Central Administrative Tribunal - Allahabad
Om Prakash Iv vs Union Of India on 4 January, 2019
RESERVED.
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH
ALLAHABAD
This is the 04th day of January 2019.
ORIGINAL APPLICATION No. 260 of 2011
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A)
HON'BLE MR RAKESH SAGAR JAIN, MEMBER (J)
Sri Om Prakash IV son of Shri Kishan Lal, resident of Railway Colony,
Quarter No. 6-B, Rosa, District Shahjahanpur.
...............Applicant.
By Advocate: Shri Shyam Narain Verma
VERSUS
1. Union of India through its General Manager, Northern
Railway, New Delhi.
2. Additional Divisional Railway Manager, Northern Railway,
Allahabad.
3. Senior Divisional Mechanical Engineer, Northern Railway,
Moradabad.
4. Chief Operating Manager (Goods), Northern Railway,
Baroda House, New Delhi.
By Advocate : Shri Rishi Kumar
..........Respondents
ORDER
BY HON'BLE MR RAKESH SAGAR JAIN, MEMBER (J)
1. The present O.A. has been filed under Section 19 of Central Administrative Act by applicant Sri Om Parkash seeking the following reliefs:-
i) A writ in the nature of certiorari or likely the direction may be issued to quash the dismissal order dated 01.09.2005 (Annexure No. 1 to this original application) 2 passed by Senior Divisional Mechanical Engineer (O&F), its appellate order dated 20.7.2006 (Annexure No. 2 to this original application) and order dated 30.03.2010 communicated to the petitioner vide order dated 06.04.2010 passed by C.O.M./G, Northern Railway, Baroda House, New Delhi (Annexure No. 3 and 4 respectively to this original application).
ii) A writ in the nature of mandamus may issue to direct the opposite parties to reinstate the applicant on the post of Driver and pay him the arrears of salary with all the other benefits.
iii) Any other suitable writ, order or direction as this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.
iv) Award the cost of application in favour of the applicant".
2. Case of applicant being that in 1977 being appointed as Loco Cleaner in the Railway Department was promoted as a Driver in 1997. He was served with a charge sheet dated 5.01.2005 with the allegation that on 13.12.2004 when driving UP DDL, he reached Rosa where the line was blocked due to which the train could not move further and he had an abusive altercation with V .K. Shukla, Deputy Controller who submitted a complaint before G.R.P. Rosa whereupon the breath test of applicant was taken and subsequently his blood sample was taken and the medical report of applicant revealed that applicant had consumed liquor. Statement of applicant was recorded that he would not consume liquor in future.
3. Applicant denied the allegations and took defence of pressure of police to confess. The Enquiry Officer vide report dated 20.06.2005 held the charges against applicant to be 3 proved as per para I/II/III of Rule 39 of Railway Servants (Discipline and Appeal) Rules, 1968. The Disciplinary Authority (DA) vide order dated 31.08.2005 imposed the punishment of 'removal of service' and the appeal to Appellate Authority (AA) i.e. Additional Divisional Railway Manager, Northern Railway, Moradabad Mandal, Moradabad was dismissed vide order dated 20.07.2006 based upon confession of applicant, which confession, as per, applicant was given by him under duress and was no voluntary. The revision petition filed by applicant was dismissed by D.P.O. vide order 30.03.2010.
4. Applicant seeks quashing of the orders of DA, AA and Revisional Authority on the ground that:
A. No evidence to support the order of punishment and appellate order;
B. Impugned orders based on confession of consuming liquor given in police custody and under pressure and cannot be made the basis for finding him guilty;
C. Non examination of doctor to prove the medical report;
D. Statement of M.P.Mishra was based on hearsay evidence;
E. Version of applicant that he had gone to
purchase medicine ignored.
F. In counter affidavit, reply of respondents is that
applicant is a habitual offender and awarded punishment on many occasions. It is the case of respondents that the disciplinary proceedings were conducted in accordance with rules and regulations and findings are based on evidence on record and punishment was based on the 4 grave charge of consuming liquor while on duty. The defence put up by the applicant is false and not supported by any defence evidence. If the confession was recorded under duress, the applicant at the earliest moment made a complaint against the same and immediately retracted the same.
5. In the rejoinder affidavit, besides reiterating the averments in the O.A., the allegations made in the counter affidavit have been denied by the applicant though he admits of a verbal duel between him and V. K. Shukla.
6. Applicant has challenged the orders of disciplinary authority, appellate authority and revisional authority Heard Shri Shyam Narain Verma, learned counsel for the applicant and Shri Rishi Kumar, learned counsel for the respondents and also gone the pleadings on record.
7. In the above context, it has been submitted by learned counsel for applicant, that the Enquiry Officer, Disciplinary Authority and Appellate Authority have utterly failed to consider the pleas raised by the applicant in his written statement of defence, reply to the show-cause notice, and appeal in their proper perspective, and that the conclusions arrived at by the said authorities are perverse and, therefore, the impugned enquiry report and the orders passed by the Disciplinary Authority and Appellate Authority are unsustainable and liable to be quashed.
8. Per contra, it has been submitted by learned counsel appearing for respondents, that there was sufficient evidence to prove the charges against the applicant. The Enquiry Officer, Disciplinary Authority and Appellate Authority have recorded their findings in a fair manner. The 5 pleas taken by the applicant in the written statement of defence, reply to the show cause notice, and appeal have been duly considered and findings thereon have been arrived at by the Enquiry Officer, Disciplinary Authority and Appellate Authority. The procedure established by law has been duly followed. The punishment of removal from service is commensurate with the charges proved against him. Therefore, there is no infirmity in the orders passed by those authorities, and the O.A. is liable to be dismissed.
9. It is no more res integra that the power of judicial review does not authorize the Tribunal to sit as a court of appeal either to reappraise the evidence/materials and the basis for imposition of penalty, nor is the Tribunal entitled to substitute its own opinion even if a different view is possible. Judicial intervention in conduct of disciplinary proceedings and the consequential orders is permissible only where (i) the disciplinary proceedings are initiated and held by an incompetent authority; (ii) such proceedings are in violation of the statutory rule or law; (iii) there has been gross violation of the principles of natural justice; (iv) there is proven bias and mala fide; (v) the conclusion or finding reached by the disciplinary authority is based on no evidence and/or perverse, and (vi) the conclusion or finding be such as no reasonable person would have ever reached.
10. Insofar as the orders dated 31.08.2005, 20.07.2006 and 30.03.2010 of the Disciplinary authority (DA), Appellate authority (AA) and Revisional Authority respectively are concerned, the learned counsel for the applicant argued that the orders are cryptic and without reasons. Both Disciplinary and appellate authority have not recorded sufficient reasons in their orders and given due evaluation to 6 the enquiry report as to its acceptance or otherwise and does not meet the requirement of law.
11. The enquiry officer has given the gist of the charge, but discussed the gist of evidence of the witnesses and document which surely must have been placed before the enquiry officer by the department and given his report against the applicant. Applicant has not challenged the enquiry report and so, no finding can be given regarding the enquiry report.
12. However, the Disciplinary and Appellate Authorities, it seems, have not gone into the Enquiry and its proceedings and the ultimate finding given therein. If the said authorities had carefully gone through the Enquiry report, they would have fully discussed the points raised by the applicant and given their findings in detail, which is lacking in present case. What is the evidence, its worth and credibility and process of reasoning to arrive at the decision in the Enquiry report, does not seem to have been taken note of or discussed by the said Authorities. How the Enquiry officer deduce the guilt of the applicant in arriving at the finding of guilt of applicant is singularly lacking in the Enquiry report. This, observation, is not to be construed as being given on merit but is based on a bare and cursory glance at the report.
13. The Disciplinary Authority ought to have gone into the merit of the Enquiry report to find whether there is justification for the entire or part of the enquiry report to be accepted and thereafter, impose a penalty upon the applicant, which, as per, law should not be disproportionate to the count on which the applicant has been found guilty. To repeat, the order of DA is sketchy, cryptic, unreasoned and non- speaking and is therefore, set aside.
714. Learned counsel for applicant submitted that the order dated 31.08.2005 passed by the Appellate Authority is not in accordance with the law. Learned counsel further argued that the impugned appellate order is not only against the mandate of Rule 22 of the Rules but is also a unreasoned order and has not dealt with the issues raised by the applicant while challenging the order of the disciplinary authority as well as the authority which had initiated the disciplinary proceedings. It is also stated that the order of the Appellate Authority is cryptic, unreasoned and non- speaking. Learned Counsel for applicant in support of his arguments relied upon State of U.P. v/s Saroj Kumar Sinha, AIR 2010 SC 3131, Subash Chandra Sharma v/s Managing Director, 1999 LawSuit (All) 822, Subash Chandra Sharma v/s Uttar Pradesh Co-operative Spinning Mills, 2001 Lawsuit (All) 290, S.C. Girotra v/s United Commercial Bank, 1994 Lawsuit (SC) 247 and Meenglas Tea Estate v/s Workmen, 1963 Lawsuit (SC) 40.
15. On the other hand, learned counsel for the respondents submitted that due procedure was adopted and observed by the Appellate Authority while dismissing the appeal and upholding the punishment imposed upon the applicant, as such, the present O.A. being meritless deserves to be dismissed.
16. Applicant as challenged the order of the Appellate Authority, being passed in violation of Rule 22 of The Railway Servants (Discipline & Appeal) Rules, 1968 (Hereinafter referred to as the "Rules").
817. Rule 22 reads as under :
"Consideration of appeal xx xx xx (2) In the case of an appeal against an order imposing any of the penalities specified in Rule 6 or enhancing any penalty imposed under the said rule, 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 the 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 directions as it may deem fit in the circumstances of the case.
18. Rule 22 lays down that the appellate authority while considering an appeal against an order imposing any of the penalties specified in Rule 6 shall consider as to whether (i) the procedure laid down in the Rules have been complied with and if not such non-compliance resulted in violation of provisions of Constitution of India or in the failure of justice,
(ii) the findings of disciplinary authority are backed by the evidence and the penalty imposed is adequate, inadequate or severe and thereafter pass order confirming the penalty.
919. In the present case the order of the appellate authority is terse and an order spelling out no reason for rejecting the appeal. There is nothing in the impugned order to show that the pleas raised by the applicant in the memo of appeal were considered by the Appellate Authority and were found to be baseless. The impugned order is singularly lacking in giving the reasons as to how the pleas raised by the appellant/ applicant were dealt with by the Appellate Authority. It is a settle principle that giving reasons is a hallmark of a fair administration so as to enable the effected person to know as to the manner in which his lis has been dealt with.
20. To repeat, Rule 22 speaks of three essential conditions which are to be looked into by the Appellate Authority while disposing of an appeal i.e. compliance of procedure, finding based on evidence and the penalty is adequate.
21. Perusal of the impugned order does not reveal that the Appellate Authority had considered the aforementioned three conditions while passing the impugned order. The only circumstance given in the impugned order is that the appeal of the applicant and other records/ aspects of the case were considered to come to the conclusion that the charge have been proved but again the impugned order is lacking in reasons for coming to the conclusion that the appeal is to be rejected. The impugned order seems to be relying heavily on the assessment of disciplinary authority to dismiss the appeal without giving its reasons
22. In this regard, reference may be made to R.P. Bhatt vs Union Of India And Ors, AIR 1986 SC 1040 wherein the Hon'ble 10 Apex Court held that "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 noncompliance 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 finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of cl.
(c) 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."
23. In the instant case, it was incumbent upon the Appellate Authority to pass a reasoned order observing the principles of natural justice, which are totally lacking in the present case. The impugned order of the Appellate Authority is very brief, sketchy and lacks reasoning. It is now well settled principle of law that in case a public authority wants to pass an adverse order, it has to follow the principles of natural justice and to pass a speaking order.
24. Exhibiting the necessity of passing of speaking orders, the Hon‟ble Apex Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others (2009) 4 SCC 240 has in para 8 held as under:-
"8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 11 SCC 594, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation".
25. An identical question came to be decided by Hon'ble Apex Court in the case of M/s Mahavir Prasad Santosh Kumar Vs. State of U.P. & Others 1970 SCC (1) 764 which was subsequently followed in a line of judgments. Having considered the legal requirement of passing speaking order by the authority, it was ruled that "recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. It was also held that while it must appear that the authority entrusted with the quasi-judicial authority has reached a conclusion of the problem before him: it must appear that he has reached a conclusion which is according to law and just, and for ensuring that he must record the ultimate mental process leading from the dispute to its solution". Such authorities are required to pass reasoned and speaking order. The same view was again reiterated by Hon‟ble Apex Court in the case of Divisional Forest Officer Vs. Madhuusudan Rao JT 2008 (2) SC 253.
1226. And in Kranti Associates Private Limited and Anr. Vs. Masood Ahmed Khan and Ors., (2010) 9 SCC 496, the Hon'ble Supreme Court has held that a quasi judicial authority must record reasons in support of its conclusions. The insistence on recording of reasons is meant to serve the wider principle that justice must not only be done it must also appear to be done. In para-47, it has been held that:-
"7. Summarizing the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-
judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior Courts.
13(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights 14 and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
27. Therefore, thus, seen from any angle, the impugned order dated 31.08.2005 of the Appellate Authority (AA) does not fulfil the legal requirements as laid down by the Hon'ble Apex Court and has no legs to stand in law. The same reasoning also applies to the order dated 20.07.2006 passed by the DA. The Disciplinary and Appellate Authority has not considered the facts and the evidence in details and not recorded cogent reasons dealing with the relevant evidence of the parties and not provided adequate opportunities at appropriate stages to the applicant. Therefore, we hold that both the DA and AA have not recorded cogent reasons and examined the matter in the right perspective.
28. After analyzing all the points raised by the applicant in this OA, we find that orders passed by DA and AA are wholly cryptic, non-speaking and without application of mind and have been passed in most casual and perfunctory manner and not passed in accordance with the decision of Hon'ble Supreme Court in the case of Ram Chander Vs. Union of India and Ors. 1986 SCC (L&S) 383, N.M Arya Vs. United India Insurance Company - 2006 SCC (L&S) 840 and DFO Vs. 15 Madhusudan Rao. 2008 Vol. 1 Supreme Today page 617 wherein it has been held that while deciding the representation or appeal or revision by the Competent Authority, speaking order should be passed. On perusal of appeal filed by the applicant, it is evident that the applicant raised several grounds in support of his case but the DA and the AA without considering each and every ground raised by the applicant, rejected his grounds of defence by a cryptic and non-speaking order.
29. Accordingly, the O.A. is allowed and the impugned order dated 31.08.2005 passed by Disciplinary Authority and order dated 20.07.2006 passed by Appellate Authority are hereby quashed and set aside. Consequently, the revisional order dated 30.03.2010 is also set aside. The matter is remitted back to the respondent No. 3 (DA) to consider and decide the enquiry report afresh by a reasoned and speaking order meeting all the grounds raised by the applicant in his reply, within a period of three months from the date of receipt of certified copy of the order in accordance with law and relevant rules on the subject and communicate the decision to the applicant. It is made clear that the applicant shall be entitled to the benefit under the Rule 5 (4) of the Railway Servants (Discipline and Appeal) Rules, 1968. No order as to costs.
(Rakesh Sagar Jain) (Gokul Chandra Pati)
Member (J) Member (A)
Manish/-