Central Administrative Tribunal - Patna
Dr Nirman Shri Gyan vs Railway on 15 May, 2026
-1- OA/050/00632/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH,PATNA
OA/050/00632/2017
Reserved on: 01.04.2026
Pronounced on: 15.05.2026
CORAM
HON'BLE MR. JUSTICE NARENDRA KUMAR JOHARI, MEMBER (J)
HON'BLE MR. KUMAR RAJESH CHANDRA, MEMBER (A)
Dr. Nirmal Shri Gyan, aged about 53 years, S/o Shri Binay Krishna
Chaudhary, R/o Sona Villa, Ram Krishna Colony, East to Bahadurpur
Bazar Samiti, Mahendru, Patna-800006 and was posted as Senior
Divisional Medical Officer, Divisional Railway Hospital, Izzat Nagar,
Bareilly.
........Applicant.
- By Advocate(s): - Shri M.P. Dixit
-Versus-
1. Union of India, through the Secretary, Railway Board, Ministry of
Railways, Government of India, Rail Bhawan, New Delhi-110001.
2. General Manager, North Eastern Railway, Headquarters Office,
Gorakhpur-273001.
3. Union Public Service Commission, Dholpur House, Shahjahan
Road, New Delhi, through its Secretary-110001.
.......Respondents.
By Advocate(s) :- Shri Bhuneshwar Pandey, ASC
ORDER
Per Kumar Rajesh Chandra, A.M.:-
This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-Digitally signed
SURYAR by OOP KABISURYAROOP KABI
-2- OA/050/00632/2017 "(i) To set aside/quash the dismissal from service order No. E(O)I-
2012/PU-2/NER/22 dated March,2017/06.04.2017 along with Union Public Service Commission, Respondent No. 3's advice letter F.No.3/178/2016-S.1 dated 28.10.2016 and General Manager, North Eastern Railway, Headquarters office, Gorakhpur through letter No. Ka/74/750/Gope(I) dated 18.04.2017 after summoning the original record.
(ii) To issue a direction not to give effect to the dismissal from service order No.E(O)I-20123/PU-2/NER/22 dated March, 2017/06.04.2017 along with Union Public Service Commission, Respondent No. 3's advice letter F.No. 3/178/2016-S.1 dated 29.10.2016 and General Manager, North Eastern Railway, Headquarters office, Gorakhpur through letter No. Ka/74/750/Gope(I) dated 18.04.2017.
(iii) To direct the respondents to pay arrears of salary with all consequential benefit, promotion etc. as if the dismissal from service order No. E(O)I-2012/PU-2/NER/22 dated March, 2017/06.04.2017 along with Union Public Service Commission, Respondent No. 3's advice letter F.No. 3/178/2016-S.1 dated 28.10.2016 and General Manager, North Eastern Railway, Headquarters office, Gorakhpur through letter No. ka/74/750/Gope(I) dated 18.04.2017 was never issued along with interest @ 18% per annum.
(iv) To issue any other order or direction deemed fit and proper by this Hon'ble Tribunal in the facts and circumstances of the present case.
(v) To allow the Original Application with cost. "
2. For the sake of clarity, the brief facts of the case, as stated by the applicant, is being discussed and delineated as under:-
(i) The applicant, an MBBS degree holder from Nalanda Medical College, Patna, was declared successful in the result of written examination in the Combined Medical Service Examination conducted by Union Public Service Commission (UPSC) in 1991 and was called for interview in October, 1991 by UPSC in which the applicant appeared. Before declaration of the select list by the UPSC the applicant was appointed as Medical Practitioner on contract basis by the GM, NE Railway Headquarters office, Gorakhpur vide order dated 07.11.1991(Annexure-A/2) and was posted at Health Unit, Mansi, Khagaria.Digitally signed
SURYAR by OOP KABISURYAROOP KABI
-3- OA/050/00632/2017
(ii) It is contended that thereafter the select list of the aforesaid exam was declared and the applicant was allocated the Indian Railway Medical Services. He was appointed as Assistant Divisional Medical Officer (Probation) and was sent for training. After successful completion of training he was posted at Balia, Varanasi and Sonepur and thereafter his probation period was confirmed. The applicant was then given promotions and given different postings (Annexure-6 & 7).
(iii) While the applicant was posted as Sr. Divisional Medical Officer, Divisional Railway Hospital, Varanasi, North eastern Railway (Departmental Vigilance), Headquarters Office, Gorakhpur a departmental vigilance raid was conducted on 27.11.2008 by multiple officers as mentioned in para 4.9 of the OA in violation of paragraphs 3.07.3, 307.5(i), 307.5(ii), 307.5(iv), 307.6, 404, 406,408, 704 & 705 of the Vigilance Manual, 2006 Edition (Annexure-8). While quoting the above paragraphs of the Vigilance Manual, it is submitted that as per paragraph 307.3 for conducting departmental vigilance raid, a decoy is to be selected very carefully and and if, the decoy is Government servant then the decoy should have a clear past as well as should not have any enmity against the person, who is to be trapped. It is alleged that in the instant case, the decoy was Shri Ramzan-II, Safaiwala posted under Deepak Bara, Chief Health Inspector, NE Railway, Varanasi, who did not had a clean past as Shri Ramzan-II was a habitual absentee from duties. The applicant has also explained violation of rules of above paragraphs of Vigilance Manual in para 4.11 to 4.17 of OA.
(iv) It is further submitted by applicant that he was suspended vide order dated 28.11.2008 which was later Digitally signed SURYAR by OOP KABISURYAROOP KABI
-4- OA/050/00632/2017 revoked on 13.02.2009 as the vigilance departmental report was not finalized.
(v) The applicant has alleged that though he was considered for grant of Selection Grade w.e.f. 19.01.2009 and was promoted by the President of India through Railway Board's wireless message dated 25.05.2010 (Annexure-9) but he was not granted promotion on account of said suspension from 28.11.2008 to 12.02.2009 and contemplated departmental disciplinary inquiry.
(vi) The applicant was thereafter posted at Lal Kuan and Izzat Nagar till dismissal from service vide order dated March, 2017/06.04.2017 (Annexure-1), received on 19.04.2017.
(vii) It is contended by applicant that he has been graded as Outstanding or Very Good during the complete service 2016- 17 except for the period 2008-09 & 2011-12 (Annexure - 10) during which he was graded as Good and was granted all promotions upto Selection grade in time.
(viii) The applicant has further averred that on the basis of departmental vigilance raid dated 27.11.2008, the respondent no. 2 issued Chargesheet Memorandum dated 03.02.2010 (Annexure-11) under Rule 9 of the RS(D&A) Rules, 1968 alleging therein three articles of charge, out of which Article of Charge No. 1 & 2 is only based upon the departmental vigilance raid dated 27.11.2008 and Article of Charge No. 3 is only based upon the documents/statement collected by the departmental vigilance after the raid dated 27.11.2008, after relying upon the 33 documents and ten prosecution witnesses which was received on 18.02.2010 by the applicant. In Article-I the applicant was charged with demanding and accepting bribe of Rs. 10,000/- to regularize unauthorized absence from Digitally signed SURYAR by OOP KABISURYAROOP KABI
-5- OA/050/00632/2017 07.04.2008 to 19.11.2008 of Shri Ramjan-II, Safaiwala, Varanasi and to permit him to join duty and he illegally prohibited a Railway Servant to resume duty and that he did not allow Sri Ramjan II to resume duty on 19.11.2008 when he came back after long unauthorized absence and requested to be allowed to perform duty.
(ix) It is further alleged by applicant that the charge sheet memorandum dated 03.02.2010 has only been signed by the Respondent No. 2 as the disciplinary authority though the same has been drawn/finalized by the Vigilance Unit. Thus, there is violation of Rule 9(6) of the Railway Servants (Discipline and Appeal) Rules, 1968.
(x) The applicant submitted the reply/defence statement dated 31.03.2010 (Annexure-12) denying all the three charges. After appointment of Inquiry Officer and Presenting Officer the preliminary enquiry was held on 25.05.2010 and 27.07.2010 and thereafter regular hearing was held on various dates which was concluded on 24.11.2010. After submission of written brief by Presenting Officer and applicant, the IO submitted the Inquiry report dated 15.04.2011 (Annexure-14) whereby Article of Charge-I(A) & (B), Charge -II(A), (B), (C), (D) & (E) were proved but Article of Charge 2(F) was not proved. The applicant has alleged that the IO did not consider his written brief dated 21.12.2010 and as such the applicant was prejudiced in the departmental disciplinary inquiry proceedings. When the respondent no. 2 disagreed with the findings given by IO on Article of Charge 2(F) and recorded his disagreement note dated 15.11.2011 (Annexure-15) the said Article of Charge 2(F) was also proved against the applicant. The applicant in his representation dated 21.12.2011 Digitally signed SURYAR by OOP KABISURYAROOP KABI
-6- OA/050/00632/2017 (Annexure-17) highlighted the conspiracy against the applicant.
(xi) It is submitted that the respondent no. 1 considered the materials on record and thereafter without deciding the specific punishment to be imposed referred the matter for advice of UPSC through letter dated 24.08.2016. A copy of the UPSC's advice dated 28.10.2016 was received by the applicant for the first time through dismissal from service order dated March,2017/06.04.2017 and not prior to the same despite applicant's request through representation dated 01.03.2017 (Anneuxre-18).
(xii) The applicant has alleged that the UPSC's advice dated 28.10.2016 was not supplied to the applicant in violation of Hon'ble Supreme Court's judgment in the case of Union of India & Ors. Vs. S.K. Kapoor [2011(4) SCC 589]; S.N. Narula Vs. UOI & Ors [2011(4) SCC 591] and UOI & Ors Vs. R.P. Singh [2014(7) SCC 340] before issuance of the impugned punishment order.
(xiii) It is further contended that prior to UPSC's advice vide letter dated 28.10.2016 the penalty, which ordinarily is a disqualification for future employment under the Government or Railway Administration of dismissal from service was not decided by the Respondent No. 1 or 2 and the penalty was only imposed only on the basis of accepting the advice letter dated 28.10.2016 of the respondent no. 3 and not otherwise. Hence, the OA.
3. The respondents in their written statement have submitted as follows:-
Digitally signedSURYAR by OOP KABISURYAROOP KABI
-7- OA/050/00632/2017
(i) While referring to the article of charges, the respondents have mentioned that the acts of the applicant tantamount to serious misconduct on his part as he failed to maintain absolute integrity, devotion to duty and acted in a manner which is unbecoming of a Railway servant thereby contravening Rule 3.1(i), 3.1(ii) and 3.1(iii) of Railway Services (Conduct) Rules, 1966.
(ii) It is further submitted that upon denial of charges enquiry was constituted and the applicant availed the services of Defence Helper Shri Y.N. Chaubey, Retd. Sr. Material Manager/Depot/NEW/GKP. He examined the relevant documents relied upon. Prosecution witnesses were examined and thereafter cross examined by the applicant. The Defence witnesses produced by the applicant were examined and all the evidence was properly assessed by the Inquiry Officer. The applicant thereafter submitted defence brief which was also taken note of by the Inquiry Officer.
(iii) The respondents have averred that it was only after following the detailed prescribed procedure and reasonable opportunity to the applicant to prove his innocence that the Inquiry Officer arrived at the findings that that Article I, II and III of charges except Part-F of Article-II are proved. The Disciplinary Authority, i.e. General Manager decided tentatively to disagree with the findings of the Inquiry Officer with respect to Part-F of the Article-II while recording the reasons for the same as per rule 10(2)(a) of Railway Servants (D&A) Rules, 1968 and held the same charge as proved against the applicant.
(iv) It is further submitted that as per procedure, a copy of the IO's report dated 15.11.2011 and Memorandum of Digitally signed SURYAR by OOP KABISURYAROOP KABI
-8- OA/050/00632/2017 disagreement were served to the applicant vide letter dated 23.11.2011 to submit his representation, if any. The applicant's representation dated 21.12.2011 and other relevant records of the case were forwarded to Railway Board for final decision as it was not within the competence of General Manager/NEW to impose the penalty.
(v) Since the President was disciplinary authority for taking a decision regarding intended penalty to be imposed, the relevant records were placed before the Hon'ble Minister of Railways for a provisional decision on behalf of the President before referring the records of the case to UPSC. After the provisional decision the matter was referred to UPSC as per Rule 10(5) and Article 320 (3) (c) read with regulation 5(1) (a) of UPSC (Consultation) Regulation, 1958. After obtaining UPSC's advice dated 28.10.2016, the relevant records of the case was placed before the Hon'ble Minister of Railways who has been authorized by the President of India for passing of speaking and reasoned order. The designated/authorized competent authority after considering all records, proceedings of enquiry, memorandum of disagreement, inquiry report, representation of the applicant and all aspects of the case having the benefit of UPSC's advice which was accepted by the authority concerned and passed the speaking and reasoned order imposing penalty of dismissal from service.
(vi) According to the respondents, there is no procedural irregularity and principles of natural justice were observed by giving reasonable opportunity to the applicant to prove his innocence at the enquiry stage. It is submitted that as per several decisions of Hon'ble Apex Court the Administrative Tribunal cannot sit as a court of appeal over a decision based on the findings of the inquiring authority in disciplinary Digitally signed SURYAR by OOP KABISURYAROOP KABI
-9- OA/050/00632/2017 proceedings. Accordingly, the respondents have prayed for dismissal of the OA.
4. In his rejoinder, the applicant has denied the contention of the respondents made in the written statement.
5. Heard the learned counsel for the parties. During the course of hearing, learned counsel for the applicant produced the following decisions of various judicial forums in support of his case:-
(i) Decision of Hon'ble Supreme Court in the case of Union of India & Others Vs. S.K. Kapoor in Civil Appeal No. 5341 of 2006.
(ii) Decision of Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Roop Ram Pippal in I.A. No. 163382 of 2025.
(iii) Decision of Hon'ble High Court, Patna in the case of Union of India & Ors. Vs. Surendra Mishra dated 16.12.2021 in CWJC No. 15644 of 2014.
(iv) Decision of Hon'ble High Court, Patna in the case of Meghnath Ram Vs. Union of India & Ors. dated 16.02.2023 passed in CWJC No. 7185 and 19290 of 2017.
(iii) Decision of CAT, Patna Bench dated 18.07.2013 passed in OA No. 500 of 2012 which was upheld by Hon'ble High Court, Patna in CWJC No. 5922 of 2014 vide order dated 23.12.2016.
(iv) Decision of CAT, Patna Bench dated 28.08.2025 passed in OA No. 133/2023 in the matter of Ugrasen Vs. UOI & Ors.
Digitally signed
SURYAR by
OOP KABISURYAROOP
KABI
-10- OA/050/00632/2017
6. After hearing the learned counsel for the parties, considering all the citations quoted by the learned counsels and going through the records, we have considered the matter in its entirety and come to the following conclusion:-
(a) The core issue that needs to be decided in the instant O.A. is whether any prejudice has been caused against the applicant during the conduct of this department proceeding or not?
(b) The Memorandum of charge and article of charge relates to the allegation of demanding and accepting bribe of Rs. 10,000/- to regularize unauthorized absence from 07.04.2008 to 19.11.2008 of Shri Ramjan-II, Safaiwala, Varanasi.
The contention of the learned counsel for the applicant is that in the vigilance trap cases, the trap team must be of superior rank. It is alleged that all the members of trap team are Group 'C' officials, whereas the applicant is a Group 'A' officer and as such the aforesaid trap is against the rules. On query, learned counsel for the applicant could not produce any rule which prohibits junior officials to be members of the trap team.
He has further taken the plea that the process for laying the trap and selecting the witnesses has not been complied with as per Vigilance Manual. The applicant is harping on the literal compliance but he has not demonstrated it to be suffering from any mala fide. This aspect has also been considered by the Tribunal and there appears no infirmity and arbitrariness. The applicant who has been held guilty of demanding and accepting the bribe cannot take this ridiculous plea about the manner in which the trap should be laid before catching him in the process of accepting the bribe.
Digitally signed
SURYAR by
OOP KABISURYAROOP
KABI
-11- OA/050/00632/2017
(c) We have examined and found that the disciplinary proceedings initiated with the issuance of the charge-Memo had not been shown to be dictated by the Vigilance Department; and had been conducted by the designated Inquiry officer as per the established procedure by granting proper opportunity to the applicant who has also been allowed to take the help of Defence Assistant. The order has been passed by the Disciplinary Authority while following the prescribed procedural steps for the respective stages; and that the Applicant had been allowed the due opportunity at each of those stages.
(d) The impugned order has been passed by the disciplinary authority that is the competent authority of the Railway Board by order and in the name of President of India. The relevant Para 5 of this order is being reproduced as under:
"Para 5. And whereas, the President, after giving careful consideration to the charge memorandum issued to Dr. Nirmal Shree Gyan, his defense statement thereto, proceedings and report of inquiry, representation of Dr. Nirmal Shree Gyan on IO's report and other relevant record/aspects of the case and in consultation with the UPSC, has come to the conclusion for reasons and observations as given in the UPSC's advice dated 28.10.16 that the charges are proved against the said Dr. Nirmal Shree Gyan and constitute grave misconduct on his part."
Hence, it is evident that the designated/authorized competent authority has relied on and considered all records, proceedings of enquiry, disagreement note, inquiry report, representation of the applicant against all such reports and all aspects of the case with of course, the benefit of subsequent advice of the UPSC's, has passed the speaking and reasoned order imposing penalty of dismissal from service.
(e) The question has been raised by the applicant that UPSC advice dated 28.10.2016 was not furnished to him prior to passing of Digitally signed SURYAR by OOP KABISURYAROOP KABI
-12- OA/050/00632/2017 final order by the Disciplinary Authority and it violates the law laid down by the Hon'ble Supreme Court of India in the cases of Union of India & Ors. Vs. S.K. Kapoor [2011(4) SCC 589], S.N. Narula Vs. Union of India & Others [2011(4) SCC 591 and Union of India & Ors. Vs. R.P. Singh [2014(7) SCC 340].
We have considered this issue under the core issue of whether it has caused prejudice to the charged official who happens to be the applicant of this OA.
It is not the case that the UPSC advice was not supplied to the applicant at all. It is the stage and the timing that is being questioned by him because the UPSC advice was furnished to the applicant along with the order of punishment passed by the disciplinary authority. Applicant has contended that UPSC's advice dated 28.10.2016 has not been supplied to the applicant before issuance of the impugned punishment order dated March, 2017/06.04.2017 in violation of the Hon'ble Supreme Court judgment.
In this regard, it is apt to mention here that in the matter of S.K. Kapoor (Supra) it is held that it is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same. In the instant case UPSC advice has not been utilized during the conduct of departmental proceedings that held the applicant guilty. The applicant has been supplied each and every document during the conduct of the department proceedings. In fact, the disagreement note of the Disciplinary Authority with regard to finding of I.O. for some of the articles of charge has also been supplied to the applicant and opportunity was granted to get his representation. His representation was also considered by the Disciplinary Authority. Subsequently, the opinion of UPSC was sought Digitally signed SURYAR by OOP KABISURYAROOP KABI
-13- OA/050/00632/2017 at the conclusion of this process, on the tentative opinion of the Disciplinary Authority at the stage of holding him guilty and thereafter on the quantum of punishment. Therefore, furnishing of UPSC advice along with the order of the Disciplinary Authority as per the Rule 28 of Railway Servants (Discipline & Appeal) Rules, 1968 is perfectly in consonance with the principle of natural justice. This UPSC advice was available with the applicant supplied to him along with the order of the Disciplinary Authority and hence it substantially complied with the principle of natural justice. The applicant has the option of challenging this order of the Disciplinary Authority as per the Rule 25 and 25-A of Railway Servants (Discipline & Appeal) Rules, 1968, so he is not without remedy under service rules.
We also make a mention here that the above judgment in the matter of S.K. Kapoor led to amendment in the CCS (CCA) Rules. But the applicant in the instant case, being a Group "A" officer of the Railways, will get governed by Railway Servant (Discipline & Appeal) Rules, 1968 since every service has to be governed by its own service rules.
Rule 28 of the Railway Servants (Discipline & Appeal) Rules, 1968 provides that "Wherever the Commission is consulted as provided in these rules, a copy of the advice by the Commission and, where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance, shall be furnished to the Railway servant concerned along with a copy of the order passed in the case, by the authority making the order."
Thus, the copy of advice has rightly been given along with the order of the disciplinary authority and there is no violation of service rules applicable to the applicant. It is significant to note that this Railway Servants (Discipline & Appeal) Rules, 1968 that is statutory service rule made under proviso to Article 309 of the Digitally signed SURYAR by OOP KABISURYAROOP KABI
-14- OA/050/00632/2017 Constitution of India has never been challenged by the applicant in his O.A. The counsel for applicant has also not been able to show that the relevant rule 28 has been amended at the time of passing this order against the applicant and communicating the same to him on 18.04.2017.
A distinction has to be made whether there was complete non- supply of UPSC advice, or supply of advice simultaneously with the punishment order. If there was complete non-supply of the UPSC advice at all then the applicant may have laid claim that prejudice has been caused to him by the action of the respondents.
This is being observed that UPSC advice is an opinion based on the material that is sent over to them. This material was already disclosed to the charged officer (applicant of the instant OA) during the course of inquiry conducted against him. Therefore, no new material was introduced causing any prejudice to him.
The contention of the respondents is that UPSC advice is not a primary document but simply an analysis of submitted documents and as such, supply of UPSC advice along with the order of the disciplinary authority does not prejudice the applicant in the instant case of express provision of service rules that allows this option to the Disciplinary Authority. We concur with the view of the respondents that UPSC advice is an external document which is merely supplementary confirmation of opinion of Inquiry Officer/tentative opinion of the Disciplinary Authority.
(f) In the above context, we would like to refer to a recent decision of Hon'ble Supreme Court dated 23.04.2025 in the matter of State of U.P. Vs. Principal Secretary, Department of Panchayat Raj, Lucknow Vs. Ram Prakash Singh in Civil Appeal No. 14724 of 2024 wherein Hon'ble Supreme Court after deliberating all the previous Supreme Court judgments including that of Union of India & Ors. Vs. Digitally signed SURYAR by OOP KABISURYAROOP KABI
-15- OA/050/00632/2017 S.K. Kapoor [2011(4) SCC 589] and other Constitutional Bench judgments decided the "test of prejudice" in the service jurisprudence. The relevant paras 49, 53, 57 and 58 of above judgment of Hon'ble Supreme Court that lays down the principles to be followed by the Court/Tribunal are being reproduced below:-
"49. Just as Articles 14, 19 and 21 of the Constitution constitute a triumvirate of rights of citizens conceived as charters on equality, freedom and liberty, the trio of decisions of Constitution Benches of this Court in Union of India v. Tulsiram Patel , Olga Tellis v. Bombay Municipal Corporation and A.R. Antulay v. R.S. Nayak form the bedrock of natural justice principles being regarded as part of Article 14 of the Constitution and obviating the need to demonstrate 'prejudice' if a challenge were laid on the ground of breach of Article 14. In Tulsiram Patel (supra), it was held that violation of a principle of natural justice is violation of Article-14. The dictum of the three-Judge Bench in S.L. Kapoor v. Jagmohan that non-observance of natural justice is itself prejudice to any man and proof of prejudice, independently of proof of denial of natural justice is unnecessary, was approved by the Constitution Bench in Olga Tellis (supra). No prejudice need be proved for enforcing the Fundamental Rights is the emphatic assertion in A.R. Antulay (supra).
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53. While concluding our discussion, we repeat what has been observed earlier. This discourse is intended, not to doubt existing points of view, but to contribute to the understanding of the law. To prevent misunderstandings and to provide clarity, we wish to make it clear that it would be open for all courts, bound by Article 141 of the Constitution, to decide matters coming up before them on the relevant topic in accordance with what they perceive is the law declared in B. Karunakar (supra).
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57. It would also be beneficial at this juncture to read the rules and regulations which govern the respondent's employment with the appellant. Rule 9 of the 1999 Rules ordains that: 9. Action on Enquiry Report - (1) *** (2) *** (3) *** (4) If the disciplinary authority having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the enquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The disciplinary authority shall, having regard to all the relevant records relating to the enquiry and Digitally signed SURYAR by OOP KABISURYAROOP KABI
-16- OA/050/00632/2017 representation of the charged Government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government servant. (emphasis ours)
58. It is clear, on a bare reading of Rule 9, that the procedure contemplated therein corresponds to the procedure that was ordinarily followed in conducting disciplinary proceedings prior to amendment of Article 311 by the Constitution (42nd Amendment) Act, 1976. As held in paragraph 27 of B. Karunakar (supra), where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it with regard to his alleged guilt. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions reached at the first stage. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is, thus, a part of the reasonable opportunity of defending himself in the first stage of the enquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings."
Accordingly, we hold that there is no violation of principles of natural justice because no original document is being used against the applicant without making it available to him.
(g) Now coming to the question of quantum of punishment of dismissal in this case of demanding and accepting bribe from a Group 'D' employee (safaiwala), since the Hon'ble Supreme Court of India has already laid down the law in regard to proportionality of punishment to the charges in the case of B.C. Chaturvedi v. Union of India we would refer to that case only in the present context. According to the Hon'ble Supreme Court in the above case, the Court/Tribunal cannot interfere in the disciplinary proceedings unless the penalty imposed by the Disciplinary Authority shocks the conscience of the Court/Tribunal. It has been further held that the Court/Tribunal can interfere if the conclusions or finding are such as no reasonable person would have ever reached and in such a situation the Court/Tribunal may interfere with the conclusion or the Digitally signed SURYAR by OOP KABISURYAROOP KABI
-17- OA/050/00632/2017 finding and mould the relief so as to make it appropriate to the facts of each case.
(h) We have examined the present case in the light of the test laid down by the Hon'ble Supreme Court in the aforesaid case and do not find that the penalty imposed on the applicant is harsh or disproportionate to the charges. Considering the gravity of the charges involved and also keeping in view that the applicant was occupying such a senior and important position and belongs to a Group "A" service we do not find that the conclusions or finding arrived at by the D.A. is such as no reasonable person could have ever reached or the punishment imposed on the applicant is such as would shock our conscience. Therefore, on this ground also we are unable to interfere in the above matter.
7. In view of above observation and finding, we hold that the decision of the respondents is not to be interfered with. The OA is, accordingly, dismissed. All pending MAs are also disposed of. No order as to costs.
(Kumar Rajesh Chandra) (Justice Narendra Kumar Johari)
Member (A) Member(J)
Srk.
Digitally signed
SURYAR by
OOP KABISURYAROOP
KABI