Central Administrative Tribunal - Chandigarh
Jatinder Singh Bhatia Son Of Shri Sat Pal vs Union Of India Through Secretary ... on 28 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A. No.65/CH/2011 Dated: .2013 CORAM: HONBLE MRS. PROMILLA ISSAR, MEMBER (A) & HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) Jatinder Singh Bhatia son of Shri Sat Pal, resident of House No.449, Urban Estate, Patiala (Punjab), working as Conductor (No.550), working in the office of the Divisional Manager, CTU & Director Transport, U.T. Chandigarh. ..Applicant Versus 1.Union of India through Secretary Ministry of Home Affairs, North Block, New Delhi-110 001. 2.Union Territory Chandigarh, through Home Secretary-cum-Secretary Transport, U.T. Chandigarh. 3.Divisional Manager, CTU & Director Transport, U.T. Chandigarh. .Respondents Reserved on 28.01.2013. Present: Sh. J.R. Syal, counsel for the applicant Sh. Rakesh Verma, counsel for respondents ORDER(Oral)
(BY Honble Mr. Sanjeev Kaushik, Member(J)
1. By means of the present Original Application filed under section 19 of the Administrative Tribunal Act, 1985, the applicant impugned the order of the disciplinary authority dated 17.03.2009 and the order of the appellate authority dated 11.10.2010 dismissing his appeal with further prayer to direct the respondents to restore the due increments and also to treat the suspension period as on duty for all intents and purposes with consequential relief resulting therefrom.
2. The facts are not in dispute, therefore, brief reference thereto is sufficient. The applicant was placed under suspension on 06.11.2007 in contemplation of departmental proceedings. He was served with charge sheet under Rule 8 of the Punjab civil Services (Punishment & Appeal) Rules, 1970 for the misconduct on 15.11.2007. The applicant submitted his reply on 03.12.2012. Earlier Smt. Seema Handa was appointed as Enquiry Officer by order dated 05.02.2008 later on upon her transfer another enquiry officer was appointed, who conducted the enquiry and submitted the report on 12.09.2008 holding the applicant guilty of charges. On 19.09.2008, show cause notice was issued to the applicant calling upon him to file reply, if any, against the enquiry report within 15 days. Along with notice a copy of the enquiry report was also supplied to the applicant. The applicant filed his reply on 03.11.2008. After considering the enquiry report the disciplinary authority inflicted the punishment of stoppage of three increments with cumulative effect and further ordered that the suspension period w.e.f. 06.11.2007 to 17.12.2008 is restricted to the subsistence allowance already paid vide order dated 17.03.2009. Aggrieved against the order, the applicant preferred statutory appeal on 25.05.2009 to respondent no.2 which was dismissed being devoid of merits vide impugned order dated 11.10.2010, hence the present Original Application.
3. Pursuant to the notice respondents filed a detailed written statement taking a stand that the applicant was charge sheeted for major penalty but by taking a lenient view minor penalty was imposed. It is submitted that the principle of natural justice was complied with at each stage i.e. while conducting the enquiry and subsequently before passing the order of punishment.
4. The applicant has filed a replication reiterating the averment made in the O.A.
5. We have heard Sh. J.R.Syal, learned counsel for the applicant and Sh. Rakesh Verma, learned counsel for the administration.
6. Sh. Syal, attacked the impugned orders on three counts. Firstly, that the officer who conducted the preliminary enquiry cannot be appointed as enquiry officer. Secondly, the statements of the prosecution witnesses are verbatim same. Thirdly, that the enquiry officer has not considered the defence witnesses. Lastly, he argued that the impugned order also suffer from inherent defect because once a minor punishment as a result of disciplinary proceedings initiated for major punishment has been inflicted then he is entitled for full pay and allowances for the suspension period whereas vide impugned order the respondents restricted the emoluments for the said period to the subsistence allowance already paid. Therefore, the same is in violation of Rule 7.3 of the Punjab Civil Services (Punishment & Appeal), Rules, 1970 (hereinafter referred to as the Rules of 1970).
7. Mr. Verma, started from where Mr. Syal stopped. He argued that Rule 7.3 of the 1970 Rule is not applicable in the case of applicant because that Rule is applicable in cases where the dismissal, removal or compulsory retirement order has been set aside and the delinquent officer is reinstated as a result of appeal, revision or review whereas in the present case the applicant continued in service therefore, this Rule is not applicable. He further argued that the impugned orders of the disciplinary authority which was affirmed by the appellate authority have been passed after applying the principle of natural justice and are based upon the evidence. Lastly, he argued that this Court cannot sit as an appellate authority over the findings recorded by the Administrative Authority. In this regard, he placed reliance upon judgment in case of Ramesh Kumar Vs. Punjab and Haryana High Court reported as 2010 (4) Law Herald (Punjab and Haryana) page 3005.
8. We have considered the rival submissions and have gone through pleadings available on record with the able assistance of the learned counsel for the respective parties.
9. The question that arises for consideration is regarding the scope of judicial interference in the matters of administrative decision. Administrative action is stated to be referable to the area of governmental activities in which the repositories of power may exercise executive, quasi-legislative and quasi-judicial functions. In a catena of decisions, the Honble Supreme Court expressed its views and the law on this aspect is very well settled.
10. It is beyond pale of controversy that the disciplinary proceedings conducted against an employee should conform to the relevant rules/regulations as also the principles of natural justice. While much difficulty is not experienced to scrutinise the disciplinary proceedings with reference to the rules, but a great amount of care and caution has to be put into operation to ascertain whether the proceedings were vitiated for non-observance of principles of natural justice.
11. As is known for centuries, the principles of natural justice play a vital role both in administrative as well as quasi-judicial acts. Though these principles have not been codified, nor statutorily defined in any legal text, yet, they are considered to be inevitable and inseparable requirement in the decision making process. Therefore, right from the issue of charge sheet till the final Orders are passed, the catalytical thread of principles of natural justice always run through out to ensure fair play in action, fair consideration and reasonable order which are basic foundational structures of the principles of natural justice.
12. In High Court of Judicature at Bombay v. Udaysingh, the Hon'ble Supreme Court observed thus:
"Law on the nature of the imposition of the penalties, it has been summed up on Paragraph 18 thus:
"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 the 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."
Accordingly, the order of the Tribunal in reversing the imposition of the penalty was set aside.
13. The Honble Supreme Court in Union of India v. Sardar Bahadur, held thus:
"Where mere are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court."
14. In B.C. Chaturvedi v. Union of India, , the Supreme Court opined, (at P.4379 of AIR SCW) "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 Enquiry, 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."
Further it was held (at P.4380 of AIR SCW):
"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."
15. In Food Corporation of India, Hyderabad v. A Prahalada Rao, AIR 2001 SC 51, the Honble Supreme Court observed thus:
"It is settled law that Court's power of judicial review in such cases is limited and Court can interfere where the authority held the enquiry proceedings in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry and imposing punishment or where the conclusion or finding reached by the disciplinary authority is based on no evidence or is such that no reasonable person would have ever reached."
16. Even in case of Lalit Popli Vs. Canara bank and Ors. Reported as 2003 (3) SCC 583, the Honble Supreme Court observed that High Court or the Tribunal cannot re-appreciate the evidence. The relevant para reads as under:-
While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
17. In the light of the above authoritative law now we proceed to examine the facts of the present case. The applicant fails to point out any irregularity or procedural defect in the enquiry proceedings. He even did not show any prejudice caused to the applicant by the enquiry officer. We have perused the enquiry report and are satisfied that the enquiry officer while coming to the conclusion has considered the relevant evidence adduced by the applicant. For convenience the relevant part reads as under:-
While going through all the facts of the case, the undersigned holds that the statements as well as cross examination of all the P/Ws has been found corroborated with each other as they have no where deviated from their original report. As such, the statements and cross examination of all the prosecution witnesses can not be disbelieved under any of the circumstances. On the other side, on going through the defence statement of the delinquent official as well as statements of the defence witnesses produced by the delinquent official, the undersigned is of the considered opinion that the delinquent official has miserably failed to prove himself as innocent in this case. Not only this, the delinquent official has cooked a concocted story by producing the defence witnesses for the purpose to save his skin. Under such a situation, the statements as well as the cross examination of all the defence witnesses produced by the delinquent official can not be believed and relied upon. Hence, the delinquent official deserves no sympathy and he cannot be let off the charges leveled against him. Therefore, perusal of the above falsifies the contentions raised by the applicant to the effect that no weightage was given to the witnesses produced by the applicant.
18. Even the arguments raised by the applicant that the impugned order restricting his salary during the suspension period to the amount of subsistence allowance already paid is contrary to Rule 7.3 of 1970 Rules also does not hold good because Rule 7.3 of 1970 Rules deals with the situation where a Government employee who has been dismissed, removed or compulsorily retired, is reinstated in service as a result of appeal, revision or review. Therefore, it is not applicable in the case of the applicant. Therefore, we find no force in the contention of learned counsel for the applicant. Accordingly, the present Original Application fails and is accordingly dismissed. No order as to costs.
(SANJEEV KAUSHIK) (PROMILLA ISSAR) MEMBER(J) MEMBER (A) PLACE: CHANDIGARH. DATED: .2013. sv: