Central Administrative Tribunal - Ernakulam
M. Gopalakrishnan Nair vs President on 6 November, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH ORIGINAL APPLICATION NO. 714 OF 2006 Dated 06th November, 2008 CORAM: HON'BLE Mr. GEORGE PARACKEN, MEMBER (JUDICIAL) HON'BLE Dr. K.S.SUGATHAN, MEMBER (ADMINISTRATIVE) M. Gopalakrishnan Nair S/o Madhavan Unnithan, M.10/7 Kerala State Housing Board Colony, Malaparamba PO, Calicut-673 009, Kerala (Scientist, Selection Grade Compulsorily retired from service), Indian Institute for Spices Research, Calicut. .Applicant [By Advocate: Mr PV Mohanan Versus 1. President, Indian Council of Agricultural Research (ICAR), Krishi Bhavan, New Delhi. 2. The Director General Indian Council of Agricultural Research (ICAR) Krishi Bhavan, New Delhi. 3. The Secretary, ICAR and Chief Vigilance Officer, Indian Council of Agricultural Research, Krishi Bhavan, New Delhi. Respondents [By Advocates: Mr P Jacob Varghese and Mr Varghese m Easo) This application having been heard on 13th October , 2008 the Tribunal delivered the following- O R D E R
(Hon'ble Dr.KS Sugathan,AM) The applicant was working as Scientist (Selection Grade) in the Central Plantation Crops Research Institute Regional Station, Kayamkulam, which is a Research Institute under the Indian Council of Agricultural Research (ICAR). The applicant was charge sheeted on 15.2.93. There were two articles of charges. On denial of charges by the applicant, an Enquiry Officer was appointed. The applicant did not participate in the enquiry, though he had received the notice. The enquiry was therefore held ex parte. The Enquiry Officer held both the charges as proved. The applicant also did not respond to the copy of the enquiry report which was sent to him. On the basis of the findings in the enquiry the applicant was removed from service by order dated 29.8.95. The said order of removal was challenged by the applicant in this Tribunal in OA No.933/97. The Tribunal quashed the order of removal of the applicant on the ground that the officer who issued the order had no authority to authenticate the orders made in the name of the President of ICAR. The respondents challenged the order of this Tribunal in the Honble High Court of Kerala in OP No.2324/2001. In its order dated 17.5.2005 the Hon'ble High Court modified the order passed by this Tribunal to the extent that a direction was given to the President of ICAR to consider the appeal filed by the applicant as review petition and take a decision whether the punishment was warranted at all or lesser penalty would be sufficient on the facts of the case. Thereafter the appeal filed by the applicant was considered by the President, ICAR, and after giving a personal hearing to the applicant the President, ICAR, modified the penalty of removal into one of compulsory retirement by order dated 28th September, 2005 (AnnexureA12). The applicant has challenged the aforesaid order dated 28.9.2005 in this OA and sought the following reliefs:
"i) To call for the records leading to Annexure-A12 and set aside same;
ii) To direct the respondents to reinstate the applicant as Scientist, Selection Grade in ICAR with all consequential benefits;
iii) Any other appropriate order or direction as this Honble Tribunal deem fit;
iv) To Award cost to the applicant."
[2] It is contended by the applicant that (a) the order of compulsory retirement is illegal and actuated by bias and also on extraneous consideration, (b) the respondent has incorporated fresh charges in the order holding that the applicant was absent from duty from 01.04.94 unauthorisedly and had tendered his resignation, (c) in respect of first article of charge levelled against the applicant the Director had already issued a letter of warning to the applicant and therefore no further departmental proceeding was warranted.(d) in respect of article of charge No.2, a criminal complaint was filed in the Court which ended in the acquittal of the applicant, and therefore, initiation and continuation of departmental proceeding pending criminal trial is illegal in the light of the decisions of the apex Court in AIR (1988) SC 2118 and AIR (1997) SC 13,
(e) the departmental proceeding was initiated by an authority, who is not competent to do so. The Director (Vigilance) who initiated the enquiry was also not empowered to authenticate the order in the name of the President, ICAR, (f) the departmental proceeding was initiated with mala fide intention with a view to wreck the vengeance against the applicant. The research work done by the applicant and thesis submitted are accepted by the International Scientist but some Senior Scientists at Regional Station at Kayamkulam disliked the research work of the applicant. The alleged scuffle in the office premises was a pre-planned episode of those Scientists, (g) the Hon'ble High Court had held that there was certain harshness on the part of the employer and the articles of charges are not sufficient enough to justify the punishment and that there was certain amount of arbitrariness in the whole issue and more mature and realistic approach should have been there at every stage. According to the applicant, the charges levelled against him even if proved will not warrant a punishment of compulsory retirement but only a minor penalty such as censure, withholding of promotion, withholding of increment etc. but, by the impugned order the respondents have imposed a major penalty, thereby violated the judgment of the Hon'ble High Court.
[3] Respondents have stated in their reply statement that disciplinary proceeding were initiated for major penalty against the applicant with the approval of the President, ICAR and the Enquiry Officer was appointed to conduct a formal enquiry. Adequate opportunity was given to the applicant to put up his defence before the Enquiry Officer. However, the applicant did not participate in the enquiry proceeding and consequently the enquiry was held ex parte. The Enquiry Officer has held that both the charges were proved. A copy of the enquiry report was also sent to the applicant, however he did not respond to the enquiry report also. On the basis of the enquiry report penalty of removal from service was imposed on the applicant vide order dated 29.8.1995. The aforesaid punishment was however quashed by the Tribunal on the ground that it was issued by an Officer who was not authorised to authenticate the order of the President of ICAR. The decision of the Tribunal was challenged before the Honble High Court of Kerala and on the basis of the direction issued by the Hon'ble High Court the appeal of the applicant was considered by the President of ICAR, who modified the penalty of removal from service as compulsory retirement. As per direction of the Hon'ble High Court a personal hearing was given to the applicant by the President of ICAR and after considering all the facts and circumstances decided to modify the order of penalty as compulsory retirement. There is no bar on initiating the departmental proceeding against an employee even if a criminal proceeding is going on against him.
[4] We have heard Mr. PV Mohanan, learned counsel for the applicant and Mr. Jacob Varghese, learned counsel for the respondents.
[5] We have given careful consideration to the averments of the learned counsel for the applicant as well as by the respondents and also carefully gone through the voluminous documents made available for our perusal.
[6] Following the decision of the Honble Supreme Court in BC Charturvedi vs-Union of India the ground for judicial review in disciplinary proceeding has to be limited to the examination of (a) whether there has been a violation of the principles of natural justice (b) whether the decision is vitiated by considerations extraneous to the evidence and merits of the case; and (c) whether the conclusion are ex facie arbitrary or capricious that no reasonable person could have arrived at such a conclusion.
[7] Keeping in mind the aforesaid principles laid down by the apex Court we have considered the facts of the case. There were two article of charges against the applicant, viz,:
(1) "Sri Gopalakrishnan Nair while working Scientist (SG) (Agronomy) of Central Plantation Crops Research Institute Regional Station, Kayamkulam entered into unauthorised correspondent with Scientists in India and abroad casting aspersion on the scientific integrity of the Senior Scientists and the Head of the Institute.
(2) Shri M. Gopalakrishnan Nair while working Scientist (SG) misbehaved with Sri MB Renukumar, Farm Assistant, Regional Station, Kayamkulam on 25.7.1992 and manhandled him causing physical sufferings and creating anguish to the entire staff. His conduct is inconsistent and in compatible with due and peaceful discharge of duties of his co-workers. [8] The applicant did not participate in the enquiry. He wanted the enquiry to be kept in abeyance till completion of the criminal proceedings in respect of Charge No. II. The enquiry was held ex parte and both the charges were held as proved by the Enquiry Officer. The applicant did not respond to the enquiry report, though it was communicated to him. On the basis of the enquiry report, punishment of removal was imposed on the applicant. The said punishment was quashed by this Tribunal in OA 933/97 on the ground that it was authenticated by an Officer who was not competent to do so. The matter was then taken to the Hon'ble High Court.
The Honble High Court directed the President of ICAR to consider the appeal as revision petition. Following extract from the judgment dated 17.5.2005 of the Honble High Court in OP No.2324/2001 is relevant:
"4. We have heard Mr Jacob Varghese appearing for the petitioners, who had adverted to the earlier orders passed by this Court, wherein a satisfaction had been recorded that orders have been passed by the competent authority. Mr P V Mohanan, appearing for the respondent had pointed out even if that be the case, as the proceedings were initiated by an incompetent person, perhaps the whole substratum of the order was shaky and therefore interference with the order was not called for.
5. But, we feel that the contentions raised about the jurisdictional powers are too technical to be upheld, as there has been full application of mind, including the competent authority (Minister for Agriculture) while dealing with the issue.
6. In view of the above, normally the mater has to be remitted back to the Tribunal for a consideration about the merits of the case. But the passage of time compels us to prescribed and resort to expediency and the suggestion was not seriously opposed and rightly so.
7. The memorandum of charges had been issued in the year 1993. The penalty advise was issued in August, 1995 and an appeal had been filed in the year 1997. Merits of the appeal had not been gone into and the employee contends that the maximum penalty imposed was unwarranted in any view of the matter. He points out that the allegations about which an enquiry was held was also the subject matter of criminal proceedings and his request for keeping the disciplinary action in suspense till such time the criminal proceedings were competed had not been duly taken notice of. In fact, the proceedings were conducted ex parte. It is also pointed out the ultimately he had been acquitted by the criminal court in respect of an allegation of manhandling of a fellow employee. It is further submitted that exchange of view that he had made would have advanced the cause and the attempt to blind fold would have been adverse to the general interest of the organization.
8. It is evident that there was certain amount of harshness on the part of the employer subejcting the employee to disciplinary proceedings and the articles of charges, according to us, are not sufficient enough to justify a punishment, which has now been imposed on him. Principles of proportionality were also to be borne in mind while disciplinary proceedings were contemplated. We also find the presence of certain amount of arbitrariness in the whole issue. A more mature and realistic approach should have been there at every stage.
9. Therefore, we direct that the appeal filed by the employee (to the President of India), a copy of which is produced as Annexure-A3 before the Tribunal dated 21.01.2007, is to be forwarded to the President of the ICAR. In exercise of the review powers that he enjoys, the President is to arrange for hearing the employee concerned, as postulated by the Rules, and he should come to a just conclusion was to whether the punishment was warranted at all or whether a lesser penalty would have been sufficient, on the facts of the case. A decision, as above, is to be taken within a period of three months from the date of receipt of a copy of this judgment. The employee (respondent herein) will be entitled to forward a copy of the judgment and a copy of the appeal to the first petitioner directly for expeditious action, with copy to the ICAR. Appropriate orders, on the said appeal, are to be passed by the competent authority and the employee advised of the same within the time limit prescribed.
10. The order of the Tribunal will be deemed as modified to this extent. The Original Petition is disposed of with the above direction. Parties are to suffer their respective costs."
[9] Pursuant to the aforesaid direction of the Honble High Court the President of ICAR has considered the appeal filed by the applicant and after giving a personal hearing converted the penalty of removal from service as compulsory retirement by his order dated 28.9.2005 (Annexure A12).
[10] We have carefully gone through the order passed by the President, ICAR. All the contentions of the applicant have been listed and discussed in the said order. The following extracts from the order of the President of ICAR dated 28.9.2005 is relevant:
"Whereas the President, ICAR is satisfied that the punishment of Removal from Service is disproportionate to the charges against him. However, the charges are of a grave nature and have been found proved during the inquiry. After considering all the issued in their totality, the Reviewing Authority is of the opinion that it is a fit case for imposition of a major penalty on the appellant. However, on taking a lenient view of the case, the Reviewing Authority is of the opinion that ends of justice would be met, if the penalty of Removal from service, earlier imposed on the appellant, is modified to that of Compulsory Retirement from service."
[11] The contentions raised by the applicant in support of the reliefs can be summarised as follows:
(i) As the Criminal case in respect of the second article of charge has ended in the acquittal of the applicant any punishment based on the same set of facts in the departmental proceeding cannot be sustained.
(ii) In respect of first article of charge the applicant has already been issued a warning letter dated 4.6.92, hence there is double jeopardy in including the same matter in the charge sheet issued on 15.2.93.
(iii) It is a case of "no evidence".
(iv) There is violation of principles of natural justice.
(v) The punishment is disproportionate to the gravity of the charges.
(vi) The reference to the applicants unauthorised absence in para 6 of the impugned order amounts to extraneous consideration.
[12] We shall now discuss the aforesaid contentions one by one. In respect of contention No.(i) the applicant has relied on the following citations:
(1) AIR 1964 SC 787, (2) AIR 1988 SC 2118, (3) AIR 1999 SC 1416, (4) (2006) 5 SCC 446, (5) (2004) 7 SCC 27 AND (6) (2004) 7 SCC
442.
[13] The well settled law that emerges out of the aforesaid citations is that the criminal proceeding and the departmental proceedings can proceed simultaneously though separately, except in case where the charge in the criminal case is of a grave nature which involves complicated questions of law and facts. The said position has been outlined in the matter between Capt.M Paul Anthony-v-Bharat Gold Mines Ltd. AIR 1999 SC 1416. The relevant portion is produced below:
"22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they are stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest. "
[14] The Honble Supreme Court allowed the prayer in the matter between the Capt. M Paul Anthony v-Bharat Gold Mines Ltd. (Supra) on the ground that in the facts as well as in the evidence in both the departmental proceeding and criminal case there was no any iota of difference. We have considered the facts of the present case keeping in view of the aforesaid principles. It is seen from the record that though the facts in respect of Charge No. 2 are identical with the criminal case against the applicant, the evidence considered in the departmental enquiry by the Enquiry Officer is considerably different from what was considered in the criminal case. In the departmental proceeding, the Enquiry Officer examined 10 witness and 6 documents. In the criminal case there were only 6 witnesses and 5 exhibits. The witnesses and exhibits relied on are also not identical, which may be seen from A/4 and A/7. It is also relevant to note that the applicant was not acquitted honourably. On the contrary he was acquitted for want of sufficiency of evidence. It is clearly stated in the order of acquittal dated 17.3.1997 passed by the Judicial Magistrate, First Class that on analysis of the evidence I am of the view that the evidence of prosecution is not sufficient to prove the guilt of the accused beyond reasonable doubt (A/7). We are, therefore, unable to accept the contention of the applicant that the punishment imposed on conclusion of the departmental proceeding can not be sustained in view of the subsequent acquittal of the applicant in the Criminal Court in the matter covered by Charge No. II.
[15] As regards the contention No. (ii) regarding double jeopardy, we do not accept the contention that the letter dated 4.6.92 asking the applicant to desist from such activity (correspondence with Scientists in the country) constitute penalty under CCS (CCA) Rules. The letter dated 4.6.1992 is advisory in nature and, therefore, the issue of a charge sheet relating to the correspondence entered into by the applicant before 4.6.92 and after 4.6.92 cannot be taken as amounting to double jeopardy.
[16] As regards the contention No. (iii) that it is a case of no evidence, it is seen from the record that in the departmental proceeding, the Enquiry Officer had evidence to hold the charge as proved. For proving the first article of charge, the Enquiry Officer has substantially relied on the letter dated 23.6.92 written by the applicant to the Director, who is also a Scientist. In the said letter it has been stated that -I had very clearly spelt out that the MLO Etiology of Root (wilt) disease is a scientific fraud committed by a group of Scientists in CPCRI with your blessings. (R-16). The second article of charge is held to be proved on the basis of the deposition of witnesses and documentary evidence relied on by the Enquiry Officer. The following extracts from enquiry report shows that the Enquiry Officer had appreciated the evidence properly before coming to the conclusion that the charges were proved:
In respect of Article 1:
"The type of criticism which Shri MGK Nair made in his note to the Director dated 23.6.92 which states that the MLO etiology of root (wilt) disease is a scientific fraud committed by a group of scientists in CPCRI with your blessings cannot be taken as a scientific criticism. It amounts to questioning the very existence of an organization and the integrity of its scientists. As an agronomist, Shri Nair is free to give his views about the causes of the disease, in for as meant for such exchanges of views. PW III has outlined the process for forwarding papers from Scientists to the journals. It is clear that every opportunity is given to the scientists to express their views in the study circle of CPCRI and only when it is accepted by the whole community of scientists of the institute, the paper is forwarded by the HD and the Director for publication. He should have taken this opportunity to criticise the work of other scientists in their presence."
In respect of Article 2 "A careful analysis of the evidences provided to me in item 1 to 6 and after taking into consideration the depositions of the witnesses in item 10 it is evident that the incident reported on 25.7.92 has happened in the chamber of Shri MGK Nair. Although he was in charge of the agronomy discipline, while leaving the campus after the incidence on 25.92 he did not even request for leave and did not inform the Head of the Station. He had reported for duty only on 17.8.92 after 23 days which indicates his clear involvement in the incident."
[17] As regards the contention No. (iv) that there is violation of principles of natural justice, we have seen from the record that the applicant was given sufficient opportunity to defend the case before the Enquiry Officer, however, for reasons best known to him he did not participate in the enquiry. He also did not respond to the enquiry report, which was sent to him. It is further to be noted that as per directions of the Honble Kerala High Court the President of ICAR has given a personal hearing to the applicant before passing the impugned order. We are, therefore, unable to accept the contention that principles of natural justice have been violated.
[18] As regards the contention No. (v) regarding proportionality of punishment, we have carefully gone through the various pronouncements of the Hon'ble Supreme Court. In Ranjit Thakur v. Union of India, 1987 4 SCC 611, it has been held by the Hon'ble Supreme Court that interference by any Court or Tribunal in the quantum of punishment can be justified only if it is "so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias". Looking into the second charge levelled against the applicant, i.e. the assault on a fellow employee the respondent cannot be faulted for coming to the conclusion that a major penalty of compulsory retirement is required to be imposed. The counsel for the applicant elaborately endeavoured to press the argument that a minor penalty would have been sufficient in this case. We are unable to agree. Manhandling of a junior employee is a serious misconduct. It is not like misplacing an office file without ulterior motive for which dismissal was found to be disproportionate (Dev Singh v-Punjab Tourism Corporation, (2003) 8 SCC 9).
[19] As regards the contention No.(vi) regarding reference to his unauthorised absence in the impugned order, the applicant has taken exception to the observations at point No. 6, of the impugned order concerning his unauthorised absence and argued that it was an extraneous consideration which should not have been taken into account. However, we find that this was in response to the contention of the applicant in his appeal wherein he has referred to the alleged harassment and his notice of voluntary retirement. In any case, while considering the issue of quantum of punishment reference to his past conduct cannot be considered as extraneous consideration. After discussing the contentions raised by the applicant the President, ICAR has come to the conclusion that it is a fit case for imposition of a major penalty on the applicant.
[20] In support of the contention (iii), (iv) and (v) listed in para 11 supra the applicants counsel has relied on the following citations:
(i) AIR 1997 SC 3387 (ii) (2005) 9 SCC 748, (iii) (2006) 5 SCC 88,
(iv) (2006) 8 SCC 776 (v) AIR 1970 SC 1255, (vi) (2006) 4 SCC 713,(vii) AIR 1984 SC 273, (viii) (2004) 13 SCC 342 and (ix) (2004) 13 SCC 785.
We shall presently refer to these citations.
(i) In Union of India & Anr -v-Ganayutham, AIR 1997 SC 3387, the issue of proportionality in administrative law has been summarised as follows:
"28. The current position of proportionality in administrative law in England and India can be summarised as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on the material before him and within the framework of the law, have arrived at.
The Court would consider whether relevant matters had not been taken into account or whether irrelevant maters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternative open to him. Nor could the Court substitute its decision to that of the administrator. This the Wednesbury test.
(2) The Court would not interfere with the administrators decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles."
In the present case, we do not consider that the punishment imposed was in outrageous defiance of logic or moral standards.
(ii) In Pritam Singh v-Union of India and ors, (2005) 9 SCC 748, the Hon'ble Supreme Court has observed that no material had been placed on record before any of the authorities below on which it can be held that the compulsory retirement of the appellant was in public interest and nor was the case of doubtful integrity and hence the order of compulsory retirement was arbitrary. The issue examined therein was whether the punishment of compulsory retirement imposed upon the petitioner is highly disproportionate to the admitted guilt of supplying absentee statement to one of the employees particularly when the petitioner, in his long, devoted, blemishless service of 31 years, was never served with any adverse entries/remarks. The charge in that case was supplying absentee statement to one of the employees, which was neither confidential or a privileged document. In the present case, however, the charge against the applicant is not comparable at all. The charge against the applicant is that he has cast aspersions on the integrity of fellow Scientists and also manhandled a subordinate employee.
(iii) In M.V. Bijlani v-Union of India & Ors (2006) 5 SCC 88 the Honble Supreme Court has observed that the charges in a departmental proceeding are not required to be proved like a criminal trial, viz. beyond all reasonable doubt. The apex Court held thus:
"25. It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi- judicial function, who upon analysing the documents must arrive at a conclusion that there has been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witness only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
The aforesaid observations of the Honble Supreme Court are not relevant to the facts of the present case, because the respondents have not tried to shift the burden of proof on the applicant nor they rejected the testimony of witnesses. The first charge is proved on the basis of documentary evidence i.e. the letter dated 23rd June, 1992 written by the applicant in which he has stated that -"I had very clearly spelt out that the MLO Etiology of Root (wilt) disease is a scientific fraud committed by a group of Scientists in CPCRI with your blessings." (Annexure-R16). The second article of charge is proved on the basis of witnesses and documentary evidence relied on by the Enquiry Officer. The applicant had been given ample opportunity to defend his case before the Enquiry Officer. But for the reasons best known to him he did not avail this opportunity.
(iv) In PD Agarwal v-State Bank of India & Ors, (2006) 8 SCC 776 the Honble Supreme Court held that where an employee was suspended in contemplation of departmental enquiry but due to pendency of a criminal case such enquiry was initiated only after the conclusion of the criminal case, the said circumstance not by itself sufficient to infer a conscious act of condonation of the misconduct. The facts of this case are different inasmuch as the departmental enquiry was not kept pending till a decision in the criminal case.
(v) In State of Assam & Anr v-Mahendra Kumar Das and Ors, AIR 1970 SC 1255, it was observed by the apex Court that if it is established that material collected behind the back of the delinquent officer was relied upon by the Enquiry Officer the enquiry proceedings are vitiated. This is not applicable to the present case, as the Enquiry Officer has not relied on any material collected behind the back of the applicant.
(vi) In Narinder Mohan Arya v-United India Insurance Co.Ltd. & Ors, (2006) 4 SCC 713, it was held by the apex Court that Enquiry Officer was entitled to draw his own inference and so long as the inference drawn by him was supported by some materials on record, a court of judicial review would not interfere therewith. As we discussed in the previous paragraph No.16, the findings of the Enquiry Officer was based on some materials on record.
(vii) In KL Tripathi-v-State Bank of India & Ors, AIR 1984 SC 273, it was held by the apex Court that all actions a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has to be judged, in the light of facts and circumstances of each particular case. The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. As we discussed in preceding paragraph No.17, the facts and circumstances of this case clearly show that there is no violation of the principles of natural justice.
(viii) In Lt.Governor, Delhi and ors-v-HC Narinder Singh (2004) 13 SCC 342, the matter involved was the second show cause notice issued to the applicant after the disciplinary action was taken against him in the year 1990. The apex Court held that second show case notice based on the same cause of action would amount to double jeopardy. The decision arrived at by the apex Court in that case is not applicable in the present case. The advisory letter issued to the applicant on 4.6.2002 cannot be construed to be the culmination of a disciplinary proceeding. It is also to be noted that the first article of charge is also based on a subsequent letter written by the applicant dated 23.6.1992.
(ix) In Islamic Mission of India v-M Tasneem Sultana, (2004) 13 SCC 785 the matter involved was termination of service without being charge sheeted and not served on the delinquent. Therefore, the facts of that case also cannot be applied in the present OA, as a formal charge sheet has been issued and served on the applicant.
[21] The facts and circumstances of the case as discussed above clearly indicates that there is no violation of principles of natural justice, it is not a case of 'no evidence', there is no double jeopardy and the penalty was not disproportionate. It is to be noted here that the President of ICAR has reduced the penalty from 'removal' from service to 'compulsory retirement' after considering the directions of the Hon'ble High Court. We are, therefore, of the considered view that there is no justification for this Tribunal to interfere in the impugned order passed by the President of ICAR imposing the punishment of compulsory retirement on the applicant.
[22] For the reasons stated above, the OA is dismissed. In the facts and circumstances of the case there shall be no order as to costs.
(Dr. KS Sugathan) (George Paracken) Member (Administrative) (Member (Judicial) stn