Central Administrative Tribunal - Chandigarh
Danial vs Union Of India Through Defence ... on 31 January, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH OA No.060/00615/2016 Date of decision: 31.01.2017. CORAM: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) HONBLE MR. UDAY KUMAR VARMA, MEMBER (A) Danial, age 48 years, T. No.2437, working as Design Electrician, C/o 223, ADOB Suranussi (Jallandhar) PIN 901197 (Group-C). .APPLICANT Argued by : Mr.Harsh Garg, Advocate. VERSUS 1. Union of India through Defence Secretary, South Block, New Delhi. 2. Vice Chief of Army Staff, Integrated HQ of Ministry of Defence, Adjutant Generals Branch, New Delhi-11066. 3. Director General Ordinance Services, Master General of Ordinance Branch, Army Head Quarter, DHQ PO, New Delhi-110011. 4. Commandant, 223 AOBD, Suranussi (Jalandhar) PIN 901197. 5. Major Ganeshan, C/o 223 AOBD, Suranussi (Jalandhar) PIN 901197. ..RESPONDENTS Argued by : Mr. Ram Lal Gupta, Advocate. ORDER (Oral)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A):-
The applicant in this Original Application (OA) has assailed a penalty of stoppage of increment for three years without recurring effect and to this effect has sought quashing of order of the Disciplinary Authority, Appellate Authority and the Revisional Authority. The applicant had earlier come to the Tribunal without exhausting the statutory remedy of filing revision and the Tribunal directed him to do so. Subsequently, he filed revision petition which was turned down by the Revisional Authority.
2. The facts in this case, in brief, are that the applicant was working as Electrician in 223, ADOB Suranussi, Jalandhar and allegedly he was found in an intoxicated condition at duty time on 03.04.2014. He used abusive language and tried to interrupt the farewell party organized by the DWC/Trade Unions/ Associations in Traffic Branch in honour of Col. C. Basanta Kumar, the then Commandant of 223 OBD. The Disciplinary Authority then issued a show cause notice to the applicant and asked him to submit his reply by 26.04.2014. However, the applicant did not submit any reply. He was again advised vide letter dated 03.05.2014 to submit explanation by 05.05.2014. The applicant claims that he had tried to submit his reply on 05.05.2014, but on the direction of respondent no.5, who has been made a party in his personal capacity, his reply was not accepted. However, we do not find any evidence of this claim from the record, except his claim. An order was subsequently passed by the Disciplinary Authority on 11.06.2014 imposing a minor penalty of stoppage of three increments without recurring effect under Rule 15 of CCS (CCA) Rules, 1965. The applicants appeal against this order was rejected and a subsequent Revisional Petition was also turned down.
3. In his oral submissions before us, the applicant has mainly raised two grounds in support of his case. His first contention is that he was not given an opportunity to submit his reply and his second ground is that no inquiry was held and without holding any such inquiry, he has been awarded the punishment. The applicant has also alleged that he has been punished by the respondents on account of earlier punishment given to him on previous occasions, (which, incidentally, is factually correct).
4. The respondents in the reply have claimed that the applicant was issued the show cause notice on the basis of statement of eye witnesses Lt. Col Sumit Sharma, Sh. Mohan Singh and Sh. Malkit Singh and the purpose behind issuing the show cause notice to him was to give him an opportunity to explain his conduct. However, the applicant chose not to submit any reply. Despite a reminder, the reply was not received within the stipulated time. It is the contention of the respondents that the applicant never offered any explanation or submitted any reply. Consequently, the disciplinary authority passed an order. The applicant chose to file appeal against the order which was rejected by the Appellate Authority after due consideration.
5. On being directed by the Tribunal vide order dated 21.09.2015, the applicant was allowed to file revision petition before the Competent Authority, which was also rejected vide order dated 29.02.2016. The respondents have thus completely denied the allegations of the applicant that his effort to submit the reply on 05.05.2014 was frustrated by respondents. As regards, the issue that no inquiry was held, it is the contention of the respondents that the procedure for imposing a minor penalty under Rule 16 of the CCS (CCA) Rules, 1965, was faithfully followed. As per the rules, it is for the Disciplinary Authority to take a decision as to whether the proceedings should be initiated for a major or minor penalty. In cases, in which the authority decides that proceedings should be initiated for imposing a minor penalty, the authority will inform the Govt. servant concerned in writing of the proposal to take action against him in the prescribed format accompanied by a statement of imputations of misconduct or misbehavior for which action is proposed to be taken under Rule 16, giving him such time as may be considered reasonable, ordinarily not exceeding ten days, for making representation as the Govt. servant may wish to make against the proposal. Memorandum should be signed by the Disciplinary Authority. The said procedure was totally followed in this case. Rules 16 does not provide for the accused Govt. servant being given the facility of inspecting records for preparing his written statement of defence. Under Rule 16 (1) (b) the Disciplinary Authority may, if it thinks fit, in the circumstances of any particular case, decide that an enquiry should be held in the manner laid down in sub-rule (3) to (23) of Rule 14, the procedure to be followed for an enquiry into a case in which a major penalty is proposed to be imposed, will have to be followed. Otherwise, after taking into consideration the representation of the Govt. servant or without it, if no such representation is received from him by the specified date, the Disciplinary Authority will proceed, after taking into account such evidence as it may think fit, to record its findings on imputation of misconduct or misbehavior of the Govt. servant. In case the Disciplinary Authority is of the opinion that the allegations against the Govt. servant stand substantiated, it may proceed to impose upon him any of the minor penalties specified in Rule 11 which it is competent to impose. Therefore, the Disciplinary Authority is not duty bound to order Inquiry in each and every case, prior to awarding any minor penalty under Rule 16.
6. We have given our thoughtful consideration to the matter and have carefully considered the arguments of both the parties and have also perused the material on record.
7. We are of the considered opinion that the contention of the applicant that he had tried to give his reply on 05.05.2016 (the very last day available to him for submitting reply) is devoid of any evidence. His allegation is that on the direction of respondent no.5, his reply was not accepted. However, such allegation, apart from not being supported by any evidence, also does not make any sense, because non-acceptance of the reply does not help the cause of the respondents in such cases. It is also surprising that in his appeal application to the Appellate Authority, he has mentioned that after coming to know that the reply to said show cause notice given by him on 05.05.2014 has not reached the office, he again sent the reply on 25.09.2014 through registered post. Such assertion in his application indicates that he has sent a reply rather than submitted the same in person, which he is claiming in this OA. Such an assertion contradicts his claim that he had gone to respondents on 05.05.2014 to submit his reply but the same was not accepted by respondents. It is also surprising that if the respondents had refused to accept his reply on 05.05.2014, he should wait for over one and half month after 05.05.2014 and then send his reply through registered post.
8. We are of the view, that the applicants assertion that his reply was not accepted on 05.05.2014 by the respondents, and, on this account the punishment order is vitiated, does not stand to scrutiny of the facts and the records. As regards the other argument that no enquiry was held, the Revisional Authority in his order dated 29.02.2016 has dealt with this issue at length in paragraph 9 of his order. The details given in this paragraph fully satisfy us that while imposing this minor penalty, no serious procedural lapse has occurred.
9. The applicant has, in his favour, placed before us an order of the Principal Bench in OA No.2837 dated 11.12.2013. We have gone through this order. However, we find that the facts and circumstances of this OA is at significant variance with the facts and circumstances of the case before us. Firstly, the challenge to the punishment in the cited order, is that the order has been passed by an incompetent Authority and behind his back. The relevant fact in this OA was that despite a recommendation of the DoPT to hold an inquiry for major punishment, a Joint Secretary level officer (not competent) at his own level decided to process the case for minor penalty. The Tribunal has held that the Joint Secretary level officer had no authority to modify the recommendation of DoPT and on this account quashed the punishment of the censure passed against the applicant in the said OA.
10. It is clear that in this case, the facts and circumstances are very different, there is no challenge to the competence of the Disciplinary Authority or any other Authority. Therefore, we find that this ruling cited by the applicant is of no help to him in this case.
11. Besides, the scope and extent of intervention by the Tribunal and even High Courts in matters of Disciplinary proceedings is circumscribed by the judicial pronouncements of the Apex Court as of several High Courts. Some of the judgments that can be referred to in this regard include,
i) State of Andhra Pradesh versus Sree Rama Rao (A.I.R. 1963 S.C. Page 1723);
ii) B.C. Chaturvedi versus Union of India &Ors. (J.T. 1995(8) S.C. Page 65/(1995 (6) SCC 750);
iii) Government of Tamil Nadu versus A. Rajapandian( A.I.R. 1995 S.C. Page 561;
iv) Chairman & Managing Director, United Commercial Bank&Ors. v. P.C. Kakkar (2003 (4) S.C.C. Page 364)
v) State of Uttar Pradesh & Another v. Man Mohan NathSinha& Another (A.I.R. 2010 S.C. Page 137);
The Honble Apex Court in the case of Government of Andhra Pradesh v. Mohd. Nasrulla Khan (2006(2) S.C.C Page 82) has again reiterated the scope of judicial review as confined to correct the errors of law or procedural error if results in manifest miscarriage of justice or violation of principles of natural justice. The Honble Court in para 7 has held that:
By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority.
12. The Honble Apex Court in the case of S.R. Tewari v. Union of India (2013(7) Scale Page 417) has reiterated that The role of the court in the matter of departmental proceedings is very limited and the Court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the Court is very limited and restricted to exceptional cases. The punishment imposed by the Disciplinary Authority or the Appellate Authority unless shocking to the conscience of the court, cannot be subjected to judicial review.
13. In another judgment, the Honble Supreme Court has reiterated his earlier view that the High Court as well Tribunal under Article 226 of the Constitution of India cannot sit as Court of appeal over the decision of the authorities holding departmental proceedings against a public servant. After relying upon the judgment Sree Rama Rao (supra) dismissed the SLP in case of State Bank of India vs. Ram LalBhaskar and Another(2011 STPL (web) 904). Para 8 of the judgment reads as under: -
8. Thus, in a proceeding under Article 226 of the Constitution of India, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decision by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent no.1 do not constitute any misconduct and that the respondent No.1 was not guilty of any misconduct.
14. Culled out from these judgments, the following broad guidelines, inter alia, emerge
a) Tribunals should not, generally, reappreciate the evidence considered by the disciplinary authority, as they should not act like an appellate authority;
b) They should not interfere unless there is a substantial procedural lapse committed by the enquiry officer;
c) They should not interfere unless there is evident violation of Principles of Natural Justice and fair opportunity of hearing has not been afforded to the charged officer;
d) They should not go into the question of quantum of punishment unless it is grossly disproportionate to the gravity of misconduct and/or shocking to the conscience.
15. These guidelines for the Tribunals get strong support and endorsement from a recent judgment of the Apex Court in the case of Union of India v. P. Gunasegaram (2015 (2) S.C.C. Page 610) in pares 12, 13 & 20, wherein it was held as follows: -
12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) Re-appreciate the evidence;
(ii) Interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) into the proportionality of punishment unless it shocks its conscience.
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19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values.
16. The guidelines enunciated in the judgment above are as relevant and useful for adjudication of Departmental Proceedings in Tribunals as they are for High Courts. If we consider the guidelines laid down by the Honble Apex Court in the case of P. Gunasekaran (supra), we cannot fail but conclude that the instant case does not merit any interference by us as no aspect of this case qualifies for an intervention by the Tribunal. It was a case where a minor penalty was imposed following a procedure laid down for such cases, which has not been infringed or compromised.
17. Given the discussion above, we are of the view that there is no justification for interference in this matter. The present OA deserves dismissal and is, accordingly, dismissed. There shall be no order as to costs.
(JUSTICE M.S. SULLAR) (UDAY KUMAR VARMA)
MEMBER (J) MEMBER (A)
Dated: 31.01.2017
rishi
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OA 060/00615/2016