in his reply dt. 10.9.80 to the charge-memo (Annexure-D), the applicant expressed his desire to inspect six documents. These are:
(1) Attendance register for the month of August 1980 in respect of attendance of Shri Satyanarayan Singh, one of the complainant.
(2) Statement of Shri Satyanarayan, Fitter/Howrah (3) Statement of Sri H.H. Dutta Gupta (4) Diary entry of Shri H.H. Dutta Gupta (5) Statement of Shri Ramnarayan, Fitter at 37 TK, another complainant; and also (6) Statement of Shri Ramnarayan Prosad, Fitter/Howrah
9. Through another letter dt. 9.11.80 (Annexure-E) the applicant also sought copies of the following additional documents:
(i) statement of Shri N. Chowdhury, CWI/Howrah
(ii) Statement of Sri Rama Kanta
(iii) Statement of Shri Vyas, Visty
10. It appears that the disciplinary authority by its order, dt. 21.11.80 refused permission to inspect the attendance register for August 1980 in respect of Shri Satyanarayan Singh and the statement of Shri Rama Kanta, SSK as well as that of Shri Vyas, Visty as irrelevant. He was also not given a copy of the statement of Shri N. Chowdhury as being not necessary. The applicant has stated that thereafter he submitted a representation on 14.10.80 to the enquiry officer requesting him inter alia inspection of various documents as demanded earlier. However, copy of the said representation does not appear to be on record. In the reply the respondents have stated that the applicant was furnished with copies of some of the documents and other documents were not given as they were considered irrelevant and some documents were not available on record. It is also stated that reasons for not furnishing the copies of the said documents were indicated in the reply itself.
11. We have given our anxious consideration to the question as to whether the applicant has been denied adequate opportunity to defend himself by being denied copies of certain documents which he demanded. In the list of documents indicated in the charge-memo itself, only the statement of Satyanarayan and H.H. Dutta Gupta are mentioned. It is not the case of the applicant that copies of those documents were not given to him. The statement of Satya Narayan has also been reproduced in the chargememo itself and the same appears to have been endorsed by Ram Narayan Prosad. Thus the applicant appears to have received copies of the statements given by the main complainants. No doubt, the statements of Shri N. Chowdhury, Shri Vyas and Shri Rama Kant were not given to the applicant. But in the first place, there is nothing on record to indicate that these persons had given any statement prior to the framing of the charge against the applicant. Secondly, the applicant could in any case have summoned these persons as his defence witnesses if he thought that the statement of such persons were relevant. We have found that he actually called Shri N.K. Chowdhury and Sri Vyas, Visty as defence witnesses and they were examined. Thus, the only document which was not given to the applicant was the attendance register of August 1980 in respect of Shri Satyanarayan which was not allowed to be inspected by him. This was refused on the ground of irrelevancy. The applicant in his letter dt. 10.9.80 had indicated that the attendance register was required by him in order to confirm whether Shri Satya Narayanan Singh was on duty at the material time and date. The fact remains that Shri Satya Narayanan Singh was one of the complainants against the applicant and his statement has also been corroborated by other witnesses. In such a situation, there would not have been any harm if the attendance register was allowed to be inspected by the applicant. However, refusal to do so, in our view, does not constitute any material prejudice to the case of the applicant.
12. The third plea taken by the applicant is that the enquiry officer in his report did not record the purported charge including the statement of misconduct and misbehaviour nor did he seek denial or acceptance of the said charge by the applicant.
13. In order to test the validity of this plea, we have adverted to the relevant provisions contained in the Railway Servant (Discipline and Appeal) Rules, 1968, Sub-rule 25(1) of Rule (9?) 10 of the said Rules reads as follows:
"(25) (i) After the conclusion of the enquiry, a report shall be prepared and it shall contain-
(a) the articles of charge and the statement of imputations of misconduct or misbehaviour;
(b) the defence of the Railway servant in respect of each article of charge; (c) assessment of the evidence in respect of each article of charge; and (d) the findings on each article of charge and the reasons therefore.
14. It will thus be seen that there is a statutory provision enjoining upon the enquiry officer to indicate in his report the article of charge and the statement of imputation of misconduct or misbehaviour. Therefore, if the said article of charge and the statement of imputation or misbehaviour are not mentioned in the enquiry report, there would no doubt be a violation of the statutory provision. The factual aspect of the case is that although in the enquiry report, a copy of which is at Annexure-K, the article of charge and the statement of imputation have not been specifically mentioned, the allegation against the applicant figures under the heading 'history' in the enquiry report. Moreover, even conceding that the article of charge and the statement of imputation have not been specifically mentioned in the enquiry report and thus there has been a violation of the statutory provision, in our view, such a contravention of the statutory provision has to be examined in the light of the prejudiced caused to the applicant.
15. The learned counsel for the applicant relied on a decision of the Madras Bench of the Tribunal in the case V. Ganasadyan v. Union of India and Ors. 1995(2) ATI 499, and contended that the failure on the part of the enquiry officer to record the article of charge and the statement of imputation of misconduct or misbehaviour in the enquiry report vitiated the enquiry and therefore, the order of penalty which was based on such enquiry report was also vitiated. In that case, the Tribunal held that despite the volume of evidence adduced during the enquiry, report of enquiry in that case did not contain even the articles of charge and the statement of imputations and there was no reference to the defence put forward by the applicant in his lengthy statement nor was there any summary of assessment of the evidence in respect of the articles of charge. The Tribunal accordingly, relying on a decision of the Hon'ble Supreme Court in the case Anil Kumar v. Presiding Officer and Ors., 1995 SCC (L and S) 815, held that it was not enquiry report at all.
16. In the case before us, we have seen that although the article of charge and the statement of imputation or misbehaviour have not been specifically indicated in the enquiry report, the allegation on the basis of which the chargememo was issued, has been indicated under the heading 'history'. Thus the applicant was made aware of the charge on the basis of which the enquiry was being held. In this regard, we would also like to refer to the recent decision of the Hon'ble Supreme Court in the case of State Bank of Patiala and Ors. v. S.K. Sharma, AIR 1996 SC 1969. In that case the effect of violation of rules/regulations/statutory provisions governing domestic enquiry came under close scrutiny of the Hon'ble Supreme Court. A distinction was made between the statutory provision which was substantive in nature and that which was only procedural in character. It was held that while a substantive provision had normally to be complied with and the test of prejudice would not be applicable in such a case, in the case of violation of procedural provision, the effect thereof should be tested on the touchstone of prejudice caused to the delinquent Govt. employee. If it is found that violation of such a provision has caused prejudice to the Govt. servant, the enquiry should be held to have been vitiated by such violation and otherwise not.
17. We have considered the matter before us in the light of the aforesaid principle. In our view, the provision regarding recording of the article of charge and the statement of imputation in the enquiry report is a procedural provision and a violation of this provision cannot be said to have caused any substantive prejudice to the applicant. It cannot be gain said that the applicant was well aware of the charge against him when he faced the departmental enquiry. This was because a chargememo had been served on him. If the same charge was not repeated in the enquiry report itself, in our view, the applicant cannot be said to have suffered any prejudice. In any case, as we have referred to earlier, the allegation against the applicant finds place in the enquiry report under the heading 'history.'
18. As regards the allegation of failure on the part of the enquiry officer to seek denial or acceptance of the charge by the applicant, we do not find any provision in the RS (DA) Rules which requires the enquiry officer to direct the railway servant facing the enquiry to indicate whether he denies or accepts the charge. In any case, the applicant had an opportunity to deny or accept the charge when a chargememo was served on him and he was directed to submit his written reply which he did. Thus even if there had been a statutory provision for the enquiry officer to ask the applicant to deny or accept the charge, failure on the part of the enquiry officer to put such question, in our view, would not have constituted any substantive prejudice.
19. The learned counsel for the applicant had urged" before us that the decision of the Madras Bench in the case V. Ganasadyan v. UOI and Ors. (supra) would have a binding effect. The principle of stare decisis operates as to the rule of law involved. In the Madras Bench decision no particular principle of law has been laid down. The Tribunal had only given its decision based on the facts of the particular case. Had the facts of the case in the application before us been in pari materia with the facts of the case before the Madras Bench, the principle of precedent could be applied and any difference of opinion on similar set of facts would have required a reference to a larger Bench. However, as we have already stated, since the two cases are distinguishable on facts, the Madras Bench decision cannot be followed as a precedent and since no principle of law has been laid down, the principle of stare decisis cannot also be invoked.
20. The next plea taken by the applicant is that the conclusions arrived at by the enquiry officer are based on extraneous consideration without proper evaluation of evidence on record. Consideration of this plea would require a reassessment of the evidence on record. Reassessment of evidence in a departmental enquiry is a territory which the Courts/tribunals are forbidden to trench upon. The only exception to this rule is that if the Courts/tribunals find that the conclusions arrived at by the enquiring authority/disciplinary authority are wholly perverse on the face of evidence on record or if such conclusions are based on no evidence at all, they can set aside any order passed on such enquiry. This is the law laid down by the Hon'ble Supreme Court in a series of decisions. Reference in this regard can be made to the case of UOI v. Parmananda, 1989 (2) SCC 177, State of Tamil Nadu v. S. Subramanian, 1996 SC 1232. B.L. Chaturvedi v. UOI. JT, 1995 (8) SC 65. State of Tamil Nadu v. T.V. Venugopalan, 1994(6) SCC 302 and UOI v. B.C. Chaturvedi, 1995 (6) SCC 749.
21. Similar principle of law has been reiterated in the recent decision of the Hon'ble Supreme Court in the case of Govt. of Tamil Nadu v. S. Vel Raj, 1997(2) SCC 708. In that case, the State Administrative Tribunal had interfered with the disciplinary proceedings holding that it was not proved beyond all doubts that the charged employee had consumed prohibited liquor. The Hon'ble Supreme Court held that the finding of guilty recorded by the enquiry officer and confirmed by the appellate authority was based on evidence led during the enquiry and was not even suggested to be perverse and, therefore, it was not open to the Tribunal to record contrary findings and to hold that the charge was not proved.
22. In another decision in the case of High Court of Judicature at Bombay v. Shirishankar Rangrao Patil and Anr., 1997(6) SCC 339, the Hon'ble Supreme Court has also taken the same view. In that case, a probationer civil judge was dismissed from service on the charge that he demanded illegal gratification from an advocate. The respondent's objection was that the complainant advocate's evidence was not reliable because the allegation regarding demand of illegal gratification was not made by the advocate at the first instance when he made the complaint, but was made at a later stage. The Hon'ble Supreme Court held that initially the advocate did not allege that the respondent had demanded illegal gratification but the advocate had no axe to grind against the respondent nor could be gain from any unfair advantage. In the absence of any demand of illegal gratification, a different view might be possible. Yet, it being in the realm of appreciation of evidence, the Supreme Court can not embark upon appreciation of evidence and reach its own conclusion on the sufficiency of evidence or on the correctness of the conclusion which is based on some evidence.
23. The message conveyed through various decisions of the apex Court, reference to some of which have been made hereinabove, is loud and clear. It is that once the conclusions have been arrived at based on same evidence, it is not for the Courts or tribunals to see whether the evidence was sufficient or whether some conclusion other than what was arrived at by the enquiry authority/disciplinary authority could have been arrived at.
24. Applying the aforesaid principle of law to the facts of the case before us, we find that the conclusion arrived at by the enquiry officer that the charge against the applicant was proved, was based on some evidence. We do not see any perversity in these findings based on the evidence on record. It may not be impossible to reach a different conclusion based on the evidence on record but the Courts/tribunals would be exceeding their jurisdiction of judicial review if they embark upon such an exercise. The applicant has sought to indicate certain contradictions between the statement of witnesses. But here again the principle of law laid down is that the standard of proof required in a disciplinary proceeding is quite different from the standard of proof in a criminal proceeding. The various contradictions pointed-out are not of such nature as to make the conclusion arrived at by the enquiring authority wholly perverse.
25. The next plea taken by the applicant is that the disciplinary authority passed the order of removal from service without any application of mind and without evaluating the evidence on record. We have carefully gone through the order of the disciplinary authority. The text of the order indicates that the disciplinary authority after considering the findings of the enquiry officer had come to the conclusion that the applicant was guilty of the charge of physically obstructing S/Sri Satyanarayan and Ramnarayan from attending to the deluxe rake and of snatching railway tools from them and also of threatening them with dire consequence. It is, therefore, clear that the disciplinary authority had agreed with the finding of the enquiring authority. The question is whether it was necessary on the part of the disciplinary authority to give a detailed order assessing the evidence on record against the applicant. In the case of Ram Kumar v. State of Haryana, 1988 SCC (L and S) 246, the Hon'ble Supreme Court held that when the disciplinary authority agrees with the findings of the enquiring authority and thereupon proceeds to impose penalty, it was not necessary for the disciplinary authority to record detailed reasons. Similar view was also taken in the case HT, Bombay v. UOI, 1991 (17) ATC 352 and also State Bank of Bikaner v. Prabhu Dayal Graver, 1995 (31) ATC 492. We are, therefore, of the view that the failure on the part of the disciplinary authority to record detailed reasons for the impugned order dt. 7/10.12.80 as to why he came to the conclusion that the charge against the applicant had been established, does not constitute any illegality in the said order.
26. The sixth plea taken by the applicant is that the disciplinary proceeding was initiated by the Assistant Mechanical Engineer while the order of penalty was passed by the Sr. Divisional Mechanical Engineer, who is actually the reviewing authority in respect of the applicant. The respondents have not specifically denied that the Asst. Mechanical Engineer was the disciplinary authority and the Sr. Div. Mechanical Engineer was the reviewing authority for the applicant. The respondents have also not explained why it became necessary for an authority senior to the disciplinary authority to pass the order of penalty by assuming the role of the disciplinary authority. While such an action is somewhat surprising, the question that has to be decided by us is whether this constitutes any illegality in the procedure and/or it resulted in prejudice to the applicant. We are of the view that prejudice would have been caused to the applicant had he been deprived of an opportunity to appeal or to seek review by the aforesaid action of the respondent authorities. We, however, find that the applicant did file an appeal before the D.R.M. and an appellate order was passed which is impugned before us. The applicant did not file any review petition. But it is apparent that had he chosen to do so, he could have filed such a petition before the General Manager of the railway. Thus, jumping of level in respect of disciplinary authority, in our view, did not cause any prejudice to the applicant and there being nothing in the Discipline and Appeal Rules precluding an authority higher than the disciplinary authority from imposing a major penalty on a railway servant, we do not also find any illegality in the procedure adopted.
27. The next plea of the applicant is that copy of the enquiry report was not given to him prior to the issuance of the order of penalty. It is to be recalled that the impugned order of penalty was passed on 7/10.12.80. At that point of time, the provision of giving second opportunity to the charged Govt. servant by giving a show cause notice before imposing the penalty stood abrogated and the position of law as to whether an opportunity should be given to the charged govt. servant to represent against the finding of the enquiring authority before imposition of the penalty was in a melting pot. The position of law in this regard became clear in Mohd. Ramzan Khan's case, AIR 1991 SC 471. Subsequently, it was specifically held by the Hon'ble Supreme Court in the case Managing Director, ECIL v. B. Kuranakar, 1993(4) SCC 727 that the principle of law laid down in Ramzan Khan's case (supra) shall have prospective effect. Therefore, failure on the part of the disciplinary authority to furnish a copy of the enquiry report to the applicant before imposition of penalty cannot be held to be illegal at the point of time the order was issued.
28. The penaltimate plea taken by the applicant is that the appellate order did not make any objective evaluation of the evidence mentioned in the memo of appeal nor did he take into account various irregularities and denial of natural justice pointed out therein, and thus the appellate order is violative of the statutory provision contained in Rule 22 of RS (DA) Rules.
29. We have carefully perused the appellate order dated 8.3.89 which has been passed by the appellate authority after considering the appeal afresh in compliance with the direction of the High Court. We have seen therefrom that the appellate authority had indicated the reasons for arriving at the conclusion that the charge against the applicant was established. He has also recorded that the applicant was given reasonable opportunity to defend himself in the enquiry. He has further indicated the reasons for imposition of the extreme penalty of removal from service. We are, therefore, of the view that the provisions contained in Rule 22 (ii) of the RS (DA) Rules, which enjoins upon the appellate authority to consider certain aspects of the matter have been complied with. We see no reason to interfere with the said appellate order.
30. The final plea of the applicant is that the penalty imposed is disproportionate to the alleged misconduct. This is again an area the Courts/tribunals cannot trench upon unless the penalty imposed is so disproportionate to the alleged misconduct as to shock the judicial conscience and it is possible to infer that the penalty imposed is by way of colourable exercise of power. This was the view taken by the Hon'ble Supreme Court in the case State Bank of India v. Samarendra Kishore Endow, 1994(27) ATC 149 in which reliance was placed inter alia on the decision in the case UOI v. Parmananda (supra). This principle has been reiterated in several subsequent decisions. A reference in this regard may be made to the case UOI v. C. Ganayutham, 1997(7) SCC 463, in which it has been inter alia held that "in the matter of penalty imposed in a disciplinary case, unless Court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational..... the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. ...."
31. In the case before us we do not see any such irrationality in the quantum of penalty imposed so as to warrant our interference.
32. In view of the detailed reasons as hereinbefore, we do not find any of the grounds taken by the applicant as having merits so as to warrant our intervention. No other plea has been urged before us. The application, therefore, must fail and the same is accordingly dismissed. The parties, however, shall bear their own costs.