Madras High Court
V.Lakshmanan vs The Chairman on 2 November, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/11/2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P(MD)No.921 of 2006 V.Lakshmanan .. Petitioner Vs. 1.The Chairman, Disciplinary Authority, Pandiyan Grama Bank, 2-70-1, Collectorate Complex, Virudhunagar. 2.The Board of Directors, The Pandiyan Graman Bank, 2-70-1, Collectorate complex, Virudhunagar. .. Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned orders of the first respondent, dated 05.03.2004, issued in the reference AivD/820/03 and the impugned order of the 2nd respondent dated 08.01.2005, communicated in the reference AivD/888/2004, quash the same and direct the respondents to restore the pay of the petitioner to its original position prior to the impugned orders together with the consequential benefits. !For petitioner ... Mr.K.Vellaiswamy ^For respondents ... Mr.N.G.R.Prasad :ORDER
Being aggrieved by the orders, dated 05.03.2004 passed by the Chairman / Disciplinary Authority, Pandyan Grama Bank, Virudhunagar, the first respondent herein, and the further order on appeal, dated 08.01.2005, passed by the Board of Directors of Pandyan Grama Bank, the second respondent herein, the petitioner has sought for a writ of certiorarified mandamus to quash the same and consequently, prayed for a direction to the respondents to restore his pay to the original position.
2.Facts of the case are as follows;
The petitioner has joined the service of Pandyan Grama Bank in the year 1980. While he was working in Uthirakosamangai, certain allegations have been levelled against him. According to him, the Enquiry Officer has held three counts as not proved and one as proved. The disciplinary authority took a different view, rejecting the finding of the Enquiry Officer on the first three counts and held that all the four charges as proved and imposed a punishment of lowering one stage from the present basic pay in the incremental scale on the petitioner. According to the petitioner, there was no loss and that therefore, there cannot be any findings, regarding misappropriation. The appeal preferred was also rejected.
3. Assailing the correctness of both the orders, Mr.K.Vellaisamy, learned counsel for the petitioner submitted that when the Enquiry Officer held that the allegation in Charge No.1, misappropriation as not proved, the disciplinary authorities, without considering the defence in proper perspective, mechanically have held the same, as proved, stating that the petitioner was a party to the transaction, ignoring the fact that to prove an allegation of misappropriation, there must be a loss and that the said ingredient has to be substantiated by evidence. According to the learned counsel for the petitioner, the loss to the Bank, on the alleged act of misappropriation, has not been substantiated and in such circumstances, there was absolutely no reason to overrule the findings of the Enquiry Officer. He also submitted that the disciplinary authorities have relied on certain statements obtained behind the back of the petitioner and any finding, recorded on the basis of the abovesaid statements, amounts to violation of principles of natural justice.
4. On the merits of the case, learned counsel for the petitioner further submitted that the statement of one Mr.Manoharan, that he had pledged jewels under JL(O)606/97, for his own requirement and not for others, itself would show that there was no manifest illegality committed by the petitioner. Besides, the amount due on the jewel loan was also duly paid. On the aspect of violation of principles of natural justice, learned counsel for the petitioner added that the statement of one Mr.Neelakandan was obtained under compulsion of the Bank Officers and admittedly, one Mr.Rajendran, who had remitted the cash for redeeming the jewels has not been examined, but his statement, dated 21.08.1998, has been taken on relied on, to record a finding against the petitioner.
5. Learned counsel for the petitioner further submitted that in the absence of any material evidence, the petitioner cannot be charged, alleging participation in a chit fund transaction. He further submitted that the appellate authority viz., the Board of Directors of the Bank, have failed to consider the appeal in proper perspective and rejected the appeal, in a cryptic manner stating that the petitioner had not brought any new facts to reconsider the punishment. According to him, the appellate authority, though not bound to pass a detailed order, while confirming the punishment, yet, is duty bound to assign valid reasons, as to why the grounds raised in the appeal are not tenable. For the abovesaid reasons, he prayed to set aside the impugned order.
6. On the basis of the counter affidavit filed by the Chairman, Pandyan Grama Bank, learned counsel for the respondents submitted that the petitioner has been provided adequate opportunity in the domestic enquiry and punishment, has been imposed on the basis of the evidence on record. Therefore, it is not open to him to seek for indulgence of this court to reappreciate the evidence under Article 226 of the Constitution of India.
7. With the above preliminary objection, learned counsel for the Bank submitted that when the petitioner was working in T.U.Mangai Branch of the respondents Bank, the Inspector of Branches submitted investigation reports, highlighting various irregularities, alleged to have been committed by the petitioner. Therefore, a charge sheet, dated 14.12.1998, was issued against the petitioner. The crux of the charges was that the petitioner abused his position in misappropriation of certain funds, canvassed depositors for a chit fund and insisted on a deposit customer to advance money to him, by raising demand loan against the customer's deposit, in the bank, which resulted in the Bank losing business.
8. Learned counsel for the Bank further submitted that inspite of an opportunity, the petitioner failed to submit his explanation. Before the Enquiry Officer eight documents were marked and six witnesses were examined by the Bank, in support of the charges. The petitioner did not produce any witness nor marked any documents. The Enquiry Officer submitted his report, dated 28.08.2003, holding that the charge 2(b) is proved and charges 1(a)(b) and 2(a) as not proved. The disciplinary authority vide proceedings, dated 23.12.2003, forwarded the enquiry officer's report to the petitioner, along with the disagreement note with regard to charge 1(a) and (b) and called for further representation. As the explanation submitted by the petitioner vide his letter dated 23.12.2003 was not satisfactory, the disciplinary authority issued a show cause notice, dated 03.02.2004, proposing to impose the punishment of lowering by two stages from the basic pay in the incremental scale. In response to the same, the petitioner submitted his reply to the show cause notice on 23.02.2004. A personal hearing was also given on 02.03.2004. The disciplinary authority, after considering the enquiry proceedings, reply, dated 23.02.2004, found that the same as not satisfactory, but taking a lenient view, imposed upon a punishment of lowering one stage from the Basic pay in the incremental scale.
9. Learned counsel for the respondents further submitted that the petitioner has been insisting one Mr.Neelakandan, a customer of the bank to lend him money and further to deposit amounts in Sri Raja Ganapathi Chit Fund. Thereafter, the said customer closed his deposit in the respondent Bank and transfered the same to another Bank. Thus, due to the abovesaid act of the petitioner, the bank suffered business loss.
10. Learned counsel for the Bank further submitted that one Ms.S.Rani, water carrier of the branch in her statements, dated 13.07.1998 and 21.08.1998 respectively, and also in her evidence has deposed that the jewels pledged did not belong to her and she had signed bank records like, jewel loan application, payment voucher, etc. at the time of lodgement of jewels and redemption voucher, acknowledging the receipt of jewels in the columns provided for in the jewel loan ledger etc. and she had no connection with the jewels. At this juncture, referring to Charge No.1(a), learned counsel for the Bank submitted that the action of the petitioner in making entries in the Bank records, as if payments were made to Ms.Rani, contrary to her statement, dated 21.08.1998, that she had merely signed in the abovesaid documents, as per the request of the charged official and that she did not know how much amount was borrowed under the said jewel loan account, substantiate the charge of misappropriation.
11. Learned counsel for the Bank further submitted that the then Manager of T.U.Mangai Branch, has also confirmed the statements given by the investigating officer and further stated that on 07.10.1997, he had permitted the petitioner to re-pledge the jewels to one Mr.Rajendran, taking into account the representation of the petitioner that he had obtained authorisation the abovesaid individual, who had originally pledged the jewels. The Bank counsel further submitted that the then Manager, Mr.Soundara Nageswaran, was not examined by the petitioner, on this aspect. On the contention of violation of the principles of natural justice that the abovesaid Mr.Rajendran has not been examined, the bank counsel contended that nothing prevented the petitioner from examining Mr.Rajendran and therefore, he cannot take advantage of his own failure to adduce any defence witness.
12. On the aspect of chit transaction, learned counsel for the Bank submitted that one Mr.Neelakandan a customer of the Bank in his statement, dated 20.08.1998, has clearly stated that the petitioner and his partner Ms.Radha had insisted him to join in their chit fund and further stated that the petitioner had sought the permission of the said Mr.Neelakandan to avail Rs.50,000/-, as loan on his fixed deposit, promising to repay the same shortly. In such circumstances, he withdrew his fixed deposit in the respondent bank, amounting to Rs.2 lakhs and transferred the same to another bank. The Bank counsel further submitted that during cross examination Mr.Neelakandan had clearly reiterated his statement. He, therefore, submitted that thus, sufficient evidence has been let in to prove that the petitioner had indulged in chit transaction.
13. According to the Bank counsel, bank transaction is based on the trust, reposed on the employees, who deal with public money. The petitioner by indulging in the abovesaid acts has caused loss to the Bank and for the proven charges, instead of imposing a deterrent punishment, a lenient view has been taken and that the petitioner was awarded a lesser punishment of lowering one stage from the present basic pay in the incremental scale. The bank counsel further submitted that at all stages, the petitioner was given a fair and reasonable opportunity and inasmuch as the finding of fact, cannot be termed as perverse or a case of no evidence, the punishment imposed does not require interference. As the charges are serious in nature, the appellate authority has rightly confirmed the punishment. For the abovesaid reasons, he prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
14. The charges levelled against the petitioner are;
"Charge No.1(A):-
Abusing of official position - clandestinely and utilised the service of Mrs.S.Rani to repledge the jewels of Mr.R.Rajendran on 07.10.1997 and misappropriated for Rs.13,683/- by repledging the jewels of JL(O)295/95-96, dated 26.02.1996 A/c Mr.R.Rajendran in JL(O)466/97-98 for Rs.33,000/- in the name of Mrs.S.Rani, instead of pledging it to the extent of closing the loan account JL(O)295/95-96.
Charge No.1(B):-
On 20.11.97 the CSE released Credit Cash Voucher for Rs.15,428/- by affixing Cash Received Seal (being the redemption Voucher of JL(O)466/97 A/c Mrs.S.Rani) without actually received the amount and fraudulently done this to suppress / conceal the act of misappropriation.
Charge No.2(A):-
The CSE has taken part in the affairs of Sr.Raja Ganapathy Chit Fund situated in T.U.Mangai for pecuniary gain. Because of vested interest in the Chit Fund the CSE canvassed Deposit for the Chit Fund. Charge No.2(B):-
The CSE insisted Mr.Neelakandan of T.U.Mangai a depositor, to join Sri Raja Ganapathy Chit Fund and insisted him to give loan for Rs.50,000/- to the CSE by raising demand loan from the deposit of Mr.Neelakandan. Due to frequent attempt of the CSE to raise demand loan from the said depositor's - Term Deposit - Mr.Neelakandan closed his - Term Deposit stood in his and his family members. Thus the CSE failed to promote the interest of the Bank for his personal gain and the Bank lost valuable deposits."
15. The Enquiry Officer has found all the charges as not proved, whereas, the Disciplinary Authority has disagreed with the finding of the Enquiry Officer, in respect of charge Nos.1(a) & 1(b) and vide proceedings, dated 03.12.2003, sent along with the disagreement report, has called upon the petitioner to submit his further representation. Thereafter, the petitioner has responded to the same and contended inter alia that he has not committed any mistake. The Disciplinary Authority in his final order, dated 05.03.2004, has merely stated the following:
"The proved of charges such as misappropriation by repledging jewels for higher amount, releasing credit voucher without receiving money, insisting depositor to joint chit fund are of serious in nature"
Whereas the member had not brought any new facts to reconsider the punishment either in his reply to show cause notice or in the personal hearing."
16. Perusal of the order, dated 05.03.2004, does not reflect application of mind to the reply, dated 23.02.2004 and the explanation offered on 02.03.2004, during personal hearing. The Disciplinary Authority has merely stated that the member had not brought any new facts to reconsider the punishment. It is well settled that an administrative or quasi judicial order should contain reasons, as to why the explanation offered to any adverse findings recorded against a charged official is not acceptable. Subsequent to 42nd amendment, there is no need to issue any notice on the proposed penalty. Nevertheless, if any notice is issued by the disciplinary authority on the proposed punishment, it is incumbent on the part of such authority to consider as to whether the charged official has offered any valid explanation to the adverse finding recorded against him or not. Time and again, the Supreme Court has held that the reasons are the heartbeat of any administrative or quasi judicial order.
17. Perusal of the appellate authority's order, dated 08.01.2005, indicates that the Board of Directors of the Bank is the appellate authority. The Board of Directors of the Bank, Appellate Authority, in its meeting, dated 08.11.2004, have decided to condone the delay and entertain the appeal. The decision of the Appellate Authority is extracted hereunder:
"The Board condoned the delay in submission of appeal. As the proved charges are of serious in nature and the appellant had not brought any new facts in his appeal, the Appellate Authority confirmed the punishment of lowering one stage from the present basic pay in the incremental scale of Appellant awarded by the Disciplinary Authority."
18. The decision of the Appellate Authority, Board of Directors of the Bank, has been conveyed by the Disciplinary Authority to the petitioner. From the perusal of the order of the Appellate Authority, this Court is not able to discern as to whether the Chairman / Disciplinary Authority was also a member of the Board of the Bank, who had participated in the deliberates in the meeting conducted for deciding the appeal filed by the petitioner. If that be the case, the Chairman / Disciplinary Authority, being the original authority, cannot sit in over his own judgment, along with other members of the Board of Directors of the Bank (Appellate Authority) and confirm his own decision. However, on this aspect, no materials have been produced either of the parties. If the Chairman / Disciplinary Authority had also deliberated in the meeting on 08.11.2004, the impugned order is a nullity.
19. It is also settled that an appellate authority is a final fact finding authority and that the said authority has to assess the evidence, defence and to affirm, reverse, modify, cancel any finding of fact, recorded by the Enquiry Officer and accepted by the disciplinary authority or independently recorded by the disciplinary authority. Perusal of the order passed by the disciplinary authority does not indicate that the Appellate Authority has adverted to the grounds raised and accorded reasons for not accepting the appeal, except to state that the appellant had not brought any new facts in this appeal. Excepting the following line, ie., "as the proved charges are serious in nature and the appellant had not brought any new facts in the appeal", the punishment is confirmed, there are no materials to indicate that the Appellate Authority has considered the defence put up by the charged official and as to why it was not acceptable. Needless to say that the Appellate Authority need not write an order, like a judgment, but the reasons for rejection of the appeal should be brief, reflecting application of mind to the grounds, which, in the case on hand is conspicuously absent. In this context, this Court deems it fit to extract few decisions:
(i) In G.Srinivasan v. Government v. Government of Tamil Nadu, represented by the Commissioner and Secretary to Government, Revenue Department and Ors.
reported in 1983 (2) MLJ 513, a head Assistant was charged for demand and acceptance of bribe and a Criminal action was initiated under Section 5(1)(a) and 5(2) of the Prevention of Corruption Act, 1947. He was arrested by the Police and lateron, the proceedings initiated under the Prevention of Corruption Act were dropped. It was left to the department, the disciplinary proceedings ordered in relation to acceptance of bribe, resulted in dismissal from service. The Board of Revenue rejected the appeal by stating as follows:-
"The Board has examined the appeal petition of Thiru.G.Srinivasan, with connected records. It sees no reason to interfere with the orders of the Collector of Tirunelveli. The appeal is according rejected as devoid of merits."
While adjudicating the upon the issue, a Division Bench of this Court, at paragraph 8, held as follows:
"8. Coming to the second question as to whether the Board of Revenue has acted in accordance with Rule 23 of the Tamil Nadu Civil. Services (Classification, Control and Appeal) Rules, we feel that the Board of Revenue has not kept in mind the requisites necessary, under Rule 23. The order of the Board of Revenue dismissing the appeal has been extracted above. The order does not give any reason as to why it confirmed the order of dismissal except saying that it did not see any reason to interfere with the order of the Collector. We are of the view that having regard to the language used in Rule 23. the dismissal of the appeal by the Hoard of Revenue is not a proper disposal as contemplated by Rule 23. Rule 23 provides as to what the appellate authority should do while considering the appeal filed by a delinquent officer against the penalty imposed on him. Rule 23(1) gives a mandate to the appellate authority to consider: (a) whether the facts on which the order was passed have been established; (b) whether the facts established afford sufficient ground for taking action; and (c) whether the penalty is excessive, adequate or inadequate. Thus it is clear: from a perusal of Rule 23 that the appellate authority is enjoined to consider whether the facts on which the order of dismissal was passed had been established and the facts established afford sufficient grounds for taking action and whether the penalty is excessive or adequate . Rule 23 directs the appellate authority to consider certain matters before passing the appellate order. The order of the appellate authority must therefore ex fade show that the matters referred to in Rule 23 have been considered by the appellate authority before it passed its order. In this case, the order of the appellate authority merely says that it sees no reason to interfere with the order of the Collector and it does not indicate that it took all the matters referred to in Rule 23 into consideration before rejecting the appeal. Obviously, the appellate authority the Board of Revenue in this: case, appears to have overlooked the criteria referred to in Rule 23, as otherwise, it would have at least referred to the relevant matters contained in Rule 23 in its order. Dealing with this ground of attack, Mohan, J., has stated that according to the recent trend of opinion, if the appellate authority confirms the order in appeal, the appellate authority need not give reasons. It may be that in a case where there is no statutory provision dealing with the exercise of power by the appellate authority we have to fall back to the general principle as to whether the appellate authority is bound to give reasons for his affirmation of the order of dismissal; but where the power of the appellate authority is circumscribed by a statutory provision such as Rule 23 as in this case, the appellate authority should act within the confines of that rule and he cannot pass an order arbitrarily without considering the matters referred to in Rule
23. We are therefore of the view that the order of the Board of Revenue, dated 4th September, 1976, stands vitiated for violation of Rule 23. On this ground, the order of the Board of Revenue which confirms the order of dismissal passed against the appellant will stand quashed and the Board of Revenue has to pass a fresh order on the appeal filed by the appellant which should be treated as pending."
(ii) While explaining the word "consider" employed in Rule 27(2) of the Central Civil Services (Classification and Appeal) Rules, 1965, the Supreme Court in R.P.Bhatt v. Union of India reported in AIR 1986 SC 1040, at Paragraphs 4 and 5, observed that, "The word 'consider' in R.27(2) implies 'due application of mind'. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) Whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) Whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) Whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc, the penalty, or may remit back the case to the authority which imposed the same. R.27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.
There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any findings on the crucial question as to whether the findings of the disciplinary authority were unwarranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (2) of R.27(2), viz., whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of R.27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside."
(iii) Following the R.P.Bhatt's case, the Supreme Court in Ram Chander v. Union of India reported in 1986 (3) SCC 103, held that the Appellate Authority must not only give a hearing to the government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal.
(iv) In Arokiadoss v. The Deputy Commissioner of Police, reported in 1989 Writ L.R. 274, this Court, while dealing with the powers of the appellate authority under Rule 6(1) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, at Paragraph 4, held as follows:
"the order of the appellate authority does not indicate, whether the appellate authority considered the materials on record in the light of Rule 6(1) of the Rules. He should have discussed the relevant evidence and found whether the facts on which the order of the disciplinary authority was based have been established. He should have also considered whether the facts afford sufficient ground for taking disciplinary action and whether the penalty is excessive, adequate or inadequate. As the order of the appellate authority does not show that he has considered the relevant matters prescribed under R.6(1) of the Rules, the order is vitiated."
(v) In G.M.(P.W.), Canara Bank v. M.Raja Rao reported in 2001 (II) LLJ 819, the Supreme Court had an occasion to consider as to whether the appellate authority is required to pass a detailed order, while concurring with the decision of the disciplinary authority. The penalty imposed was affirmed by the learned single Judge of the Karnataka High Court. On appeal, the Division bench held that the disciplinary Authority, while agreeing with the report of the Enquiry Officer, is required to give reasons under Banking Regulation and therefore, by observing that there was failure on the part of the appellate authority, set aside the order of removal. Testing the correctness of the Division Bench order, the Apex Court, at Paragraphs 4 and 5, held as follows: "5. So far as the order of the Appellate Authority is concerned, it is undoubtedly true that as provided in the Regulation, the Appellate Authority is required to pass a reasoned order."
(vi) In Janarthanan Assistant Executive Engineer, Palacode v. The Chief Engineer Distribution, Tamil nadu Electricity Board and others, reported in 2004 Writ L.R 636, this Court, at paragraph 7, held that the appellate authority has merely confirmed the order of the disciplinary authority, stating that no new points had been urged. If an appeal has been filed, it is the duty of the appellate authority to consider the contentions raised by application of independent mind. That having not been done, such order passed by the appellate authority cannot be sustained.
(vii) A policeman was inflicted with a penalty of reduction in time scale of pay by three stages for three years with cumulative effect on the charges of insubordination of abusing his superior officer and acting in a manner of unbecoming a Government servant. The appellate authority dismissed his appeal without giving any reasons. When the order was tested by this Court, following this Court in K.Kandasamy v. Deputy I.G., of Police, reported in 2006 (4) MLJ 1382, at Paragraph 7, held as follows:
"It is seen from the aforesaid portion of the impugned order that the Appellate Authority did not deal with any of the grounds of appeal raised by the petitioner. A departmental appeal is a continuation of the original proceedings. It is needless to point out that the last opportunity available for a delinquent, to canvass his case on merits, is at the appellate stage. After the appeal, a delinquent loses his right to challenge any disciplinary proceedings on merits, since the scope of interference on a revision or on a writ petition is very limited. Therefore, the rules themselves contemplate Appellate Authorities to go into the factual details and consider all the grounds of appeal before deciding an appeal. Unfortunately, the first respondent has chosen to dismiss the appeal by a non-speaking order and hence the Appellate Authority's order is liable to be set aside."
(viii) In Vanaja, N. v. The Board of Directors of Tamil Nadu Small Industries Development Corporation Ltd., reported in 2006 (4) CTC 52, at Paragraph 3 and 4, this Court held as follows:
"3. It is brought to the notice of this Court, Rule 6.25-A of the Service Rules of Tamil Nadu Small Industries Development Corporation Ltd., which contemplaes that when an Appeal is preferred imposing penalties specified in Rule 6.15, the Appellate Authority shall consider whether the penalty imposed is adequate, inadequate or severe and pass orders (i) confirming, enhancing, reducing or setting aside the penalty or (ii) remitting the case to the authority which imposed on the penalty with such direction as it may deem fit to the Appellate Authority to call for the records in respect of any disciplinary proceeding and review any order made under these rules and pass such orders as it may deem fit in the circumstances of the case.
4. After going through the order impugned in the Writ Petition, this Court is prima facie satisfied that the Appellate Authority except informing that after detailed examination a resolution has been passed to reject the Appeal made by the petitioner and confirm the order dated 01.06.2005 passed by the Managing Director, nothing has been stated, has not followed the Rules contemplated under Rule 6.25-A of the above said Rules. Except saying that after detailed examination, no reason was given as specified under Rule 6.25-A of the above said service rules as to whether the Appellate Authority had considered that the punishment imposed was adequate or inadequate. What is the detailed examination is also not mentioned in that order."
(ix) In Director (Marketing), Indian Oil Corpn. Ltd., v. Santhosh Kumar reported in 2006 (11) SCC 147, the order of the appellate authority was assailed on the ground of total non-application of mind, as the said authority, in verbatim, extracted the order of the disciplinary authority. The orders of the disciplinary as well as appellate authority, as extracted in the above reported judgment, are produced hereunder:
"10. For the sake of convenience, we extract both the orders available at pp. 51-52 of the paper-book:
"I have carefully gone through Shri Santosh Kumar's [Emp.No. 19957, ex-AM (Operations), Hissar depot] appeal dated 25-3-2000 together with all papers relating to the disciplinary case initiated against him vide Charge-sheet No. IR/1461/(N-113) dated 24-6-1997 in the capacity of the competent disciplinary authority.
I have applied my mind and I find Shri Santosh Kumar has not brought out any point in his appeal dated 25-3-2000 which may warrant any change in the said final order passed by me as the competent disciplinary authority. The appeal of Shri Santosh Kumar is hereby forwarded to the Director (Marketing), the Appellate Authority for his kind consideration and orders. General Manager (Operations) I have carefully gone through Shri Santosh Kumar's [Emp.No.19957, ex-AM (Operations), Hissar depot] appeal dated 25-3-2000 together with all papers relating to the disciplinary case initiated against him vide Charge-sheet No. IR/1461/(N-113) dated 24-6-1997. Shri Santosh Kumar has preferred an appeal against the order of penalty of 'dismissal', inflicted upon him by General Manager (Operations), the competent disciplinary authority vide Reference No. IR/1461/(N-113) dated 30-12-1999 as a measure of disciplinary action against Shri Santosh Kumar.
I have applied my mind and I find that Shri Santosh Kumar has not brought out any point which may warrant my interference with the said orders passed by the competent disciplinary authority. Accordingly, I hereby reject the appeal of Shri. Santosh Kumar. Let Shri Santosh Kumar be advised accordingly. Director (Marketing)"
The Supreme Court, while setting aside the orders passed by the above said authorities, directed the disciplinary authority therein to consider the detailed representation made by the respondent therein, the report of the Enquiry Officer in proper perspective and decide the matter afresh. The judgment rendered in National Fertilizers Limited and another v. P.K.Khanna reported in 2005 (7) SCC 597, was taken into consideration.
(x) In Divisional Forest Officer, Kothagudem & Ors. v. Madhusudan Rao reported in 2008 (1) Supreme 617, after considering the Constitutional Bench judgment in State of Madras v. A.R.Srinivasan [AIR 1966 SC 1827], Som Datt Datta v. Union of India [(1969) 2 SCR 177], Tara Chand Khatri v. Municipal Corporation of Delhi [(1977) 1 SCC 472], R.P.Bhatt v. Union of India [(1986) 2 SCC 651] and Ram Chander v. Union of India [(1986) 3 SCC 103], the Apex Court, at Paragraph 19, held as follows:
"19. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum, but in our view, in the interests of justice, the delinquent officer is entitled to know atleast the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum."
(xi) In M/s.Steel Authority of India Ltd., v. STO, Rourkela-I Circle & Ors. reported in 2008 (5) Supreme 281, the Supreme Court testing the correctness of an order passed by the Assistant Commissioner of Sales Tax against the assessment, at Paragraph 10, held as follows:
"10. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless."
(xii) It is worthwhile to reproduce the views of Lord Denning in M.R. in Breen v. Amalgamated Engg. Union [(1971) 1 All. ER 1148] and Alexander Machinery (Dudley) Ltd., v. Crabtree [1974 ICR 120 (NIRC)], found at Paragraph 11 of the above reported judgment.
"Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union, (1971) 1 All ER 1148, observed: "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd., v. Crabtree [1974 ICR 120 (NIRC)], it was observed: "Failure to give reasons amounts to denial of justice." "Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before the Court. Another rationale is that the affected party can known why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance."
(xiii) In V.Arivuselvan v. State of T.N., reported in 2008 (5) MLJ 1327, this Court, at Paragraph 9, held as follows:
"Thus the appellate authority has to consider including other things, whether the order of the original authority has to be confirmed, enhanced, reduced or set aside. When specific grounds have been raised by the petitioner explaining the circumstances under which the said amount had been utilised and also pleading for mercy, it is expected that the appellate authority has to consider the said grounds taken by the petitioner. Admittedly, the appellate authority has not considered whether the punishment awarded to the petitioner is on the higher side and whether it requires any modification or reduction. As rightly pointed out by the learned counsel appearing for the petitioner, the appellate authority has not considered whether the punishment of removal imposed by the original authority is adequate or inadequate."
(xiv) Another Division Bench of this Court in the Joint Commissioner of Police, Traffic Zone, Vepery & another v. Anandan, reported in 2008 Writ. L.R 86, held that, "under Rule 6(1), the appellate authority shall give a finding while considering the appeal as to whether the facts on which the order is based have been established, among other things - No such finding is given by the appellate authority except by stating that he has gone through the representation of the appellant therein, minutes and the order passed by the punishing authority - Hence, we are unable to confirm the order of the appellate authority as it is not a speaking order passed in terms of Section 6(1) of the Rules."
20. Though rival submissions have been made on the merits of the case, this Court is not inclined to advert to the same, in view of the procedural irregularity, resulting in deprivation of the petitioner's right for consideration of his defence.
21. In view of the above, this writ petition is allowed and the impugned orders are set aside. Disciplinary Proceedings was initiated in the year 1998. Now, 14 years have gone. As the impugned orders are set aside for procedural violations, it is left open to the discretion of the authorities to decide as to whether the disciplinary proceedings should be proceeded further or not. No costs.
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