Central Administrative Tribunal - Allahabad
D N Parmar vs Union Of India on 18 January, 2024
OA No. 330/696 of 2010
(Reserved on 03.01.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad this, the 18th day of January, 2024
Original Application No. 330/696 of 2010
Hon'ble Mr. Justice Om Prakash VII, Member (Judicial)
Hon'ble Mr. Mohan Pyare, Member (Administrative)
D.N. Parmar, S/o Late Ram Charan, R/o 59/3-N-48 Sona Nagar
Khevaria Mod Agra presently posted as Central Excise Inspector Agra
Division, Agra
....Applicant
By Advocate: Shri Ashish Srivastava
VERSUS
1. Union of India through its Ministry of Finance, New Delhi
2. Commissioner Customs and Central Excise 177/7 Sarvodaya
Nagar, Kanpur
3. Joint Commissioner (P & V) Central Excise, Kanpur
...... Respondents
By Advocate: Shri Rajni Kant Rai
ORDER
By Hon'ble Mr. Mohan Pyare, Member (Administrative):
Shri Ashish Srivastava, learned counsel for the applicant and Shri Rajni Kant Rai, learned counsel for the respondents were present at the time of hearing of the present cases.
2. By means of this O.A, the applicant has sought the following reliefs :
I. This Hon'ble Court may graciously be pleased to quash the order dated 18.12.2008 passed by the respondent No.3 and order dated Page 1 of 19 OA No. 330/696 of 2010 06.05.2009 passed by the Appellate Authority (Annexure A-1 and A-2 to the original application). II. This Hon'ble Court may graciously be pleased to direct the respondents to restore the pay of the applicant with all back wages and consequential benefits thereupon.
III. Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
IV. Award the costs of the original application in favour of the applicant.
3. The aforesaid O.A. has been heard along with O.A. No.661/2010 and ongoing through the facts of the aforesaid cases, we find that each case has different issue and as such, the same cannot be decided by passing a common order and consolidated order. Therefore, we have decided to deal with each case separately.
4. The brief facts of the case are that the applicant is ex- serviceman, who joined the office of the Central Excise and Customs as Inspector on 05.02.1993. While he was posted in Range 3, Agra Division, he was transferred from Central Excise Range III to Range Pata vide Estt. Order dated 04.06.20003 and relieved on 05.06.2003, but he continued to work in the said Range-III. Aggrieved by the transfer order, he preferred an O.A. being O.A. No.1008/2003, which was disposed of vide order dated 29.08.2003 with a direction upon the respondent to consider and decide the representation of the applicant by reasoned and speaking order and after giving personal hearing to the applicant, within four weeks and the respondents are also directed not to take any coercive action against the applicant. However, on the very next date of the order i.e., on 30.08.2003, the applicant was served with an order of suspension dated 18.08.2003 in a matter involving illegal gratification, which is not related with transfer order of applicant from Central Excise Range-III to Range Patta. In compliance Page 2 of 19 OA No. 330/696 of 2010 of the order of this Tribunal, respondents rejected the claim of the applicant. A charge-sheet was framed against the applicant on 05.08.2004, but the same was served on 07.04.2006, with the following charges:-
Article No.Ι:-
That the said Shri D.N. Parmar, Inspector, was transferred from Central Excise Range-III, Agra to Central Excise Range Pata vide Establishment Order No.1/A/68/2003 dated 4.6.2003 issued by the Additional Commissioner (P&V), Central Excise, Kanpur in A.G.T. But even after being relieved from Central Excise Range- III, Agra on 5.6.2003 vide relieving order dated 5.6.2003, issued by the Superintendent, Central Excise, Range III, Agra Shri Parmar continued to work/receive Dak (correspondence) pertaining to Range-III in Range III, unauthorizedly by disobeying the orders for his transfer and relieving, dated 4.6.2003 and 5.6.2003 respectively. Thus Shri Parmar failed to maintain office decorum, absolute integrity and devotion to duty and acted in a manner unbecoming of a government servant, as enjoined upon him under Rule 3 (1) (i), (ii), (iii) and 3A of CCS(Conduct Rules, 1964 and rendered himself liable for penal action under Rule 14 read with Rule 11 of CCS (CCA) Rules, 1965.
Article No.II:-
To meet the requirement of service of the order of relieving Shri Parmar was asked to acknowledge the receipt of the relieving, order dated 5.6.2003 on 10.6.2003 and 11.6.2003 repeatedly but Shri Parmar refused to do so. Thus Shri Parmar failed to maintain the decorum of the office, and acted in a manner which is unbecoming of a Government servant enjoined upon him under rule 3(1) (iii) and 3A of CCS (Conduct Rules, 1964 and rendering himself liable for penal action under Rule 14 read with Rule 11 of CCS (CCA) Rules, 1965.
Article No.ΙII:-
That the said Shri D.N. Parmar, Inspector for a considerable period on after 5.6.2003 while functioning in Central Excise Range III, Agra disturbed the peace, used abusive language against his superiors and displayed riotous and disorderly behavior during working hours in the aforesaid office with a motive to malign the image of his superiors as well as the government. Thus Shri Parmar failed to maintain the decorum of the office, and acted in a manner which is unbecoming of a Government servant rendering himself liable for penal action under Rule 14 read with Rule 11 of CCS (CCA) Rules, 1965. Article No.IV:-
That the said Shri D.N. Parmar was placed under suspension in another case of illegal gratification and when the order for revocation of his suspension was sent to him, Shri Parmar refused to accept the same both through special messenger as well as through speed post cum Ad post and did not assume his duty till he was relieved from there to Central Excise Division Jhansi, in absence, Shri Parmar disobeyed the orders of his Page 3 of 19 OA No. 330/696 of 2010 superiors by doing so. Thus Shri D.N. Parmar acted in a manner unbecoming of a Government Servant, as enjoined upon him under Rule 3 (1) (iii) and thus rendered himself liable for penal action under Rule 14 read with Rule 11 of C.C.S. (C.C.A.) Rule, 1965.
5. The applicant was surprised to receive the charge sheet for the reasons that the applicant has challenged his transfer order from Agra to Pata in Original Application No. 1008 of 2003, wherein the Hon'ble Court has restrained the respondents for taking any coercive action against the applicant before the representation of the applicant is decided. After receiving the charge sheet, the applicant submitted his reply and denied all charges as false, frivolous and not stand with correctness of facts. The applicant also submitted that he has already challenge the transfer of the applicant from Agra to Pata wherein the Hon'ble Court has directed the respondents to decide the representation of the applicant and were also restrained to take any coercive action against him and after submission of the representation the applicant, there is no occasion to join at Pata. The applicant has joined at Jhansi pursuant to the order passed by the respondent No.3 and as such applicant may not be victimized for the incidence happened during the enquiry of the applicant at Agra. The applicant was also served with a letter intimating him that Sri Tulsi Ram Superintendent Central Excise Division Jhansi has been appointed as Enquiry Officer to enquire against the charge leveled against the applicant. During the enquiry, on 28.6.2006, the applicant submitted an application before the Enquiry Officer intimating him that the memorandum of charge does not contain the list of witness, so that the applicant may have an opportunity of cross examination of witnesses in his defence. The applicant also furnished a list of 16 persons including Page 4 of 19 OA No. 330/696 of 2010 as witness. On the request of the applicant, Sri R. K. Bhashker, Superintendent, Sri Feku Ram, Superintendent, Smt. Meera Devi and Anupam Saxena, Superintendent were called by the Enquiry Officer.
The Enquiry Officer Sri R. C. Sharma, Superintendent has also called upon the following witnesses namely Sri Manoj Kumar Rajak, D.C. and Sri Kishori Lal ADC, however none of them has appeared before the enquiry proceeding.
6. It is further the case of the applicant that despite of the clear cut direction of the Enquiry Officer, the aforesaid witnesses did not turn up and as such, enquiry proceeding could not move further for want of statement and cross examination of the witnesses. Since, the Disciplinary Authority was not interested for cross examination of IRS officers; hence, he immediately changed the Enquiry Officer by appointing Sri V. K. Mishra, Assistant Commissioner, Kanpur. The applicant has named Sri Feku Ram as a witness on the ground that he was the Superintendent under whom the applicant was working, but he has always concealed the relevant facts to the applicant which has ultimately put the applicant in a great disadvantageous position. The applicant has put 33 relevant questions before Sri Feku Ram, which has been replied in a very negative manner either by submitting that "मुझे याद नह ीं है और मुझे माऱूम नह ". The statement of Sri Feku Ram was not in accordance with the rules as he did not give the appropriate reply to the question put by the applicant on the pretext of his innocence hence the applicant again requested to the Enquiry Officer that Sri Feku Ram may be called upon another time so that he may give appropriate reply to the queries made during the cross Page 5 of 19 OA No. 330/696 of 2010 examination. The Enquiry Officer did not consider the aforesaid submissions of applicant. On 14.7.2008, the Enquiry Officer submitted its report and proved guilty of alleged charges leveled against the applicant without following the norms of the enquiry proceedings and without giving opportunity of submission of appropriate defence brief to the applicant. On 18.12.2008, the disciplinary authority respondent No.3 passed the order of penalty of compulsory retirement under Rule 11 read with Rule 14 of CCS (CCA) Rules, 1965 in view of the enquiry report.
7. Aggrieved with the order of compulsory retirement, the applicant preferred an appeal before the respondent No.2 on 23.1.2009. The Appellate Authority vide order dated 6.5.2009 set aside the punishment of compulsory retirement and the applicant was imposed with a penalty of reduction to a stage just below to the present stage in the time scale of his pay for a period of three years. Hence, the applicant has been constrained to knock the door of this Court, challenging the appellate order dated 06.05.2009 and 18.12.2008, passed by the Disciplinary Authority.
8. On the other hand, counter-reply has been filed, wherein it has been stated that the applicant was transferred from Central Excise Range-III to Range Pata vide order dated 04.06.2003 and relieved on 05.06.2003, but he refused to receive the order and continued to work in Central Excise Range III unauthorizedly by disobeying the orders of his transfer and relieving. The said transfer order was challenged before this Tribunal and this Tribunal vide order dated 29.08.2003 directed the respondents to consider and decide the representation of Page 6 of 19 OA No. 330/696 of 2010 the applicant. In the meantime, the applicant was suspended on 18.08.2003 in a matter involving illegal gratification, which is not related with transfer order.
9. It is further stated in the counter-reply that a chargesheet was issued against applicant by Sri A.K. Chaturvedi Additional Commissioner, Central Excise Kanpur on 5.8.2004 for disobeying the orders of superiors, using abusive language, misbehaving with them and failed to maintain office decorum absolute integrity and devotion to duty and acted in a manner unbecoming a Government servant as enjoined upon him as per CCS (Conduct) Rules 1964. In this case Sri Tulsi Ram, Superintendent and Shri Rameshwar Dayal, Inspector were appointed as I.O. and P.O. and hearings were fixed on various dates but no enquiry on these dates could be conducted as applicant did not turn up on any of the dates. Subsequently, the J.C. (P&V), Disciplinary Authority appointed Shri R.C. Sharma, Superintendent as I.O. and Shri O.P. Ahuja as P.O. and thereafter, personal hearing was fixed and applicant appeared and submitted letter dated 16.5.2006 stating therein that he was ignorant of any enquiry and had not received any memo of charge alongwith relied upon documents and that the enquiry might have been conspired by the officers without giving any evidence for such serious allegations made and to support that cross examination so sought irrelevant in context of charges leveled against him. The applicant submitted a letter on 28.6.2006, denying all the charges and requested for cross examination of officers/ employees listed therein.
Page 7 of 19
OA No. 330/696 of 2010
10. It is further stated in counter-reply that the applicant vide letter dated 14.9.2006 addressed to the I.O again demanded to produce Shri Hari Om Tiwari, Commissioner, Central Excise Kanpur, Kishori Lal the then Additional Commissioner, A.K. Chaturvedi, the then Additional Commissioner, M.K.Rajak, the then Dy. Commissioner, and Sri Phenku Ram, the then Superintendent Central Excise Range III, Agra for cross examination. Later on, the Additional Commissioner (P&V), Central Excise, Kanpur, the disciplinary authority, appointed Shri V.K.Mishra, Assistant Commissioner, Central Excise Division II, Kanpur as the Inquiry Officer in place of Shri R.C. Sharma, Superintendent on 12.1.2007. Personal hearings were fixed on various dates, but Shri Parmar -applicant did not appear for personal hearing. Vide letter dated 21.3.2007, he again urged to produce higher officers for cross examination leveling vague allegations without any evidence to this effect. The request was not found to be acceded and this fact was also informed to applicant by Inquiry Officer. Further, Sri Parmar was informed to submit a defence brief vide letter dated 17.12.2007 followed by reminders dated 17.1.2008 and 23.1.2008, but no defence brief was submitted by the charged officer. After conducting the said enquiry proceedings the Inquiry Officer, vide his letter dated 14.2.2008 submitted the enquiry report to the Additional Commissioner, Central Excise Kanpur, the Disciplinary Authority. In view thereof, the Disciplinary Authority- Joint Commissioner (P&V), Central Excise Kanpur passed an order on 18.12.2008, imposing a major penalty of Compulsory Retirement from Government service under clause vii of Rule 11 (14) of CCS (CCA) Rules 1965. Aggrieved by the same, he preferred an appeal before the Commissioner, Central Excise Kanpur Page 8 of 19 OA No. 330/696 of 2010 and the Appellate Authority vide impugned order dated 06.05.2009 has set aside the major penalty of compulsory retirement and reinstated him in service w.e.f the date of the order of Disciplinary Authority. The Appellate Authority also imposed penalty of reduction to a stage just below his present stage in the time scale of his pay (which can now be called Band Pay + Grade Pay = Basic Pay after the sixth pay commission) for a period of two years with further direction that applicant will not earn increments of pay during the period of such reduction. Shri D.N.Parmar, the appellant will suffer his penalty after he has finished suffering a similar penalty imposed upon him.
11. Heard the learned counsel for the parties.
12. Mr. Ashish Srivastava, learned counsel for the applicant assailed the impugned orders on the ground that the Disciplinary Authority as well as Appellate Authority has failed to discharge their obligatory responsibility and arbitrarily did not change the biased Inquiry Officer(2nd Inquiry Officer). The impugned orders are contemptuous as the transfer order, thereby the charge-sheet was issued in this case, has already been challenged in O.A. No.1008/2003, which was disposed of vide order dated 29.08.2003 with a direction upon the respondent to consider and decide the representation of the applicant by reasoned and speaking order and after giving personal hearing to the applicant, within four weeks and also observed that „no coercive action shall be taken against the applicant‟. In view of specific order of this Tribunal, the applicant has been punished for not joining him at Pata Range, which is in complete violation of this Court's order. The change of Inquiry Officer was done Page 9 of 19 OA No. 330/696 of 2010 by the Disciplinary Authority with an ulterior motive and an object to prove the applicant guilty of the baseless charges. The Disciplinary Authority as well as Appellate Authority have surpassed all the norms and rules for holding the disciplinary proceedings and as such, the decision of the aforesaid authority suffer with illegalities and are also unsustainable in the eyes of law. The applicant has named Sri Feku Ram as a witness on the ground that he was the Superintendent under whom the applicant was working, but he has always concealed the relevant facts to the applicant which has ultimately put the applicant in a great disadvantageous position. The applicant has put 33 relevant questions before Sri Feku Ram, which has been replied in a very negative manner either by submitting that "मुझे याद नह ीं है और मुझे माऱूम नह ". Hence, the statement of Sri Feku Ram was not in accordance with the rules as he did not give the appropriate reply to the question put by the applicant on the pretext of his innocence. It was incumbent upon the witness concerned to make specific reply to the questions asked by Charge Officer. The Inquiry Officer was also duty bound to insist upon the witness to make specific reply during the cross examination, but nothing has been done in the instant case.
13. On the other hand, Mr. Rajni Kant Rai, learned counsel for the respondents vehemently opposed the contention of the learned counsel for the applicant and submitted the impugned order of punishment of compulsory retirement from service dated 18.12.2008 has already been modified by the Appellate Authority vide order dated 06.05.2009. He further submitted that if the applicant is aggrieved by the order of Appellate Authority, he should have preferred Revision Page 10 of 19 OA No. 330/696 of 2010 before the appropriate authority and without availing the said alternative remedy, he directly approached this Hon'ble Court and as such, this O.A. is itself not maintainable. The order of Disciplinary Authority has already been modified by the Appellate Authority and as such, relief claimed by the applicant for quashing the order dated 18.12.2008 is not maintainable. The Disciplinary Authority has followed all the procedures prescribed in the CCS CCA Rules and there is no illegality or infirmity in initiation of proceedings against the applicant. It is the applicant, who has chosen not to appear on the date fixed for cross examination as well as personal hearing in the enquiry proceedings. The applicant is habitual of unauthorized absence from duty. During the enquiry, all the charges have been proved by the Inquiry Officer and as such, rightly the penalty /punishment order was issued. The Appellate Authority taking a sympathetice view, modified the order of punishment of compulsory retirement to the penalty of reduction of pay for a period of two years. The applicant was suspended vide order dated 18.08.2003, received by applicant on 30.08.2003 in some other case of illegal gratification , which has no relevancy with the order and directions of this Hon'ble Tribunal passed in O.A. No.1008/2003. The representation of the application was decided on 30.09.2003 on merits in compliance of the order of this Tribunal. The Inquiry Officer and Presenting Officer were made as per law. He was transferred from Central Excise Range-III Agra to Ranga Pata on 04.06.2003 and he was suspended for the period from 19.08.2003 to 01.03.2004 and he was transferred to the Central Excise Division, Jhansi on 11.06.2004 and as such, he had sufficient time to join at Central Excise Range, Pata. The Inquiry Officer Shri R.C. Page 11 of 19 OA No. 330/696 of 2010 Sharma did not conclude the enquiry within prescribed time and as such, Shri V.K. Mishra was appointed as Enquiry Officer. The witness Pekhu Ram, Superintendent has given reply to questions raised by the applicant. Learned counsel placed heavy reliance on the judgment of Hon'ble Apex Court in case of State of Karnataka & Anr. Vs. N. Gangaraj passed in Civil Appeal No.8071/2014.
14. In reply to the same, Mr. Ashish Srivastava, learned counsel for the applicant drew the attention of the Court towards rejoinder affidavit and stated that the applicant's transfer from Agra Range-III to Pata was carried out on the advice of the biased officers as the presence of the applicant was a hindrance in their illegal and corrupt working for the Department. He further submitted that this Court has clearly observed that no coercive action shall be taken against the applicant in O.A. No.1008/2003, but before any decision upon the representation was communicated to the applicant, he was illegally framed in other dispute and was placed under suspension and thereafter, the applicant was continuously facing departmental enquiry at Agra itself and there was no such situation to join at Pata. Neither the applicant was ever afforded an opportunity to have a personal hearing nor he was allowed to appear in its office to discharge his duties and no proper relieving orders have ever been given to the applicant. Since the applicant after suspension was interrogated in a departmental enquiry at Range-III itself, the applicant was not issued a specific order relieving him from Range III to Pata. The applicant has requested that Shri V.K. Mishra (2nd Inquiry Officer) is biased with the applicant and as such, he may not be appointed as Enquiry Officer, but Page 12 of 19 OA No. 330/696 of 2010 the respondents have illegally and arbitrary appointed him as Inquiry Officer.
15. Be that as it may, having heard the rival submissions of the parties and on perusal of the records, it appears that the applicant has been transferred from Central Excise Range-III, Agra to Central Excise Range, Pata vide order dated 04.06.2003 and relieved on 05.06.2003, but he did not join the transferred place. Aggrieved by the said transfer order dated 04.06.2003, earlier the applicant has approached this Court in O.A. No.1008/2003, which was disposed of vide order dated 29.08.2003 with a direction upon the respondent to consider and decide the representation of the applicant by reasoned and speaking order and after giving personal hearing to the applicant, within four weeks and it was also observed that „no coercive action shall be taken against the applicant‟. In the meantime, the applicant was suspended vide order dated 18.08.2003 in a matter involving illegal gratification. In compliance of the Court's order, the respondents vide order dated 30.09.2003 decided the representation of the applicant by rejecting the same. Since the applicant has not joined transferred place, a charge-sheet has been issued and four charges were levelled against him. The charges have been proved by the Inquiry Officer in the Enquiry proceedings. Thereafter, the impugned order of punishment has been issued by the Disciplinary Authority, which was modified by the Appellate Authority vide order dated 06.05.2009. Though there is a provision of Revision before the respondents, but without availing the same the applicant has rushed directly this Court, challenging the impugned orders. Further, it appears that during the inquiry, the applicant has chosen not to appear on the Page 13 of 19 OA No. 330/696 of 2010 date fixed for cross examination as well as personal hearing and as such, there is no procedural latches in the enquiry proceedings. The plea of the applicant regarding appearance of higher officers for cross examination during enquiry, which was not accorded by the respondents is not acceptable to this Court as there is no documents brought on record to show that examination /cross examination of those officers shall throw useful right on the case. The said request of the applicant was also denied by the Inquiry officer on the ground that allegation is without any evidence and same was informed to the applicant. Once, a witness is examined to prove certain allegation, the charged officer has right to cross examine the witness to controvert the allegation. Here, witnesses were not at all examined, so there is no necessity of cross examination at all. There is no document available on record to show that he had intimated the department regarding his absence from duty for the aforesaid days or leave application.
16. The applicant is taking shelter of order dated 29.08.2003 passed in O.A. No.1008/2003, wherein it was observed that „no coercive action shall be taken against the applicant‟. In view thereof, the respondents have decided his representation on 30.09.2003 itself and his suspension was revoked vide order dated 01.03.2004, it was incumbent upon him to join the transferred place after revocation of suspension. There is no any application brought on record to show that after revocation of suspension, he intended to join the transferred place and respondents have not accepted the joining, meaning thereby he has intentionally not joined the transferred place in the garb of order dated 29.08.2003 The plea taken by the learned counsel for the applicant that the Disciplinary Authority did not change the 2nd Inquiry Page 14 of 19 OA No. 330/696 of 2010 Officer with an ulterior motive is concerned, the same is not acceptable to this Court as there is no documentary evidence to show that Inquiry officer was biased against the applicant. The counsel for the applicant did not point out any illegality in the enquiry, committed by the Inquiry Officer, whereas, he has made allegation of bias against the Inquiry Officer, which is not tenable in the eyes of law. Since there was delay in concluding the departmental enquiry, rightly the Disciplinary Authority rightly changed the first Inquiry Officer and there is nothing wrong in doing so. The applicant was provided due opportunity to controvert charges framed against him and enquiry does not suffer from any illegality or bias. Based on that, the Disciplinary Authority has passed impugned order. The applicant has also availed the opportunity of appeal and filed an appeal before the Appellate Authority in time and has also availed the opportunity of personal hearing before the Appellate Authority. The Appellate Authority after taking into consideration all the facts and circumstances of the case, passed the detailed order, which is reproduced hereinbelow:-
I have carefully gone through the facts of the case, the order passed by the Disciplinary Authority, the defence put-forth by the appellant Shri D.N. Parmar and his apologies and assurances as recorded during personal hearing. I find that the charges made in the Memorandum issued to the appellant Shri D.N. Parmar were held as proved by the Inquiring Authority as well as by the Disciplinary Authority. As already discussed in great detail in the foregoing paragraphs, the arguments advanced by Shri D.N. Parmar, the Appellant, in his defence are totally un-tenable and unacceptable. None of the arguments advanced by him has any force of reason or logic. Hence, the appeal filed by the appellant Shri Parmar is totally devoid of merit. Shri Parmar‟s apologies and assurances as recorded during Personal Hearing also hold no meaning at all since he has not at all admitted his mistakes or lapses and not at all repented for the same. Rather, he has advanced some totally irrelevant and illogical arguments to save himself in a disparate way. Since the charges against him have been proved except the charge of failure to maintain absolute integrity and his appeal fails on merits, there is no Page 15 of 19 OA No. 330/696 of 2010 doubt that Shri Parmar has to take punishment for the offence committed by him.
As an Appellate Authority, it is however also my duty to apply my mind independently to find out whether the quantum of punishment awarded to Shri Parmar by the Disciplinary Authority was commensurate with the gravity of the offence committed by him. While considering in this case the justifiability of imposition of major penalty of Compulsory retirement upon Shri Parmar, the Appellant, I have to take into consideration certain facts on record. From the order of Disciplinary Authority, I find that the Inquiring Authority had held Shri Parmar, the appellant, to be guilty of violation of Rules 3(1)(ii), 3 (1)(iii) and 3 (A) of CCS (Conduct) Rules, 1964. The Disciplinary Authority had also held him to be guilty of violation of Rule 3 (1)(ii), 3(1)(iii) and 3(A) of CCS (Conduct) Rules, 1964. Therefore, it has been proved that Shri Parmar was guilty of failure to maintain devotion to duty, conduct unbecoming of a Government Servant and lack of courtesy. Shri Parmar has however not been proved guilty of failure to maintain integrity. Had he been found to be guilty of failure to maintain absolute integrity, compulsory retirement or even a harsher major penalty would have been fully justified. In the circumstances, I feel that even though Shri Parmar deserves a major penalty for what he did, the ends of justice will be met if a major penalty lesser than the major penalty of compulsory retirement is imposed upon him. Therefore, I set aside the major penalty of compulsory retirement as imposed upon Shri D.N.Parmar by the Disciplinary Authority and reinstate him service w.e.f. the date of the order of the Disciplinary Authority imposing the penalty of compulsory retirement upon him. However, I impose upon Shri D.N. Parmar, the Appellant, as per Clause V of Rule 11 of CCS (CCA) Rules, 1965, the penalty of reduction to a stage just below his present stage in the time-scale of his pay (which can now be called Band Pay +Grade Pay + Basic Pay, after the Sixth Pay Commission) for a period of two years with further direction that Shri Parmar will not earn increments of pay during the period of such reduction. However, on the expiry of such reduction period, the reduction will not have the effect of postponing the future increments of his pay. Shri D.N. Parmar, the appellant will suffer penalty after he has finished suffering a similar penalty imposed upon him vide the Appellate Order issued under C.No.II(10)Vig./04/Appeal/09/119-124 dated 06.05.2009.
17. The Appellate Authority has taken a sympathetic view has modified the impugned order of punishment and we do not find any illegality or infirmity in the impugned orders dated 18.12.2008 (which Page 16 of 19 OA No. 330/696 of 2010 was already modified by Appellate Authority) and appellate order dated 06.05.2009.
18. Further, the applicant failed to point out any shorting/lacuna/deficiency in decision making process adopted by the respondents while proving the charges levelled against the applicant. Admittedly, the petitioner has been found guilty of the charges and the charges have been duly proved in the regular Departmental proceedings. This Court restrains itself from re-appreciating the evidences, which has already been appreciated in the inquiry by the Enquiry Officer and Disciplinary Authority and thereafter, punishment order has been passed. The Court cannot substitute its own finding, which has come from the Enquiry Officer or the Disciplinary Authority. The issue fell for consideration before the Hon'ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India reported in 1995 (6) SCC 749, wherein the Apex Court has held as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in Page 17 of 19 OA No. 330/696 of 2010 a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
xxx xxx xxx xxx xxx xxx
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
[Emphasis laid]"
19. Further, in case of State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya in civil Appeal No. 5861 of 2007 decided on 1.3.2011 the Hon'ble Supreme Court has held as under:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the Page 18 of 19 OA No. 330/696 of 2010 reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India8 , Union of India v. G. Ganayutham9 , Bank of India v. Degala Suryanarayana10 and High Court of Judicature at Bombay v. Shashikant S. Patil11).
[Emphasis laid]"
20. Further, in case of Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu1 in Appeal (Civil) No. 1770 of 2008 decided on 5.3.2008, a two Judge Bench of this Court referred to several precedents on the Doctrine of Proportionality of the order of punishment passed by the Disciplinary Authority and held as under:
"21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."
21. In view of the above, the applicant failed to make out a case for interference and as such, instant O.A. is liable to be dismissed. Hence, instant O.A. stands dismissed. . No order as to costs.
22. All MAs pending in this O.A. also stand disposed off.
(Mohan Pyare) (Justice Om Prakash VII)
Member(Administrative) Member (Judicial)
PM/
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