Central Administrative Tribunal - Jodhpur
Rajendra Kumar Pareek vs Union Of India (Uoi) And Ors. on 27 June, 2000
JUDGMENT A.K. Misra, Member (J)
1. The applicant has filed this O.A. with the prayer that the impugned order dated 20.6.86 (Annexure A/7) passed by the Divisional Personnel Officer, Western Railway, Jaipur, and order dated 31.10.86 (Annexure A/8) passed by the Additional Divisional Railway Manager, Western Railway, Jaipur, be quashed with all consequential benefits in favour of the applicant.
2. Notice of the O.A. was given to the respondents who have filed their reply stating therein that the O.A. of the applicant bears no merit and deserves to be dismissed.
3. The case of the applicant is that while he was working as a Clerk, he proceeded to Bombay on duty on 2.2.1983. The duty pass was from 2.2.83 to 2.2.83. During this duty pass period, the applicant fell ill. He came back to his home town for treatment and contacted the doctor on 8.2.83. The applicant informed the authority concerned about his illness and remained ill from 8.2,83 to 5.4.85. During this period, he contacted the doctors including the Railway doctor, and continued to inform the authorities concerned from time to time. The applicant was suffering from "left invinal Harnia" and was suggested operation. Since he was not in a fit state of health, he was not operated upon by the doctors. Divisional Medical Officer of the Railways, Jaipur, issued a certificate dated 11.4.85 (Annexure A/1) under Rule 3/4 of the Rules for grant of leave on medical certificate to Non-gazetted Railway Servants (for short, Medical Rules) for the periods from 8.2.83 to 5.4.85. It is alleged by the applicant that before issuing the certificate to the applicant as mentioned above, applicant was thoroughly examined by the doctor concerned. It is further stated by the applicant that while the applicant was ill, he was served with a charge-sheet dated 1.2.85 in a standard From No. 5 issued by the Divisional Mechanical Engineer, Loco, alleging therein breach of Rule 3/4 of the said Rules. The applicant submitted a reply to the charge-sheet. After considering the applicant's reply, the charge-sheet dated 1.2.85 was set aside vide order dated 27.6.85 (Annexure A/3). It is further stated by the applicant that me applicant was again served with a charge sheet dated 23.9.85 (Annexure A/4) for having violated Rule 3/4 and Rule 2/7 of the said Rules. The applicant submitted reply to the charge-sheet. Thereafter, enquiry was conducted and the Enquiry Officer held the charges proved. Enquiry report was accepted by the Disciplinary Authority and a penalty of removal from service was imposed vide order dated 20.6.86 (Annexure A/7). Applicant's appeal was rejected by the appellate authority. The said order was communicated lo the applicant vide letter dated 31,10.86 (Annexure A/8). The applicant has challenged the impugned orders by this O.A. on the ground that the applicant has been served with a charge-sheet on the same grounds and facts on which he was served with a charge-sheet earlier and the same was dropped. Therefore, the second charge-sheet amounts to double jeopardy and hit by the principles of res-judicata; that copies of the statements of prosecution witnesses were not supplied to the applicant either alongwith the charge-sheet or otherwise and, therefore, the applicant was highly prejudiced in defending his case; that the applicant was not given an opportunity of being heard in accordance with the rules; that the enquiry officer acted as presenting officer and thus, violated the principles of natural justice; that the defence of the applicant was not properly considered and his explanation regarding timely information about his illness and the certificate issued by the Divisional Medical Officer were not taken into consideration; that the punishment awarded to the applicant is dis-proportionate and harsh looking to the charges; that the order of disciplinary authority is a non-speaking order; that the appellate authority failed to consider the appeal of the applicant in the right prospective as per the provisions of the law and that the appellate authority did not pass a speaking order. The applicant on the above grounds prayed for quashing of both these orders as stated above.
4. The respondents filed their reply in which it was stated that the applicant was transferred from the office of the establishment branch of the Divisional Railway Manager to the office of the Inspector of Works, Phulera, vide order dated 31.1.83. The applicant did not join there in pursuance of the said transfer order. Subsequently, another order dated 7.3.83 was issued whereby the applicant was posted under the Loco Foreman Phulera, but this order was also not carried out by the applicant till 12.4.1985 (it appears that the applicant reported on duty on 12.4.85 and was taken on duty accordingly), It is further alleged by the respondents that the applicant in order to above the transfer order somehow managed to obtain duty pass to attend duty at Bombay and, thereafter, did not join the duties on the ground of illness. It is alleged by the respondents that the applicant had not followed the Medical Rules in this regard and no timely information was given to the authorities about illness by the applicant and, therefore, he was served with a charge-sheet which was dropped on the technical ground as mentioned in the order dated 27-2,86 (Annexure A/3) without prejudice to further action. Thereafter, the charge-sheet was served on the applicant vide memo dated 23.9.85. Enquiry was properly conducted. Applicant was supplied with all documents and was afforded reasonable opportunity in defending his case. Certificate dated 8.4.86 (Annexure R/2) was issued by the applicant himself in this regard. Therefore, the allegations of the applicant regarding lapses in conducting the enquiry have no substance. The charge-sheet was issued by the competent authority. The disciplinary authority agreed to the detailed report submitted by the enquiry officer and passed the impugned order of punishment, which is speaking and proportionate to the charges. The appellate authority had also considered the appeal and passed a speaking order as is revealed by Annexure A/8. The grounds mentioned by the applicant are unsustainable and the O.A. deserves to be dismissed.
5. Applicant filed a rejoinder in which he has more or less reiterated the stand taken in the O.A. and further clarified the facts as were mentioned in the O.A.
6. We have heard the learned Counsel for the parties and have gone through the case file.
7. Before we dispose of the case on merits, it would be worthwhile to mention that earlier the O.A. was heard and disposed of by the Tribunal on 6.12.88. In that order, it was held by the Tribunal that the impugned order of removal was not made by the competent authority and, therefore, the same is liable to be quashed. In view of the above finding, other contentions as raised by the applicant relating to violation of principles of natural justice, punishment being disproportionate and orders being non-speaking, were not gone into by the Tribunal and they remained undecided. However, by the aforesaid order, the impugned removal orders etc, were set aside and the respondents were directed to reinstate the applicant within a period of three months from the date of the order, but without back wages. Union of India preferred a Special Leave to Appeal (Civil) against the order passed by the Tribunal with an interlocutory application for stay. Hon'ble the Supreme Court vide its order dated 7.1.91 stayed the operation of the order of the Tribunal dated 6.12.88. Thereafter, Hon'ble the Supreme Court granted the Special Leave and disposed of the Civil Appeal vide order dated 15.9.1994, which is quoted as under:--
ORDER "Special leave granted.
It is not disputed that the law point involved in this appeal is covered against the respondent by the judgment of this Court in Scientific Adviser to the Ministry of Defence and Ors. v. S. Daniel and Ors., 1990 (Supple.) SC 374= 1991 (3) SLJ 29 (SC). In accordance with the reasoning and the conclusions reached in the above-said judgment, we allow this appeal in similar terms. No costs."
8. Union of India, thereafter, moved an application for direction/clarification in respect of order dated 15.9.94. Hon'ble the Supreme Court after hearing ordered on 3.8.95 that "there is no ambiguity in our order and also in the judgment relied upon by this Court. The application is dismissed" (A photocopy of the said order is available in M. A. No. 33/ 97 moved by the applicant for restoring the O.A. to its original number for rehearing, which was disposed of by us on 1.1.98).
9. By our order dated 1.1.98, the O. A. was ordered to be restored to its original number for hearing on merits.
10. It may be mentioned that earlier the O.A. was disposed of on a limited point which related to issuance of charge-sheet and taking disciplinary action by an incompetent authority. The appeal filed by the Union of India against that order was allowed, therefore, it implies that the objection of the applicant challenging the competence of the authority issuing the charge-sheet and taking disciplinary action does not survive any more for further discussion. In the judgment rendered in Scientific Adviser to Ministry of Defence and Others v. 5. Daniel and Ors., reported in 1990 (Supple.) SCC 374=1991 SCC (L&S) 355=1991(3) SLJ 29 (SC), it was observed as under :
"On the other hand, in most cases, the C.A.T., because of the view taken by it on the main question, has not dealt with the merits of the proceedings."
The Hon'ble Supreme Court further observed as under :
"As the cases before us are many and were decided principally on the point of law discussed earlier, we have not touched upon the facts or merits of the individual cases. We set aside the orders of the C.A.T. in all cases..... and direct the Tribunal/High Court to pass fresh orders disposing of the applications filed before them in the light of our judgment...."
11. In the present case, the appeal filed by the Railways was disposed of by the Hon' ble Supreme Court in terms of the observation made in the judgment mentioned above, therefore, the present O.A. is to be considered on other points relating to its merits as raised in the application. It may be mentioned that in all the connected appeals disposed of by the Hon'ble Supreme Court by the judgment cited above, the question of competence of disciplinary authority vis-a-vis the appointing authority was involved. After hearing the parties, Hon'ble the Supreme Court had negativated the findings in almost all cases decided by the C.A.T. Therefore, the question of competence of disciplinary authority etc. now stands finally settled and no further discussion is necessary.
12. It was argued by the learned Counsel for the applicant that serving the second chargesheet on the applicant was illegal but to our mind, looking to the order Annexure R/5 dated 27.6.85, no illegality is found in serving the applicant with the second chargesheet. The right to take disciplinary action, was specifically reserved while withdrawing the first chargesheet. It was not necessary to mention the ground of withdrawal of the earlier chargesheet. In our opinion, this ground of attack is without any substance.
13. It was next argued by the learned Counsel for the applicant that copies of statements of two witnesses examined during the preliminary inquiry, were not supplied to the applicant. He has further argued that this fact was specifically mentioned by the applicant in his statement which he had given before the inquiry officer. Therefore, the disciplinary action taken against the applicant suffers from illegality and deserves to be quashed. He has cited AIR 1982 SC 937=1982(2) SLJ 259 (SC)--State of U.P. v. Mohd. Sharif (dead) through LRs., AIR 1986 SC 2118=1986(2) SLJ 279 (SC)--Kashinath Dikshita v. Union of India and Others and 1994(3) SLJ (CAT) 373--Shri Gajendra Pal Sharma v. Union of India and Anr..
14. On the other hand, it was argued by the learned Counsel for the respondents that there is nothing on record to show except the statements of the applicant as referred by the learned Counsel for the applicant, that the applicant was not supplied with the copies of the statements of two witnesses, as mentioned in Annex. A/2, Chargesheet. He has further argued that even in the reply dated 27.9.85, filed by the applicant in reply to the chargesheet, there is no mention of either non-supply of the copies of statements or demand for supply of the copies of the statements, therefore, the ground of non-supply of copies of statements of witnesses, as raised by the applicant, is not factually correct. Moreover, it has not been shown by the applicant that any prejudice was caused to him because of non-supply of the copies of the said statements. Therefore, the inquiry proceedings are not vitiated.
15. We have considered the rival arguments. In this case, the applicant was charged for not having followed the rules relating to grant of leave on medical grounds. Although, the applicant knew what case he has to meet-out. The applicant had been asserting that he had informed the authorities from time to time about his illness through letters sent by post under certificate of posting. From the inquiry report, in which the statements of the departmental witnesses are reproduced, it appears that they had only stated the rule position and applicant's failure to timely intimate his inability to attend the office due to medical reasons. In order to negativate the charges, the applicant had to produce the documents supporting his defence. There is nothing on record to show that applicant in writing ever demanded the copies of the statements of the witnesses. He could have demanded the copies of these statements even while submitting his reply Annex. A/5 to the chargesheet but no such step was taken by the applicant. Therefore, in our opinion, the applicant cannot successfully claim that he had demanded the copies of the statements of the alleged witnesses, If for argument sake, it is believed that he had demanded the copies of the statements of the witnesses which were not supplied to him, even then he should have shown the prejudice which was caused to him due to non-supply of the documents. In AIR 1982 SC 937, it was observed by Hon'ble the Supreme Court that no particulars with regard to the date, time and place of the alleged misconduct by the delinquent, were mentioned in the chargesheet. It was also observed that delinquent's request for inspecting the file pertaining to preliminary inquiry was rejected and, therefore, in view of these facts, it was held by Hon'ble the Supreme Court that non-supply of copies of witnesses has resulted-in prejudice to the applicant, But, in this case neither there was a demand for supply of the statements nor demand for inspection of the statements was ever made by the applicant and in view of this, the rule propounded in the aforesaid ruling does not help the applicant.
16. In AIR 1986 SC 2118=1986(2) SLJ 279 (SC), it was observed by the Hon'ble Supreme Court that where the Government has refused the copies of the statements of the witnesses examined at the stage of preliminary inquiry proceedings and reasonable requests of the employee in this connection to have the relevant portion of the documents extracted with the help of a Stenographer, was refused, the order of dismissal rendered against the employee was violative. But, no such facts are available in the instant case so as to help the applicant of the rule propounded in this case. Needless to say that non-supply of such documents whether results-in prejudice or not, depends on the facts of each case. In this case, the period of absence on medical ground can be taken to be an admitted position and when the applicant asserts that he had informed the authorities from time to time about his illness as per rules then it is he who has to establish his case and in view of this, non-supply of copy of statements cannot be taken to have caused prejudice to the applicant. On this ground, this also cannot be said that the applicant was deprived of a reasonable opportunity to defend his cause.
17. In 1994(3) SLJ (CAT) 373, the demanded documents were not supplied to the delinquent and in view of this, the contentions of the applicant were up-held. But, in this case, the facts about demand for supplying the copies of statements, refusal to supply the copies and denying the opportunity of inspection, are missing so as to enable us to apply the principles enunciated in the foregoing ruling. In our opinion, the ground of non-supply of documents, as asserted by the applicant, is devoid of any force and is hereby rejected.
18. It was next argued by the learned Counsel for the applicant that the inquiry officer and the disciplinary authority, had failed to consider the documents of the defence and consequently, the applicant was prejudiced. But, in our opinion, we cannot go into this aspect of the case. We have not to scrutinise the correct consideration or otherwise of the defence documents by the disciplinary authority as an appellate authority while examining the case. All what we have to see is, whether there is some evidence against the applicant relating to the charges, whether he was provided reasonable opportunity to put forward his defence and whether the conclusion arrived at by the inquiry officer, is in accordance with the material on record and is not biased one. Keeping these factors in mind, if we examine the present case, we find that the answer to these questions is in positive and, therefore, the applicant cannot be benefited by a simple assertion that defence documents were not rightly considered.
19. It was next argued by the learned Counsel for the applicant that the order passed by the disciplinary authority and the order passed by the appellate authority, are both non-speaking orders. While examining this ground of attack, we are of the opinion that the order of disciplinary authority or that of the appellate authority, cannot be termed as a non-speaking order simply because it is short and cryptic one. It is not necessary that only lengthy orders can be termed as speaking order. The disciplinary authority while passing Annex. A/7 has specifically attended the aspect of non-observance of the relevant rules by the delinquent, the action taken by the medical officer for examining the illness of the applicant and the report of the inquiry officer. Likewise, the appellate order shows that the points highlighted by the applicant and his defence Counsels, were discussed though not in great length and conclusion arrived at. Looking to these two orders, it cannot be said that applicant was denied a fair opportunity to defend himself. The applicant has not placed on record objections relating to the inquiry report or the memo of appeal against the order of the disciplinary authority and, therefore, it cannot be said that the case of the applicant was not properly attended-to by the concerned authorities while passing the impugned orders: In our opinion, looking to the controversy as made-out from the charges, there was in fact nothing much to be discussed in detail, therefore, the arguments in this regard are devoid of any merit, in our opinion.
20. Lastly, it was argued by the learned Counsel for the applicant that the punishment metted-out to the applicant, was disproportionate to the charges in question. In support of this, the learned Counsel for the applicant has cited AIR 1996 SC 484 -- B.C. Chaturvedi v. Union of India and Others. On the other hand, it was argued that the applicant had remained absent for more than two years without prior information and medical grounds, therefore, he deserve the punishment given to him.
21. We have considered the rival arguments in this regard. The applicant had remained absent from duty from 8.3.83 to 11.4.85. As per the applicant, due to illness and as per the respondents on the fake ground of illness in order not to carry out the transfer. We will not debate here whether the alleged illness was genuine or was manipulated one. All what we have to see is, whether for a period of absence from duty for two years and two months, harsh punishment of removal from service could be justified. Considering the facts of the case, we are of the opinion that punishment of removal from service as awarded to the applicant, is dis-proportionate to the charges. In such cases, where the punishment is disproportionate to the charges, the order of the disciplinary authority can be interfered with if such punishment shocks the conscience. This is one such case where looking to the charges the punishment shocks our conscience. If at the age of 35 years, a Government servant is removed from service on a charge of remaining absent from duty on medical grounds without informing the authorities as per rules, then he and his family are driven to life of misery financially and socially both. Therefore, we are of the opinion that the punishment as awarded by the disciplinary authority and confirmed by the appellate authority, deserves to be quashed. Since we have come to the conclusion that the order of removal deserves to be quashed, it would be of no consequence to discuss the failure of the appellate authority to consider the case in the right perspective in exercise of its power. But, we may mention here that the law has caste a duty on the appellate authority to consider every aspect of the case in such matters i.e. whether the inquiry has been properly conducted, whether the result arrived at by the inquiry officer, is supported by the material on record and whether the punishment is proper keeping in view the facts of the case. In our opinion, if the appellate authority had examined the matter relating to the reasonableness of the punishment, probably it would have come to a different conclusion than that of the disciplinary authority. But the case was not considered by the appellate authority in this regard properly which has resulted into such a prolonged litigation.
22. Having come to the conclusion that removal order deserves to be quashed, we are posted with a question as to what should be done now, whether the case should be remanded back for proper orders or appropriate punishment order be passed by us in this regard in substitution to the order of punishment given by the disciplinary authority in terms of the observation made in the B. C. Chaturvedi 's case. As is clear from the facts of the case, the incident relates to a period between February 83 to April 85 i.e. almost 15-17 years old now. The impugned orders in this case were passed as far back as June 86 and October 86 i.e. almost 14 years earlier from today. In view of these facts, we do not propose to remand the case for re-writing of the appropriate punishment order and venture to modify the impugned punishment order Annex. A/7. In our opinion, looking to the charges as levelled against the applicant, we are of the opinion that stoppage of three grade increments without cumulative effect, would meet the ends of justice. While passing this order, we also have in our view that the applicant may lose his leave of whatever kind to his credit, by way of adjustment against the period of absence and if no appropriate amount of leave is due to the applicant then he may lose his pay for the period of absence. Hence, the punishment of stoppage of increments.
23. In view of the above discussions, we are of the opinion that the impugned punishment order dated 18.6.86 communicated vide letter dated 20.6.86, Annex. A/7 and the appellate order communicated vide letter dated 31.10.86, Annex. A/8, deserve to be quashed and the applicant deserves to be reinstated in service but in the circumstances without any back wages. The penalty of removal from service, as mentioned in the impugned removal order, deserves to be modified with the penalty of stoppage of three grade increments of the applicant but in the circumstances, without cumulative effect. The O.A., therefore, deserves to be accepted in part.
24. The O.A. is, therefore, partly accepted. The impugned removal order dated 18.6.86, Annex. A/7, is modified to the extent that the penalty of removal from service is substituted by stoppage of three grade increments without cumulative effect. This penalty would, however, not have any effect of postponing future increments. Consequently, the appellate order dated 31.10.86, Annex. A/8 stands set aside. The respondents are directed to reinstate the applicant in service on the pay in the grade and on the post, he was working on the date of removal or its equivalent, within a period of three months from today but in the circumstances, without any back wages. The period of absence from 8.2.83 to 11.4.85 and from the date of removal till reinstatement, shall be regulated as per rules by grant of leave due and admissible to the applicant and if no leave is due then the period shall be treated as leave without pay.
25. No orders as to cost.