Central Administrative Tribunal - Allahabad
D N Parmar vs Union Of India on 18 January, 2024
OA No. 330/661 of 2010
(Reserved on 03.01.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad this, the 18th day of January, 2024
Original Application No. 330/661 of 2010
Hon'ble Mr. Justice Om Prakash VII, Member (Judicial)
Hon'ble Mr. Mohan Pyare, Member (Administrative)
D.N. Parmar, S/o Late Ram Charan, R/o 59/3-N-48 Sona Nagar
Khevaria Mod Agra presently posted as Central Excise Inspector Agra
Division, Agra
....Applicant
By Advocate: Shri Ashish Srivastava
VERSUS
1. Union of India through its Ministry of Finance, New Delhi
2. Commissioner Customs and Central Excise 177/7 Sarvodaya
Nagar, Kanpur
3. Joint Commissioner (P & V) Central Excise, Kanpur
...... Respondents
By Advocate: Shri Rajni Kant Rai
ORDER
By Hon'ble Mr. Mohan Pyare, Member (Administrative):
Shri Ashish Srivastava, learned counsel for the applicant and Shri Rajni Kant Rai, learned counsel for the respondents were present at the time of hearing of the present cases.
2. By means of this O.A, the applicant has sought the following reliefs :
I. This Hon'ble Court may be pleased to quash the impugned orders dated 12.08.2008 & 06.05.2009 passed by the respondent Nos. 2 & 3 Page 1 of 18 OA No. 330/661 of 2010 (Annexure No.A-1 & A-2 to this original application.
II. This Hon'ble Court may be pleased to direct the respondents to regularize the alleged period of dies-non as spent on duty and consequential benefits thereof may be given to the applicant.
III. Any other relief, which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case.
IV. Award cost of the original application in favour of the applicant.
3. The aforesaid O.A. has been heard along with O.A. No.696/2010 and ongoing through the facts of the aforesaid cases, we find that each case has different issue and as such, the same cannot be decided by passing a common order and consolidated order. Therefore, we have decided to deal with each case separately.
4. The brief facts of the case are that the applicant is ex- serviceman, who joined the office of the Central Excise and Customs as Inspector on 05.02.1993. The applicant aggrieved with the attitude of the higher authorities made a detail complaint, listing the specific cause for utilization of only some of the inspectors and also specified that the applicant has been ignored being a disciplined and honest person for the Department. It was surprising that the respondents have transferred the applicant from Range-III Agra to Range Patta vide order dated 04.06.2003. Aggrieved by the transfer order, he preferred an O.A. No.1008/2003, which was disposed of vide order dated 29.08.2003 with a direction upon the respondent to consider and decide the representation of the applicant by reasoned and speaking order and after giving personal hearing to the applicant, within four weeks and respondents were also directed that not to take any coercive action against the applicant. However, on the very next date of the order i.e., on 30.08.2003, the applicant was served with an order Page 2 of 18 OA No. 330/661 of 2010 of suspension in a matter involving illegal gratification, which is not related with transfer order of applicant from Central Excise Range-III to Range Patta. The applicant was also imposed with a penalty of reduction by three stages in time scale for three year. Being aggrieved with the aforesaid penalty and appellate order, the applicant filed an O.A. being O.A. No.405/2007 before this Tribunal, which is still pending consideration. In the meantime, he was transferred to Central Excise Division, Jhansi on 11.06.2004 and relieved on 14.06.2004, but he was unaware of the said transfer. It is further the case of the applicant that after the inquiry was over and the aforesaid penalty was imposed upon him, he was not offered joining and as such, he requested the respondent No.2 to allow him to join his duty. Thereafter, the respondent No.2 vide order dated 05.04.2006 directed the applicant to join at his present place of posting at Jhansi. Surprisingly, he came to know that he was transferred on 11.06.2004, but the same was never served to the applicant. Since the applicant has never joined at Pata, the transfer of the applicant for Jhansi was entirely ambiguous. However, he joined the duties on 07.04.2006. A Memorandum of charge-sheet has been served to the applicant for the following charges levelled against him.
Article No.Ι:-
That the said D. N. Parmar while posted as inspector central excise Range Pata (Agra Division) was transferred excise Division to central Jhansi on 11.06.2004 and relived on 14.06.2004 Sri D. N. Parmar neither joined his duties nor submitted any intimation/leave application to his superior officers and absconded himself form duty 14.06.2004 to 05.04.2006. He was given opportunity to explain the reasons of his not joining the duties before 07.04.2006, but he has not submitted explanation to the Assistant Commissioner Central Excise Jhansi and in this way disobeyed the superior officer and failed to maintain the de-corium absolute integrity and devotion to duty and acted in a manner un- becoming of a government servant under Rule 3(i) (ii) of CCS conduct Rules 1964.Page 3 of 18
OA No. 330/661 of 2010 Sri Parmar is in the habit to defying the orders of the superior authority and absconding from duty without any proper permission from the competent authority on the similar charges he has already been issued memorandum of charge dated 05.08.2004 and inquiry is under progress.
Further it is also pertinent to mention here that Sri Parmar Inspector making irrelevant allegations and using indescent language against the officers in correspondence without corroborative evidences.
In an other case, the disciplinary proceeding of illegal gratification an order of penalty of reduction by 3 stages in the time scale of pay for a period of 3 years was passed against Sri D. N. Parmar vide order dated 12.04.2005.
Despite of forgoing facts Sri Parmar has been failure (failed) to improve his image/decorum as required under (CCS) CCA Rules 1965.
That placing further regard to the instant submissions with controversy in the present original application certain relevant facts which has been motivated the respondents to victimize the applicant and indulge him in number of DAR case are required to submit here for knowledge of this Hon'ble Court.
5. After receiving the charge-sheet, the applicant submitted his reply and denied all the charges and submitted that after the decision of this Hon'ble Court in original application No. 1008/03, the applicant was put under suspension from the very next day of the aforesaid judgement and since then the applicant was continuously present in the Agra Division, appeared in the disciplinary proceeding and the appeal was decided in the month of October 2005 and during this period the applicant never joined at Pata nor any specific order of joining in this regard has ever been issued, the applicant further submitted that since he did not join at Pata, there was no occasion for issue of any transfer and reliving order transferring the applicant from a place of posting where he never joined and this way, the alleged charge was baseless and unsustainable. On 08.08.2007, the applicant was served with a letter, intimating him about appointment of Sri V. K. Mishra Assistant Commissioner Central Excise, Kanpur Division II as inquiry authority to enquire into the charges against the applicant. Page 4 of 18
OA No. 330/661 of 2010 However, initially Sri R. C. Sharma (Supt.) was appointed as Inquiry Officer and during the inquiry, the applicant requested for summoning and cross examination of two IRS officers namely Kishori Lal (ADC) and M.K. Rajak (DC), which was admitted by the I.O. and the disciplinary authority intentionally just to protect the aforesaid persons, suddenly changed the I.O. and appointed Sri. V. K. Mishra Assistant Commissioner, Central Excise Division II Kanpur. Aggrieved by the same, the applicant moved a representation specifically indicating the change of I.O. in the proceeding, just to prove the applicant guilty of charges by hook & crook and also pointed out that in different inquiry proceedings which is still incomplete Sri. V. K. Mishra has been appointed I.O. in that case also, he has done nothing except delay the case deliberately on the direction of the biased and unfair ADC Sri V.P. Shukla ADC (P & V) Kanpur. On 29.08.2007, the representation of the applicant for change of I.O. has been rejected.
6. Aggrieved with the order dated 29.08.2007, the applicant preferred an appeal with request for change of I.O., but the appeal against the order of disciplinary authority for change of I.O. has been turned down with a view that the commissioner does not want to intervene in these matters which is decided by the disciplinary authority. After conclusion of inquiry, the Enquiry Officer submitted his report and on the basis of enquiry report, the Disciplinary Authority vide order dated 18.12.2008 imposed a major penalty of compulsory retirement and with additional penalty of treating from 15.06.2004 to 05.04.2006 as dies- non. Aggrieved with the order of penalty, the applicant On 23.1.2009, preferred an appeal before the respondent No. 2 and the respondent No.2 vide impugned order dated 06.05.2009 Page 5 of 18 OA No. 330/661 of 2010 considered the appeal of the applicant and the punishment of compulsory retirement was set aside and the applicant was imposed with a penalty of reduction to a stage just below to the present stage in the time scale of his pay for a period of three years, however the appellate authority upheld the order of disciplinary authority regarding the additional penalty of treating the period from 15.06.2004 to 05.04.2006 as dies-non. Aggrieved by the same, the applicant has been constrained to knock the door of this Court.
7. On the other hand, counter-reply has been filed, wherein it has been stated that the applicant was transferred from Central Excise Range-III to Range Pata vide order dated 04.06.2003 and relieved on 05.06.2003, but he refused to receive the order and continued to work in Central Excise Range III unauthorizedly by disobeying the orders of his transfer and relieving. The said transfer order was challenged before this Tribunal and this Tribunal vide order dated 29.08.2003 directed the respondents to consider and decide the representation of the applicant. In the meantime, the applicant was suspended on 18.08.2003 in a matter involving illegal gratification, which is not related with transfer order. The applicant submitted a representation before the respondents, but the same was rejected. Aggrieved by the same, the applicant filed an O.A. No.1504/2003, challenging the order of rejection as well as suspension dated 18.08.2003. A memorandum of charge- sheet was served to him on 18.12.2003 on the matter of involving said illegal gratification and after enquiry, he was punished in the said proceeding. Another chargesheet was issued against the applicant on 05.08.2004 for disobeying the order of superiors, using abusive language, misbehaving with them and failed to maintain office decorum Page 6 of 18 OA No. 330/661 of 2010 absolute integrity and devotion to duty and acted in a manner, which is unbecoming of a Govt. Servant as enjoined upon him as per CCS (Conduct ) Rules, 1964, wherein also the applicant was punished and the order of disciplinary Authority was affirmed by the Appellate Authority. Another charge-sheet was also issued against the applicant, which is concerned with the present O.A., wherein the applicant was transferred from Central Excise Range, Pata to Central Excise Division, Jhansi on 11.06.2004 and relieved on 14.06.2004, but the applicant neither joined his duties nor submitted any intimation/leave application to his superior officers and absconded himself form duty 14.06.2004 to 05.04.2006. Letters were served to him on 28.06.2005, 19.10.2005, 08.11.2005 and 29.11.2005 on his residential address through special Messenger, which he denied to acknowledge the receipt in spite of sincere efforts. A paper publication was also made for reporting him on duty on 29.12.2005 and 30.12.2005 at Agra/Jhansi, but he did not join. He joined his duties on 07.04.2006.
8. It is further stated in the counter-reply that the applicant is in habit to defying the orders of the superior authority and absconding from duty without any proper permission from the competent authority. He was also making irrelevant allegations and using indescent language against the officers in correspondence without corroborative evidences. Therefore, the said charge-sheet was against the applicant. The applicant submitted his defence reply on 18.07.2007. Shri V.K. Mishra, Assistant Commissioner, Central Excise Division II, Kanpur was appointed as the Inquiry Officer vide order dated 03.08.2007. The applicant submitted a representation dated 13.08.2007 for change of Inquiry Officer, but the Disciplinary Authority has found no reasons for Page 7 of 18 OA No. 330/661 of 2010 change of I.O and rejected his request. Personal hearing was fixed by the I.O. on 12.12.2007, 28.12.2007, 15.01.2008 and 14.02.2008, but the charged officer neither appeared nor submitted anything in his defence. The applicant threatened the Inquiry Officer through letter that in case he proceeded in the matter, he would make him a private party in the Court. He also informed that a writ No.39080/2007 on the same issue of 1504/2003 is subjudice in the Hon'ble High Court of Judicature at Allahabad. After conclusion of inquiry, the Enquiry Officer submitted his report and on the basis of enquiry report, the Disciplinary Authority vide order dated 18.12.2008 imposed a major penalty of compulsory retirement and the period of unauthorized absence from 15.06.2004 to 05.04.2006 be treated as 'dies- non'. Aggrieved with the order of penalty, the applicant on 23.1.2009, preferred an appeal before the respondent No. 2 and the respondent No.2 vide impugned order dated 06.05.2009 considered the appeal of the applicant and the punishment of compulsory retirement was set aside and the applicant was imposed with a penalty of reduction to a stage just below to the present stage in the time scale of his pay ( which can now be called Band Pay+Grade Pay+ Basic Pay after the Sixty Pay Commission) for a period of two years with further direction that Shri Parmar will not earn increments of pay during the period of such reduction. However, the appellate authority upheld the order of disciplinary authority regarding the additional penalty of treating the period from 15.06.2004 to 05.04.2006 as dies-non.
9. Heard the learned counsel for the parties.
10. Mr. Ashish Srivastava, learned counsel for the applicant assailed the impugned orders on the ground that the Disciplinary Page 8 of 18 OA No. 330/661 of 2010 Authority did not change the biased Inquiry Officer(2nd Inquiry Officer) with an ulterior motive and with an objective to prove the applicant guilty of the baseless charges. The Disciplinary Authority as well as Appellate Authority has failed to discharge their obligatory responsibility and arbitrarily did not change the biased Inquiry Officer. The applicant has given all the details and all events, which misrepresented and instigated the higher authority to victimize the applicant by misusing their powers by interrogative to the applicant in false DAR cases. The alleged charges of absconding from duty and unauthorized absence from duty is a baseless charge as during those period, the applicant at any point of time visited in the office of the department, the applicant in support of his contention placed reliance to 46 recorded visit in the office of the Department. The applicant has been penalized to an ex-party inquiry proceeding, which has been convened under biased Inquiry Officer and also despite of repeated request for change of Inquiry Officer, the Disciplinary Authority was adamant not to change the Inquiry Officer with an ulterior motive to penalize the applicant. During the period of absence, a departmental proceeding against the applicant has been continued at Agra itself.
11. On the other hand, Mr. R.K. Srivastava, learned counsel for the respondents vehemently opposed the contention of the learned counsel for the applicant and submitted that there is no illegality or infirmity in the impugned orders. The appointment of Inquiry officer and Presenting Officer were made as per law and after conducting an open enquiry. Several opportunities were given to the applicant to attend the inquiry proceedings, but he failed to do so. Inquiry report was also sent to the applicant through speed post as well as through the Deputy Page 9 of 18 OA No. 330/661 of 2010 Commissioner, Central Excise, Agra, but every time he refused to receive the same intentionally to avoid the departmental proceedings. The applicant was transferred on 11.06.2004 and relieved on 14.06.2004, but did not join the transferred place and also not submitted any intimation. Several letters were issued to his residential address, but he denied to acknowledge the receipt in spite of sincere efforts. A paper publication was also made on 29.12.2005 and 30.12.2005, but he did not join. He joined transferred place on 07.04.2006 on his own. He further submitted that in this case, Shri R.C. Sharma was never appointed as Inquiry Officer and at the initial stage itself, Shri V.K. Mishra, Assistant Commissioner, Central Excise Division II, Kanpur was appointed as Inquiry Officer, who conducted the inquiry and submitted his report. The representation of the applicant regarding change of I.O. was rejected by the respondents as it was in absence of any specific reason and devoid of any substance or without any supporting evidence. The charge of absconding from duty on the applicant is not a mere allegation, but it is true because the applicant neither joined at his work place and nor participated in inquiry proceeding. As far as the details of 46 correspondence and visits are concerned, there is no evidence that these visits were made in the official capacity, these might be his personal visits. The inquiry proceeding was not ex-parte as he was called for personal hearing on 12.12.2007, 28.12.2007, 15.01.2008 and 14.02.2008, but he neither appeared nor submitted anything his defence. The appellate Authority after taking into all the facts, modified the punishment order.
12. In reply to the same, Mr. Ashish Srivastava, learned counsel for the applicant drew the attention of the Court towards Page 10 of 18 OA No. 330/661 of 2010 rejoinder affidavit and stated that earlier order of transfer dated 04.06.2003 was challenged before this Court in O.A. No.1008/2003 and the said O.A. was allowed with a direction to consider and decide the representation of the applicant and till the applicant was not to force to join at the transferred place. He further submitted that as per Circular dated 19.03.1973 and 02.08.1973, the enquiry proceeding should not be continued when there is complaint against the enquiry officer's appointment on the ground of bias and the Disciplinary Authority has totally ignored the very provisions and acted illegally. Since the charges of not joining from Range III to Range Pata or from Range Pata to Division Jhansi are internally linked charges and as such, both could have been framed in one charge-sheet.
13. Be that as it may, having heard the rival submissions of the parties and on perusal of the records, it appears that the applicant has been transferred from Central Excise Range, Pata to Central Excise Division, Jhansi on 11.06.2004 and relieved on 14.06.2004, but he did not join the transferred place till dated 07.04.2006 and as such, he was treated as absconder from duty w.e.f. 15.06.2004 to 06.04.2006. There is a charge of unauthorized absence from duty against the applicant and he disobeyed the order of his superior, failed to maintain office decorum, absolute integrity and devotion to duty and also acted in a manner, which is unbecoming of a Govt. Servant. The charges have been proved in the Enquiry. During the inquiry, several letters i.e., on 28.06.2005, 19.10.2005, 08.11.2005 and 29.011.2005 were issued by the Department, but the applicant denied to acknowledge the receipt of the said letters and also did not appear before the Enquiry Officer or join the duties. A paper publication was Page 11 of 18 OA No. 330/661 of 2010 also made for reporting him on duty on 29.12.2005 and 30.12.2005 at Agra/Jhansi respectively, but it is the applicant, he himself chosen not to join the transferred place and as there is no procedural latches in the enquiry proceedings and rightly the enquiry was proceeded ex-parte. There is no correspondence by this applicant during the period of unauthorized absenteeism. Unauthorized absence is an act of indiscipline. Further, it appears that the applicant had remained absent earlier also in his service period. The applicant being a Government employee, it was expected of him to maintain absolute discipline with responsibility, perform his duty with sincerity. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organization. Article 51-A (j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. The Court should not pass such orders, which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same. There is no document available on record to show that he had intimated the department regarding his absence from duty or leave application.
14. The plea taken by the learned counsel for the applicant that the Disciplinary Authority did not change the Inquiry Officer with an ulterior motive is concerned, the same is not acceptable to this Court as his representation for change of Inquiry Officer was considered by the Disciplinary Authority and rejected the same. The appellate Page 12 of 18 OA No. 330/661 of 2010 Authority also rejected the appeal of the applicant regarding change of Inquiry Officer. The counsel for the applicant did not point out that what is the illegality in the enquiry, committed by the Inquiry Officer, whereas, he has made allegation of bias against the Inquiry Officer, which is not tenable in the eyes of law. In spite of due efforts as prescribed in CCA Rules taken by Inquiry Officer, the applicant did not cooperate in the inquiry. After completion of inquiry, enquiry report was also sent to his residential address as well as displayed on the notice board of the HQRS Office, Kanpur in presence of witnesses. The applicant did not acknowledge inquiry report. The charges were proved against the applicant and Disciplinary Authority has accepted the findings of Inquiry Officer and imposed punishment. Afterwards, the applicant has preferred an Appeal within prescribed time and requested therein for sympathetic consideration. He also requested that his action was not deliberate, but due to compelling circumstances and pleaded that punishment was too harsh and disproportionate to the circumstances and events of the case. He also requested for personal hearing. The applicant has availed the opportunity of personal hearing granted by the Appellate Authority. The Appellate Authority has taken into account, the various grounds advanced by the applicant and passed a detailed and reasoned order, which is reproduced below:-
I have carefully gone through the facts of the case, the order passed by the Disciplinary Authority, the defence put-forth by the appellant Shri D.N. Parmar and his apologies and assurances as recorded during personal hearing. I find that the charges made in the Memorandum issued to the appellant Shri D.N. Parmar were held as proved by the Inquiring Authority as well as by the Disciplinary Authority. As already discussed in great detail in the foregoing paragraphs, the arguments advanced by Shri D.N. Parmar, the Appellant, in his defence are totally un-tenable and unacceptable. None of the arguments advanced by him has any force of reason or logic. Hence, the appeal filed by the appellant Shri Parmar is Page 13 of 18 OA No. 330/661 of 2010 totally devoid of merit. Shri Parmar‟s apologies and assurances as recorded during Personal Hearing also hold no meaning at all since he has not at all admitted his mistakes or lapses and not at all repented for the same. Rather, he has advanced some totally irrelevant and illogical arguments to save himself in a disparate way. Since the charges against him have been proved and his appeal fails on merits, there is no doubt that Shri Parmar has to take punishment for the offence committed by him.
As an Appellate Authority, it is however also my duty to apply my mind independently to find out whether the quantum of punishment awarded to Shri Parmar by the Disciplinary Authority was commensurate with the gravity of the offence committed by him. In this regard, I fully uphold the order of the Disciplinary Authority for treating the period of unauthorized absence of Shri D.N. Parmar, the appellant from 15.06.2004 to 06.04.2006 as „Dies-non‟. Shri Parmar has totally failed to produce any valid reason whatsoever for his long, un- authorized absence from duty. However, while considering the justifiability of imposition of the major penalty of compulsory retirement upon Shri Parmar, the Appellant, I have to take into consideration certain facts on record. From the order of Disciplinary Authority, I find that the Inquiring Authority had held Shri Parmar, the appellant, to be guilty of violation of Rule 3(1)(iii) of CCS (Conduct) Rules, 1964. The Disciplinary Authority had also held him to be guilty of violation of Rule 3 (1)(iii) of CCS (Conduct ) Rules, 1964. Therefore, it has been proved that Shri Parmar was guilty of conduct unbecoming of a Government Servant. This shows that Shri Parmar had not been proved guilty of failure to maintain absolute integrity. Had he been found to be guilty of failure to maintain absolute integrity, compulsory retirement or even a harsher major penalty would have been fully justified. Further I also find that in the instant case, Shri Parmar was on un-authorized absence from duties during the period from 15.06.2004 to 06.04.2006. However, on 07.04.2006, he joined his duties.
Thereafter, as per records, he did not resort to any further un- authorized absence from his duties. Therefore, the instant case is not a case of non-stop, un-broken and continuing un- authorized absence. The Memorandum to Shri Parmar was issued much after he had joined his duties. In the circumstances, I feel that even though Shri Parmar deserves a major penalty for what he did, the ends of justice will be met if a major penalty lesser than the major penalty of compulsory retirement is imposed upon him. Therefore, I set aside the major penalty of compulsory retirement as imposed upon Shri D.N. Parmar by the Disciplinary Authority and reinstate him in service w.e.f. the date of the order of the Disciplinary Authority imposing the penalty of compulsory retirement upon him. However, I impose upon Shri D.N. Parmar, the Appellant, as per Clause V of Rule 11 of CCS (CCA) Rules, 1965, the penalty of reduction to a stage just below his present stage in the time-scale of his pay (which can now be called Band Pay +Grade Pay + Basic Pay, after the Sixth Pay Commission) for Page 14 of 18 OA No. 330/661 of 2010 a period of two years with further direction that Shri Parmar will not earn increments of pay during the period of such reduction. However, on the expiry of such reduction period, the reduction will not have the effect of postponing the future increments of his pay.
15. The Appellate Authority has taken a sympathetic view has modified the impugned order of punishment and we do not find any illegality or infirmity in the impugned orders dated 12.08.2008 (which was already modified by Appellate Authority) and appellate order dated 06.05.2009.
16. Further, the applicant failed to point out any shorting/lacuna/deficiency in decision making process adopted by the respondents while proving the charges levelled against the applicant. Admittedly, the petitioner has been found guilty of the charges and the charges have been duly proved in the regular Departmental proceedings. This Court restrains itself from re-appreciating the evidences, which has already been appreciated in the inquiry by the Enquiry Officer and Disciplinary Authority and thereafter, punishment order has been passed. The Court cannot substitute its own finding, which has come from the Enquiry Officer or the Disciplinary Authority. The issue fell for consideration before the Hon'ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India reported in 1995 (6) SCC 749, wherein the Apex Court has held as under:
"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 Page 15 of 18 OA No. 330/661 of 2010 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 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 xxx xxx xxx xxx xxx
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]"
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OA No. 330/661 of 2010
17. Further, in case of State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya in civil Appeal No. 5861 of 2007 decided on 1.3.2011 the Hon'ble Supreme Court has held as under:
"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 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 India8 , Union of India v. G. Ganayutham9 , Bank of India v. Degala Suryanarayana10 and High Court of Judicature at Bombay v. Shashikant S. Patil11).
[Emphasis laid]"
18. Further, in case of Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu1 in Appeal (Civil) No. 1770 of 2008 decided on 5.3.2008, 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 as under:
"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."
19. In view of the foregoing discussions and judicial pronouncements, the applicant failed to make out a case for Page 17 of 18 OA No. 330/661 of 2010 interference and as such, instant O.A. is liable to be dismissed. Hence, instant O.A. stands dismissed. No order as to costs.
20. All MAs pending in this O.A. also stand disposed off.
(Mohan Pyare) (Justice Om Prakash VII)
Member(Administrative) Member (Judicial)
PM/
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