Central Administrative Tribunal - Delhi
Sh. Subhash Chand vs The Chairman on 21 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
T.A. No.02/2012
ORDER RESERVED ON 08.08.2012
ORDER PRONOUNCED ON: 21.12.2012.
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SUDHIR KUMAR, MEMBER (A)
Sh. Subhash Chand
S/o Late Shri Dalip Singh,
Assistant (Accounts),
Under India Trade Promotion Organization (ITPO),
Pragati Bhawan,
Pragati Maindan, New Delhi.
Applicant
(By Advocate: Sh. Arun Sukhija)
Versus
1. The Chairman,
India Trade Promotion Organization,
Pragati Maidan,
New Delhi.
The Executive Director,
India Trade Promotion Organization,
Pragati Maidan,
New Delhi.
3. The Deputy General Manager (Administration),
India Trade Promotion Organization,
Pragati Maidan,
New Delhi.
Respondents
(By Advocate: Sh. Ayushya Kumar for Sh. Vaibhav Kalra)
O R D E R
Mr. Sudhir Kumar, Member (A):
The applicant had initially filed this case as Writ Petition (C) No.14773/2004 before the Honble Delhi High Court which case came to be transferred to this Tribunal through the orders dated 05.02.2009.
2. The applicant was an Assistant (Accounts) in the respondent organization through Memo/Order dated 12.06.1998 (Annexure P-4), he was charge sheeted on major penalty count under Rule 27 of ITPO Employees (Conduct, Discipline & Appeal) Rules, 1977. There were two Articles of Charges, 9 listed witnesses and 10 listed documents through which the Articles of Charges were sought to be proved. The applicant filed his preliminary reply to the Charge Sheet on 24.06.1998 through Annexure P-5 denying all the charges. However, the respondents instituted a departmental enquiry, and one Shri B.K. Sharma was appointed as an Inquiring Authority into the charges levelled against him. Through his letter dated 02.09.1998, the applicant sought 13 documents and named 7 Defence Witnesses, whom he wanted to examine in the disciplinary enquiry. He also subjected himself for the purpose of recording a statement before the Enquiry Officer on 08.01.1999, and was cross-examined by the Presenting Officer concerned (Annexure P-7). Through Annexure P-8/Colly the applicant had produced typed copies of certain Bills, which were the bone of contention, and which, he submitted, were sanctioned for being passed by the Assistant Manager (Publicity & P.R. Division). At Annexure P-9 the applicant has produced the Accounts Manual, which were circulated through Annexure P-10, and the revised guidelines for disposal of work in Finance and Accounts Division, which were circulated on 21.08.1989 through Annexure P-11. The Enquiry Officer thereafter submitted his report, which was duly forwarded by the Disciplinary Authority to the applicant for his comments on 24.09.1999.
3. Aggrieved, the applicant submitted his representation against the findings of the Enquiry Officer through Annexure P-13 dated 25.10.99. However, through their order dated 16/17.02.2000 (Annexure P-1), the Disciplinary Authority imposed the major penalty of the applicants removal from service, which will not be a disqualification for future employment. The applicant filed an appeal against the order passed by the Disciplinary Authority, on 22.02.2000, through Annexure P-14. However, the Appellate Authority, after considering his appeal confirmed the order, as communicated to the applicant through Annexure P-2 dated 25/26.04.2001. The applicant thereafter filed a revisional appeal before the Executive Director, ITPO, the Reviewing Authority, through Annexure P-17/A dated 13.05.2002. The Reviewing Authority gave him a personal hearing, but after perusing the records, and after having heard him, came to the conclusion that no new facts had emerged, and as such there was no reason for him to alter the order of the Disciplinary Authority, as confirmed by the Appellate Authority. The applicant thereafter sought an appointment with the Chairman & Managing Director of ITPO, through his letter dated 01.11.2002 (Annexure P-18), but was informed through letter dated 31.12.2002 (Annexure P-19) that there was no scope for further reviewing his case.
4. The applicant has assailed the actions of the respondents, and submitted that he has been removed from service without holding any proper enquiry, and without any application of mind at all levels, that of the Disciplinary Authority, the Appellate Authority, as well as the Revisional Authority. He had, therefore, prayed that the order dated 17.02.2000 (Annexure P-1) of the Disciplinary Authority, and the order dated 25/26.04.2001 of the Appellate Authority, may be quashed, and the respondents may be directed to reinstate the petitioner on the post from which he was wrongfully removed from service, and to give him consequential benefits.
5. The applicant has submitted that he had pointed out to the respondents the Memo dated 25.09.1998, in which it was clearly stated that publicity bills were authorized by publicity division, while in the charge sheet the charge being levelled against the applicant was that those bills were passed in respect of advertisements which had never appeared in the stated Newspapers/Journals. He submitted that on all the bills, as indicated in the charge sheet, the sanction of the Competent Authority had been taken, and conveyed by the Assistant Manager/Dy. Manager concerned, and in most cases, original advertisements were sent to the Accounts Section, and it was only once in a while that a photo copy of the said advertisement was submitted, along with the bill, with a certificate that the original had been verified. He had, therefore, submitted that there was no act of omission or commission on his part, which may have led to the loss to the respondent-organization, as alleged in the charge sheet. He also submitted that the bills checked by him were further checked by the Accountant/Asstt. Manager/Dy. Manager/Manager/Joint Manager before the bill was finally passed, and the cheque was finally prepared, and was ultimately signed by two higher officers Manager/Joint Manager, who were fully responsible to ensure that all documents are correctly placed on record before they signed the cheque.
6. The applicant also submitted that he had attached a list of 55 cases, in which he had dealt with the bills in accordance with the duties as per the prescribed procedure without any omission or commission, and no objection was raised by any higher authorities like Accountant, D.M., Manager, Joint Manager etc. He also submitted that when in response to his request for supplying additional documents, while the Enquiry Officer had allowed most of the documents, as mentioned by him, but some of them were not allowed by the Enquiry Officer, without giving any reasons therefor. He also submitted that out of 9 listed witnesses, 7 were produced on behalf of the Disciplinary Authority, and only one had produced a copy of the statement, which he had made in the preliminary enquiry, in which he had made certain allegations of making payments to several employees of ITPO working in Publicity Section as well as Accounts Section, even though he had been implicated maliciously.
7. The applicant had pleaded that the charges levelled against him were baseless that he had always followed the prescribed procedure, and had submitted that the documents filed at Annexure P-8 would show to prove that the procedure, which was to be rightly followed in all such cases. The applicant alleged that as a matter of fact, it was the duty of the Asstt. Manager/Dy. Manager/Manager above him to verify all the facts, as stated in the Bill, before a final cheque was prepared, and sent to the Accounts Department, as per Para 2.5 of the Accounts Manual Annexure P-9. He submitted that it was the duty of the checking and signing authority of the cheque also to satisfy themselves fully from the relevant documents about the genuineness of the bill, as also regarding compliance of the prescribed procedure, and, therefore, in so far as the applicant was concerned, he had a very limited role in the whole process, being the lowest Group C employee in the hierarchy of officers, who were concerned with verifying the bills and making payment to the parties concerned, and that he had been made a scapegoat, and removed from service, while officers higher than him have been let off the hook with penalties minor than him. Thereafter the applicant had explained the entire procedure in making payment of the bills, and had alleged that without appreciating his small role in the whole process, the Enquiry Officer had returned the verdict of guilty against him, only on the basis of surmises and conjectures, as would be evident from the enquiry report at Annexure P-12. He has submitted that since none of the other six prosecution witnesses had deposed anything substantial against him, the Enquiry Officer could not have held him guilty, in the face of the evidence given by those six other witnesses. He had also submitted that the Enquiry Officer had wrongly disallowed the defence assistant engaged by him with the approval of the competent authority, and that this was a case of no evidence at all, and the Enquiry Officer has only twisted the evidence, to go out of the way to hold him guilty, after having failed to appreciate the laid down procedure, which had been strictly followed by him while forwarding the bills concerned to the higher authorities, after ensuring that the Competent Authority had already sanctioned the amount, as certified to be paid.
8. He had, therefore, assailed that orders of the Disciplinary Authority show that the decision was reached in violation of the law, as laid down by the Honble Apex Court in S.N. Mukherjee vs. Union of India, AIR 1990 SC 1984. He has submitted that the Disciplinary Authority has also failed to appreciate that he had not committed any breach of Rule or Procedure, and he had been acting strictly following the procedure, as well as the rules. Similarly, the Appellate Authority had also rejected the appeal without application of mind, passing a non-speaking order, which is a nullity in law, which mistake was repeated later by the Reviewing Authority also, even though he had pointed out that all the other senior officers like Shri P.K. Jindal, Senior Manager Shri S.P. Sharma, Manager, Shri Y.N. Executive (Accounts) and Ms. Sapna Joniwal Dy. Manager had been given much lesser punishment. He had, therefore, taken the ground that he had been falsely implicated in the case, that the enquiry was not conducted as per the laid down procedure inasmuch as that the Inquiry Officer relied upon uncorroborated evidence, that the Disciplinary Authority had failed to act in accordance with law, and had passed an order without applying his mind, which mistake was followed by the Reviewing Authority also. He submitted that the people, who actually started the process of committing fraud for their personal gain, had been punished with lesser penalty than that levied upon him, that all the authorities had fallen in error in not appreciating that the applicant had forwarded the bills only after due sanction, and no Competent Authority has ever raised any objection in regard to the case forwarded/submitted by him. He had, therefore, prayed for the impugned orders Annexure P-1 and P-2 to be set aside, and that the respondents be directed to reinstate him on the post from which he was wrongfully removed from service, and for being given consequential benefits.
9. An additional affidavit was filed by the applicant before the Honble High Court on 28.09.2004, more or less reiterating the same contentions, stating that he had been victim of hostile discrimination, and praying for additional documents to be permitted to be filed as at Annexure P-20,P-21, P-22 & P-23.
10. The respondents filed their counter affidavit before the Honble High Court on 18.12.2004. In this, they had denied any statutory right of the applicant having been violated, and that any deviation from prescribed procedure in conducting the disciplinary enquiry against him had been made out. It was submitted that the applicant was part of a large scale fraud of passing fake advertisement bills amounting to Rs.1.08 crores, and the applicant and others were also being prosecuted by CBI, and a recovery suit had also been filed against the applicant, and the other concerned employees, for causing loss to the respondent-organization of that amount, as per the directions of the Honble High Court itself. It was submitted that all the bills processed by the applicant did not contain copies of the sanction of the competent authority, and the original advertisements and all the bills belong to non-existing/bogus companies, which were not even registered with the Registrar of Newspapers for India, and not a single bill was verified by Shri Bal Kishan, Manager, Commercial Publicity Division, who was authorized by the Competent Authority to verify the ad hoc advertisement bills. The full complicity of the applicant in the whole process of processing of fraudulent bills was alleged by the respondents, and it was denied that the applicant had followed the prescribed procedure while processing those bogus bills.
11. It was further submitted that though the original documents were not available, being the subject of a criminal case, and filed before the Criminal Court, photo copies of all the relevant documents were provided to the applicant, and the Enquiry Officer has also allowed the inspection of all the relevant additional documents requisitioned by the applicant for preparing his defence. It was submitted that the charges levelled against the applicant were proved based on documentary as well as oral evidence, whereby it had been proved that the applicant had passed bogus advertisement bills in collusion with the officials of Publicity Division in the respondent organization, and that such bills came to be passed even though advertisements were never published, only because the applicant processed them without following the prescribed procedure for processing of those bills, after proper scrutiny. It was submitted that all the other officials concerned were also prosecuted by CBI for processing bogus ad hoc advertisement bills, under the Prevention of Corruption Act and IPC, for having passed bogus advertisement bills in respect of non-existing advertisements and companies. Any bias or injustice on the part of the Enquiry Officer or the Disciplinary Authority was stoutly denied, and it was submitted that all the prosecution witnesses had fully supported the charges levelled against the applicant.
12. It was submitted that since the ITPO Employees (CDA) Rules do not allow a retired Government servant to act as Defence Assistant, still, as a special case, through Annexure R-3, the Enquiry Officer had allowed the applicant to engage a retired Government servant as his Defence Assistant, who attended all the hearings till the closure of the disciplinary proceedings case. It was denied that the Disciplinary Authority and the Appellate Authority and the Revisional Authority had not applied their mind to the facts of the case, or that they had rejected his representation or appeal in an illegal manner. It was submitted that sufficient opportunity was given to the petitioner to defend his case and that all the concerned Disciplinary Authorities had considered the entire evidence on record, including the submissions of the applicant. In respect of the punishments awarded to other employees, it was submitted that the punishments were awarded by the respective Disciplinary authorities in each case, keeping in view the gravity of charges found to have been proved in that case.
13. It was further submitted that apart from the applicant, six more officers/officials from Finance Division as well as C.P. Division were removed/dismissed from service. It was submitted that the recovery suit filed by the respondent-organization is also against the applicant, and the other concerned, including the six others officers/officials removed from service. Describing the case in detail, it was submitted that apart from the 7 officials who were removed from service, further penalties were imposed on other officers, who were involved in verifying/passing ad hoc advertisement bills, in collusion with the applicant and others, and the recovery suits had actually been filed as per the directions of the Delhi High Court, apart from the prosecution by the CBI against him.
14. The applicant filed a rejoinder on 13.04.2005, more or less reiterating the contentions in the main Writ Petition/T.A. In this he had taken a new plea that he was not actually concerned with the passing of the bills, and was only tasked with putting them up, for being passed at a higher level. He had also repeated his contention that the senior officers had been let off with lesser penalty than him. He still maintained that some documents, which were most relevant and vital for his defence, were not made available to him. He had also pointed out that the Disciplinary Authority had failed to appreciate that he had a very limited role to play in the whole process, and no contention had been raised by anybody that Shri K.R. Meena, Deputy Manager, was not the competent officer to sign the bills, and only Shri Bal Kishan, Manager, was authorized to sign the bills. He had submitted that he had done his portion of the job diligently, and that the next higher officers, the Deputy Manager Ms. Sapna Joniwal, Manager S.P. Sharma, and the Joint Manager P.K. Jindal, who ought to have been held responsible, though he admitted that A.K. Sahni, Deputy Manager was also removed from service, and his Petition was also pending before the Honble High Court. Lastly, he had submitted that when the charges levelled against several officers/officials are identical, the Disciplinary Authority cannot impose different punishments, particularly on the higher officers, who had higher responsibilities, and who were let off with minor penalties, while he was at the bottom of hierarchy, and had been removed from service. He had also submitted that within the Accounts Section two other Accounts Assistants had also been issued similar charge sheets, and all the charges were proved in their cases, but lesser penalties had been imposed upon these two people. It was, therefore, reiterated, and prayed that the Writ Petition/T.A. be allowed.
15. However, it is seen from page-199 of the TA file that the Writ Petition (C) No.14773/2004 was first dismissed in default by the Honble High Court on 08.12.2010, but was later on restored before being transferred to this Tribunal, through order dated 24.01.2012.
16. Heard. During the course of the arguments of the case, the learned counsel for the applicant had vehemently submitted that in the case of parallel charges in respect of the other employees of ITPO, in their respective disciplinary enquiries, lesser amounts of punishment have been awarded to them, though he did not mention about the removal from services of some other persons also, along with the applicant herein. The Bench on that date, along with reserving the orders, directed the respondents to file details of the enquiry reports and charge memos in respect of the other employees who had been named by the learned counsel for the applicant during arguments, without having made them as opposite-party respondents in the case to defend their case.
17. The official respondents thereafter filed 22 documents running into 125 pages regarding the disciplinary enquiry cases of Ms. Sapna Joniwal, Sh. S.P. Sharma, Sh. Yogesh Kanojia, Sh. Jeet Ram, Shri P.K. Jindal, and have been perused by us. It is seen that in the cases of some of them the Executive Director was the Disciplinary Authority, and in some other cases the Sr. Manager (Admn.) was the Disciplinary Authority. None of these named persons, in respect of whom the details of disciplinary enquiry have been filed, were the Disciplinary Authority, the Appellate Authority and the Reviewing Authority in the same sequential order, or of the same seniority, or the same individual person, as in the case of the applicant. Since the applicant had not named the cases of other persons of similar level dismissed from service along with him, the documents in respect of the disciplinary enquiries held in those cases have not been filed by the official respondents.
18. We have gone through the charges and the enquiry reports against these other officials also, which were of different levels of seniority than the applicant, and have found that since their post was different, level of responsibility in respect of the fraudulent transactions were different, the charges framed in respect of those, through the Articles of Charges though emanating from the same set of fraudulent transactions, were obviously different than that in the case of the applicant. Therefore, when the charges levelled against each of them were different, the documents relied upon to prove those different charges have also been different, and have been appreciated in the context with, and in relation to the responsibilities of those other officials concerned in respect of the forged bills. Therefore, it appears that the applicant cannot be allowed to derive any benefit out of the conduct of the separate disciplinary enquiries against persons different than him.
19. As has been held by the Honble Apex Court in its numerous judgments concerning Articles 14 & 16 of the Constitution of India, equality is not a negative concept, and there cannot be a concept of negative equality under the Constitution of India. Reliance had been placed upon the following judgments on the ground of discrimination in punishment in the arguments advanced before us:-
i) State of U.P. & Ors. Vs. Raj Pal Singh 2010 (4) SCALE 485;
ii) Man Singh vs. State of Haryana and Ors. (2008) 12 SCC 331;
iii) Anand Regional Coop. Oil Seedgrowers Union Ltd. vs. Shailesh Kumar Harshadbhai Shah (2006) 6 SCC 548;
iv) Union of India Vs. Ex-Constable Mohinder Singh (Deceased) Represented through LRs 91(2001) DLT 291 (DB);
20. Learned counsel for the applicant relied upon the judgment in the case of Pramod Kumar and Ors. Vs. Union of India 109 (2004) DLT 773 (DB), on the ground of non-issuance of show cause notice before imposing punishment, and passing non-speaking order. He also relied upon the case of K.S. Yadav vs. MCD 1981 (1) ALL India Services Law Journal 394 relating to his ground that the report of the Enquiry Officer as well as the conclusions of the Disciplinary Authority, were based on no evidence, and were based only on surmises and conjectures.
21. Learned counsel for the applicant has also filed copy of the case law in Budh Singh vs. DVB and ors. 83(2000) DLT 572 regarding the enquiry being vitiated for non-supply of documents, and, in this context, he also cited the case of State of Punjab vs. Bhagat Ram AIR 1974 SC 2335.
22. We have gone through the cited judgments. As long as there is any difference in the delinquency of different employees in respect of the misconduct in which they had joined together, imposition of different punishments is not prohibited, because in the case of State of U.P. vs. Raj Pal Singh (supra), the Honble Apex Court had held that it was not open for the Disciplinary Authority to impose different punishments for different delinquents when it was not able to indicate as to any difference in the delinquency of these employees. Therefore, it is clear that when there has been a difference in the delinquency of different employees in the instant case, the benefit of this cited judgment cannot be provided to the applicant before us.
23. In the case of Man Singh (supra) also the Honble Apex Court had exercised its extra ordinary power under Article 142 of the Constitution of India in order to interfere with the punishment meted out to the petitioner before it, on the reasoning that punishment imposed on the appellant was arbitrary, and unfair, as compared to his subordinate, who had been completely let off, though the subordinate was the actual perpetrator of the misconduct. The benefit of this cited judgment cannot also be provided to the applicant, since in this case all the persons in whose cases the delinquency had been totally proved, had been removed from service, and others have also been imposed with lesser punishments, depending upon the level of delinquency having been proved against them.
24. In the case of Anand Regional Coop. Oil Seeds Growers Union Ltd. (supra), the Honble Apex Court had noted that in determining the nature of work, the essence of the matter should be considered and not the designation of the employee, or the name assigned to his post, which cannot be given any undue importance, as for the purpose of establishing supervisory role, the primary duties performed are more important. On the point of parity in punishment, the Honble Apex Court had noted with approval the dismissal of the workmen under the Industrial Disputes Act, 1947, in respect of whom misconduct had been proven. However, since the workmen of similar seniority as a group indulged in the misconduct, it had noted with disapproval that the others, against whom there was identical allegations, were not so dismissed, but were allowed to take the benefit of voluntary retirement scheme. In this case, the benefit of this judgment cannot also be extended to the applicant, since no such persons were together involved, at the same point of time, in perpetrating the mischief. They had performed the mischief on their part when the files concerned had passed their desks, and had actually acted in collusion with each other to defraud the respondent- organization, by adding their bit of level of delinquency in the conduct of the fraud of more than Rs.1 Crore. Therefore, the benefit of this judgment cannot be made available to the applicant, because the present case is also that those who have been held to have totally abrogated their powers and responsibilities to commit the fraud had been removed from service, and the others who had colluded with, but indulged in various degrees and levels of delinquency in perpetrating the fraud on their part, have been meted out with the appropriate levels of punishments.
25. In the case of Union of India v. Ex. Constable Mohinder Singh (supra), the incident concerned four Constables together using Criminal Force or assaulting their superior officers, and only one of them had been dismissed from service, while the other co-accused had been let off with lesser punishment of rigorous imprisonment. In that case the Honble Delhi High Court had held the punishment of dismissal in only one case to be discriminatory and arbitrary, and had awarded monetary compensation to the legal heirs of the deceased accused. Here, no employees of the respondent- organization have acted together, at the same point of time, as mentioned above also. They only acted in concert, and in collusion with each other in perpetrating the fraud in dealing with the papers in a particular manner when the concerned papers and files passed through their desks, and lent their own might, according to their own delegation of powers in perpetrating the fraud. When in such cases the respondent-organization had taken action to dismiss 7 or 8 persons from service, and after weighing the quantum of their delinquency and contribution in perpetrating the fraud punished the others with lesser punishments, the benefit of this cited judgment cannot also be provided to the applicant before us.
26. In the case of Pramod Kumar & Ors. (supra), while ordering removal of a substitute Loco Cleaner from service, which he had obtained on the strength of forged signatures of the Inspector and Guard, the order of the Appellate Authority had been found to be a non-speaking order, and the Honble Delhi High Court had, therefore, allowed the Writ Petition, and remitted the matter back to the Appellate Authority for reconsideration of the appeals filed by the petitioners afresh, since the order did not show application of mind. Here, in the instant case, the application of mind has not only been on the part of the concerned Disciplinary Authorities in the respondent-organization itself, but even the Honble Delhi High Court itself had been shocked by the mischief perpetrated by the applicant and others to such an extent that the Honble High Court had directed Civil Suits to be filed for recovery of the amount embazzled through such forgery, which Civil Suit is still pending. Therefore, the benefit of this cited judgment cannot be also provided to the applicant before us.
27. In the case of K.S. Yadav (supra), the petitioner had been removed from service by holding all the charges against him to be held proved, but due to an extraordinary situation, the Honble Delhi High Court had chosen to re-assess and re-appreciate the evidence adduced in the disciplinary enquiry, and had found that one of the charges was not proved, and others were proved, and then the case was sent back to the Disciplinary Authority for reviewing its findings regarding punishment, on the ground that suspicion regarding guilt, howsoever strong, cannot be a substitute for conclusive proof. It is our respectful submission that according to the immense weight of the case law, as decided by the Honble Apex Court in numerous cases, this Tribunal cannot undertake a similar process, as had been undertaken by the Honble Delhi High Court, to re-assess and re-appreciate the evidence adduced in the disciplinary enquiry held against the present applicant, and to try to arrive at a conclusion different than that arrived at by the authorities competent and enjoined upon by the rules and guidelines to do so. Hence the benefit of this judgment cited cannot also be provided to the applicant of this case.
28. In the case of Budh Singh (supra), a punishment of compulsory retirement, which was not provided in the Delhi Electric Supply Undertaking (DMC) Service (Control and Appeal) Regulations, 1976- Regulation-5, had been imposed, and the Honble Delhi High Court had held that once Compulsory Retirement had not been mentioned as a penalty in Regulation-5, a particular punishment, which is not prescribed in the Regulations, cannot be imposed on the employee, pursuant to the departmental enquiry held against him, as imposing such penalty would be barred, and against principles of natural justice. The Honble Delhi High Court had also observed that the charge sheet itself was based on probabilities, and no direct or circumstantial evidence was shown, by which the petitioner could have been implicated, and that no cogent evidence was produced before the Enquiry Officer to substantiate the evidence, and in such circumstances the impugned order of punishment had been quashed. The Honble Delhi High Court has also noted that there was discrimination qua the other co-accused, and the same Disciplinary Authority had passed different orders of punishment against different persons of the same level, and hence it had directed the Disciplinary Authority to take into the account the gravity of charges levelled against each officer separately before passing of the order. The benefit of this judgment of the Delhi High Court cannot also be provided to the applicant because in the instant case, in all those cases where the delinquents having perpetrating the fraud have been proved fully seven such officials have been removed from service. In the case of others, punishments have been meted out in proportion to the assessment of the concerned Disciplinary Authority regarding their contribution in perpetrating the fraud, and, therefore, the procedure as followed by the respondent authorities cannot be faulted on this count. Even before the Tribunal, the applicant has not demanded to be equated with persons of his equivalent level of seniority, many of whom were also dismissed from service along with him, but he has only tried to be equated with his seniors, which cannot be allowed.
29. In the case of State of Punjab v. Bhagat Ram (supra), in the year 1974 the Honble Apex Court had held that the copies of statements of witnesses who have been examined during investigation must be supplied to the delinquent Government servant. It is not the case of the applicant before us in the instant case that this was not done so in his case, and that he had demanded any such copies of statements of witnesses to be supplied to him, but that they were not supplied. Therefore, it is clear that the benefit of this cited judgment also cannot be provided to the applicant.
30. As per the law laid down by the Honble Apex Court in the case of Union of India & Ors. vs. Upendra Singh: (1994) 3 SCC 357, this Tribunal cannot relegate itself, and put itself in the shoes of either the Enquiry Officer, or the Disciplinary Authority, or the Appellate Authority, or the Reviewing Authority, where provided for, for undertaking an exercise of re-appreciation of evidence, and to go into the correctness or truth of the charges. When the evidence regarding the applicant having received money for assisting and passing of the fraudulent bills has come on record, and it has been noted that a large number of officers involved in the same scam have been punished, without having the full facts of the respective disciplinary enquiries conducted against all those other officials who were punished, merely based upon the submissions of the present applicant in the context of the disciplinary enquiry concerning him, this Tribunal cannot be a judge of the quantum of punishment having been less in the case of others, and more in case of the present applicant, who was one of the many delinquent officials in the respondent organization, against whom separate departmental enquiries had been initiated.
31. It is clear that those delinquent officials of the respondent organization belonged to various levels of seniority. They were not proceeded against in a common departmental enquiry, when there would have been a single set of the Disciplinary Authority, the Appellate Authority and the Revisional/Review Authority. When parallel proceedings are initiated against delinquent officials of various levels of seniority, even though they may be in respect of the same set of events connected with a mischief, not only are the charges different in respect of the delinquent officials of different levels of seniority, but also many sets of Disciplinary Authorities, Appellate Authorities and Revisional/Review Authorities emerge, though many of them may be overlapping sets. The Appellate Authority of a junior delinquent official may be the Disciplinary Authority of his senior, and the Revisional/Review Authority of a junior delinquent official may be the Appellate Authority of his senior delinquent official, and so on and so forth. Therefore, the appreciation of the relative quantum of guilt, based upon the charges as proved in respect of the individual case of delinquent officials of different levels of seniority, and the proposed quantum of punishment would also as a result vary, and would have to be based upon the charges proved against the particular concerned official.
32. Therefore, this Tribunal cannot venture to undertake the process of re-appreciating the evidence adduced in a disciplinary enquiry by putting itself in the shoes of either the numerous Enquiry Officers, or of the numerous Disciplinary Authorities, or of the numerous Appellate Authorities, who took decisions based upon the quantum of guilt that could be established in each of the disciplinary enquiry case separately, based upon the charges as framed and proved against the many concerned delinquent officials.
33. In his book on Administrative Law, at page 339, Sir William Wade has summarized the powers of judicial review as follows:-
The doctrine that the powers must be exercised reasonably has to be reconciled with no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The Court must, therefore, resist the temptation to draw the bounds too tightly, merely according to its own opinion..If the decision is within the confines of reasonableness, it is no part of the Courts function to look further into its merits.
34. It is also not the case in this case that we have to necessarily disregard the Wednesbury Principles, and go by the principle of proportionality, which flows from the Continental Principles of Civil Law, and does not flow from the U.K. Common Law Principles, on which all Indian Laws and Jurisprudence is based. In regard to the principle of Proportionality, however, in Om Kumar and Ors. v. Union of India (2001 (2) SCC 386), the Honble Apex Court had observed, inter-alia, as follows:
"The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court has applied the principle of "proportionality" to legislative action since 1950, as stated in detail below.
By "proportionality", we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve". The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality.
xxx xxx xxx xxx xxx The development of the principle of "strict scrutiny" or "proportionality" in administrative law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of "strict scrutiny". In the case of these freedoms, Wednesbury principles are no longer applied. The courts in England could not expressly apply proportionality in the absence of the convention but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the courts then applied the strict scrutiny test. In the Spycatcher case Attorney General v. Guardian Newspapers Ltd. (No.2) (1990) 1 AC 109 (at pp. 283-284), Lord Goff stated that there was no inconsistency between the convention and the common law. In Derbyshire County Council v. Times Newspapers Ltd. (1993) AC 534, Lord Keith treated freedom of expression as part of common law. Recently, in R. v. Secy. Of State for Home Deptt., ex p. Simms (1999) 3 All ER 400 (HL), the right of a prisoner to grant an interview to a journalist was upheld treating the right as part of the common law. Lord Hobhouse held that the policy of the administrator was disproportionate. The need for a more intense and anxious judicial scrutiny in administrative decisions which engage fundamental human rights was re-emphasised in in R. v. Lord Saville ex p (1999) 4 All ER 860 (CA), at pp.870,872) . In all these cases, the English Courts applied the "strict scrutiny" test rather than describe the test as one of "proportionality". But, in any event, in respect of these rights "Wednesbury" rule has ceased to apply.
However, the principle of "strict scrutiny" or "proportionality" and primary review came to be explained in R. v. Secy. of State for the Home Deptt. ex p Brind (1991) 1 AC 696. That case related to directions given by the Home Secretary under the Broadcasting Act, 1981 requiring BBC and IBA to refrain from broadcasting certain matters through persons who represented organizations which were proscribed under legislation concerning the prevention of terrorism. The extent of prohibition was linked with the direct statement made by the members of the organizations. It did not however, for example, preclude the broadcasting by such persons through the medium of a film, provided there was a "voice-over" account, paraphrasing what they said. The applicant's claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the Convention rights were not still expressly engrafted into English law but stated that freedom of expression was basic to the Common law and that, even in the absence of the Convention, English Courts could go into the question (see p. 748-49).
".....whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations"
and that the courts were "not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it".
Lord Templeman also said in the above case that the courts could go into the question whether a reasonable minister could reasonably have concluded that the interference with this freedom was justifiable. He said that "in terms of the Convention" any such interference must be both necessary and proportionate (ibid pp. 750-51).
In the famous passage, the seeds of the principle of primary and secondary review by courts were planted in the administrative law by Lord Bridge in the Brind case (1991) 1 AC 696. Where Convention rights were in question the courts could exercise a right of primary review. However, the courts would exercise a right of secondary review based only on Wednesbury principles in cases not affecting the rights under the Convention. Adverting to cases where fundamental freedoms were not invoked and where administrative action was questioned, it was said that the courts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows:
"The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment."
[Emphasis supplied].
35. Since India is not bound by the European Convention & Treaties, which have prompted the Courts in U.K. to occasionally import and apply the Civil Law principle of Proportionality, we cannot, in Indian jurisprudence, bury forever the Wednesbury Principles, flowing out of the Common Law principles prevalent in India, unless any International Treaty obligations compel or oblige us also to do so.
36. Coming back to the principles as enshrined in Common Law, in Tata Cellular v. Union of India (1994) 6 SCC 651 at pp. 679-80), Indian Express Newspapers Bombay (P) Ltd. v. Union of India (1985) 1 SCC 641 at p.691), Supreme Court Employees' Welfare Assn. V. Union of India (1989) 4 SCC 187 at p. 241) and U.P. Financial Corpn. V. Gem Cap(India) (P) Ltd. (1993) 2 SCC 299 at p. 307), the Honble Apex Court has observed that while judging whether the administrative action is "arbitrary" under Article 14 (i.e. otherwise than being discriminatory), the Honble Apex Court has confined itself to the Common Law Wednesbury Principles review always, by stating as follows:-
The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14.
xxx xxx xxx xxx xxx Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment."
[Emphasis supplied].
37. According to the distillate of the wisdom of the Honble Apex Court in cases cited in the above paragraph, in the case of deciding matters connected with punishments imposed after a disciplinary enquiry, this Tribunal cannot apply the principle of proportionality, and has only to test the reasonableness of the administrative decisions on the basis of the tests of Wednesbury Principles, as a secondary reviewing authority, as is permitted under the Common Law.
38. In B.C. Chaturvedi v. Union of India and Others (1995(6) SCC 749), the Honble Apex Court had observed as follows:
"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 supplied]
39. In Union of India and Anr. v. G. Ganayutham (1997 [7] SCC 463), the Honble Apex Court had very aptly summed up the position relating to the applicability of the Civil Law principle of proportionality viz-a-viz the Common Law Wednesbury Principles, in paragraphs 31 and 32 of its judgment, which read as follows:
"The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury (1948 1 KB 223) test.
(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational _ in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 AC 374) principles. (3)(a) As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith (1996 (1) All ER 257) as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.
[Emphasis supplied].
40. Thus, it is clear that even in the case of administrative action affecting fundamental freedoms under Articles 19, 21 etc. of the Constitution being involved, the question of Indian Courts obligation to apply the Civil Law principle of Proportionality had been left open by the Honble Apex Court, to be decided later in an appropriate case, where such action is alleged to offend fundamental freedoms. The present O.A. before us is certainly not a case falling in that category.
41. Therefore, the judgments cited above prohibit this Tribunal from interfering with the quantum of punishments imposed on the eight delinquent officials on the basis of the evidence adduced in each of those eight individual disciplinary enquiries, as the task of deciding the measure of the guilt, and, thereafter, the quantum of punishment, squarely falls only upon the Disciplinary Authorities concerned, based upon the evidence adduced during the respective disciplinary enquiries, and this Tribunal is neither meant to be, nor equipped, to weigh the quantum of evidence adduced against eight different delinquent officials, in eight different disciplinary enquiries, particularly so in this case, where we do not have the facts of all the other 7 disciplinary enquiries conducted by the respondent organization in respect of the same chain of fraudulent transactions undertaken by those eight delinquent official.
42. In those eight different departmental enquiries, at the most 32 different minds would/could have been applied, as the 8 Disciplinary Authorities, the 8 Enquiry Officers, the 8 Appellate Authorities, and the 8 Revisional or Review Authorities, many of which could have been common, because of overlapping sets of authorities concerned, as stated above. In such a case, at least some difference in their appreciation of facts of the 8 respective cases is bound to be there, in the natural course itself. But that itself is not sufficient ground for this Tribunal to interfere with the conclusions arrived at by the concerned authorities in one particular case.
43. As a result, this TA does not survive, and is, therefore, rejected, but there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.