Central Administrative Tribunal - Delhi
Tushar Ranjan Mohanty vs Union Of India Through on 11 December, 2013
Central Administrative Tribunal Principal Bench New Delhi OA No.2837/2013 Reserved on:27.11.2013 Pronounced on:11:12:2013 Honble Shri G. George Paracken, Member(J) Honble SHri Shekhar Agarwal, Member(A) Tushar Ranjan Mohanty S/o Shri Rabi Narayan Mohanty An SAG Officer of the Indian Statistical Service Deputy Director General Research and Publication Wing Coordination and Publication Division Central Statistics Office Ministry of Statistics and Programme Implementation Wing No.6, West Block No.8 R.K. Puram, New Delhi-110066.
.Applicant Now residing at:
G-31, HUDCO Place Extension, New Delhi-110049.
(By: Applicant in person) Versus
1. Union of India through The Chief Statistician of India and Secretary Ministry of Statistics & Programme Implementation Sardra Patel Bhawan, Parliament Street New Delhi 110001.
2. The Union Public Service Commission (through its Chairman) Dholpur House, Shajhahan Road, New Delhi-110069.
.Respondents (By Advocate: Shri R.N. Singh) Order Honble Shri G.George Paracken In this Original Application, Applicant has challenged the impugned Annexure A-I penalty order dated 20.08.2013 imposing upon him the penalty of Censure mainly on the grounds that it has been passed by an incompetent authority and behind his back in spite of his request for holding a detailed enquiry as required under the Rules and the Instructions issued by the Government of India in that regard.
2. The brief facts of this case are that the Respondents have received information that the Applicant has appeared before this Tribunal on 11.04.2012 in MA Nos. 1527/2011 and 2404/2011 in OA No.1488/2010 filed by one Shri E. Nagachandran. The proceedings of that date of this Tribunal says:
Present: Shri T.R. Mohnaty appeared in person on behalf of the Applicant.
Dr. Ch. Shmsuddin Khan, Counsel for Respondents.
Applicant is reported to be in some personal difficulty as he is unwell. Accordingly, list this case on 08.05.2012.
On that basis, the Respondents, vide their letter dated 02.05.2012, asked the Applicant to clarify as to in what capacity he appeared and sought adjournment on behalf of Shri Nagachandran who filed the case against the Union of India. Vide another letter of the same date, the Respondents asked the ADG (CAP), CSO, Ministry of Statistics and Programme Implementation who is the supervising officer of the Applicant to confirm whether the Applicant was on leave on 11.04.2012 and whether he had given any intimation or sought any permission/approval to appear in the aforesaid case before this Tribunal on 11.04.2012. The ADG (CAP), CSO returned the said letter in original to the Respondents on the same date stating thereon that he was not aware about the facts stated in the said letter. But he confirmed that neither the Applicant had applied for any leave nor intimated or sought any permission. However, the Applicant, vide his letter dated 27.06.2013, asked the Under Secretary of the Respondent-Ministry which issued the aforesaid letter to clarify whether the same was issued with the approval of the competent authority. Without any further communication in the matter with the Applicant, the Respondent-Ministry, vide their letter dated 05.06.2013, referred the matter to the UPSC for its advice. Thereafter, vide OM No.11024/18/2012-ISS dated 27.06.2013, they have informed the Applicant that the matter regarding minor penalty charge sheet was placed before Disciplinary Authority and said authority, in terms of the Union Public Service Commission (Exemption from Consultation) Regulations, 1958, decided to seek the statutory advice of UPSC regarding initiation of proceedings under Rule 16 of CCS (CCA) Rules, 1965. Thereafter, the Respondent-Ministry vide their Memorandum dated 10.09.2012, informed the Applicant that they proposed to take action against him under the aforesaid rules. A Statement of Imputation of misconduct or misbehaviour on which action was proposed to be taken against him along with the following list of documents referred to in the said statement was furnished to him:-
(i) Record of proceeding dated 11th April, 2012 of Honble CAT, Principal Bench, New Delhi in MA No.1527/2011 and MA No.2404/2011 in OA No.1488/2010.
(ii) Note dated 02.05.2010 of ADG (CAP), CSO, MOSPI and controlling officer of Shri T.R. Mohnaty, DDG regarding non-permission of Shri T.R. Mohanty, DDG to absent himself from duty to attend the CAT on 11th April, 2012.
Applicant was also given opportunity of 10 days time to make representation, if any, against the aforesaid proposal. The Applicant challenged the aforesaid charge sheet before this Tribunal vide OA No. 502/2013 on various grounds. He has also sought stay of further proceedings in the matter. However, no stay was granted by the Tribunal. He has, therefore, made a very detailed defence brief on 11.02.2013 denying the Articles of Charges leveled against him. He has also submitted that the allegation made against him is not misconduct at all and, therefore, the same should be dropped. Further, he has stated that the Respondent-Ministry has got its facts all wrong and he was being subjected to all kinds of suffering for no reason and none of his fault. He has also stated that in case if there are two opinions about the facts, the Respondents should hold an enquiry into the incident wherefrom the truth can come out. He has also expressed his apprehension that the Respondent-Ministry may not conduct such an enquiry as the same will be against the interests of its unscrupulous officers who are hell bent to prosecute and persecute him. During its pendency, the Respondents issued the order dated 20.08.2013 imposing upon him the penalty of Censure which is being impugned in this OA. Thereafter, on the request of the Applicant the said OA was dismissed as withdrawn vide order dated 27.11.2013. The relevant part of the said order dated 20.08.2013 reads as under:-
Shri T.R. Mohanty, DDG, appeared in CAT, Principal Bench, New Delhi on 11th April, 2012 in MA No.1527/2011 & 2404/2011 in OA No.1488/2010 in the matter of Shri E. Nagachandran Vs. Union of India on behalf of the applicant in the above cases by deserting his post during office hour and remaining absent from his office to attend the court cases on behalf of applicant and against the Union of India.
This act of deserting his post and absenting himself from office unauthroisedly by Shri T.R. Mohanty, DDG on 11th April, 2012, is a conduct unbecoming of a Government servant and thus he violated Rule 3(1)(iii) of CCS (Conduct) Rules, 1964.
AND WHEREAS Shri T.R. Mohanty, Deputy Director General, was granted opportunity to submit his statement of defence against the above articles of charge, vide letter dated 11th February 2013 submitted his written statement of defence denying the charges leveled against him.
AND WHEREAS after examination of written statement of defence submitted by the said Shri T.R. Mohanty, Deputy Director General, the matter was forwarded to Union Public Service Commission for their advice in terms of provisions of Central Civil Services (Classification, Control and Appeal) Rules, 1965.
AND WHEREAS Union Public Service Commission in their advice vide letter No.F.3/93/2013-S.I dated 24.07.2013, has observed the charges in Article I and Article II stand proved.
AND WHEREAS the President, after taking into consideration advice of the Union Public Service Commission and other material facts, is satisfied that the ends of justice would be met in this case if minor penalty of Censure is imposed against the said Shri T.R. Mohanty, Deputy Director General.
NOW, THEREFORE, the President, hereby orders for imposition of minor penalty of Censure on the said T.R. Mohanty, Deputy Director General, in terms of Rule 16 of CCS (CCA) Rules, 1965.
3. The Applicant sought an order quashing and setting aside the aforesaid minor penalty of Censure on various grounds. According to him, the said penalty order issued is bad in law as the show cause notice in this regard as the prelude to the minor penalty charge sheet itself was without jurisdiction as the same did not have the mandatory approval of the competent authority, namely, the Minister of State for Statistics and Programme Implementation; the issues mentioned in the show cause notice issued are entirely different from the issues mentioned in the charge sheet; the charge sheet was issued without waiting for his reply to the show cause notice; the charge sheet approved by the competent authority has been replaced by the minor penalty charge sheet dated 10.09.2012; there is total non-application of mind by the competent authority not only while approving the minor penalty charge sheet dated 10.09.2012 but also while imposing the impugned penalty of Censure; no misconduct was made out from the face of the records; the impugned action is actually an expression of a pre-determined mind with an infinitely deep-rooted institutional bias against him; and the penalty order is bad in law inasmuch as it is against the Government of India Instructions given under Rule 16(1)(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
4. According to the Applicant, when the facts in the Articles of Charges are disputed, it is mandatory that the Disciplinary Authority should hold an enquiry before any punishment is imposed upon the delinquent official. He has also stated that if no such enquiry is conducted on receipt of the representation of the Government servant concerned on the imputations of misconduct or misbehaviour communicated to him, the Disciplinary Authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed enquiry and then to form an opinion whether enquiry is necessary or not. In this regard he has relied upon the DOP&T OM No.11012/18/85-Ests.(A) dated 28th October, 1985. The relevant part of the said OM reads as under:-
The implication of this rule is that on receipt of representation of Government servant concerned on the imputations of misconduct or misbehavior communicated to him, the disciplinary authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed inquiry and form an opinion whether an inquiry is necessary or not. In case where a delinquent Government servant has asked for inspection of certain documents and cross examination of the prosecution witnesses, the disciplinary authority should naturally apply its mind more closely to the request and should not reject the request solely on the ground that in inquiry is not mandatory. If the records indicate that, notwithstanding the points urged by the Government servant, the disciplinary authority could, after due consideration, come to the conclusion that an inquiry is not necessary, it should say so in writing indicating its reasons, instead of rejecting the request for holding inquiry summarily without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice.
On the other hand, not even a single reason has been recorded by the disciplinary authority in the impugned order of penalty of Censure imposed upon him on 20.08.2013, as to why his request for detailed enquiry has not been acceded to. The said order only says that the Applicant was given an opportunity to submit his statement of defence against the Articles of Charges and he submitted his written statement of defense denying those charges on 11.02.2013. Thereafter, the matter was referred to the UPSC and according to its advice dated 23/24.07.2013, the aforesaid Articles of Charges stand proved. The Commission has also held that the ends of justice would be met in this case if the penalty of Censure is imposed on the Applicant. The relevant part of the UPSCs advice is as under:-
Article-I 4.1. The Commission note that the charge against the CO in Article-I is that he appeared in person on behalf of the Applicant and against the Union of India in MA No.1527/2011 & 2404/2011 in OA No.1488/2010 in the matter of Shri E. Nagachandran Vs. U.O.I. The CO in his reply dated 11.02.2013 has contended that the charge sheet was not issued as per the relevant rules; the misconduct mentioned in the charge sheet does not come under the ambit of misconduct; advice of the DOP&T was obtained by fraud; the allegation are false, motivated, manufactured and contrary to the law; the prosecution documents do not substantiate the charge sheet and is of evidentiary value; original documents were not offered for inspection; as per confirmation from Shri E. Nagachandran, it was the CO, but someone called Thiru Rabindra Mohanty was requested the seek the adjournment; the officers handling cadre management of the ISS are biased and the allegations are the result of vivid piece imagination by the unscrupulous officers managing the cadre; the respondent in the matter was not the Union of India etc. The Commission further note that Honbe CATs Order dated 11.04.2012 records that Shri T.R. Mohanty appeared in person on behalf of the Applicant. Further, the note of Shri I.B. Lal, UDC, who had attended the court on 11.04.2012 also mentions that Shri T R Mohnaty appeared on behalf of Shri E. Nagachandran and that Shri T R Mohanty had informed the Honble Court that Shri E. Nagachandran was not present in the court due to illness of wife. Also, the letter of Learned Government Counsel dated 17.04.2012 in the case that arguments pertaining to MA No.1527/2011 and 2404/2011 in OA No.1488/2010 in the matter of Shri E. Nagachandran Vs. U.O.I. was fixed for arguments on 11.04.2012 before the Honble Tribunal buit the same was adjourned to 08.05.2012 on the request of Shri T.R. Mohnaty who informed that the petitioners wife is hospitalized so he is unable to attend the court.
4.2 The Commission observed that the CO instead of responding to the charges is trying to circumvent the actual issue by raising irrelevant issues. The argument of the CO that the charges do not come under the article of list. The Commission further observed that the CO and also Shri E. Nagachandran, i.e., the Applicant in the case, were not able to furnish any identity particulars of the so advocate called Thiru Rabindra Mohanty to substantiate the fact that it was Thiru Rabindra Mohanty and not the CO who had appeared on behalf of the Applicant in the case. Thus, from the facts given above it is clear and established that the CO had appeared in CAT on behalf of Shri E. Nagachandran in the matter filed against the Govt. of India and, therefore, the charge leveled against the CO in Article-I stands proved.
Article-II 4.3 The Commission note that the charge against the CO in Article-II is that he appeared in person on behalf of the applicant, i.e., Shri E. Nagachandran in cases against the Union of India without seeking any kind of leave or permission from the controlling officer to absent from office and by appearing in the cases he deserted his post during office hour and remained absent from his office to attend the court case. The Commission observe that it has been established that the CO had appeared in CAT on behalf of Shri E. Nagachandran.
4.4. The Commission note that the note dated 02.05.2012 of ADG(CAP)CSO and the Controlling Officer of the CO, had clearly indicated that the CO had neither appeared for any leave nor intimated or sought permission for attending the CAT. The Commission observe that it established that the CO had appeared in the Court of Shri E. Nagachandran without taking permission or intimating his superior officers. Thus, the charge in Article-II is proved.
5. In view of the findings as discussed above and after taking into account all other aspects relating to the case, the Commission considers that the ends of justice would be met in this case if the penalty of Censure is imposed on Shri T.R. Mohanty (the CO). They advise accordingly.
Thereafter, as aforestated, the President who is the Disciplinary Authority in the matter, taking into consideration of the advice of the UPSC and other material facts, held that he was satisfied that ends of justice would be met if minor penalty of Censure is imposed upon the Applicant.
5. In support of his aforesaid submissions, the Applicant has relied upon the following judgments of the Honble Supreme Court of India and the orders of this Tribunal:-
(i) The Apex Court in O.K. Bhardwaj Vs. Union of India and Others 2001 (9) SCC 180 wherein it has been held that if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with.
(ii) A co-ordinate Bench of this Tribunal in OA No.4/2008 B.D. Lakhan Pal Vs. U.O.I. and Others decided on 18.07.2008 held that Rule 16(1)(b) provides for holding of an enquiry by the disciplinary authority, which has further been supplemented on clarification by the Department of Personnel & Trainings OM dated 28.10.1985, wherein on the ground that if the disciplinary authority considers enquiry non-mandatory, the condition precedent is consideration and conclusion to be reduced in writing, indicating reasons.
(iii) OA No. 2370/2007 Shri B.D. Lakhan Lal Vs. Union of India and Others decided on decided on 25.03.2008. In the said case, the Tribunal held that since in the light of the admitted position on record that there has been violation of not only Government of Indias instructions but mandate of Rule 16(1)(b) of the Rules has also been violated, orders are de hors the rules, cannot be sustained in law.
(iv) A co-ordinate Bench of this Tribunal (Madras Bench) in OA No.597/1988 P.M. Durairaj Vs. G.M. Ordnance Factory, Trichy and Another decided on 06.11.1989 held that the Disciplinary Authority has not followed the procedure laid down in CCS (CCA) Rules 16(1)(b). He has also failed to record the reason for dispensing with the inquiry. Hence we hold that this Order is bad in law and has to be set aside.
(v) A co-ordinate Bench of this Tribunal (Bangalore Bench) in OA No.33/2002 Shrishail Bhajantri Vs. The Principal, Kendriya Vidyalaya No.2, Hubli and Others decided on 13.09.2002 considered submissions of the learned counsel therein that even in case of minor penalty charge sheet, where the nature of charge or charges leveled against the delinquent are such that a finding of guilt could be recorded only after holding a regular inquiry, oral and documentary evidence in support of the charge/s should be recorded and the delinquent should be given an opportunity of cross-examining the witnesses or explaining the documents and the holding of inquiry as provided in Rule 16(1) (b) becomes mandatory and the disciplinary authority is bound to form an opinion that the holding of an inquiry. Further, according to learned counsel therein oral inquiry was mandatory as the charges leveled were specifically denied. In support of the aforesaid submission, the learned counsel has also referred to ILR 1989 Karnataka 3455 V. Srinivasa Rao Vs. State of Karnataka wherein it was held as under:-
5. In our opinion, the contention urged by the learned Counsel for the appellant is well-founded. We respectfully agree with the view expressed by the Kerala High Court. We are also of the view that even in cases where a minor penalty is proposed to be imposed against a civil servant, if the nature of the charge or charges levelled against him are such that a finding of guilt could be recorded only after holding a regular inquiry in which oral and documentary evidence in support of the charge/s should be recorded and the delinquent should be given an opportunity of cross-examining the witnesses or explaining the documents, the holding of an inquiry as provided in Rule 12(1)(b) becomes mandatory and the disciplinary authority is bound to form an opinion that the holding of an inquiry is necessary and to hold the inquiry.
6. On the facts of this case, it is seen that the liability was sought to be fixed against the appellant in respect of shortage of various items of raw materials and the manufactured articles and the consequent loss caused to the Government, on the basis of an audit report. The appellant filed his detailed reply in which he disputed his liability. He also stated as to who were actually responsible for the shortage. In respect of some items, he specifically stated that those articles had not at all been handed over to him by his predecessor and therefore there was no question of appellant causing loss to the Government by the disappearance of those articles. In view of the reply furnished by the appellant to the show cause notice, it appears to us that unless a regular inquiry was held no finding of guilt could have been recorded. In our opinion, therefore, the finding recorded against the appellant by the disciplinary authority and confirmed by the Appellate Authority was violative of Rule 12(1)(b) read with Sub-rules (3) to (23) of Rule 11 of the Rules and also the principles of natural justice.
Agreeing with the aforesaid submission of the learned counsel, the Tribunal held as under:-
9. We have perused the allegations made, reply filed as well as the penalty order. We find that the allegations were specifically denied and in the absence of oral inquiry and without evidence on specific lapses it was not possible to establish the guilt of the applicant especially when the disciplinary authority in its impugned penalty order dated 10.04.2001 states that he on several occasions observed that the applicant were not punctual to the classes and not completed the syllabus within the prescribed time. This has been brought to your notice by me and you were orally advised many times to improve yourself. We find that neither details of the dates nor its contents/substance as to when the said oral warning was given have either been mentioned in the charge memo or in the penalty order. Similarly neither the details of the year, month/semester when the applicant was unable to complete the syllabus not the date/s on which he was not punctual or remained absent have been detailed. As such it becomes difficult to accept the contention that the applicant was found guilty of the charge leveled. It is for the disciplinary authority to substantiate the charge and not otherwise.
6. The Applicant has also relied upon the judgment of the Honble High Court of Madras in M.A. Rahim Vs. the Union of India represented by Secretary, Ministry of Home Affairs and Others 2009 (6) MLJ 263. In the said judgment the short point for determination is whether, in the facts and circumstances of the case, the imposition of penalty without holding an enquiry into the charges framed, more particularly when the delinquent made a specific request for conduct of an enquiry, is sustainable in law. The court was also considering the scope of Rule 37 (1)(b) of the CISF Rules, 2001 which was pari material with Rule 16(1) of the CCS (CCA) Rules, 1965. The relevant part of the said judgment is as under:-
7. It is well-known that the principles of natural justice plays a pivotal role in departmental disciplinary proceedings. The principles of natural justice requires that a departmental disciplinary proceedings shall be initiated, conducted and concluded in a fair manner and in strict compliance of the principles of natural justice - otherwise called 'Fair Play'. 'Fair play', in departmental proceedings, includes affording 'full opportunity' to the delinquent to effectively defend the charges - whether it is major or minor - levelled against him. 'Full opportunity' in its' strict legal parlance means not merely affording an opportunity to explain to the showcause notice issued or to submit a statement of defence to the charges framed, but also includes an opportunity of personal hearing and an enquiry into the charges, particularly when delinquent refutes the alleged charges and prays for an enquiry. This is all the more so, when the delinquent is prepared to undergo the ordeal of an enquiry and makes a specific request for holding an enquiry and the disciplinary authority desires not to hold an enquiry then it is incumbent upon the disciplinary authority to record his reasons for his desire not to hold an enquiry and communicate the delinquent of the same. This is irrespective of the fact whether the punishment warrants or proposed vis-a-vis the alleged charge is major or minor. This is a procedural safeguard to a delinquent employee to fully and effectively defend the charges levelled against him to have a clean chit in a departmental action. This procedural safeguard to the delinquent employee is one of the basic principles of service jurisprudence which cannot be thrown to the winds by the disciplinary authorities.
In the said judgment, the Madras High Court has relied upon its earlier two judgments in W.P. No. 21954 of 2004 (Jamil Akhtar v. The Assistant Commandant, CISF, Arakonam) and W.P. No. 26265 of 2007 (C.K.G. Nathan v. The Assistant Commandant, CISF Unit, CPCL, Manali and Anr. The relevant part of the judgment in Jamil Akhtar (supra) was as under:-
It is pointed out that as per Sub-rule (a), the petitioner was afforded reasonable opportunity. In fact, pursuant to the charge memorandum, the petitioner submitted his reply in respect of the charge levelled against him. Sub-rule (b) enables the Disciplinary Authority to hold an enquiry in the manner laid down under Sub-rules (3) to (22) of Rule 36. No doubt, as per the said provision, it is the discretion of the disciplinary authority to conduct enquiry or not. However, in view of the specific stand taken in the reply disputing the charge levelled against him and the specific request for enquiry and also taking note of the fact that the disciplinary authority did not send any reply for his request, we are of the view that the ultimate penalty imposed by him cannot be sustained.
In the light of the rule referred to above, when a specific request is made for an enquiry by a competent officer which is supported by relevant materials, we are of the view that it is but proper on the part of the Disciplinary Authority either to reply giving reason for not holding the enquiry or by accepting his request, conduct enquiry as pleaded by the delinquent. Such recourse has not been followed in the case on hand. Though the orders have been passed by the Appellate and Revisional Authorities, this relevant aspect has not been considered by these authorities, who have committed an error in confirming the order of Disciplinary Authority. On this ground, we quash the impugned orders and remit the matter to the Disciplinary Authority for passing fresh order. As observed above, the writ petition is allowed to this extent.
The relevant part of the judgment in C.K.G. Nathan (supra) was as under:-
When the petitioner specifically refutes the charges framed against him, it is but proper for the disciplinary authority to indicate the reasons in writing as to why the enquiry is dispensed with on the facts of the given case. This is more so because the authority is duty bound to consider the imputation of the misconduct or misbehaviour committed by the delinquent officer, the explanation offered by him and the relevant records to satisfy himself as to whether an enquiry is necessary or not in terms of Rule 37(1)(b) of the Rules. On the facts of this case, the explanation of refutal of the charges was not accepted and findings were rendered in the impugned order holding that the charges were proved without assigning any reason. In our considered view, such a procedural lapse would defeat the valuable right of a delinquent employee to establish his case as to the imputation....
7. The Respondents in their reply have submitted that it was on the record of this Tribunal that on 11.04.2012, the Applicant herein appeared in person on behalf of the applicant Shri E. Nagachandran in OA No.1488/2010. They have stated that the Applicant was given opportunity to clarify the above position vide their letter dated 02.05.2012 and they have, on their own also found out the position from the immediate superior officer of the Applicant, i.e., ADG (CAP), CSO that the Applicant was neither on leave on 11.04.2012 nor he had given any information/intimation regarding his appearance before this Tribunal on that date. Thereafter, the Respondents, vide their letters No.11024/4(II)/2011-ISS dated 02.05.2012 and 31.05.2012 asked the Applicant to clarify in which capacity he had appeared before the Tribunal on 11.04.2012. As regards the submission of the Applicant that in spite of his request, the Disciplinary Authority has not agreed to hold a detailed enquiry or he has not given reasons thereof, the Respondents have submitted that the Applicant did not specifically ask for enquiry in the matter. They have also stated that the Applicant in his representation has stated as under:-
In case there are any two opinions about the facts, the Charged Officer prays that the Ministry of Statistics and Programme Implementation may hold enquiry into the incident where the truth can come out According to the Respondents, the Applicant himself was not sure about the need for the enquiry.
8. The learned counsel for the Respondents Shri R.N. Singh has also relied upon the following judgments in this regard:-
(i) The Apex Court in B.C. Chaturvedi Vs. U.O.I. AIR 1996 SC 484 held that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary / appellate authority. The relevant part of the said judgment reads as under:-
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive 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 (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), 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.
14. In Union of India v. S. L. Abbas (1993) 4 SCC 357 : (1993 AIR SCW 1753), when the order of transfer was interfered by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not in such circumstances, interfere with order of transfer of a Government servant. In Administrator of Dadra & Nagar Haveli v. H. P. Vora (1993) Supp. I SCC 551 : (1992 AIR SCW 2830), it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant, recently, in State Bank of India v. Samarendra Kishore Endow (1994) 1 JT (SC) 217 : (1994 AIR SCW 1465), a Bench of this Court to which two of us (B. P. Jeevan Reddy & B. L. Hansaria, JJ) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary / appellate authority.
(ii) In Government of India and Another Vs. George Philip 2006 (13) SCC 1, the Apex Court held the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. The relevant part of the said judgments reads as under:-
13. In Damoh Panna Sagar Rural Regional Bank & Anr. v. Munna Lal Jain (2005) 10 SCC 84, it was observed that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. The Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
(iii) In State Bank of Patiala Vs. S.K. Sharma 1996 (3) SCC 364, the Apex Court held as under:-
32. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee) :
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and not adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing." (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand-point of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
(iv) In State of U.P. and Others Vs. J.P. Saraswat 2011 (4) SCC 545, the Apex Court has held as under:-
8. Any interference on the question of punishment is permissible in very rare cases where the punishment is so disproportionate to the established charge that it would appear unconscionable and actuated by malice. In the facts of the case, the punishment given to the respondent was quite moderate and there was not even a whisper of any malice, etc. The respondent went to the USA and overstayed his leave for over a year and a half on the first occasion and on the second occasion, he went to the USA without even caring to obtain leave and remained there for over four years. In those circumstances, the punishment of termination of service that would not debar from future employment was a perfectly reasonable and fair punishment and there was no occasion for the High Court to interfere with that order. The High Court was equally wrong in setting aside the punishment order passed against the respondent on the ground that the State Government had not responded to his applications for extension/grant of leave or that during the long period of his absence the government had not sent him any notice asking to resume duties by a certain date. These could never be the grounds for the High Court to set aside the punishment order passed by the State Government and to replace it by its own set of directions.
9. We have heard the Applicant who argued in person and the learned counsel for the Respondents Shri R.N. Singh. We have also perused the Departments file in which the case of the Applicant was dealt with. As stated earlier, the main contentions of the Applicant are that decision to initiate disciplinary proceedings against him was taken by an incompetent authority and in the facts and circumstances of the case, the Disciplinary Authority should have held a detailed enquiry in the matter. As far as the first contention is concerned, we verified from the Respondents file that action against the Applicant had the approval of the competent authority at the relevant stage. Therefore, the said contention is devoid of any merit. As regards the second contention is concerned, it is seen that the charge against the Applicant is that as per the record of proceedings of this Tribunal received by the Respondent No.1, the Applicant appeared before it on 11.04.2012 on behalf of one Shri E. Nagachandran in a case filed against the Union of India. The Applicant denied the aforesaid charge and requested the Disciplinary Authority to hold enquiry into the incident where the truth can come out. The Disciplinary Authoritys stand is that the Applicant appeared before this Tribunal and the Applicants stand is that he did not. Obviously the alleged incident has taken place outside the office premises of the Applicant as well as the Respondent-Ministry. The Disciplinary Authority has no direct or indirect knowledge about it. In such a situation, how can the Disciplinary Authority come to the conclusion that the charge against the Applicant has been proved. When allegation is based on disputed facts, it was incumbent upon the Disciplinary Authority to hold an enquiry in the matter so that it could produce evidence in support of the charge and the Applicant will have the opportunity to rebut it. Under Rule 16 of the CCS (CCA) Rules, 1965, the discretion of the Disciplinary Authority to impose any of the minor penalties specified in clause (i) to (iv) of Rule 11 of the CCS (CCA) Rules, 1965 on a Government servant is neither absolute nor unfettered. The aforesaid discretionary power of the Disciplinary Authority is first of all limited by Rule (1-A) thereof itself which was inserted vide Government of India Notification dated 20.04.1968. According to the said Rule, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government servant any penalty to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period. Again the Government of India, vide DOP&T OM No.11012/18/85-Estt.(A) dated 28.10.1985, imposed further restriction on the Disciplinary Authority to the following effect:-
In case where a delinquent Government servant has asked for inspection of certain documents and cross examination of the prosecution witnesses, the disciplinary authority should naturally apply its mind more closely to the request and should not reject the request solely on the ground that in inquiry is not mandatory. If the records indicate that, notwithstanding the points urged by the Government servant, the disciplinary authority could, after due consideration, come to the conclusion that an inquiry is not necessary, it should say so in writing indicating its reasons, instead of rejecting the request for holding inquiry summarily without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice.
10. As observed earlier, the Article of Charge against the Applicant is purely factual. According to the allegation made by the Respondents in its show cause notice, the Applicant appeared before the Tribunal on 11.04.2012 in the case of one Shri E. Nagachandran. The Applicant denied the said allegation. As held by the Apex Court the Apex Court in its judgment in O.K. Bhardwaj (supra) says if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with. In the order in the case of B.D. Lakhan Pal (supra), a coordinate Bench of this Tribunal held that Rule 16(1)(b) provides for holding of an enquiry by the disciplinary authority, which has further been supplemented on clarification by the Department of Personnel & Trainings OM dated 28.10.1985, wherein on the ground that if the disciplinary authority considers enquiry non-mandatory, the condition precedent is consideration and conclusion to be reduced in writing, indicating reasons. Again, in the judgment in V. Srinivasa Rao Vs. State of Karnataka (supra), the High Court of Karnataka has held that in cases where a minor penalty is proposed to be imposed against a civil servant, if the nature of the charge or charges levelled against him are such that a finding of guilt could be recorded only after holding a regular inquiry in which oral and documentary evidence in support of the charge/s should be recorded and the delinquent should be given an opportunity of cross-examining the witnesses or explaining the documents. In the case of Shrishail Bhajantri (supra) also, the Tribunal held that even in case of minor penalty charge sheet, where the nature of charge or charges leveled against the delinquent are such that a finding of guilt could be recorded only after holding a regular inquiry, oral and documentary evidence in support of the charge/s should be recorded and the delinquent should be given an opportunity of cross-examining the witnesses or explaining the documents. In the judgment in Jamil Akhtar (supra) the Madras High Court held that No doubt, as per the said provision, it is the discretion of the disciplinary authority to conduct enquiry or not. However, in view of the specific stand taken in the reply disputing the charge levelled against him and the specific request for enquiry and also taking note of the fact that the disciplinary authority did not send any reply for his request, we are of the view that the ultimate penalty imposed by him cannot be sustained. The said judgment further states that In the light of the rule referred to above, when a specific request is made for an enquiry by a competent officer which is supported by relevant materials, we are of the view that it is but proper on the part of the Disciplinary Authority either to reply giving reason for not holding the enquiry or by accepting his request, conduct enquiry as pleaded by the delinquent. Such recourse has not been followed in the case on hand. Again, in the judgment in C.K.G. Nathan (supra), the Madras High Court has held that When the petitioner specifically refutes the charges framed against him, it is but proper for the disciplinary authority to indicate the reasons in writing as to why the enquiry is dispensed with on the facts of the given case.
11. Further, it is seen that according to the UPSC, it has been established that the CO had appeared in CAT on behalf of Shri E. Nagachandran. The UPSC further says, it is established that the CO had appeared in the Court on behalf of Shri E. Nagachandran without taking permission or intimating his superior officers. Thus, the charge in Article-II is proved. It is not understood at to how the UPSC can assume the powers of the Enquiry Officer. Moreover, when the UPSC says that the charge has been proved, they do not give any justification for saying so.
12. It is also seen in this case that the Disciplinary Authority has relied upon two documents in support of the Article of Charge leveled against the Applicant. The purpose of delivering the list of documents with the Article of Charge is to put the delinquent official on notice as to how the Disciplinary Authority proposes to prove the charge against him. Once the list of documents is delivered, it has to be followed by a list of witness to prove them. The content of those documents can be proved only by examining the witness. As held by the Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570, by the mere production of some documents, it cannot be assumed that charge has been proved.
13. It is seen that the Respondents have also sought the opinion of the Department of Personnel and Training in the matter. They advised that an officer holding such a high post and appearing in a case on behalf of an individual against the Union of India is not only a gross violation of instructions and grave misconduct but also a case of impropriety, indiscipline and violation of decorum. They have, therefore, advised the Respondents to submit the case to the disciplinary proceedings as per the prescribed Rules. However, the Joint Secretary concerned in the Respondent-Ministry, on his own, recommended to initiate only the minor penalty proceedings against the Applicant. In our considered view, when the advice of the DOP&T, whether it was required or not, whether it was relevant or not, was that the Applicant has committed grave misconduct, it is quite strange for the aforesaid official to recommend only a minor penalty against the Applicant. Such an act on his part only strengthen allegation of the Applicant that the Disciplinary Authority resorted to the procedure for imposing the minor penalty of Censure upon the Applicant only to circumvent the prescribed procedure of holding the enquiry and prove the charge based on evidence.
14. We also do not find merit of the contention of the Respondents. The judgment relied upon by the learned counsel for the Respondents are not relevant in the facts and circumstances of the case. They have considered the act on the part of the Applicant as misconduct in terms of the judgment of the Supreme Court in Baldev Singh Gandhi Vs. State of Punjab AIR 2002 SC 1124 wherein it has been held that 'misconduct' means, wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc. They have also relied upon the judgment of the Supreme Court in the in the case of M.M. Malhotra Vs. Union of India AIR 2005 SC 5497 wherein it has been observed that the word misconduct on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty and the act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve. The question is not whether the alleged action on the part of the Applicant was misconduct or not but it is whether an enquiry was to be held in the matter or not. 15. We, therefore, allow this OA and quash and set aside the impugned minor penalty of Censure imposed upon the Applicant vide order dated 20.08.2013. The Respondents shall pass appropriate orders in compliance of the aforesaid direction within a period of one month from the date of receipt of a copy of this order. However, we make it clear that we have not gone into the merit of the charge or any other aspect in this case. We also make it clear that this order will not come in the way of Disciplinary Authority from holding an enquiry in the matter in terms of Rule 16(1) (b) of the CCS (CCA) Rules, 1965, if after taking a decision in the matter and if so advised.
16. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
Rakesh