Central Administrative Tribunal - Kolkata
Narayan Ch. Das vs Union Of India (Uoi) And Ors. on 12 January, 2007
Equivalent citations: 2008(2)SLJ30(CAT)
ORDER A.R. Basu, Member (A)
1. The applicant, Shri Narayan Ch. Das has filed this OA challenging the charge sheet dated 29.1.90 (Annexure A/1), the order of the Disciplinary Authority dated 28/31.10.02 (Annexure A/12) and the order of the Appellate Authority dated 15.7.03 (Annexure A/15).
2. The fact of the case in brief is that the applicant was a Rest-Giver Assistant Station Master to the regular Station Master Shri L.N. Majhi at Quarry-Siding Railway Station. Shri S.R. Das was another such Rest-Giver Station Master. The applicant has alleged that T-39 Register indicated receipt of two Box Wagons of Steel Plates by Shri Majhi in February and March, 1987. These were for ultimate delivery to M/s Bhagawati Iron & Steel Hardware Depot a Bhubaneswar. Their Agent Sambhu Kedia took delivery of major part of the Steel Plates by gas cutting in presence of Shri Majhi as witnessed by Shri Kalipada Dey a prosecution witness. Supplier did not get cost of the materials and reported the matter to CBI, Rourkela. Their Inspector Shri B.C. Das made enquiries and did not find any theft of the materials. He did not proceed to take any action against either the Bhagwati Steel Hardware nor their Agent Sambhu Kedia. He did not make any investigation into the issue but fancied that there was connivance amongst Shri Majhi and the two Rest-Giver Station Master. As a result of this, charge sheet for major penalty was drawn up and disciplinary proceedings were initiated against the applicant. The purported proceeding removed the applicant from service by the order dated 29.7.96. The applicant challenged the said order by filing OA 954/97 before the Calcutta Bench of this Tribunal. The Tribunal passed the following order:
In the aforesaid circumstances, we set aside both the order of removal from service dated 29.7.96 (Annexure A/11) and the appellate order dated 28.11.96 (Annexure A/9). We remit this matter to the Disciplinary Authority to consider the explanation submitted by the applicant against the enquiry report. The Disciplinary Authority is directed to pass a fresh speaking order taking into consideration all the material facts stated in the explanation against the enquiry report, in accordance with the extant rules. The applicant shall be reinstated in the service forthwith. With these observations the O.A. is disposed of. No order is passed as to costs.
Purporting to act in terms of the Tribunal order aforesaid, the Disciplinary Authority has once again removed the applicant from service. It has been stated that he had accepted the Enquiry Officer's report (Annexure A/9) and passed the speaking order of removal from service (Annexure A/12). The applicant's appeal (Annexure A/14) to the Appellate Authority was rejected by that authority (Annexure A/15). Hence the applicant has once again filed this OA praying for the following reliefs:
(a) Declaration that charge-memo dated 29.1.90 (Annexure A/1) is vague, unintelligible and incapable of being acted upon and the purported disciplinary proceedings thereof including Enquiry Report (Annexure A/9), removal order dated 28/31.10.02 (Annexure A/12) and appellate order dated 15.7.03 (Annexure A/15) are arbitrary, unlawful and liable to be quashed and/or set aside.
(b) Order directing the respondents not to give any effect or further effect to the removal order dated 28/31.10.02 (Annexure A/12) and appellate order dated 15.7.03 (Annexure A/15) and to reinstate the applicant in his service with all consequential benefits,
(c) Any other or further orders as deemed fit and necessary.
3. The respondents have filed a detailed reply disputing and denying the claim of the applicant. The respondents in the reply have stated that the applicant was posted as a Rest Giver/ASM/QRS (Quarry Siding Railway Station) of Chakradharpur Division of S .E. Rly. during various periods in 1987. As per the procedure in vogue, the consignments used to be consigned to SAIL and Railway receipts (RRs) were kept in the custody of Rourkela Steel Plant (RSP) on payment of the cost of the consignment by the customer, to the Cash Section of the Rourkela Steel Plant (RSP). The RRs were endorsed in favour of and issued to the customer on surrender of the money receipts issued by the Cash Section. On surrendering the endorsed RRs by the customers or their representatives to the SM/QRS, the delivery of consignment was effected to the endorsed/representatives cancelling the RRs. As per the rules, the party taking delivery of the consignment from the Railways has to pay the demmurage/wharfage charges and any other under-changes detected and accrued on the consignment. In the instant case the consignment of 1112 qtls. Of SR Plates was unauthorisedly delivered to one Sambhu Kedia, a resident of Rourkela and an agent of M/s Bhagawati Iron and Steel Hardware Depot, Bhubaneswar by Shri L.M. Majhi without RRs or without Indemnity Bond in lieu of RR endorsed by Rourkela Steel Plant in favour of that firm. As per the deposition of the witness Shri Kalipada Dey, unloading agent, both the wagons were unloaded under the supervision of Sambhu Kedia in presence of Shri L.M. Majhi on 7.2.87 and 21.3.87. Later a shortage amounting to 372.10 qtls. from wagon No. NR 82084, RR No. 263473 and 379.10 qtls. from wagon No. SE 55602, RR No. 264250 was found. Rourkela Steel Plant lodged a claim at QRS in respect of non-delivery of the consignments of both the wagons to Shri N.C. Das, the applicant, who was the in-charge of QRS. He did not forward the claim to the proper authority and only informed the Commercial Inspector, Rourkela in August 1987. The Commercial Inspector, Rourkela reported the matter to the Sr. Divisional Commercial Manager, Chakradharpur vide his letter dated 14.8.87 advised the Dy. SS/QRS to lodge an FIR in respect of the said shortage of consignment. But no FIR was lodged by the applicant and no Damage and Deficiency message was issued from the QRS till 19.2.88. The shortage of confinement value of Rs. 3,64,227 was the result of the following acts of negligence, omission and violation of rules with ulterior motive and corrupt intent on the part of Shri L.M. Majhi the Dy. SS/QRS, Shri N.C. Das - RG/ASM/QRS and Shri S.R. Das - RG/SM/BRMP. They failed to do proper marking of the consignment with respect to the wagon it was unloaded from, to faciliate identification and recovery of the consignment and as such the applicant herein including two others are to face the charge of dereliction of duty and accordingly actions were initiated against the applicant and the other co-employee named above.
4. The respondents in their short written reply have mentioned that as a result of this, major penalty charge sheet was issued to the applicant and he was provided with the list of documents and list of prosecution witnesses. The enquiry report was submitted to the Disciplinary Authority and after observing the formalities the penalty for removal from service was imposed on the applicant w.e.f. 1.8.96. The appeal filed by the applicant was also rejected. However, these orders were quashed by the order of the Tribunal in O.A. 954/97. Accordingly the applicant was re-instated in service and posted as Station Master at Kiriburu. In compliance with the order of the Tribunal the matter was considered again and a fresh speaking order has been passed and after considering the explanations submitted by the applicant, ultimately the penalty of removal from service against the applicant vide letter - DR/CKP/CON/379/89 (Optg) dated 29/31.10.02 has been imposed. The applicant submitted an appeal dated 31.12.02 to the Appellate Authority. When the said Appellate Authority sustained the penalty of removal from service vide letter dated 5.7.03, the applicant has again approached this Tribunal by filing the present O.A. challenging the said order.
5. The respondents in their reply have stated that they have complied with all the formalities required under the D and A Rules and in view of the direct involvement of the applicant in the irregularities detected at QRS station by CBI, in course of investigation in to the case of loss of consignments of SR Plates weighing 751.20 qtls. valued at Rs. 3,64,227 from QRS station and as such the Railway Authorities suffered a huge loss. Shri B.C. Das, Inspector/CBI/BBS lodged an FIR with the SPE/BBS. The SP/SPE/BBS concerned vide his letter No. RC/87 dated 26.7.88 requested the authorities for the sanction of the Division Railway Manager, Chakradharpur for prosecution, against the applicant in the Court of Special Judge/CBI/Bhubaneswar. The respondents in their reply have stated that the charge-sheets drawn up clearly indicate the lapses on the part of the applicant. The applicant suppressed the report of shortage and also failed to lodge an FIR for illegal removal of consignments from the Railway premises by Sambhu Kedia ignoring the direction of the higher official i.e. the Sr. Divisional Commercial Superintendent of Chakradharpur with an intention to gain something by way of clandestine recourse/activity and to put the Railway Authorities at a huge loss in monetary aspects also. Moreover, during investigation it was established that the second wagon, which arrived at QRS on 14.3.87 was received by the applicant himself and was posted by him in T-39 register. In any case, the main responsibility has been fixed on Shri L.M. Majhi and the applicant was found also guilty of connivance with him. The respondents have further stated that the plea of the applicant that non-deposition of Sambhu Kedia has greatly prejudiced the applicant is not at all tenable as the deposition of Sambhu Kedia as a witness is immaterial and superfluous because it has been clearly established in the enquiry that he removed the consignment illegally from the Railway premise of QRS station in connivance with Shri L.M. Majhi who has been directly held responsible for the loss of the Railways. The applicant has been held guilty of charge of connivance with Shri L.M. Majhi after a protracted and painstaking enquiry over a period of more than 2 years.
6. The respondents in Para 7 of the reply have also stated that the applicant did not follow the procedure of handing over and taking over charges while proceeding on leave or relieving the regular incumbent. In Para 8 of the reply they have stated that five private firms which received the undue official favour from the applicant have been clearly identified with names and address with 12 specified instances and modalities of undue favour. The respondents have further stated that an amount of Rs. 92,303 has been computed as per the guidelines regarding wharfage rates applicable in the Commercial Manual on the basis of the duration of time period between the date on which the endorsed RR in favour of the firm was released by the Rourkela Steel Plant and the date of actual delivery effected to the firm. The respondents have referred to the case of M/s. Beldihi Steel Re-rollers as an example of such malpractices by the applicant. In Para 11 of the reply the respondents have stated that the enquiry against Shri L.M. Majhi was conducted together as the charges, list of documents and the prosecution witnesses against them were the same. The delinquents were afforded every possible, reasonable and conceivable opportunity to defend their case by producing or submitting their case during the enquiry and there has been no illegality and/or irregularity in conducting the case and the applicant has rightly been removed from service due to his negligence and corrupt practices. From the enquiry it was evident that one of the wagon was received at QRS and posted in T-39 register by the applicant himself and the said fact is sufficient to prove the guilt of the applicant. In Para 13 of the reply the respondents have stated that the main responsibility has been fixed on Shri L.M. Majhi and also the applicant and as such the applicant was found guilty of the charges levelled against him. It has also been stated that the applicant was not allowed by the Presenting Officer to depose as a prosecution witness because the applicant was the delinquent in the proceeding and was the defendant in the proceeding and hence he cannot depose as a prosecution witness but he has deposed as defence witness being the delinquent himself. In Para 14 of the reply the respondents have stated that as and when the circumstances warrant/demand, the Investigation Officer/Enquiry Officer can summon any witness in addition to those listed witness as detailed in the charge memo itself and there has been no illegality and or irregularity therein. In Para 15 of the reply the respondents have stated that all records and documents in possession of the Railway Authorities were made available to the applicant at all material times except a few one which were lying with the custody of the Special Court/CBI/Bhubaneswar, which could be made available to the applicant and the applicant personally obtained these documents from the CBI/Bhubaneswar authorities. The applicant was granted special casual leave and passes to enable him to obtain these documents from the CBI/Bhubaneswar. The enquiry was conducted in absence of a few documents to which the applicant did not object at the hearing of the case during enquiry proceeding and now the applicant cannot take this specific plea for which he is estopped. In Para 17 of the reply they have stated that although the 'Against Payment Register' was not produced during the enquiry which was not demanded by the applicant - yet sufficient number of RRs were produced at the enquiry on which the dates of release by the Rourkela Steel Plant were manipulated by the applicant himself to justify the back dated delivery by him. In Para 17 of the reply the respondents have stated that an amount of Rs. 92,308 has been computed as per the guidelines, wharfage rates applicable as per the class of station, free time, etc., as laid down in the Commercial Manual and on the basis of the duration of time period between the date on which the endorsed RRs in favour of the firm was released by the Rourkela Steel Plant and the date of actual delivery effected to the firm. The respondents in Para 18 have stated that the findings of the authorities are based on proper, logical, analytical assessment of the evidences at the enquiry and during the proceedings. The direction of the Tribunal has been complied with by the Railway Authorities and the applicant was reinstated in his service as per the order of this Tribunal and the fresh speaking order for imposing the penalty was given as per the direction of this Tribunal following all the formalities, norms and extant rules and procedures. Similarly while passing the appellate order on 28/31.10.02, all the materials on records and facts and circumstances were taken into account and the appeal of the applicant against the punishment order was rejected. The respondents have therefore prayed that the applicant has been rightly removed from service for his misconduct and as such they have prayed that the O.A. may be dismissed.
7. The learned Counsel for the applicant Mr. R.K. De and Mr. S. Bhattacharya have argued that the order passed by the respondents are arbitrary and bad in law. The Id. Counsel has argued that the charge sheet has been issued on mere suspicion. The Id. Counsel has further argued that the charge of connivance is not supported by any evidence from which the change could be even remotely made out that it is a mere suspicion of the CBI Inspector at Rourkela. The intriguing part of the charge in respect of connivance is that the said Sambhu Kedia was neither prosecuted nor made a prosecution witness. The article also did not allege any misconduct nor there is any charge of violation of any conduct rules. Similarly the second article of charge regarding wharfage charge loss is also vague and indistinct for want of break up of aggregate loss of the Railways.
8. The learned Counsel has further stated that there are number of irregularities in the enquiry report. The enquiry had been jointly held with L.M. Majhi without specific order under Rule 13 of the RS (D and A) Rules, 1968. Moreover listed documents which were enclosed with a memorandum was to produced. Outsiders were examined as witness and their deposition was relied upon. Even the witness L.M. Majhi was examined without producing him for cross-examination and as such his such deposition in chief was relied upon. The Id. Counsel has also referred to the extraneous evidence of separate enquiry having been utilized for arriving at a conclusion in the present enquiry of the applicant. The learned Counsel has also referred to the irregularities in the Disciplinary Authority's order. It has been argued that the order of the Disciplinary Authority suffers from serious irregularities as he accepted the findings which were based on no evidence. The order of the Appellate Authority also suffers from various infirmities. The appellate order did not take into account the common proceeding which was done by the Enquiry Officer for which he was not authorized. Moreover, the Appellate Authority failed to consider that the Enquiry Officer relied on T-39 register and other listed documents which were not supplied inspite of demand. The second article of charges mentioned against the applicant is based mainly on the register. This was not made available at the time of enquiry while the Enquiry Officer held the second article of charge as proved. This aspect was not taken into consideration by the Appellate Authority. The Appellate Authority also failed to consider that evidence which was not adduced in the enquiry against the applicant was used by the Enquiry Officer. The Enquiry Officer bodily lifted the depositions of G. Chakraborty and R.M. Patnaik from a separate enquiry for S.R. Das as distinct from the enquiry against the applicant. This clearly violated protection granted under Article 311 (2). Moreover the Enquiry Officer relied upon the deposition of G.S. Sond an outsider to the enquiry. This aspect was not taken into consideration by the Appellate Authority. Moreover, the Enquiry Officer took deposition of L.M. Majhi who was not listed as a prosecution witness. The Enquiry Officer neither permitted the applicant to cross-examine him. Thus the action of the Appellate Authority violated the Wednesbury principles. The Id. Counsel therefore argued that the action of the Appellate Authority is not sustainable in the eye of law and moreover the Appellate Authority did not apply his mind regarding the quantum of punishment. The learned Counsel argued that the order passed by the respondents deserves to be quashed.
9. The Id. Counsel for the respondents have argued that mere non-supply of certain documents do not justify the said findings to be perverse. The applicant has not shown as to how he is prejudiced by non-supply of certain documents. Moreover the applicant was held for negligence and corrupt practices which was established during enquiry and there were sufficient reliable evidences to prove his misconduct and therefore it cannot be said that the quantum of punishment of removal was wholly disproportionate to the charges levelled against him which merits interference by the Tribunal. The Id. Counsel for the respondents has also argued that there had been no violation of principles of natural justice for enquiry having been held in consonance with the procedure prescribed by the rules and it would not be appropriate for the Tribunal to interfere with the order of the Appellate Authority. The Id. Counsel further argued that the Disciplinary Authority had duly considered the report of the Enquiry Officer and examined wholly the enquiry proceeding. Being satisfied that the charges are proved the Disciplinary Authority imposed penalty of dismissal. The Appellate Authority by reasoned order upheld the penalty of removal imposed by the Disciplinary Authority. There has been no abuse of power by the Disciplinary and Appellate Authority and as such no judicial interference by the Tribunal at this stage is warranted.
10. We have heard the Id. Counsel for both sides and have minutely gone through the pleadings. The number of issues which are to be adjudicated in this case are:
(a) the scope of judicial interference;
(b) whether there had been any irregularity in the decision making process;
(c) whether there is any violation of principles of natural justice
(d) whether punishment awarded is commensurate with the misconduct.
11. So far as the power of the Tribunal constituted under the Administrative Tribunals Act, 1985 are concerned it has been held by the Apex Court in several decisions that in respect of disciplinary matters the jurisdiction of such Tribunals are akin to those of the High Courts under Article 226 of the Constitution i.e. only the judicial review of the decision of the Disciplinary Authority and not to act as any Appellate Court or Authority. Therefore when there is evidence on the basis of which the findings are arrived at by the Enquiry Officer as well as the Disciplinary Authority and the punishment is imposed in accordance with the rules, then the Administrative Tribunal has no jurisdiction to interfere with such order of penalty. The Hon'ble Supreme Court has held that the findings of the Enquiry Officer and those of the Disciplinary Authority cannot be set aside by the Tribunal unless the same is perverse or based on no evidence [Secretary to the Govt. of India, Home Dept. and Ors. v. Srivaikundathan ]. It is thus well established that Administrative Tribunal has no jurisdiction to sit over the decision of the Enquiry Officer as an Appellate Authority [Govt. of T.N. and Anr. v. A. Rajapandian ]. Moreover, when it is proved that the Disciplinary Authority duly considered the report of the Enquiry Officer and examined the whole of enquiry proceeding and being satisfied that the charges are proved imposed penalty of dismissal and Appellate Authority also being satisfied with the order of the Disciplinary Authority that the delinquent officer was guilty of charge and upholds the penalty of dismissal imposed on him, in that case there is no abuse of power of Disciplinary and Appellate Authority and Tribunal in such cases cannot sit over the enquiry report and dismissal order (Union of India and Anr. v. B.K. Srivastava ). In Union of India v. Parma Nanda , it has been held that Tribunal has ordinarily no power to interfere with punishment awarded by Competent Authority in departmental proceedings on ground of penalty being excessive or disproportionate to the misconduct proved, if the punishment is based on evidence and is not arbitrary, malafide or perverse-but Tribunal can interfere with the apparently unreasonable punishment where it is imposed on the basis of conviction by Criminal Court dispensing with departmental enquiry under second proviso (a) to Article 311 (2) of Constitution of India. In the instant case number of irregularities have been alleged while framing the charge and in conducting the enquiry. Article I of the charge alleges that there was connivance among the applicant and two senior officers. The charge of connivance is not supported by any material from which the charge can be made out and is primarily based on the report of CBI Inspector at Rourkela. The allegation of connivance has been alleged to have resulted at loss of Railways at certain quantity of materials removed by one Sambhu Kedia, an agent of M/s Bhagawati Iron and Steel Hardware Depot, Bhubaneswar in whose name the sole order was issued. The article, however, did not allege any misconduct nor there is any charge of violation of any of the Conduct Rules. Similarly in Article II of the charge regarding wharfage loss is vague and indistinct for want of break up of aggregate loss which has not been indicated either in the charge sheet or in the imputations. The respondents though have computed the details of loss in the written reply, this has not been indicated in the article of charge which had been drawn up and served upon the applicant. In the case of Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corporation , it has been held that if after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer. It is a well-settled canon of penal jurisprudence that removal or dismissal from service on account of the misconduct constitutes penalty in law-that the workman ought to be charged for misconduct must have adequate advance notice of what action or what conduct would constitute misconduct.
12. Similarly there are number of defects in the enquiry proceeding. The first is regarding common proceeding. Rule 13 of the RS (D and A) Rules, 1968 states that where two or more Railway servants are concerned in any case the President or any other authority competent to impose penalty of dismissal, may make an order directing that all of them may be taken in common proceedings. It has been held in the case of P. Manipal and Ors. v. Union of India and Ors. (1991) 15 ATC 92 completion of such enquiry by Enquiry Officer without any order under Rule 18 from the Competent Authority vitiates the enquiry. Similarly in the case of P. Manipal (supra) non-supply of documents mentioned in the list of documents despite demand results in denial of reasonable opportunity to defend.
13. In the instant case no order for holding a common enquiry has been issued. The respondents have not denied the same. They, however, have stated that since the charges were similar and their defence Counsel was also same, common proceedings had been taken up. From the pleadings it is also evident that the Enquiry Officer considered the deposition of witnesses i.e. G. Chakraborty and R.M. Patnaik in a separate enquiry for S.R. Das as distinct from the enquiry against the applicant. The Enquiry Officer also relied upon the deposition of G.S. Sond. Similarly Shri L.M. Majhi who was not listed as a prosecution witness also deposed before the Enquiry Officer but the applicant was not permitted to cross-examine him.
14. The Id. Counsel for the applicant has argued that the wagons were received by L.M. Majhi as per T-39 register but T-39 register was not produced at the enquiry. The register was listed documents and was not given for inspection even though claimed for by the applicant. Rule 9 of the RS (D and A) Rules, 1968 provides for the procedure for imposing major penalty. Rule 9 provides that:
(1) No order imposing any of the penalties specified in Clauses (v) to (ix) of Rule 6 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 10, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act.
xxx xxx xxx (6) Where it is proposed to hold an inquiry against a Railway servant under this rule and Rule 10, the Disciplinary Authority shall draw up or cause to be drawn up:
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misconduct or misbehaviour in support of each article of charge which shall contain:
(a) a statement of all relevant facts including any admission or confession made by the Railway servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
15. Therefore while conducting the enquiry it is imperative that the list of witnesses to be examined and the documents by which the articles of charges are to be sustained as indicated in the memorandum are to be provided to the delinquent officer and refusal to provide the relevant documents or taking deposition of persons not indicated in the list of witnesses or to consider the statement of persons in another enquiry in the present enquiry while deciding the article of charge is uncalled for.
16. From the perusal of the enquiry report it appears that the discrepancies in enquiry is primarily limited to non-supply of T-39 register and some other documents and transplantation of statements in the enquiry proceedings and also taking the evidence of persons who were not listed as witness. The respondents in the written reply have admitted at number of occasions that the main person involved in L.M. Majhi but the present applicant is guilty of conniving with L.M. Majhi. Thus the primary suspect is L.M. Majhi and the present applicant is guilty of connivance. The connivance has not been proved during enquiry. The contention of the Id. Counsel for the applicant is that he has been impleaded by the CBI authorities on the basis of suspicion which is not evident from the record. However, from the perusal of the pleadings it is evident that there had been number of occasions which reveal the involvement of the applicant and therefore the plea that the charge sheets issued to him on the ground of suspicion alone is not tenable. In case of B.C. Chaturvedi v. Union of India and Ors. , it has been held that where findings of the Disciplinary Authority/Appellate Authority are based on some evidence Court/Tribunal cannot re-appreciate the evidence and substitute its own findings. The principle of primary and secondary review by Courts were planted in the administrative law by Lord Bridge in the Brind case, (1991) 1 AC 696. Where convention rights were in question the Courts exercise a right of primary review. However, the Courts would exercise a right of secondary review based only on Wednesbury principles in cases not affecting the rights under the convention. Lord Bridge explained the primary and secondary review as follows:
The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has. entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment.
To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the materials before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is briefly the Wednesbury test. In the instant case we find that though all relevant factors had been taken into account number of irrelevant factors had also been considered while arriving at the final decision by the Enquiry Officer which was accepted by the Disciplinary Authority.
17. The last question is about the quantum of punishment. In the case of Bharat Petroleum Corpn. Ltd. and Ors. v. T.K. Raju, 2006 SCC (L&S) 480, it has been held that interference with quantum of punishment should not be done in a routine manner. In the said case it was held by the Apex Court that the High Court erroneously came to the conclusion that the respondents had not been charged under appropriate clause/rules of applicable rules under which punishment of dismissal could be imposed, or that charges were vague and indefinite, so that no punishment of dismissal could have been imposed on the basis thereof - respondent' actions, being a Senior Sales Officer of the appellant, of collecting short-term loans from appellant's distributors, and not repaying many of them, had put appellant Company in embarrassment and led to a loss of its image. Hence, it cannot be said that quantum of punishment (of dismissal) was wholly disproportionate to charges levelled against respondent to merit interference by the Court. In the case of Secretary to Govt., Home Dept. and Ors. v. Srivaikundathan , the Apex Court held that quantum of punishment to be imposed is a matter to be considered by the Disciplinary Authority where the respondent Police Constable and his colleague were found guilty of total dereliction of duty in permitting the prisoner in their custody to escape and the Disciplinary Authority looking to the gravity of the charges and the facts of the case imposed a somewhat lesser punishment of removal, interference therewith by Administrative Tribunal on the ground that having served only for a short period the delinquent should be given another chance, held, wholly unwarranted, without jurisdiction and improper. However, it was been argued by the Id. Counsel for the applicant that the entire procedure of enquiry was not correct. The Disciplinary Authority accepted the enquiry report without considering the vagueness of the charges, non-supply of documents and not allowing the applicant to cross-examine the prosecution witness and even in some cases transplanting the statements from other enquiry to the present enquiry against the applicant and accepted the enquiry report. Ld. Counsel has also argued that though the applicant who has filed O.A. earlier bearing No. 954/97, the Tribunal set aside both the order of removal from service dated 29.7.96 and the appellate order dated 28.11.96 on the ground that the Disciplinary Authority shall pass a detailed speaking order after taking into consideration the materials facts stated in the explanation against the enquiry report in accordance with the extant rules. But the Disciplinary Authority passed the speaking order without considering the same and sticking to their earlier decision of removal from service. Event the Appellate Authority failed to consider the issues raised by the applicant and as provided under Rule 22 of the RS (D and A) Rules, 1968, nor the Appellate Authority has passed a reasoned order. Rule 22 deals with the consideration of the appeal. Rule 22(2) reads as under:
In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the Appellate Authority shall consider:
(a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice.
(b) whether the findings of the Disciplinary Authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders:
(i) confirming, enhancing, reducing or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case.
The meaning of the word 'consider' came up for judicial notice in the R.P. Bhatt v. Union of India . The Supreme Court held that word 'consider' in Rule 27(2) of CCA Rules implies "due application of mind", which is similar to Rule 22 of the D and A Rules. It is clear upon the terms of Rule 27(2) of CCA Rules that the Appellate Authority is required to consider (1) whether the procedure laid down in the rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the considering or in failure of justice; (2) whether the findings of the Disciplinary Authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Thus it is obvious that the order of the Appellate Authority must be a speaking order showing clearly that the appeal was considered and if the Appellate Authority after going through the records is satisfied that (i) charged officer was given due opportunity, (ii) based on materials on record, (iii) punishment is just and proper and not disproportionate, he may upheld the order. Therefore in the appellate stage it is highly necessary that the order of the Appellate Authority shall make the requirements of considering of appeal (R.P. Bhatt's case) and it shall be a reasoned order. In the case of Ram Chandra, 1986(2) SLJ 249 (SC)=1986 SCC (L&S) 383, it has been held that Appellate Authority must afford an opportunity of hearing and it is a reasoned order. The meaning of the word 'consider' has also been emphasized. It has been held that duty to give reasons is an incident of the judicial process. From the perusal of the order of the Appellate Authority there is no indication that the Appellate Authority applied his mind as to whether the act of misconduct with which the applicant was charged together with the attendant circumstances and the past record of the applicant was such that he should have been faced with extreme penalty of removal from service. In R.P. Bhatt's case (supra) it has been held that though Appellate Authority not bound under Article 311 (2) to state its reasons for confirming the removal order, it failed to apply its mind to the requirements of Rule 27(2)(a) and (b) and hence the appellate order was liable to be set aside. In the case of Union of India v. M.L. Capoor , it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusion. They discuss how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal the rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. Reasons are the lifeline of any conclusion and without the same it becomes lifeless. In the case of B. C. Chaturvedi v. Union of India and Ors. (supra) it has been held by the Apex Court that where findings of Disciplinary/Appellate Authority are based on some evidence, Court/Tribunal cannot re-appreciate the evidence and substitute its own findings. However, from the perusal of the pleadings and after hearing the parties it is obvious that there are number of infirmities in the enquiry process and the Appellate Authority had accepted the findings of the Disciplinary Authority without going into details and in not following the laid down procedure. It is worthwhile to mention that though the charge-sheets and enquiry process have been quashed earlier by this Tribunal the respondents again came up with the same conclusion without rectifying the defects.
18. In view of the facts mentioned above we have no option but to quash the order of the Disciplinary and Appellate Authority. The O.A. is allowed. However, the applicant will not be entitled to the salary for the period for which he has not worked and will get only notional benefit if in service and persionary benefit if retired.
19. With the above observation, the O.A. stands disposed of. No order as to costs.