Central Administrative Tribunal - Ernakulam
K. Satheesh Kumar vs Union Of India Represented By on 17 September, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A. NO. 850 OF 2002 Thursday, this the 17th day of September, 2009. CORAM: HON'BLE Dr. K.B.S. RAJAN, JUDICIAL MEMBER HON'BLE Ms. K. NOORJEHAN, ADMINISTRATIVE MEMBER K. Satheesh Kumar, S/o. K. Krishnan, Travelling Ticket Examiner, Southern Railway, Trivandrum Central, Residing at "Kalabhavan", Pongummoodu, Medical College P.O., Trivandrum - 11 ... Applicant. (By Advocate Mr. T.C. Govindaswamy) v e r s u s 1. Union of India represented by The General Manager, Southern Railway, Headquarters Office, Park Town P.O., Chennai - 3 2. The Additional Divisional Railway Manager, Southern Railway, Trivandrum Division, Trivandrum. 3. The Senior Divisional Commercial Manager, Southern Railway, Trivandrum Division, Trivandrum ... Respondents. (By Advocate Mr. P. Haridas) The Original Application having been heard on 21.08.09, this Tribunal on 17.09.09 delivered the following: O R D E R
HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER The Facts of the case as per the applicant, are as narrated hereinafter.
(a) The applicant is a Travelling Ticket Examiner (TTE for short) in the Southern Railway, Trivandrum Division. He is aggrieved by an order dated 29.12.1999 (A1) issued by the 3rd respondent reducing his pay from Rs.4600/-to Rs. 4500/-in the scale of pay of Rs.4000-6000 for a period of forty months (Non-recurring) w.e.f.11.1.2000. He is also aggrieved by the Appellate order dated 28.2.2001 (A2) rejecting his appeal against the A-1 order.
(b) The applicant, while working as TTE in Train No.6306 Express Ex-Nagercoil Junction to Guruvayur, was manning three sleeper coaches namely, S-4, S-5 and S-6. When the train reached Alleppey, there was a decoy-check by a team of Southern Railway Vigilance Organization. Before starting the check at Alleppey, the applicant had collected Rs.730/-being the charges for conversion of tickets to sleeper class from various passengers for whom receipts were issued. The applicant had also Rs.185/ against Rs.200/-as Private Cash as declared by him. During the check, the vigilance team detected certain misconduct on the part of the applicant and issued the following Article of Charge:
"Shri K.Satheesh Kumar, TTE/s/NCJ while working as such in S3, S4 and S5 coaches ex. NCJ GUV in T.No.6306 of 20/21.8.98 had failed to main absolute integrity, show devotion to duty and acted in a manner unbecoming of a railway servant in that :
He had demanded and accepted Rs.100/- from S.Mohd.Rafeeq, Vigilance Watcher, holding II M/E ticket No.75470278 Ex.QLN GUV while allotting berth No.69 in S5 coach, issued EFT 657900 for Rs.50/-only and had retained the balance amount of Rs.50/- for his personal gain.
Thus, he had contravened Rule No.3.1 (i), (ii) 7 (iii) of Railway Services (Conduct) Rules, 1966. "
(c) In support of the aforementioned Article of Charge framed against the applicant, the following statement of imputations was also issued:
"Based on the source information that some of th TTEs working in T.No.6306 in SL class are in the habit of demanding and accepting more money than the railway dues while allotting berth in sleeper class, a check was conducted on 20.21.8.98. Sri.Winstan Clements, in charge/ICV Depo/TPJ was instructed to purchase a II M/E. Ticket ex.QLN-GUV for one adult at BO/QLN and to handover the same to S.Mohd. Rafeeq, Vigilance Watcher /MAS. Sri. S.Mohd.Rafeeq was asked to act as a passenger and was instructed to approach any one of the TTEs working in SL class for accommodation in SL class on the strength of the ticket handed over to him by Sri Winstan Clements. After taking over the identity card, DCP and personal cash of Sri S.Mohd. Rafeeq, the Vigilance handed over the following currencies in denomination of:
Rs. 50x1 = 9DS 823908 20x1 = 53N 730253 10x3 = 02W 230916 89Q 206671 84C 890185 (Total Rs.100/0.) for meeting the conversion charges in case of any specific demand by the TTE for more money than the railway dues while allotting berth to him. Sri Winstan Clements was asked to go along with Sri S. Mohd. Rafeeq and he was asked to observe the transaction and to overhear the conversation between the TTE and Sri. S. Mohd. Rafeeq and to inform the vigilance team at ALLP in case of any specific demand by the TTE for more money than the railway dues while allotting berth SL class from S.Mohd. Rafeeq. A proceeding incorporating the above details was drawn in VRR/SRR at 14.00 hrs. on 20.8.98.
Sri Winstan Clements, in charge/ICV depo/TPJ at ALLP informed that he had purchased and handed over II M/E. Ticket 754720278 ex.QLN GUV to S.Mohd. Rafeeq, Vigilance Watcher/MAS. Sri Winstan Clements further stated that S.Mohd. Rafeeq on arrival of the T.No.6306 at QLN had approached S5 coach TTE for accommodation and the TTE allotted berth No.69 in S5 coach to S.Mohd.Rafeeq and demanded and accepted Rs.100/-from S.Mohd. Rafeeq and issued conversion EFT for Rs.50/-only. The vigilance entered S5 coach at ALLP. Sri.KSatheesh Kumar TTE/S/NCJ manning S4, S5 & S6 coaches [which were vestibuled and doors kept opened] was subjected to check. He was asked to produce the personal and railway cash available with him after closing his railway transaction. The EFT No.657801 was blocked and the rough journal pertaining to the working in T.No.6306 of 20/21.8.98 of K.Satheesh Kumar produced Rs.185/-as the personal cash as against the declared amount of personal cash of Rs.200/-. Further he produced rs.730/-as the railway cash which tallied with his railway transaction. A cash statement to this effect was recorded from K.Satheesh Kumar, TTE/S/NCJ with individual currency nos. of the cash produced by him. When questioned regarding the transaction with S.Mohd.Rafeeq the TTE Sri Satheesh Kumar stated that he had collected only the due of Rs.50/-from S.mohd.Rafeeq and issued the EFT for the same amount. At this stage the vigilance called Sri.S.Mohd. Rafeeq from berth No.69 and he was asked to narrate his transaction with the TTE. Sri S.Mohd.Rafeeq VW/MAS stated that the TTE of S5 coach had demanded and accepted Rs.100/-from him while allotting berth No.69 to him and issued conversion receipt for Rs.50/- only and retained the balance amount. SriS.Mohd Rafeeq, VW/MAS also identified Sri K.Satheesh Kumar was the TTE with whom he had transacted. The vigilance now called Sri Winston Clements {from berth No.} and he was asked to narrate the transaction between the TTE & Sri.S.Mohd. Rafeeq, Sri Winstan Clements stated that the TTE Sri K.Satheesh Kumar demanded and accepted Rs.100/ from S.Mohd.Rafeeq and issued receipt for Rs.50/-only. At this stage the vigilance asked Sri.Satheesh Kumar about the above transaction with S.Mohd Rafeeq. Sri.K.Satheesh Kumar then admitted that he had collected Rs.100/-from S.Mohd.Rafeeq while allotting berth No.69 in S5 coach and issued conversion receipt for Rs.50/-only. Further he stated that he threw away the excess amount in railway cash on seeking the vigilance. He made the above confrontation in the presence of S.Madhava Doss, CTTI/I/NCJ who was called from FC class at Ers. At this stage, the vigilance showed the first proceeding drawn at 14.00 hrs. at VRR/SRR on 20.8.98 to Sri K Madhavadoss, CTTI/S/NCJ and K Satheesh Kumar TTE/S/NCJ and both of them acknowledged in the proceeding as having seen. The vigilance now handed over the proceeding drawn at 14.00 hrs. on 20.8.98, the cash statement of Sri.K.Satheesh Kumar with individual currency Nos. and the cash produced by him to Sri.K.Madhavadoss. He was asked to compare and pick out if any currency shown in the first proceedings were found available in the cash produced by K.Satheesh Kumar. Accordingly Sri K.Madhavadoss, CTTI/I/NCJ had picked out one fifty rupee note bearing No.9 DS 823908, one twenty rupee note bearing No.53 N 730253 and three ten rupee notes bearing Nos.02 W 230916, 890 206671 and 84 C 890185 and handed over the same to vigilance who replaced the same. The vigilance instructed Sri S.Mohd. Rafeeq to produce the ticket and the conversion EFT to the vigilance and accordingly the II M/E 75470278 and EFT No.687800 were produced by him and the same were taken over by vigilance.
Sri. S. Madhavadoss, CTTI/S/NCJ gave a statement to the vigilance in which he had clearly stated that the vigilance had shown to him the proceeding drawn at 14.00 hrs. at SRR.Sri Madhavadoss further stated that he had compared and picked out the currencies from the cash produced by Satheesh Kumar TTE/S/NCJ which were tallied with the proceedings. He had further stated that Sri.Satheeshkumar accepted in his presence that he had demanded and accepted Rs.100/- from S.Mohd.Rafeeq and issued receipt for Rs.50/- only Sri Madhavadoss further stated that Sri.Satheeshkumar further stated that Sri Satheeshkumar further accepted in his presence that he had thrown away the excess cash, in his railway cash on seeking vigilance. A final proceeding incorporating all the above details was drawn in S5 coach are signed by all, Except Sri Satheeshkumar, since he stated that he was not well and had before signing in the final proceeding. Hence, Sri Satheeshkumar was called to vigilance office/MAS on 21.9.98 and a statement was recorded from his in which he had accepted the facts of the check. A statement was also recorded from Sri Winston Clements who witnessed the check.
Thus, the check confirms that Sri Satheesh Kumar TTE/S/NCJ while working in T.No.6306 of 20/21.8.98 had demanded and accepted Rs.100/-from S.Mohd.Rafeeq and issued conversion receipt for Rs.50/-only while allotting berth No.69 in S5 coach and retained the balance for his personal gain. By this the source information is sustained."
2. On conducting the inquiry, the disciplinary authority held the applicant guilty of the charges levelled against him and as a penalty, the pay of the applicant was reduced from Rs 4600 to Rs 4500 in the scale of 4000 6000 for a period of 48 months (non recurring) w.e.f. 11-01-2000. Annexure A-1 refers. Appeal against the same had been dismissed. Annexure A-2 refers. It is against the above said two orders that the applicant has moved this O.A.
3. The above OA along with OA 155/03 was decided and a common order dated 16th February 2006 allowing the two O.As was passed. On appeal, the High Court has remanded the matter for hearing afresh, holding as under:
"The learned counsel on both sides submitted that the point raised by the petitioners is now covered by the judgment of this Count in W.P.(C) No. 15918/2006. In view of the said judgment, the order in O.A. No. 850/2002 is set aside and the Original Application is remitted to the Central Administrative Tribunal, Ernakulam Bench, for fresh disposal, in accordance with law, as directed by this Court by the judgment in W.P.(C) No. 15918/2006 dated 2.2.2009. "
Thus, on remand from the High Court, the cases were heard.
4. Counsel for the applicant relied upon the decision of the Apex Court in the case of Moni Shankar vs Union of India (2008) 3 SCC 484 wherein emphasis had been laid to the manner in which trap cases should be conducted. The Apex Court held therein that in the absence of two independent witnesses of the rank of Gazetted officer, the entire proceedings get vitiated. Again, as regards the mandatory question to be addressed to the charged officer, the Apex Court clearly held that the same should be in detail.
5. In OA 155/03, the Tribunal after hearing the counsel for the parties, held as under:
"9. In the case of Moni Shankar, (2008) 3 SCC 484, the Apex Court has first discussed the trap cases in general and the case of G. Ratnam as under:
10. We may at the outset notice that with a view to protect innocent employees from such traps, appropriate safeguards have been provided in the Railway Manual. Paras 704 and 705 thereof read thus:
"704. Traps.(i)-(iv) ***
(v) When laying a trap, the following important points have to be kept in view:
(a) Two or more independent witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification to meet the defence that the money was actually received as a loan or something else, if put up by the accused.
(b) The transaction should be within the sight and hearing of two independent witnesses.
(c) There should be an opportunity to catch the culprit red-handed immediately after passing of the illegal gratification so that the accused may not be able to dispose it of.
(d) The witnesses selected should be responsible witnesses who have not appeared as witnesses in earlier cases of the Department or the police and are men of status, considering the status of the accused. It is safer to take witnesses who are government employees and of other departments.
(e) After satisfying the above conditions, the investigating officer should take the decoy to the SP/SPE and pass on the information to him for necessary action. If the office of the SP, SPE, is not nearby and immediate action is required for laying the trap, the help of the local police may be obtained. It may be noted that the trap can be laid only by an officer not below the rank of Deputy Superintendent of Local Police. After the SPE or local police official have been entrusted with the work, all arrangements for laying the trap and execution of the same should be done by them. All necessary help required by them should be rendered.
(vi)-(vii) ***
705. Departmental traps.For departmental traps, the following instructions in addition to those contained under Para 704 are to be followed:
(a) The investigating officer/Inspector should arrange two gazetted officers from Railways to act as independent witnesses as far as possible. However, in certain exceptional cases where two gazetted officers are not available immediately, the services of non-
gazetted staff can be utilised.
All employees, particularly, gazetted officers, should assist and witness a trap whenever they are approached by any officer or branch. The Head of Branch should detail a suitable person or persons to be present at the scene of trap. Refusal to assist or witness a trap without a just cause/without sufficient reason may be regarded as a breach of duty, making him liable to disciplinary action.
(b) The decoy will present the money which he will give to the defaulting officers/employees as bribe money on demand. A memo should be prepared by the investigating officer/Inspector in the presence of the independent witnesses and the decoy indicating the numbers of the GC notes for legal and illegal transactions. The memo, thus prepared should bear the signature of decoy, independent witnesses and the investigating officer/Inspector. Another memo, for returning the GD notes to the decoy will be prepared for making over the GC notes to the delinquent employee on demand. This memo should also contain signatures of decoy, witnesses and investigating officer/Inspector. The independent witnesses will take up position at such a place wherefrom they can see the transaction and also hear the conversation between the decoy and delinquent, with a view to satisfy themselves that the money was demanded, given and accepted as bribe a fact to which they will be deposing in the departmental proceeding at a later date. After the money has been passed on, the investigating officer/Inspector should disclose the identity and demand, in the presence of the witnesses, to produce all money including private, and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the presence of the witnesses, decoy and the accused as also his immediate superior who should be called as a witness in case the accused refuses to sign the recovery memo, and sealing of the notes in the envelope.
(c)-(d)***"
11. The trap was laid by the members of the Railway Protection Force (RPF). It was a pre-arranged trap. It was, therefore, not a case which can be said to be an exceptional one where two gazetted officers as independent witnesses were not available.
12. Indisputably the decoy passenger was a constable of RPF. Only one Head Constable from the said organisation was deputed to witness the operation. The number of witnesses was, thus, not only one, in place of two but also was a non- gazetted officer. It was a pre-planned trap and thus even independent witnesses could have also been made available.
13. When the decoy passenger purchased the ticket, the Head Constable was at a distance of 30 metres. The booking counter was a busy one. It normally remains crowded. Before the enquiry officer, the said decoy passenger accepted that he had not counted the balance amount received from the appellant after buying the ticket. It was only half an hour later that the vigilance team arrived and searched the appellant.
14. While we say so we must place on record that this Court in Chief Commercial Manager, South Central Railway v. G. Ratnam1 opined that non-adherence to the instructions laid down in Paras 704 and 705 of the Vigilance Manual would not invalidate a departmental proceeding, stating:
"17. We shall now examine whether on the facts and the material available on record, non-adherence of the instructions as laid down in Paras 704 and 705 of the Manual would invalidate the departmental proceedings initiated against the respondents and rendering the consequential orders of penalty imposed upon the respondents by the authorities, as held by the High Court in the impugned order. It is not in dispute that the departmental traps were conducted by the investigating officers when the respondents were on official duty undertaking journey on trains going from one destination to another destination. The Tribunal in its order noticed that the decoy passengers deployed by the investigating officers were RPF constables in whose presence the respondents allegedly collected excess amount for arranging sleeper class reservation accommodation, etc. to the passengers. The transaction between the decoy passengers and the respondents was reported to have been witnessed by the RPF constables. In the facts and circumstances of the matters, the Tribunal held that the investigations were conducted by the investigating officers in violation of the mandatory instructions contained in Paras 704 and 705 of the Vigilance Manual, 1996, on the basis of which inquiries were held by the enquiry officer which finally resulted in the imposition of penalty upon the respondents by the Railway Authority. The High Court in its impugned judgment has come to the conclusion that the inquiry reports in the absence of joining any independent witnesses in the departmental traps, are found inadequate and where the instructions relating to such departmental trap cases are not fully adhered to, the punishment imposed upon the basis of such defective traps are not sustainable under law. The High Court has observed that in the present cases the service of some RPF constables and railway staff attached to the Vigilance Wing were utilised as decoy passengers and they were also associated as witnesses in the traps. The RPF constables, in no terms, can be said to be independent witnesses and non-association of independent witnesses by the investigating officers in the investigation of the departmental trap cases has caused prejudice to the rights of the respondents in their defence before the enquiry officers.
18. We are not inclined to agree that the non-adherence of the mandatory instructions and guidelines contained in Paras 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such finding and reasoning are wholly unjustified and cannot be sustained."
15. It has been noticed in that judgment that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any person and impose no legal obligation on the subordinate authorities for whose guidance they are issued.
16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the Department has been able to prove the charges against the delinquent official.
17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. (See State of U.P. v. Sheo Shanker Lal Srivastava and Coimbatore District Central Coop. Bank v. Employees Assn.) *** *** ***
20. The enquiry officer had put the following questions to the appellant:
"Having heard all the PWs, please state if you plead guilty? Please state if you require any additional documents/witness in your defence at this stage? Do you wish to submit your oral defence or written defence brief? Are you satisfied with the enquiry proceedings and can I conclude the enquiry?"
21. Such a question does not comply with Rule 9(21) of the Rules. What were the circumstances appearing against the appellant had not been disclosed.
10. The above decision when applied upon the facts of the case, the same fits in all the four squares. Just as in the other case there was only one independent witness instead of two and that too a non gazetted official, in the instant case also, there has been only one and that too non gazetted official. In fact, the sequence of events would even go to show that this witness is also a party of decoy and not exactly a witness. Similarly, the mandatory question asked also is not in the manner as required by the rules. Thus, the inquiry has been vitiated for non following of the stipulated procedure."
6. The admitted facts in the case in hand include that there was only one independent witness, by name Shri Winston Clements, working as Incharge of ICV Depot TPJ. Again, the following is the mandatory question asked:
"Q.107 : You have so far heard the evidences on behalf of the DA. At this do you wish to admit/deny the charges?
Ans. : I deny the charges.
Q. 108 : Are you having any defence document/ witnesses to be produced at the enquiry, are you prepared to offer yourself for oral examination?
Ans. : I have no defence document/witnesses to be examined on my behalf. I don't want to offer myself for oral examination. However, I will submit written brief after receipt of P.O.s written brief.
7. The decision of Moni Shankar (supra) fully applies to the facts of this case as well. The other facts of alleged admission by the applicant that he had thrown the excess currency on seeing the vigilance, as levelled in the imputation of charges etc., though may support of the prosecution on the basis of preponderance of probability, these sink into oblivion when the fundamental legal requirement of two independent witnesses in trap cases and the relevant mandatory questions are conspicuously absent.
8. As regards the way the appeal had been disposed of the same too needs a mention. The speaking order vide Annexure A-2 reads as under:
" I have gone through the appeal submitted by the employee, penalty advice and the enquiry report. I am satisfied that the procedure laid down in D & A Rules has been followed, the finding of the Disciplinary Authority are based on the evidence on record and that the penalty is adequate. Hence, I hereby confirm the penalty ordered by the Disciplinary Authority."
9. The above does not answer the requirement as laid down in the case of Ramchander vs Union of India (1986) 3 SCC 103 and Narinder Mohan Arya vs United India Insurance Co., Ltd (2006) 4 SCC 713. The Apex Court has held in the above cases as under:
1) Ram Chander v. Union of India, (1986) 3 SCC 103 :
"4. The duty to give reasons is an incident of the judicial process. So, in R.P. Bhatt v. Union of India (1986) 2 SCC 651 this Court, in somewhat similar circumstances, interpreting Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which provision is in pari materia with Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968, observed:
It is clear upon the terms of Rule 27(2) 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 noncompliance has resulted in violation of any of the provisions of the Constitution of India 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 remit the case to the authority which imposed the same.
It was held that the word consider in Rule 27(2) of the Rules implied due application of mind. The Court emphasized that the appellate authority discharging quasi-judicial functions in accordance with natural justice must give reasons for its decision. There was in that case, as here, no indication in the impugned order that the Director General, Border Road Organisation, New Delhi was satisfied as to the aforesaid requirements. The Court observed that he had not recorded any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. (2) Narinder Mohan Arya v. United India Insurance Co. Ltd.,(2006) 4 SCC 713 :
"31. We may for the aforementioned purpose take note of the extant rules operating in the field. Requirements of consideration in an appeal from an order of the disciplinary authority by the appellate authority is contained in Rule 37 whereas the provisions as regards filing of a memorial are contained in Rule 40 thereof, which read as under:
"37. Consideration of appeals . (1) In case of an appeal against an order of suspension, the Appellate Authority shall consider whether in the light of the provisions of Rule 20 and having regard to the circumstances of the case the order of suspension is justified or not and confirm or revoke the other accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 23, the Appellate Authority shall consider:
(a) whether the procedure prescribed in these Rules has been complied with and if not, whether such non-compliance has resulted in failure of justice;
(b) whether the findings are justified; and
(c) whether the penalty imposed is excessive, adequate or inadequate, and pass orders:
I. setting aside, reducing, confirming or enhancing the penalty; or II. remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.
****** "
32. The Appellate Authority, therefore, while disposing of the appeal is required to apply his mind with regard to the factors enumerated in sub-rule (2) of Rule 37 of the Rules. ..... He was required to show that he applied his mind to the relevant facts. He could not have without expressing his mind simply ignored the same.
33. An appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regards the compliance with the requirements of law while exercising his jurisdiction under Rule 37 of the Rules.
34. In Apparel Export Promotion Council v. A.K. Chopra which has heavily been relied upon by Mr Gupta, this Court stated:
"16 . The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities." (emphasis supplied)
35. The Appellate Authority, therefore, could not ignore to exercise the said power.
36. The order of the Appellate Authority demonstrates total non- application of mind. The Appellate Authority, when the Rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as to enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression consider is of some significance. In the context of the Rules, the Appellate Authority was required to see as to whether ( i ) the procedure laid down in the Rules was complied with; ( ii ) the enquiry officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and ( iii ) whether penalty imposed by the disciplinary authority was excessive."
10. In view of the above, we have no hesitation to follow the law laid down by the Apex Court in the case of Moni Shanker, Narinder Mohan Arya and M. Ramchander ( supra) and quash the impugned orders at Annexures A1 and A-2. The applicant is entitled to the payment of the pay withheld in pursuance of the Annexure A-1 order. The same shall be paid to him within a period of four months from the date of communication of this order.
11. No costs.
(Dated, the 17th September, 2009) K. NOORJEHAN Dr. K B S RAJAN ADMINISTRATIE MEMBER JUDICIAL MEMBER cvr