Central Administrative Tribunal - Madras
H Shanthila Premkumar vs M/O Health And Family Welfare on 11 February, 2022
OA/310/723/2021
Central Administrative Tribunal
'Madras Bench
OA/310/00723/2019
pa«ea (Pay or February Two Thousand Twenty Two
PR ESEN T
Hon'ble Shri Swarup Kumar Mishra, Member(J)
&
Hon'ble Shri T. Jacob, Member(A)
Sm:. H.Santhila Premkumar, W/o A.Premkumar,
Research Assistant,
Pertussis Section,
Pasteur Institute of India,
Coonoor - 643 103.
Residing at Quarters No. 3, Type IV Quarters
Cornwall Road, Coonoor-643103. ..Applicant
By Advocate M/s. G.Kanakaraj
Vs.
1. Union of India
Rep. By its Secretary (HFW)
Chairman of Governing Body of
Pasteur Institute of India, Coonoor,
Ministry of Health & Family Welfare,
Nirman Bhawan, New Delhi - 110011.
2. The Director & Disciplinary Authority
Pasteur Institute ofIndia,
Conoor- 643103,
Nilgiris District. .. Respondents
By Advocate Mr. M.Kishore Kumar
a
2 OA/310/723/2021
ORDER
[Pronounced by Hon'ble Shri T.Jacob, Member(A)] The relief prayed for in this OA is as follows:-
"A. It is therefore prayed that this Hon'ble Tribunal may be pleased to call for the records on the file of the 1and 2Respondent in Order bearing No. PII/ ADMN/ C-8/2014-15/723 dated 31.05.2016 passed by the 2 Respondent terminating the Applicant from the post of Research Assistant and the Order bearing F. No. V-- 11012/08/2009- V.I dated 04.02.2019 passed by the pt respondent conforming the aforesaid order of the 2 Respondent and quash the same as unconstitutional, illegal, arbitrary and direct the respondents to regularize the services of the Applicant in the post of Research Assistant with effect from the date of her initial appointment and to grant her all consequential service, Attendant and monetary benefits. B. To pass such further or other orders as deemed fit and thus render justice".
3. The brief facts of the case as stated by the applicant are as follows:-
The applicant has passed M.Sc. (Zoology) and M.Phil. (Zoology) and B.Ed.
courses in First Class. The second respondent department vide their Notification 14.10.1996, invited applications for the post of Research Assistant. The applicant applied for the post and appeared for the interview on 05.02.1997 and her name was placed 3" in the selection list. Since she was selected and was awaiting an order of appointment, she has joined in the second respondent department on 04.06.1998 as Lab Technician and, later on, as Junior Research Fellow and Senior Research Fellow on contract basis. While so, vide Advertisement No. 3/2005 dated 24.05.2005 the Director of Pasteur Institute oflndia invited application for post of Research Assistant (Group-
C). Even in the selection list of the Selection Committee, the Date of Birth of the applicant was clearly mentioned as 20.05.1967 along with her qualification and 3 OA/310/723/2021 experience. The applicant was thereafter appointed as Research Assistant (Group C) on o 01.05.2006 and the probation period was fixed at 2 years as per the rules of the Institute. On 03.11.2008 the applicant had sent representation to the pt respondent for declaration of probation. However, to the shock and surprise of the applicant, she was terminated from service vide order dated 09.04.2009 passed by the Director, Pasteur Institute oflndia. She preferred O.A.No. 418/2009 challenging the validity of above said order of termination dated 09.04.2009 before the Central Administrative Tribunal (CAT), Chennai Bench. The CAT, while admitting the Original Application was p'eased to stay the order of termination. Thereafter, the Tribunal, by Judgment dated 11.12.2009 was pleased to allow the Original Application and the order of termination dated 09.04.2009 was set aside. The Director of Pasteur Institute, preferred W.P.No. 9131/2011 on the file of the Hon'ble High Court, Madras challenging the validity of the Judgment dated 11.12.2009 rendered by the CAT, Madras Bench. The Division Bench of the Hon'ble High Court by Judgment dated 29.10.2013 was pleased to uphold the order setting aside the order of termination rendered by the Tribunal. The order of the CAT was modified by giving liberty to the Petitioners' therein to initiate proceedings against the Respondent, if it is required to be taken. The Director thereafter issued a Charge Memorandum dated 17.02.2015 stating that on the date of advertisement 11.01.2006, the applicant has completed 38 years and 7 months and, therefore, not eligible for appointment as per the bye laws of the Institute. The applicant was dismissed from the post of Research Assistant by an Order bearing No. PII/ADMN/C-8/2014-15/723 dated 31.05.2016 passed by the 2 Respondent and the same was confirmed by the 1Respondent vide Order bearing F.No. V-11012/08/2009- 4 0A/310/723/2021 V.I dated 20.09.2016. Against the aforesaid order dt. 20.09.2016 of the Appellate Authority, the applicant filed an application in this Tribunal in O.A. 23/2017. The Tribunal in its order dated 20.09.2018 directed the Appellate Authority to consider all the relevant issues and pass a detailed and speaking order within a period of two months from the date of receipt of the copy of the order. In the meantime, if there is any development with respect to criminal case, the applicant shall be at liberty to bring the same to the notice of the Appellate Authority who shall take that also into account while passing the detailed order and disposed of the above OA. In response to the CAT order, applicant submitted a representation to the Appellate Authority, the Secretary, Health & Family Welfare, New Delhi on 05.10.2018. The Appellate Authority has disposed of the Appeal concluding that her appointment was not in accordance with the provisions of the Recruitment Rules and Bye-Laws of PUC, Coonoor, for the Research Assistant Post, Against this detailed order dt. 04.02.2019 of the Appellate Authority, the present Application is filed the challenging the order.
3. The applicant has sought the aforesaid relief, inter alia, on the following grounds:-
a. The Respondents have failed to consider that the alleged act of the applicant do not satisfy the Statutory requirements as provided the Explanation to Rule 3(i)(ii) of CCS Conduct Rules to sustain the disciplinary proceedings initiated against the applicant.
b. The Respondents have omitted to consider the Statement of Dr. K.R.Mani, Former Deputy Director, Pasteur Institute of India (PII) dated 15.12.2015 to the s 0A/310/723/2021 Enquiry officer which would thoroughly justify the applicant's selection and o appointment. The statement also clearly asserts that the candidate did not suppress in the application for as in the case of some of the employees of PII.
c. There is absolutely no fault on the part of the Selection Committee to construe her as a Departmental candidate, who is eligible for relaxation of upper age limit for appointment to Group-C Post upto the age of 40 years, as provided in Government of India, Office Memorandum No. 15012/1/88-Estt.(D) dated 20.05.1998 (Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training).
d. In this Case, there is no legal impairment/impediment in allowing the Relaxation of Age by the PUC. Because, it is lawful one that the age is relaxable always whereas Educational Qualification can't be relaxed. There is a Government letter No. 15012/1/88 dt. 20.05.1998 enabling OBC contractual candidates working in PIIC to compete with others in open market and opt for age relaxation upto 40 years for group 'C' Post (CDJ2008 SC 1230). Moreover, there is rationale in Delhi High Court Judgment that age shall be even relaxed to the number of years as to that of number of years served on contract basis.
e. It is pertinent to note that the CBI has given findings that out of the four delinquents, the charge of criminal Conspiracy (U/s120-B-IPC) is not proved against the applicant and also the selection committee members. While praying for closure of the case, the prosecution recommended for regular departmental action for major penalty, against the Members of the Selection Committee, who have violated the Recruitment Rules. The Competent Court accepted the closure report. At present no 6 OA/310/723/2021 criminal proceedings or action is pending against the applicant.
,..._ f. The order of the Appellate Authority viz. the deemed completion of probation is baseless. As per Bye-Law 10 of the PIIC for Probation, no declaration is necessary. This Bye-Law only reads shall be on probation for 2 years (Bye-Law does not read that Probation is complete only on declaration). Having extended to serve for more than 2 years, by and large, it amounts (in the language of Bye law) that her service was recognized as necessary on satisfactory service, and it is deemed that probation is .
deemed declared.
g. Applying by knowing ineligibility for the post of Research Assistant in PUC (By contract labour) is not the actual flaw but the selection committee should have not entertained the application if it is against the rules. Having absorbed and allowed to serve on regular post of Research Assistant in PUC for more than 2 years and 11 months and 9 days, the employee cannot be terminated since the mistake (lack of devotion to duty) lies with the selection committee and appointing authority the respondent (2) herein.
h. It is trite law that termination of one employee (applicant) after retaining the other 2 officials of the selection committee (by awarding some formal punishment) and letting off other official (not mentioned in the detailed order about the other officer) of the selection Committee who were, that too initially charged for the conspiracy (U/s 120 B of IPC), after prosecuting them on the same evidence and thereby letting offthe other officer of the Selection Committee is biased one. i. It is worthy to note that an Apex Court Bench held that once appointed to the oe t.« 7 OA/310/723/2021 post in office, the Government Servant acquires status and rights and obligations are o no longer determined by contract of parties, but by status. Legal position of Government Servant is more than one of status than of contract.
4. Applicant has relied on the following decisions in support of her case:-
i) Civil Appeal No. 2294-2394 of 2008 in W.P. (C) Nos.4787-4823 of 2004 in the case of Union Public Service Commission Vs. Dr. Jamuna Kurup & Ors dated 21.2.2008 reported in CDJ 2008 SC 1230;
ii) W.P. (C ) 9816/2015 of Hon'ble High Court of Delhi in the case of All India Institute of Medical Sciences v. Ruchika Madan dated 16.10.2015;
iii) Civil Appeal No. 3647 of 1998 in the case ofBhupinder Singh Saini and Others vs. State of Punjab and Ors. dated 20.02.2001 reported in CDJ 2001 SC 2524;
iv) Civil Appeal No. 1014 of 2005 in W.P. No. 17943 of 2003 in the case of Sey. Deptt. Of Home Secy.A.P. & Others Vs. B. Chinnam Naidu dated 09.02.2005 reported in CDJ 2005 SC 221; 2005(2)SCC 746;
v) Civil Appeal No. 5671 of 2012 (@SLP (C ) No. 28608/2011) in the case of Jainendra Singh Vs. State ofU.P. Tr. Prinl. Sec. Home & Others reported in CDJ 2012 SC 515;
5. The respondents have filed a detailed reply statement denying the averments made in the OA.. It is submitted that the Respondent Institute had made advertisement No. 3/2005 dated 24.12.2005 for filling up of Research Assistant (Group "C"). In the advertisement itself, it was clearly mentioned that the age limit was 30 years. While applying for the post, the applicant was aged 38 years and 7 months. Knowing her 8 OA/310/723/2021 ineligibility to the post of Research Assistant, the applicant had applied for the post of Research Assistant and was appointed to that post by which, other deserving candidates were left out thus causing irreparable loss and injustice to other candidates applied for the post of Research Assistant. It is submitted that after the applicant appeared before the Selection Committee, the applicant had been selected as Research Assistant in the OBC reservation slot and appointed as Research Assistant (Group C) at the Respondent Institute Vide Order dated 09.05.2006 w.e.f., 01.05.2016. At the time of appointment, applicant had been on probation for a period of two years as per the rules of the Respondent Institute. Since the criminal case had been filed by Central Bureau of Investigation (CBI), Anti Corruption Branch (ACB), Chennai found irregularity in the appointment of the applicant as Research Assistant and her name was also reflected in the FIR filed in RC MA 1 2007 A 0049 dated 28.09.2007, (Copy enclosed vide Annexure-2) the applicant's Probation period was not cleared and the applicant was terminated by this Institute vide Order No. PII/ADM/ESBT/147/2009 dated 09.04.2009 in pursuance of the proviso to sub-rule (1) of Rule 5 of the CCS (Temporary Service) Rules, 1965.
6. It is submitted that against the termination order, the applicant had filed an O.A.No. 418 of 2009 before the CAT, Madras Bench. Pursuant to the interim order staying the operation of the order of termination dated 09.04.2009, the applicant had been reinstated to the Respondent Institute vide office order No. PII/Admn/2009-626 dated 15.05.2009. Subsequently, the CAT has vide its order dated 11.12.2009 set aside the order of termination dated 09.04.2009. Against the order of the CAT, the respondent 9 OA/310/723/2021 Institute had approached the Hon'ble High Court of Judicature at Madras vide W.P. No. 9131 of 2011 and also MP.1 of 2011 challenging the order of Hon'ble CAT, Madras Bench dated 11.12.2009 in OA No. 418/2009 setting aside the termination of the applicant by the Respondent Institute vide its order dated 09.04.2009. The Hon'ble High Court of Judicature at Madras passed final order dated 29.10.2013 stating that "the order of the CAT is modified by giving liberty to the petitioners to initiate proceedings against the respondent if it is required to be taken and proceed in accordance with law".
7. As Union of India, Rep. By the Secretary (H) is one of the Co-Petitioner in the subject case, the matter has been referred to the Ministry for initiating disciplinary proceedings against the applicant. The Ministry has vide its letter dated 28" May 2014 informed that "decision whether Preliminary Enquiry is to be conducted andRegular Departmental Action (RDA) is initiated against the applicant viz., Mr. HShanthila Premkumar on the basis of the CBI report and available documents any be taken in consultation with CVO, PII, Coonoor". Further, the CBI had vide Jetter No. Cl0/RC 49 (A)/2007/CBI/ACB/CHEN/147/5823 dated 29.09.2014 also directed the Respondent Institute that "you are free to take necessary action as per your departmental rules and regulations, taking the CBI S.P. 's Report into consideration"
i.e., the CBI investigation clearly proves that the above candidates were appointed in blatant violations of the recruitment rules, applicant may not be given re-employment.
Considering the instructions of the Ministry and the directions of the CBI to take necessary action, Charge Sheet under Rule 14 of CCS (CCA) Rules, 1965 was issued 10 OA/310/723/2021 to the applicant viz., Smt. Santhilal Premkumar, Research Assistant vide this Office Memo No. PII/ADMN/C-8/2014-15/4818 dated 17.02.2015
8. A statement of imputations of Misconduct or Misbehaviour on which the Articles of charge were based, together a list of Documents by which, and a List of Witnesses by whom, the charges were proposed to be sustained, were also forwarded to her along with the above said Memorandum dated 17.02.2015. The applicant had denied the charge and requested to be heard in person vide her letter dated 27.02.2015.
Accordingly, Shri N.K.Subash, Retd. Sr. Superintend of Post Offices had been appointed as the Inquiring authority to inquire into charges vide Order No. PII/ADMN/C-8/2014-15/186 dated 17.04.2015. The Inquiry authority after conducting the Regular Departmental Inquiry proceedings vide his report dated 09.02.2016 gave a finding that the appointment of Smt. Santhila Premkumar as Research Assistant is not in accordance with the Recruitment Rules and Bye laws of the Institute and by applying to the Post of Research Assistant knowing her ineligibility regarding age condition, she acted unbecoming manner thereby violating Rule 3 (I) (ii) of CCS Conduct Rules, 1964 and concluded that "thus the case is proved beyond doubt". It is submitted that a copy of the report of inquiry was sent to the applicant vide Office letter No. PII/ADMNB/C-8/2014-15/4617 dated 18.02.2016 and applicant was given an opportunity of making such submission on the report of inquiry as applicant desired. Immediately after receipt of the Inquiry Report, applicant approached the CAT, Madras Bench in O.A. 310/00399/2016 which was dismissed by order dated 09.03.2016. On careful consideration of the report of the Inquiry Officer and other records of the case in the light of the submission made by the applicant her observations • 11 OA/310/723/2021 on report of the inquiry and during her personal hearing and facts and circumstances
- ofthe case, the Appointing/D isciplinary Authority i.e., the 2Respondent has decided to accept the findings ofthe Inquiry Officer and imposed the penalty ofremoval ofthe applicant from Service which shall not be a disqualification for future employment under the Government, with effect from 31.05.2016 vide order No. PII/ADMN/C-
8/2014-15/723 dated 31.05.2016.
9. Aggrieved by the order ofthe 2" Respondent, the applicant had filed an OA No. 937/2016 before the CAT, Madras. The Tribunal vide its order dated 10.06.2016 disposed ofthe OA with a direction to the appellate authority to pass an order within a period of two months. The order of the 2 Respondent was confirmed by the 1 Respondent vide Order bearing F.No. V-11012/08/2009-V.I dated 20.09.2016. Against the orders ofthe 1 Respondent, the applicant filed an O.A. 310/00023/2017. The CAT, Madras Bench delivered its verdict in OA 310/00023/2017 on 07.09.2018 that "Keeping in view ofthe aforesaid submissions and the fact that the issue raised in the appeal ofthe applicant dated 14.06.2016have not been dealt with in the orderpassed by the appellate authority dated 20.09.2016, we direct the appellate authority to consider all relevant issues andpass a detailed andspeaking order within aperiod of two monthsfrom the date ofreceipt ofa copy ofthis order. In the meantime, if there is any development with respect to the criminal case, the applicant shall be at liberty to bring the same to the notice of the appellate authority who shall take that also into account while passing the detailed order" and disposed the above OA. Based on the CAT order, the applicant made a representation dated 05.10.2018 requesting to cancel the order dated 31.05.2016. After careful consideration, the pt Respondent vide Order 12 OA/310/723/2021 No. V-11012/08/2009-VI. dated the 04 February, 2019 issued detailed speaking order to the applicant considering the records on Inquiry, the representation of applicant and facts and circumstances of the case, the first respondent viz. Secretary & Chairperson of Governing Body as an Appellate Authority, concludes that her appointment was not in accordance with the provisions of the Recruitment Rules and Bye-laws of this Institute for the post and further of the opinion that the penalty imposed on her is adequate and justified & does not as such warrant any modification. The same was issued by the 2" respondent office letter No. PII/ADMN/C-8/2014-15/3460 dated 12% February, 2019 and duly acknowledged by the applicant. On receipt of the above speaking order, the applicant filed the subject O.A. 310/00723/2019 dated 12.06.2019.
I 0. The applicant has filed rejoinder refuting the contentions made by the respondents in their reply. Respondents have also filed reply to rejoinder.
11. We have heard the learned counsel appearing for the respective parties and perused the pleadings and documents on record.
12. Learned counsel for the applicant would submit that even the CBI in their Closure Report attributed Selection Committee only for everything that has happened in the process of selection and not shown any accusing finger, more particularly, on the applicant and as such, non-declaration of probation and subsequent termination amounts to not proper one. There is also Rationale that due to mistake committed by the Office, its servants cannot be penalized or punished in view of the Judicial dictums.
13. Learned counsel for the respondent would submit that at the time of appointment, applicant had been on probation for a period of two years as per the rules of the Respondent institute. The applicant's probation period was not cleared and the 13 0A/310/723/2021 applicant was tenninated by the Institute vide Order No. PII/ADMIESBT/147/2009 dated 09.04.2009 in pursuance of the proviso to sub-rule (1) of Rule 5 of the CCS (Temporary Service) Rules 1965 after observing due disciplinary proceedings under Rule 14 of CCS(CCA) Rules, 1965. Further it is also submitted the disciplinary proceedings against two members of the Selection Committee is in progress and two selection committee members have already been awarded major punishment under Rule 11 ofCCS(CCA) Rules, 1965.
14. Admittedly, this is the fifth round oflitigation. The applicant was working as a Research Assistant from 01.05.2006 Since Anti Corruption Branch (ACB), Chennai found irregularity in the appointment ofthe applicant as Research Assistant, a Criminal Case had been filed by Central Bureau oflnvestigation (CBI), and her name was also reflected in the FIR filed in RC MA 1 2007 A 0049 dated 28.09.2007. The said criminal case resulted in filing of closure report by CBI and recommendation of departmental proceedings.
15. In addition to the criminal case, the applicant was also proceeded against for the misconduct in departmental proceedings. The applicant was served with a charge sheet.
The applicant faced departmental proceedings on the following charge:
"Article I- That the appointment of Smt. Santhila Premkumar as a Research Assistant in Pasteur Institute oflndia, Coonoor at the age of 38 years 7 months as on the date ofadvertisement 11.-1.2006 (Advt. No. 3/2005 dated 24.12.2005) is not in accordance with Recruitment Rules and the bye-
laws ofthe Institute and further the appointment was
-
14 OA/310/723/2021 made in violations of the recruitment rules, because of which an ineligible candidate i.e., Smt. Santhila Premkumar was appointed and other deserving candidates were left out thus causing irreparable loss to other candidates applied for the post of Research Assistant."
16. A statement of imputations of Misconduct or Misbehaviour on which the Articles of charge were based, together a list of Documents by which, and a List of Witnesses by whom, the charges were proposed to be sustained, were also forwarded to her along with the above said Memorandum dated 17.02.2015.
17. The Applicant had denied the charge and requested to be heard in person vide her letter dated 27.02.2015. Accordingly, Shri N.K.Subash, Retd. Sr. Superintend of Post Offices had been appointed as the Inquiring authority to inquire into charges vide Order No. PII/ADMN/C-8/2014-15/186 dated 17.04.2015.
18.- The Inquiry authority after conducting the Regular Departmental Inquiry proceedings, vide his report dated 09.02.2016 gave a finding that the appointment of Smt. Santhila Premkumar as Research Assistant is not in accordance with the Recruitment Rules and Bye laws of the Institute and by applying to the Post of Research Assistant knowing her ineligibility regarding age condition she acted unbecoming manner thereby violating Rule 3 (I) (ii) of CCS Conduct Rules, 1964 and concluded that "thus the case is proved beyond doubt".
19. A copy of the report of inquiry was sent to the applicant vide, this Office letter No. PII/ADMNB/C-8/2014-15/4617 dated 18.02.2016 and applicant was given an opportunity of making such submission on the report of inquiry as 15 0A/310/723/2021 applicant desired. Immediately after receipt of the Inquiry Report, applicant o approached the Central Administrative Tribunal, Madras Bench in O.A. 310/00399/2016 which was dismissed by order dated 09.03.2016. Thereafter the applicant had submitted her submissions on the Report of Inquiry vide her letter dated 23.03.2016 to the respondent Institute.
20. On careful consideration of the report of the Inquiry Officer and other records of the case in the light of the submission made by the applicant her observations on report of the inquiry and during her personal hearing and facts and circumstances of the case, the Appointing/Disciplinary Authority i.e., the 2 d Respondent has decided to accept the findings of the Inquiry Officer and imposed the penalty of 'Removal' of the applicant from Service which shall not be a disqualification for future employment under the Government, with effect from 31.05.2016 vide order No. PII/ADMN/C-8/2014-15/723 dated 31.05.2016. In pursuance of the directions of the Tribunal, the applicant filed an appeal before the pt Respondent viz., the Appellate Authority i.e., Secretary to Govt. of India (Health and Family Welfare) & Chairman of Governing Body, Pasteur Institute of India, Coonoor which came to be dismissed on 4 February, 2019.
21. Aggrieved against the order of punishment, the applicant invoked the jurisdiction of the Tribunal.
22. The Disciplinary Authority has taken into consideration the evidence led before the IO to return a finding that the charges levelled against the applicant stand proved.
16 ON3 l 0/723/2021
23. The power ofjudicial review is confined to the decision-making process. The power of judicial review conferred on the Constitutional Court or on the Tribunal is not that ofan appellate authority.
24. In State ofAndhra Pradesh & Ors. v. S. Sree Rama Rao, a three Judge Bench ofthe Apex Court has held that the High Court is not a court ofappeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules ofnatural justice are not violated. The Court held as under:
"7.... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules ofnatural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably supportthe conclusion that the delinquent officer is guilty of the charge, it is not the function ofthe High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence .... "
25. In B.C. Chaturvedi v. Union of India & Ors., again, a three Judge Bench ofthis Court has held that power ofjudicial review is not an appeal from a decision 17 OA/310/723/2021 but a review of the manner in which the decision is made. Power ofjudicial review 0 is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made.
Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary 18 0A/310/723/2021 authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has 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 oflndia v. H.C. Goel [(1964) 4 SCR 781 ], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
26. In High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil & Anr., the Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Article 226 of the Constitution. It was held as under:
"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode 19 OA/310/723/2021 of such enquiry or if the decision of the authority is 0 vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."
27. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under:
7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except • 20 OA/310/723/2021 where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) sec 749, Union oflndia vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC416).
xx xx xx
12. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit ofdoubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard ofproof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him."
14. The Hon'ble Apex Court in Union of India & Ors. v. P. Gunasekaran had laiddown the broad parameters for the exercise of jurisdiction of judicial review. The Court held as under:
21 0A/310/723/2021 "12. Despite the well-settled position, it is o painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinaryauthority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be
influenced by irrelevant or extraneous
considerations;
(f)the conclusion, on the very face of it, is so wholly arbitraryand capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, theHigh Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case thesame has been conducted in accordance 22 0A/310/723/2021 with law;
(iii) go into the adequacy ofthe evidence;
(iv) go into the reliability ofthe evidence;
(v) interfere, ifthere be some legal evidence on whichfindings can be based.
(vi) correct the error of fact however grave it may appear tobe;
(vii) go into the proportionality of punishment unless itshocks its conscience."
29. In this case the disciplinary proceedings were initiated against the applicant because of her ineligibility. Besides the applicant participated in the enquiry without any protest. It is not the case of no evidence or that the findings are perverse. The finding that the applicant is guilty ofmisconduct can be interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. It is not the case of the applicant that there was any violation of any rule or regulation or violations of the principle of natural justice. The Inquiry Officer has appreciated the evidence and returned a finding that the respondent is guilty ofmisconduct.
30. The disciplinary authority agreed with the findings ofthe enquiry officer and had passed an order ofpunishment. An appeal before the first respondent viz. Secretary & Chairperson ofGoverning Body as an Appellate Authority was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court cannot interfere with the findings of facts recorded by reappreciating evidence as if the Courts are the Appellate Authority.
23 OA/310/723/2021
31. The Rules position in regard to removal from probation and confirmation are that (i) Before a direct recruit is considered for confirmation in the post., he/she should satisfy the condition of the age limit (as in this case) prescribed in the Recruitment Rules for the post at the time of his/her initial appointment unless exempted by specific relaxations given in the advertisement itself; (ii) He/she is qualified for confirmation under the relevant recruitment rules and(iii) Integrity clearance is obtained. The Apex Court in Renu vs District & Sessions Judge Tis Hazari (2014)14 SCC 50 emphasised the need to specify the conditions of eligibility criteria in the advertisement to have transparency and clarity for all concerned. Thus, the appointment letter, in so far as it is contrary to or at variance with he advertisement, will have to have to give way to the stipulations in the advertisement. In TCM Pillai vs IIT Madras 1971 AIR 1811, 1971 SCR 555, the Court held that suitability does not merely depend on the excellence or proficiency 4 in the work. There are many factors which enter into consideration for confirming a person. In Satya Narayan Jhawar 2001 7 SCC 161, the Court held that even if the period ofprobation has expired and neither the order ofconfirmation has been passed, he cannot be deemed to have been confirmed merely because the said period ofprobation has expired.
32. The judgments relied upon by the applicant are inapplicable as they were rendered in different facts and circumstances of the case than the one available in the present case.
24 OA/310/723/2021 Q
33. In the conspectus of the above facts and circumstances of the case and the judgements of the Hon'ble Apex Court and High Court of Madras, we do not see any justification to allow the OA in favour of the applicant. Resultantly, the OA is liable to be dismissed and is accordingly ordered. No costs.
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