Andhra HC (Pre-Telangana)
M.A. Kalam vs The Registrar (Management) High Court ... on 1 April, 1996
Equivalent citations: 1996(2)ALT966
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER G. Bikshapathy, J.
1. In this Writ Petition the orders of the 2nd respondent dated 16-3-1995 removing the petitioner from service as confirmed by the 1st respondent in proceedings dated 6-10-1995 are assailed.
2. The facts are in short compass:
The petitioner was appointed as Attender in the year 1987. During the year 1984.he was working in the Court of the Subordinate Judge, Sangareddy. On a complaint sent by the Subordinate Judge, the District Judge, Medak at Sangareddy initiated the disciplinary proceedings against the petitioner. He appointed Sri. K.L. Narasimha Rao, Sub-Judge, Siddipet to conduct an enquiry. Accordingly, the Enquiry Officer framed the following charges:
"First Charge" That while you were on duty at the residential quarter of sub-Judge, Sangareedy on 10-9-94, your friend had come to you along with a girl and asked you to allow him to stay in the residential quarter of the officer for unlawful activities and accordingly you allowed them, and your friend enjoyed with that girl in the officer's quarter in your presence on that day.
Second Charge: That the Officer, Sub-Judge, Sangareddy left the Headquarters on 7-9-94 after Court hours and after his return to the residential quarter on 12-9-1994 he found a cover of Nirodh Condom in bath room and on enquiry with you, you have confessed before him that on 10-9-94 your friend had come to the residential quarter with a girl and enjoyed with her in the quarter with your permission and connivance and as such a Nirodh Condom cover was found in the bath room.
Third Charge: That you being a Government Employee on duty had committed a serious mistake by allowing your friend for such unlawful activities in the residential quarter of your Presiding Officer, as such you are liable for serious action as per C.C.A. Rules"
The Enquiry Officer found the petitioner guilty of the charges. On the basis of the report of the Enquiry Officer, the petitioner was issued with show cause notice of proposed punishment. Finally the 2nd respondent passed orders in proceedings No. 1544, dated: 16-4-1995 removing the petitioner from service. There upon the petitioner filed an appeal to the 1st respondent under the provisions of the Civil Services (C.C.A.) Rules, 1991. The 1st respondent by an order in ROC No. 2551/95 C2 (1), dated: 6-10-1995 rejected the appeal confirming the order of removal passed by the 2nd respondent. The petitioner approaches this Court assailing the order of the removal passed by the 2nd respondent as confirmed by the 1st respondent.
3. The learned counsel for the petitioner Sri M. Rama Rao submits that the enquiry conducted against the delinquent employee was not fair and the same is vitiated by various irregularities and infirmities. He submits that there was no evidence except the evidence of the Subordinate Judge who is none else than the complainant himself, for establishing the charge. The evidence of the Subordinate Judge cannot be relied on being a complainant and interested witness. We are not convinced with the argument of the learned counsel. The Subordinate Judge when made an enquiry as to the cause for the presence of Nirodh Condom in the bath room of his residential quarter, the petitioner himself had confessed saying that on 10-9-1994 his friend had come to the residential quarter of the officer along with a girl while he was on duty and asked him to allow him to stay in the residential quarter of the officer and that his friend enjoyed with the girl and as such the said Nirodh Condom cover was found in the bath room. When the Subordinate Judge enquired the other Attenders, they expressed their ignorance. When such is the case, there is no reason why the statements made to the complainant, who is a responsible judicial officer should not be accepted. Though the petitioner denied that he did not give any confession, but at the same time, the disciplinary and appellate authorities disbelieved the version of the delinquent employee. The parameters of Judicial review on the disciplinary proceedings do not extend to the extent of reappreciating the evidence. Therefore, we hold that the disciplinary authority cannot be said to have erred in relying on the sole evidence of the Subordinate Judge.
4. The learned counsel submits that the findings of the Enquiry Officer are not supported by any evidence on record. However, he could not substantiate this point apart from commenting on the evidence of Subordinate Judge. As far as the procedural irregularities are concerned, it is submitted in the affidavit filed in support of the writ petition that the petitioner was denied the opportunity of examining the other attenders as witnesses but there is nothing on record to show that the petitioner made a request in this regard and that the enquiry officer did not agree for the same. No details have been furnished in support of this contention. Hence, we do not find any irregularity or illegality in the proceedings initiated against the petitioner.
5. The learned counsel submits that there is a total lack of application of mind by the appellate authority as no reasons were assigned in the order of the appellate authority especially on the question of punishment. To appreciate this contention, it is necessary to refer the relevant rule under which the appeal is required to be filed and the method and manner in which the appeal has to be considered by the appellate authority.
6. Under Rule 33 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991, an appeal lies to the appellate authority against the order of removal from service. Rule 37 provides the method and manner in which the appeal has to be considered, the said Rule is extracted below:
"Consideration of appeal:
(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 8 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 9 or Rule 10 or enhancing any penalty imposed under the said rules, the appellate authority shall consider:-
(a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in failure of Justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced 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 or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.
7. The question that arises for consideration is whether the appellate authority's order is vitiated by failure to give reasons and failure to consider the question of punishment. It is contended that the order of appellate authority is cryptic and non-speaking. It need not be emphasised that the A.P. Civil Services (C.C.A.) Rules 1991 were framed by the Government of Andhra Pradesh in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and thus the Rules are statutory in nature having force of law. It is incumbent upon the appellate authority to confirm to the requirement of Rule 37. The extract of the appellate order is as follows:
"After consideration of the appeal of Sri M.A. Kalam, formerly attender, Sub-Court, Sangareddy 2nd read above, the order and letter of the District Judge, Medak 1st and 3rd read above and also the connected record, the High Court holds that the appellant had admitted his guilt in the presence of the sub-Judge at the first instance but during departmental enquiry he denied the charges. The High Court believes the version of the Sub Judge and holds that the appellant is guilty of charges levelled against him and hence, the appeal is liable to be dismissed.
Accordingly, the appeal of Sri M.A. Kalam 2nd read above is hereby dismissed.
The connected record sent in the matter is returned herewith receipt of which may be acknowledged".
8. Though it has never been a principle of natural justice that reasons should be given for decision, the need for it has been sharply exposed by the expanding law of judicial review. Unless the employee can discover the reason behind the decision, he may be unable to question it before the higher authorities. The right to reason is now considered to be an indispensable part of sound system of judicial review. It is a healthy discipline for all. Although there is no general rule of law requiring the giving of reasons, the administrative authority may be unable to show that it has acted lawfully unless it explains itself. In Padfield v. Minister of Agriculture, 1969 SC 997 it was observed that if the Minister fails to explain the decision satisfactorily, it may be condemned as arbitrary and unreasonable.
9. Whenever any power is conferred upon an administrative authority by statute, the authority cannot transgress the bounds set forth by the statute and the said action would be invalid and ultra vires of the powers. It is the duty of the Court to see that the authority keeps within such bounds. Similarly failure to exercise the power as contained in the statute also vitiates the order. Thus, statute lays down the factors which the authority has to take into consideration while exercising the power. The Court would nullify the decision, if it acted in disregard of the law or actuated by extraneous considerations not germane to the relevant issue.
10. It is now well settled law that duty to give reason is an incident of judicial or quasi-judicial process. Mechanical reproduction of the phraseology of the rules without any attempt on the part of the appellate authority to consider the evidence on record and to express its own views is an indication of non-application of mind. In the instant case, we are unable to hold that the impugned order of the appellate authority is totally a non-speaking order. In a case where the appellate authority confirms the view taken by the original authority, it is not necessary that there should be elaborate discussion and reasoning. It was observed by the Supreme Court in the case of S.N. Mukherjee v. Union of India, AIR 1990 SCJ 984 as follows:
"It is however not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend upon particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
The appellate committee of the High Court referred broadly to the evidence in support to prove the charge. The version of the Subordinate Judge who was examined as a witness in the departmental enquiry was believed. Thus, it cannot be said that there was no application of mind to the merits of the charge or that the appellate authority's order does not contain the reasons at all. As already observed, in exercise of the power of judicial review under Article 226 of the Constitution of India in disciplinary proceedings, the High Court does not reappreciate the evidence or substitute its own opinion for the opinion reached by the disciplinary authority.
11. The decision in Divisional Engineer (Operations) - A.P.S.E.B. v. P. Srinivasa Rao, W.A.No. 275/93, dated 26-10-1995 has no application as the order passed by the appellate authority in that case did not contain even brief reasons. The appellate authority merely said that on a careful consideration, if found no merit in the appeal.
12. However, we find one infirmity in the order. As already observed, the appellate authority's order should confirm to Rule-37. Rule-37 in express terms requires the appellate authority to consider whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe. The word 'to consider' has been interpreted to mean an objective consideration after due application of mind. The 2nd respondent while passing the final order of punishment referred to the gravity of the punishment with reference to the charges, but, however, the appellate authority did not consider this aspect specifically. When the statutory Rule requires the authority to discharge its duties in a particular manner, the said authority is bound to follow the rule Breach of such rule would vitiate the proceedings.
13. In the present case, though the appellate authority considered the matter and held that the charges are proved on the basis of the evidence, it did not consider whether the punishment of removal as imposed by the 2nd respondent is proper under the facts and circumstances of the case. We find some justification in the argument of the learned counsel that on the question of punishment, it is reasonably possible to take another view. It is contended that the nature of the charge, even if held to be proved, is not such a serious one as to call for extreme punishment. It is also contended that the other attenders who were on duty and who would have also connived in the offending act have been let off.
14. We are, therefore, of the view that on the question of penalty to be imposed, there was no proper application of mind by the appellate authority though the petitioner contended that removal was not called for. The impugned order or file does not show that there was application of mind on this point and the requirement of Rule 37 (2) (c) is therefore violated. We, therefore, set aside the impugned order of the appellate authority. Though there was a suggestion that we may ourselves substitute lesser punishment and some cases have been cited at bar, we do not consider it necessary to discuss this aspect as we feel that the proper course would be to remit the matter to the appellate authority for fresh consideration on the question of punishment to be imposed. In this connection, we would like to point out that no much of time has elapsed after the impugned order was passed. Even the order of removal was passed only about an year back. Hence, it is appropriate to leave it to the appellate authority rather than deciding the question of punishment in this writ proceeding especially having regard to the observations made by the Supreme Court in the recent case of State Bank of India v. Samarendra Kishore Endow, 1994 (1) SCALE 206. The Writ Petition is accordingly allowed to the extent indicated above. We do hope that the appeal will be disposed of expeditiously. We make no order as to costs.