Central Administrative Tribunal - Delhi
Darshana Devi vs Union Of India Through Secretary on 21 September, 2010
Central Administrative Tribunal Principal Bench OA No.1237/2010 New Delhi this the 21st day of September, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) Darshana Devi, W/o late Sh. Sat Pal, R/o P/8, Radio Colony, Kingsway Camp, New Delhi. -Applicant (By Advocate Shri Arun Bhardwaj) -Versus- 1. Union of India through Secretary, Ministry of Defence, South Block, New Delhi. 2. Director General of Medical Services (Army), Adjutant General Branch, Army Headquarters, L-Block, New Delhi. 3. Commandant, Army Hospital, Delhi Cantt., New Delhi. -Respondents (By Advocate Shri Rajeev Manglik for Shri R.P. Aggarwal) O R D E R Honble Mr. Shanker Raju, Member (J):
By virtue of this OA applicant, who was appointed as Ward Sahayika in a temporary capacity in Army Hospital, has impugned respondents order dated 26.07.1997, whereby she was removed from service after following an enquiry, as well as an order passed on 07.12.2009, pursuant upon the directions of the Tribunal, whereby the appeal preferred against punishment was turned down.
2. The present OA, in its backdrop, has multifarious litigation, genesis of which is that applicant, who was appointed as Ward Sahayika in a temporary capacity on 12.11.1990 and was on probation for a period of two years, was issued show cause notices, which when responded to, led to notice of termination on 7.9.1991, which was challenged in OA No.2272/1991 before the Tribunal. An order passed on 1.10.1991, stayed operation of notice and ultimately the OA was allowed to be withdrawn on 30.08.1995.
3. A disciplinary proceeding was initiated against applicant on the allegations of willful insubordination and disobedience in performance of duties, using abusive language and habitual in negligence of duties. On 24.1.1997, the report of the enquiry officer (EO) did not held applicant guilty of charge insofar as article-I of the charge is concerned, but behaving in an insubordinate manner with Lt. Col. V. Lakhanpal. However, she was not found guilty of being negligent in her duties but the charge of using abusive language against the officers was established, on the basis of which applicant, who was on probation, was removed from service, against which an appeal preferred was also turned down, taking some extraneous matter into consideration. This had led to filing of OA No.104/2001 before the Central Administrative Tribunal, wherein it was observed that the disciplinary proceedings were conducted in accordance with the due procedure with all opportunities to the applicant in consonance with the principles of natural justice. So, no interference was made with the order passed by the disciplinary authority (DA). However, in the order of the appellate authority extraneous charge was levelled, which was not found favored with and on appellate order being set aside the matter was remitted back to the respondents to pass fresh orders.
4. Applicant challenged this order of the Tribunal in Writ Petition (C) No.5502/2002 before the High Court of Delhi, wherein it is stated that the order passed in compliance by the respondents on 24.06.2002 was not served upon applicant. Accordingly an amendment was sought to be carried out in the Writ Petition, which was allowed. However, giving liberty to the applicant to challenge the order dated 24.06.2002 before the Tribunal and with a view that the applicant would not be left without any remedy, on peculiarity of facts the Tribunal was directed to consider the OA, without going into the question of limitation.
5. The appellate order dated 24.06.2002 was challenged in OA-1832/2008 and an order passed on 25.02.2009, holding that the reasoned order has not been passed and also proportionality of punishment has not been decided, the matter was remitted back, which resulted in the appellate order being passed by the respondents on 07.12.2009.
6. CP-458/2009 filed by the applicant, other than the Commandant, appellate authority has been directed to pass a fresh order, gives rise to the present OA.
7. Learned counsel of applicant, Shri Arun Bhardwaj, stated that the show cause notices issued to the applicant on 8.8.1991 and 1.10.1991 are based on different set of allegations, whereas the chargesheet, which has been issued does not show that proper show cause notice was issued to the applicant before initiating the disciplinary proceedings.
8. Learned counsel also states that no enquiry report was served upon applicant and as per the chargesheet dated 2.2.1996, once the charge was not established against the applicant insofar as charge contained in article-I is concerned, as no willful subordination is made out and regarding the second article of charge record of preliminary enquiry has been relied upon to hold the charge as proved, which cannot be done in accordance with law. It is also stated that on the charge of using abusing language, the language used was not indicated or stated in the chargesheet, vitiates it.
9. Shri Bhardwaj also stated that no finding with reasons has been recorded on proportionality and as applicant has been begging for her employment since 1997, without any means and the misconduct not being proved, the punishment is not commensurate with the misconduct alleged and proved and on the doctrine of proportionality the same is excessive and harsh.
10. On the other hand, learned counsel of respondents, Shri Rajeev Manglik, would take a preliminary objection, stating that once the DAs order has been upheld in OA No.104/2001, challenge to the same is barred by the principle of res judicata. It is also stated that applicant was given full opportunity during the course of enquiry and list of witnesses and memorandum were served upon her. Thereafter, the punishment upheld by the appellate authority is with a reasoned order, in compliance of the directions of the Tribunal and is commensurate with the misconduct.
11. We have carefully considered the rival contentions of the parties and perused the material on record.
12. We restrict our adjudication to the issue of proportionality of punishment in the instant case and while arriving at on change concept of doctrine of proportionality and the principles enunciated by the Apex Court in a catena of decisions, we have to weigh factors for and against, for sustaining the penalty imposed upon applicant. It is trite that imposition of punishment is the prerogative of the DA and to go into the proportionality is the obligation vested in the appellate authority. However, when a complaint is made as to non-consideration of factors and non-recording of reasons, to sustain proportionality of punishment and to uphold the punishment, the same are amenable to judicial review as per the laid down methodology. In case of non-consideration the matter is remitted back to the concerned authority but in exceptional circumstances penalty could be substituted by the Court when the conscience is shocked, as ruled by the Apex Court in B.C. Chaturvedi v. Union of India and Ors., (1995) 6 SCC 749.
13. In Praveen Bhatia v. Union of India, (2009) 1 SCC (L&S) 801 the Apex Court held as follows:
The power of the court to interfere with the quantum of punishment is extremely restricted and only when the relevant factors have not been considered the Court can direct re-consideration or in an appropriate case to certain litigation, indicate the punishment to be awarded; and that can only be in very rare cases.
14. In Jagdish Singh v. Punjab Engineering College and others, (2009) 2 SCC (L&S) 569, in a case where the proportionality was in issue, the punishment was substituted with the following observations:
8. The Courts and the Tribunals can interfere with the decision of the disciplinary authority, only when they are satisfied that the punishment imposed by the disciplinary authority is shockingly disproportionate to the gravity of the charges alleged and proved against a delinquent employee and not otherwise. Reference can be made to the decision of this Court in the case of V. Ramana Vs. A.P.S.R.T.C. and Ors. (2005) 7 SCC 338, wherein it is stated:
"The common thread running through in all these decisions is 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. In view of what has been stated in Wednesbury case 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 for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course, if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed."
9. The other principle that requires to be kept in view, is the observation made by this Court in Kerala Solvent Extractions Ltd. Vs. A. Unnikrishnan and Anr. (1994 (1) SCALE 631, wherein it is stated:
"In recent times, there is an increasing evidence of this, perhaps well meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability."
15. In State of Uttar Pradesh & others v. Ram Daras Yadav, (2010) 2 SCC 236, on an allegation of abusing and aiming rifle, when no evidence has come on record, the punishment of termination was reduced to withholding of two increments.
16. The appellate authority when exercised power, despite a finding of the Tribunal in OA-1042/2001, once the appellate authority independently without referring to this decision has quoted Rule 27 (2) of the CCS (CCA) Rules, 1965 and examined whether the procedure laid down under the Rules has been complied with or not and whether the finding of the DA is warranted by the evidence on record, recorded that the proper opportunity was given with supply of all documents and there is no infirmity or irregularity in the enquiry proceedings, which is not correct. As per the enquiry report available with us at Annexure A-9 and on a pointed query to the learned counsel of respondents whether the same is an authenticated copy of the report, an answer in the affirmative leads us to examine this, where in article-I of the charge as to willful insubordination and disobedience in performance of duties, the only act of the applicant was to shut the door when Lt. Col. came. There is no act of indiscipline and even in the allegation what amounts to insubordination has been described. Applicant was not held guilty of the charge on remaining absent and negligent on duty. However, the charge of abusing has not been clearly described as no exact abusive language has been incorporated as a charge. The finding recorded by the EO was without reasons, without dealing the contentions of the applicant, which, itself, is contrary to Rule 14 (23) of the CCS (CCA) Rules, 1965. Such an abrupt finding, where the defence of applicant has not, at all, been considered, more particularly arrived at by the EO, who discharges quasi-judicial functions required in law to be a reasoned report, as held by the Apex Court in State of U.P. v. Saroj Kumar Mishra, (2010) 2 SCC 772. This aspect of the matter has not been considered by the appellate authority. On proportionality of punishment the appellate authority recorded a finding and the punishment should be commensurate with the gravity of the charge, the penalty awarded is considered as adequate is not rested on any prudent reasoning. It would not be suffice to observe in a stereo-type manner as to how the penalty is adequate, for which proportionality is the sole prerogative of the authority, application of mind has to be shown from recording of reasons, which includes several factors involved. If these contentions, in the backdrop of the penalty, are not considered and no reasons have been recorded, more particularly dealing with the contentions of the concerned the order passed by the appellate authority cannot be sustained, as ruled by the Apex Court in Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity, (2010) 3 SCC 732. As an obligation what is obligated upon the appellate authority under Rule 27 (2) of the Rules is consideration, whether the penalty imposed is inadequate or severe, cannot be discharged only by recording provisions of the rules but further discussions are to be made.
17. It does not preclude the Tribunal to go into the proportionality in an exceptional case and while coming to a finding of shocking conscience apt reasoning is to be given. The allegations against the applicants are insubordinate behavior, which admittedly by the respondents is closing the door of duty room. The insubordination and background of it, having not been detailed, in the present form, the allegations do not record any insubordination insofar as Lt. Col. V. Lakhanpal is concerned.
18. Regarding article-II of the charge as to abusive language against Shanta Kumari, we do not find the exact words, which amounted to abusive language, in absence of which though the charge may be proved but the severity is mitigated. Applicant, who had worked for almost 7 years, has been now out of employment for more than 13 years, the penalty, to our considered view, is not only severe, harsh but also disproportionate to the charge. It shocks our conscience. Accordingly, in exercise of our jurisdiction in this exceptional case, we allow the OA to the extent that the penalty of removal from service is modified to reduction to lower time scale of pay for a period of three years with cumulative effect, which may be operated from 26.07.1999. The respondents are directed to reinstate applicant in service w.e.f. 27.07.1997, with all consequences, except back wages, within a period of two months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.